[00:00:00] Speaker 01: Case number 24-31, picture one. [00:00:02] Speaker 01: United States of America versus Gary D. Richardson at balance. [00:00:08] Speaker 01: Eumillion, ready at balance. [00:00:09] Speaker 01: Mr. Glasser, ready, I believe. [00:00:12] Speaker 04: Good morning, Eumillion, whenever you're ready. [00:00:15] Speaker 05: Good morning, Your Honors, and may I please the court? [00:00:18] Speaker 05: Court Eumillion, on behalf of Mr. Richardson, I'd like to reserve three minutes for rebuttal. [00:00:25] Speaker 05: 18 USC 922 G1 disarms Mr. Richardson based on his two prior carrying a pistol without a license convictions. [00:00:34] Speaker 05: Carrying a pistol without a license is not a crime, much less a felony in most states in the union. [00:00:40] Speaker 05: notwithstanding this fact, the government claims he can be disarmed consistent with the Second Amendment under 922G1. [00:00:48] Speaker 05: It is wrong. [00:00:49] Speaker 05: I'd like to focus my argument on Mr. Richardson's as applied challenge, though, of course, I welcome the court's questions on the facial challenge to the extent it has them. [00:00:59] Speaker 05: Bruin and Rahimi made clear that the burden rests with the government to demonstrate sufficiently robust enough historical tradition to justify its modern firearm regulation. [00:01:10] Speaker 05: To do so, it must point to a historical tradition that shares both a comparable burden and that is comparably justified. [00:01:18] Speaker 05: The government has failed to meet that burden here. [00:01:21] Speaker 01: Why doesn't Medina take care of this aspect of the analysis? [00:01:25] Speaker 05: So Medina is both has been overruled by Bruin and Rahimi and is distinguishable. [00:01:32] Speaker 05: I'm happy to discuss either of those. [00:01:36] Speaker 01: It seemed to hold that 922G1 is consistent with the history tradition of firearms regulation in this country. [00:01:45] Speaker 05: So I don't think it did, or certainly did not do so using the tests set out in Bruin and Rahimi, and thus has been overruled. [00:01:52] Speaker 05: The challenge brought by the plaintiff in that case was this argument that only dangerous felons could be disarmed under 922G1. [00:02:01] Speaker 05: It was an as-applied challenge. [00:02:03] Speaker 05: And the court erred in several ways, and in ways that are fundamentally inconsistent with the reasoning of Bruin and Rahimi, and thus mean the decision's been [00:02:11] Speaker 05: overruled. [00:02:12] Speaker 05: First and foremost, it erred in placing the burden on the plaintiff to demonstrate. [00:02:16] Speaker 01: Well, I'd like to understand better why you think that it's inconsistent with Bruin-Rahimi because it did not use a means-ends balancing test, which seems to be the main thing that was definitely overruled by Bruin and Rahimi. [00:02:31] Speaker 01: And the type of analysis it did seems quite consistent with what Bruin is asking for. [00:02:36] Speaker 05: So part of what Bruin did certainly was overrule, mean sense balancing. [00:02:41] Speaker 05: But that's not all it did. [00:02:42] Speaker 05: It made clear that the burden rests with the government to demonstrate that historical burden. [00:02:47] Speaker 05: And that's repeated again quite clearly in Rahimi. [00:02:49] Speaker 05: And in that particular respect, the court fundamentally erred in Medina by placing the burden on the plaintiff. [00:02:55] Speaker 05: How did it place the burden on the plaintiff? [00:02:57] Speaker 05: It talks about how the plaintiff's sources do not compel the conclusion that only dangerous persons can be disarmed. [00:03:03] Speaker 05: But it was not the plaintiff's burden to cite sources that compel the conclusion. [00:03:07] Speaker 05: It was the government's burden. [00:03:08] Speaker 05: So in that respect, and that's fundamentally core to the court's reasoning, it gets that wrong. [00:03:13] Speaker 05: It also mentions the absence of primary sources on point. [00:03:18] Speaker 05: Again, that is used as evidence in Bruin and Rahimi, particularly Bruin, for the idea that this is not the kind of thing that can justify disarmament. [00:03:27] Speaker 05: Court gets that wrong. [00:03:28] Speaker 05: It relies on the virtuous citizen principle, which [00:03:33] Speaker 05: was clearly overruled in Rahimi. [00:03:35] Speaker 05: I mean, it actually even overruled a watered down version called the responsible citizen test that the government had attempted to invoke. [00:03:42] Speaker 05: It also relies on this concept that dangerousness is too amorphous, which again is wrong. [00:03:48] Speaker 04: There are aspects of Medina that it turns out are problematic to be sure. [00:03:56] Speaker 04: It's a placement of the burden, the reference to virtuous citizens. [00:04:01] Speaker 04: But when you look at the decision writ large, it's doing history and tradition. [00:04:08] Speaker 04: And after the statement about the burden of proof, I mean, it addresses history and tradition and goes through all the tradition of, you know, the tradition is felons can have all their stuff taken away and be executed. [00:04:26] Speaker 05: So it certainly relies on this death concept, which is probably the only piece of it that I think wasn't overruled or clearly overruled. [00:04:36] Speaker 05: The problem is that's just a single piece of the court's overall reasoning and not the only thing it's hanging its hat on. [00:04:41] Speaker 05: And when we have, I mean, I've cited precedent. [00:04:44] Speaker 04: Pretty important. [00:04:45] Speaker 04: I mean, the virtuous citizen thing is an afterthought. [00:04:50] Speaker 05: So I don't read it as an afterthought. [00:04:53] Speaker 05: But I would also just note, I mean, [00:04:56] Speaker 05: I also think Medina is distinguishable because it did not consider whether felons whose priors, modern day felons whose priors have no founding year analog would not have been punished with death at the founding. [00:05:11] Speaker 05: It does not answer the question because the parties never asked it to. [00:05:14] Speaker 05: It's not part of what was briefed. [00:05:16] Speaker 05: It never answered the question of whether death can justify. [00:05:19] Speaker 05: their disarmament. [00:05:20] Speaker 05: And it can't hear that death-based set of reasoning actually supports Mr. Richardson's as applied challenge because his prior offense, carrying a pistol without a license, has no founding-era analog, would not even have been a crime at the founding, much less one punished by death. [00:05:38] Speaker 04: If you look at, as applied, if you look at the circumstances of [00:05:46] Speaker 04: Mr. Medina versus Mr. Richardson. [00:05:49] Speaker 04: I'm not sure that's a very favorable comparison for you. [00:05:53] Speaker 05: So, I mean, I think it is an analysis that's properly confined to Mr. Richardson. [00:06:00] Speaker 04: If the question is, you know, is [00:06:05] Speaker 04: Kind of more Malam in prohibitive regulatory is is the offense is the person not dangerous or violence. [00:06:16] Speaker 04: I mean. [00:06:17] Speaker 04: Medina was less obviously violent Richards and at least according to the indictment. [00:06:25] Speaker 05: So there's a lot in that, and I want to unpack it in a couple of stages. [00:06:29] Speaker 05: First of all, I think Medina's prior felony, which was lying on a mortgage application, he was accused of fraud. [00:06:35] Speaker 05: People were put to death for fraud at the founding. [00:06:37] Speaker 05: People were not put to death for carrying a pistol without a license or for anything analogous. [00:06:42] Speaker 05: And the government hasn't claimed that they were. [00:06:45] Speaker 04: On the asset plot. [00:06:47] Speaker 04: Versus the conduct that was charged here? [00:06:50] Speaker 04: So if you look at it, it's not it's not the world's most serious offense, but the charge, the conduct is very serious. [00:06:58] Speaker 04: So the conduct surrounding out in a in a garage in the nightclub guy gets shot. [00:07:04] Speaker 04: He's involved in that. [00:07:07] Speaker 05: So a couple of things there as a plan analysis, I mean, [00:07:14] Speaker 05: The conduct in the parking garage, which I repeat are allegations Mr. Richardson never admitted to them, that conduct is not properly part of an as-applied analysis. [00:07:25] Speaker 05: Because an as-applied analysis, what disarms Mr. Richardson and why 922G1 applies to him is because of his prior carrying a pistol without a license conviction. [00:07:34] Speaker 05: It is not because of that conduct, which to be clear, if the government had thought indeed happened and it could have proved, it was more than welcome to charge. [00:07:44] Speaker 05: That other information, I mean, he's not disarmed because of any alleged, like, attempted threats assault or anything. [00:07:50] Speaker 05: That's simply not what 922G1 is doing. [00:07:54] Speaker 05: And that's a choice Congress made. [00:07:55] Speaker 05: And that's a choice about how Congress wrote that statute. [00:07:59] Speaker 01: What about the fact that he's on supervised release, still serving a sentence for one of those, right? [00:08:05] Speaker 05: So, again, I just don't think that's relevant to a NASA flight analysis under 922G1. [00:08:08] Speaker 05: 922G1 references a term of imprisonment. [00:08:13] Speaker 05: It's not talking about supervised release. [00:08:15] Speaker 05: Now, supervised release would be relevant. [00:08:17] Speaker 01: I thought it was applied to your client. [00:08:19] Speaker 01: And if he's somebody who's on supervised release, it seems that he's the kind of person that could be disarmed. [00:08:24] Speaker 01: Other circuits have helped so. [00:08:26] Speaker 05: So I think we would be in a different world if this was a supervised revocation proceeding and we were challenging, you know, Mr. Richardson's revocation under supervised release. [00:08:37] Speaker 05: That's not where we are. [00:08:38] Speaker 01: Is that the case with the other cases? [00:08:40] Speaker 01: Because I guess there are at least three other circuits that have held that it's constitutionally applied to people who aren't supervised release. [00:08:46] Speaker 05: So that's right. [00:08:47] Speaker 05: And I think those circuits get it wrong. [00:08:49] Speaker 05: And I would just note, first of all, that the Third Circuit, which is one of the courts that has been doing this, has actually recently taken a case. [00:08:55] Speaker 05: A couple of cases on Bong can specifically ask them to brief this question of what facts can be considered as applied analysis under 922-G1. [00:09:05] Speaker 05: So I think there may well be the time we'll tell. [00:09:08] Speaker 01: Would you have any precedent to support your position that this is not properly taken into account? [00:09:14] Speaker 01: They don't, but I think it follows from- I'm asking you, do you? [00:09:18] Speaker 01: Do you have any precedent to support your position that you're taking before us that we can't consider the fact that he's unsupervised release? [00:09:24] Speaker 05: So I think it follows from- I mean, I don't have a case right now, but I think it follows from the Supreme Court's decision in Rahimi and the way it has understood as applied analyses in other contexts. [00:09:37] Speaker 05: If you look at the court's decision in Rahimi, [00:09:40] Speaker 05: chronicles a whole bunch of very serious conduct by Mr. Rahimi in the background section of its brief, but when it came time to do the as applied analysis, and to be clear, it repeatedly calls it as applied to Mr. Rahimi, it confined itself to what was relevant to the statute's application under 922G8, and in particular, [00:10:02] Speaker 05: a finding that would have been made by a judge. [00:10:05] Speaker 05: And I think that exactly models the proper analysis here. [00:10:08] Speaker 05: We're not looking at extraneous facts that have nothing to do why Mr. Richardson was disarmed under 922G1. [00:10:15] Speaker 05: And similarly, we cite a number of and [00:10:19] Speaker 05: The amicus brief in support of our case cites a number of other Supreme Court decisions, like Eichmann, for example, where the Supreme Court recognized that someone who had burned a flag and caused damage to government property could be prosecuted under a property damage statute that made that property damage relevant, but could not be. [00:10:42] Speaker 01: Your position, then, is what we can consider as applied to him, specific to him, [00:10:47] Speaker 01: is the fact that his prior convictions were CPWL. [00:10:51] Speaker 01: Yes. [00:10:52] Speaker 01: But we can't consider the fact that he's still serving the sentence of one of those CPWL convictions. [00:10:57] Speaker 05: Correct, because that's not what 922G1 disarms him based on. [00:11:02] Speaker 01: And I would also just- That's a fact that's intertwined with us considering that he's been convicted of CPWL. [00:11:09] Speaker 05: Respectfully, I don't think so, because that's not what's triggered his disarmament under 922G1. [00:11:14] Speaker 05: It's the fact of the conviction, not the sentence. [00:11:19] Speaker 05: And I would separately note [00:11:22] Speaker 05: It's not clear to me, quite frankly, what was going on with the supervised release, as we know. [00:11:28] Speaker 05: I mean, there is indication in the record he likely was on supervised release. [00:11:32] Speaker 05: But there's also this statement in the PSR that Mr. Richardson successfully completed his supervised release. [00:11:39] Speaker 05: I think that at least raises the question on this record about whether he was on supervised release or at least whether the terms of his supervised release prevented him from having this firearm. [00:11:51] Speaker 04: Sorry, why can't we even consider the fact that he's unsupervised release? [00:11:58] Speaker 05: Because that's not why he's been disarmed under 922 G1. [00:12:05] Speaker 05: It's just not what has caused him to be disarmed, whether or not he was unsupervised release is irrelevant. [00:12:11] Speaker 04: But the as applied rule that you're advocating is some form of [00:12:20] Speaker 04: some form of, you know, you look at the facts and circumstances and assess the individual, right? [00:12:27] Speaker 04: You looked at dangerousness, you looked at criminal conduct. [00:12:30] Speaker 04: Why would we not consider that? [00:12:33] Speaker 05: So the type of test I'm advocating for is one that follows the model that the Supreme Court set out in Rahimi and confines itself to what is relevant to 922-G1's application, just like the Supreme Court confined itself to what was relevant to 922-G8's application. [00:12:51] Speaker 03: Well, there was a court order. [00:12:54] Speaker 03: What? [00:12:55] Speaker 03: There was a court order in Rahimi, correct? [00:12:57] Speaker 03: Yes. [00:12:58] Speaker 03: And here there's a court ordered supervised release. [00:13:03] Speaker 05: Sure, but that 922G8 disarmed him based on Mr. Rahimi, based on the existence of the court order. [00:13:12] Speaker 05: That was part of what the statute was doing. [00:13:14] Speaker 03: And the supervised release did not provide that he was to remain unarmed for the period of his supervision. [00:13:21] Speaker 05: It's not clear to me on this record that it did. [00:13:23] Speaker 03: Then what? [00:13:25] Speaker 05: I still think we prevail because, I mean, that would be entirely relevant to a revocation of supervised release. [00:13:33] Speaker 03: And, you know, if we were in that posture, I would... Well, we're here now, not in supervised release, but not in a revocation proceeding. [00:13:40] Speaker 03: So he's under a court... Assume he's under a court order that prohibits him from having a gun while he's under supervised release. [00:13:49] Speaker 03: How is that any different than Rahimi? [00:13:52] Speaker 05: For the reasons I said, which is that 922 G8 made that court order relevant. [00:13:56] Speaker 05: And Rahimi, that's the statute that Congress wrote. [00:13:59] Speaker 05: That's simply not what Congress did in 922 G1. [00:14:03] Speaker 05: It's not a supervised release disarmament statute. [00:14:05] Speaker 03: Supposedly, he's still in prison, then. [00:14:09] Speaker 05: I mean, he'd be guilty of violating a law that had to do with... He's in prison. [00:14:13] Speaker 03: He manages to obtain a weapon, which happens from time to time. [00:14:20] Speaker 05: I mean, again, there, I would think, first of all, that's a different circumstance, because at least there, 922G1 is talking about imprisonment. [00:14:29] Speaker 05: But I still think then, you know, he needs to be prosecuted. [00:14:33] Speaker 03: It doesn't say imprisonment. [00:14:34] Speaker 03: It doesn't say any more than it says under a court order. [00:14:38] Speaker 03: It just says felony conviction. [00:14:41] Speaker 05: I'm not sure that's quite right. [00:14:42] Speaker 05: But setting that aside, I think the way to make that legally relevant is to prosecute whoever it is under a statute prohibiting someone from having firearms in prison. [00:14:55] Speaker 05: No one's saying these can't. [00:14:56] Speaker 05: That's not a crime. [00:14:57] Speaker 05: If the government wants to stand up and argue that [00:15:02] Speaker 05: someone can be disarmed based on these facts that are totally extraneous to the charge that it has brought and the injury that it has caused, it needs to actually charge that conduct. [00:15:13] Speaker 05: And there are plenty of laws that it could have used here and could have made these types of things relevant. [00:15:18] Speaker 05: But there's a reason it didn't do so. [00:15:20] Speaker 05: In my estimation, it's because it didn't think it could prove that. [00:15:23] Speaker 05: So it seems to me that [00:15:25] Speaker 01: I thought that an as applied challenge just required us to look at whether the law is constitutional as applied to this individual. [00:15:33] Speaker 01: So we would be then allowed to look at the facts and circumstances of this individual. [00:15:38] Speaker 01: And since this individual is on supervised release, then it's constitutional to disarm him because people who are still serving their sentences [00:15:46] Speaker 01: have firearms. [00:15:47] Speaker 01: And then that's consistent with what three other circuits have held. [00:15:50] Speaker 01: And it seemed consistent with lots of things like public safety concerns, et cetera. [00:15:56] Speaker 01: You're saying even if it's true that he shouldn't have a firearm based on his individual circumstances of being on supervised release, even if that's true, I can't consider it. [00:16:06] Speaker 01: And I shouldn't consider it. [00:16:08] Speaker 01: And to me, that's [00:16:10] Speaker 01: That seems very technical. [00:16:14] Speaker 01: And I think what you're asking for is for us to consider the same individual in several different, I guess, there would have to be several different cases against him. [00:16:28] Speaker 01: We'd have to wait until they moved to revoke his supervised release or something in order to consider the fact that he was on supervised release. [00:16:36] Speaker 01: How would we be able to consider this relevant fact? [00:16:39] Speaker 05: I think exactly what you said, which is that they would move to, I mean, they could have charged Mr. Richardson with the assault if they thought they could prove he committed assault. [00:16:50] Speaker 05: They could have charged Mr. Richardson with the glock switch if they thought that they could prove that he knowingly had [00:16:56] Speaker 01: So even if the facts are in the record and there, and even if you assume for the sake of argument that you concede that the fact that he's unsupervised release would be an appropriate and constitutional basis to disarm him, we cannot consider that basis unless it's charged. [00:17:15] Speaker 01: Is that it? [00:17:16] Speaker 01: That's right. [00:17:18] Speaker 05: I mean, how I think of an as applied challenge based on things like city of Los Angeles versus Patel, which talks about what it means. [00:17:27] Speaker 05: That was a facial case, but it talks about what it means for a statute to apply and for its [00:17:32] Speaker 01: It's application to be relevant. [00:17:34] Speaker 01: Then you're defining constitutional rights based on charging decisions or a mistake by the government in missing a charging decision. [00:17:42] Speaker 01: Do you have any precedent for that kind of highly technical and granular analysis to assess a constitutional right based on, I guess, charging decisions like that, even if the facts are there? [00:17:58] Speaker 05: I mean, I've referenced it already, which is the Supreme Court's decision. [00:18:04] Speaker 01: If they do it that way in one case, doesn't mean that's a requirement. [00:18:12] Speaker 05: I mean, I think it modeled the appropriate analysis. [00:18:15] Speaker 05: And I think particularly when you look at some of the other cases we've cited outside of this second amendment context, like Eichmann, like Grace, like Illinois, Williams versus Illinois, it illustrates that the government can't justify its [00:18:31] Speaker 05: uh, the constitutionality of a law based on facts that are irrelevant. [00:18:36] Speaker 05: I mean, it's an as applied test. [00:18:38] Speaker 01: And so the question is, you're saying it's relevant. [00:18:40] Speaker 01: You're just saying that even if it is relevant, we can't consider it if it's not charged. [00:18:45] Speaker 05: Well, I'm not, I'm not conceding. [00:18:47] Speaker 05: I'm conceding it's relevant. [00:18:49] Speaker 05: If you'd attempted to revoke someone, I'm not at all conceding it's relevant. [00:18:52] Speaker 05: to 922G1. [00:18:53] Speaker 05: I mean, it's decidedly not. [00:18:55] Speaker 01: And under Your Honor's reasoning, Mr. Richardson would have been... I guess it's relevant to whether he could be constitutionally disarmed, but you're just saying we can't consider it based on the way this case was litigated. [00:19:07] Speaker 05: We can't consider it because, I mean, to be clear, 922G1 would always be unconstitutional as applied to Mr. Richardson. [00:19:15] Speaker 05: What might not be unconstitutional is a revocation of supervised release because that has to do with how supervised release is applied. [00:19:23] Speaker 04: Oh, sorry. [00:19:24] Speaker 04: You're losing me. [00:19:26] Speaker 04: You're losing me here. [00:19:27] Speaker 04: Take the facts. [00:19:29] Speaker 04: Take the facts of this case. [00:19:33] Speaker 04: And the government moves to revoke supervised release based on Richardson having the firearm and that succeeds and he goes back to prison. [00:19:46] Speaker 04: Yes. [00:19:47] Speaker 04: Then what? [00:19:49] Speaker 05: then if we had brought a second amendment challenge, and like all the facts were established, and I just note the government did not make these arguments in its briefing below about its as-applied challenge, so we've obviously argued waver, and I just, you know, I want to engage with your honor's questions, but I just want to put that on the record. [00:20:09] Speaker 05: I think probably that would be fine if the government had invoked authority like from Congress, from statutes that allow supervised release revocation and make that relevant to the application. [00:20:25] Speaker 05: then I think that would be fine. [00:20:27] Speaker 01: What if they hadn't moved to revoke his supervised release, but it just isn't in the briefing or wasn't considered? [00:20:33] Speaker 01: Because there is a chance that they have they done that? [00:20:36] Speaker 01: I mean, I would be surprised if they hadn't moved to revoke his supervisor. [00:20:39] Speaker 05: Don't expect that they I don't think they have. [00:20:42] Speaker 05: I mean, the PSR says his probation was completed successfully, but it's not it's not relevant to 922 G1. [00:20:49] Speaker 01: Wait, I'm sorry. [00:20:50] Speaker 01: It was completed successfully, despite the fact that he got this conviction while he was on. [00:20:54] Speaker 05: That's what the PSR says. [00:20:57] Speaker 05: Which is why it's not clear to me he was on supervision. [00:21:00] Speaker 05: I mean, that's a bizarre statement in the PSR. [00:21:04] Speaker 05: And I just don't know what to make of this record, given that it says his probation was completed successfully. [00:21:09] Speaker 01: Well, probation was different from supervised release. [00:21:11] Speaker 01: Could it be he had two prior CPWLs because he could have completed one of them and not supervised release on the other? [00:21:20] Speaker 05: I don't think so. [00:21:22] Speaker 05: I've seen no indication of that. [00:21:24] Speaker 01: I don't think they would call supervised release probation in a PSR. [00:21:29] Speaker 01: It would be a totally different thing, right? [00:21:30] Speaker 05: Well, he was... I believe... I mean, we've been talking about supervised release, but I think the governments... I mean, these are both like state DC charges. [00:21:39] Speaker 05: I believe we're only ever talking about probation and we've just maybe been a little bit... There's a 10-day gap right between the... [00:21:47] Speaker 03: I think the indictment and the end of his period of supervised release. [00:21:53] Speaker 03: Isn't that right? [00:21:55] Speaker 05: According to the PSR, it ended 10 days later. [00:21:57] Speaker 05: I mean, I... Right. [00:21:58] Speaker 03: So, I mean, the most likely scenario is that the probation office didn't know that he'd been indicted again. [00:22:06] Speaker 03: I have no, I don't know, but that's, that's, I mean, we don't know, which is why I think resting a fat, but if we do find this court's decision, would you find that there's a prohibition on, on arms in the PSR that's more irrelevant. [00:22:21] Speaker 03: I just I just think I should I take your argument. [00:22:24] Speaker 05: Yeah, given the confusion here on this record, it would be inappropriate to rest on the supervision and but I just want to get back to this idea because clearly I've confused everybody and I really don't mean to be confusing. [00:22:36] Speaker 05: 922G1 disarms someone based on their prior conviction. [00:22:41] Speaker 05: It has nothing to do with supervised release. [00:22:44] Speaker 05: So, while someone might be able to be [00:22:47] Speaker 05: like constitutionally incarcerated. [00:22:49] Speaker 01: But 922G disarms somebody based on their prior conviction, merely based on the fact that the length of incarceration is a year or more. [00:23:00] Speaker 01: It doesn't, on its face, allow us to get into what was the conviction. [00:23:05] Speaker 01: But you're saying we can do that. [00:23:07] Speaker 01: And if we can do that, why can't we look at whether he's unsupervised release? [00:23:10] Speaker 01: Because we're looking beyond just what 922G says. [00:23:15] Speaker 05: So I think the way to think about it is that Mr. Richardson is disarmed based on this CPWL conviction. [00:23:23] Speaker 01: But 922G doesn't distinguish between CPWL or mortgage fraud or anything. [00:23:28] Speaker 01: It just says prior felony. [00:23:31] Speaker 01: And you're asking us to look beyond that. [00:23:33] Speaker 01: And why is it that we can look beyond that to see what the felony was, but we can't look beyond it to see the circumstances of this defendant? [00:23:43] Speaker 05: I guess because of the longstanding idea that the government can't justify the constitutionality of its regulation by arguing that it could have properly written a statute that would have been constitutional had it written in some other way. [00:24:05] Speaker 01: I don't understand that. [00:24:07] Speaker 01: I don't understand what you just said. [00:24:09] Speaker 04: That sounds like an argument lawyers sometimes make in a facial context to claim the right to a facially constitutional rule. [00:24:25] Speaker 04: Doesn't sound like how as applied challenges normally work. [00:24:33] Speaker 04: As applied challenge, I mean, you've got lots of [00:24:37] Speaker 04: lots of cases, you know, you have a statute that prohibits a bunch of different things and someone wants to bring an as applied First Amendment challenge because the charged conduct in the case involved speech and you look at the facts of the case. [00:24:59] Speaker 05: So respectfully, I don't agree that that's [00:25:04] Speaker 05: I think there's ample precedent for the idea that that, particularly when you look at where he is not the way to go about doing your challenge here. [00:25:11] Speaker 04: Conceptually, you're resting on cases like Eichmann. [00:25:15] Speaker 04: Yes. [00:25:15] Speaker 04: Okay. [00:25:19] Speaker 04: Okay, thanks. [00:25:19] Speaker 04: We'll give you some rebuttal. [00:25:20] Speaker 04: Yeah. [00:25:28] Speaker 04: Mr. Glasser. [00:25:31] Speaker 02: Thank you. [00:25:32] Speaker 02: May it please the court William Blaser for the United States. [00:25:36] Speaker 02: The Second Amendment does not protect Mr. Richardson's possession of a firearm in this case. [00:25:44] Speaker 02: His as applied challenge cannot prevail. [00:25:48] Speaker 02: And his facial challenge that I don't think has been really an issue here certainly fails under the standard that the Supreme Court articulated in Rahimi and this court's decision in Medina. [00:25:59] Speaker 02: I'd like to start with Medina because I think that's the most straightforward way for this court to resolve the case. [00:26:04] Speaker 02: This court applies a fairly strict standard for determining that the Supreme Court has overruled prior precedent. [00:26:11] Speaker 02: This court said that the Supreme Court decision must clearly dictate a departure from circuit precedent or effectively overrule or eviscerate circuit precedent. [00:26:21] Speaker 02: Now, it's true, as Judge Katz, as you pointed out, that there are some differences in the analysis under Medina in sort of a post-Bruin world. [00:26:30] Speaker 02: But Bruin reaffirmed what Medina did, which is to apply a historically-based analysis. [00:26:38] Speaker 02: Medina said, quote, to resolve this question, that is the constitutionality of G1, we must look to tradition and history. [00:26:45] Speaker 02: And that's exactly what Bruin said courts must do. [00:26:47] Speaker 02: So although there might be areas on the margins where this court would not write Medina in exactly the same way today, Medina is still binding on this court because the Supreme Court hasn't eviscerated that decision. [00:27:02] Speaker 04: I agree with you on the virtuous citizen part of Medina. [00:27:07] Speaker 04: But I read all of the history and tradition in Medina flowing from or analyzed under the premise that it was Medina's burden of proof to establish relevant tradition. [00:27:23] Speaker 04: That would seem to infect or at least make incomplete the court's analysis of the history and tradition. [00:27:31] Speaker 02: I don't think Medina was clear on which party bore the burden. [00:27:35] Speaker 02: So Medina started out by talking about the historical tradition of executing felons or at least authorizing the death penalty for felons and only mentioned something that could be construed as burden language in the second paragraph when considering [00:27:50] Speaker 02: or the sort of second point when considering whether only dangerous persons could be disarmed and there Medina said none of the sources cited by Medina compels this conclusion. [00:27:59] Speaker 02: I mean I think that this court could easily while leaving the burden on the government say that the party without the burden hasn't shown anything to [00:28:09] Speaker 02: to sort of rebut the government's showing. [00:28:12] Speaker 02: So I'm not entirely clear that Medina was speaking in burden language. [00:28:16] Speaker 02: But I think if you reread Medina with placing the burden on the government, Medina could still come to the same conclusion. [00:28:22] Speaker 02: So I don't think you should sort of over read that one sentence in Medina as improperly placing the burden on the civil plaintiff there. [00:28:31] Speaker 04: Or maybe that was [00:28:35] Speaker 02: Sure, I don't think it affects the bottom line of the decision, Your Honor. [00:28:40] Speaker 02: And, you know, as we've demonstrated in our brief, there are sort of two historical traditions that we think support Section 922G1, even in a post-Bruin world. [00:28:50] Speaker 02: Medina primarily relied on the first of those traditions, not the disarming of the dangerous, but rather the fact that... Treatment of felons. [00:28:57] Speaker 02: That's correct, Your Honor. [00:28:59] Speaker 02: We think that the dangerousness rationale is just further support that would support this court's decision in Medina. [00:29:07] Speaker 02: The Ninth Circuit, for example, in the Anban Duarte case relied on both of those traditions to uphold Section 922 G1. [00:29:14] Speaker 02: And I would point out that six other circuits have actually just relied on the Supreme Court's statements in cases like Heller that Section 922 G1 and similar statutes are presumptively lawful. [00:29:25] Speaker 02: to conclude that Bruin didn't overrule prior circuit precedent, those courts didn't have anything nearly as strong as Medina, which applied that historical tradition test. [00:29:36] Speaker 02: But I think that even those courts' analysis is persuasive and relevant, because those courts concluded that the Supreme Court's statements about felon dispossession statutes were enough to indicate that Bruin was not clearly overruling circuit precedent. [00:29:52] Speaker 04: You may or may not be right. [00:29:54] Speaker 04: about Medina strikes me as a little messy, but the government, is there some reason why we shouldn't just have a narrow bright line rule that the statute is constitutional as applied to individuals on supervised release? [00:30:13] Speaker 04: Your honor, we wouldn't have any coral. [00:30:14] Speaker 04: Seemed to be the easiest, unanimous circuits. [00:30:18] Speaker 04: Sure. [00:30:19] Speaker 04: Got a pretty [00:30:20] Speaker 04: pretty aggressive opinion by Judge Hardeman, who has been very protective of the Second Amendment, and he thought this was an easy case in your favor. [00:30:30] Speaker 02: So, Your Honor, we certainly wouldn't have any quarrel with a narrow ruling like that. [00:30:32] Speaker 02: I would note, though, that as my colleague here pointed out, the Third Circuit has Sue Esponte granted rehearing en banc in two cases that sort of follow on from Judge Hardeman's decision and more. [00:30:45] Speaker 02: So those cases are Bost, which is a criminal case, and [00:30:49] Speaker 02: How do you spell it? [00:30:51] Speaker 02: B-O-S-T. [00:30:52] Speaker 02: I apologize, I don't have the case number in front of me, but Bost and then Williams versus the attorney general, which is a civil case. [00:30:59] Speaker 02: In both of those cases, the Third Circuit granted rehearing suesponte and asked for briefing on this question of whether you can consider conduct [00:31:08] Speaker 02: that's not charged or occurs after the underlying conviction. [00:31:13] Speaker 02: So, although we would be perfectly happy with that rule in this case, I worry that the question would be up in front of this court again in the next 922G1 case where someone was not on supervision. [00:31:26] Speaker 02: That's not our problem. [00:31:28] Speaker 02: Fair enough. [00:31:30] Speaker 02: But also, that is at least a matter of dispute within the Third Circuit. [00:31:35] Speaker 04: It just seems like [00:31:37] Speaker 04: That is a not insignificant ruling for the government. [00:31:43] Speaker 04: And we have another Second Amendment case pending in the Supreme Court, which between now and June, we might get more guidance on dangerousness writ large. [00:31:54] Speaker 04: It just seems like prudentially that might be the narrow sensible way for us to [00:32:01] Speaker 02: deal with this. [00:32:02] Speaker 02: We would be perfectly happy with a narrow win as opposed to a broad one. [00:32:06] Speaker 02: I'm not sure that the Supreme Court in the Hamani case is going to resolve a lot of questions that relate to 922G1, but as you mentioned, perhaps their discussion of dangerousness in the 922G3 context would shed some light on the other rationale, not the one that Medina primarily relied upon. [00:32:25] Speaker 02: I'm happy to answer any further questions if the court has them. [00:32:28] Speaker 02: If I can just briefly touch on some of the questions about the underlying facts of this case. [00:32:34] Speaker 02: The question about whether or not Mr. Richardson was on probation or supervision at the time of his offense, I think it's [00:32:42] Speaker 02: The undisputed facts in the PSR indicate that he was on supervision. [00:32:47] Speaker 02: His supervision term expired 10 days later. [00:32:50] Speaker 02: I think it was, the PSR uses the term supervision and supervisory probation. [00:32:54] Speaker 02: I think because this was in superior court, it was not federal supervised release. [00:32:59] Speaker 02: It was superior court supervision. [00:33:01] Speaker 02: But it's clear that he was on some form of supervision. [00:33:05] Speaker 02: It's strange that the PSR says that he successfully completed it. [00:33:12] Speaker 02: that's not disputed that he was on supervision. [00:33:14] Speaker 02: And regarding the question of whether he was prohibited from possessing firearms while on probation, I pulled the Superior Court record, which I think this court could judicially notice if it chose to, and found that although he was not specifically prohibited from possessing a firearm, he was ordered to, quote, obey all laws, ordinances, and regulations. [00:33:37] Speaker 02: And so his possession of a firearm would violate [00:33:42] Speaker 02: federal law under 922 G1, it would violate DC code because he's once again for a third time carrying a pistol without a license. [00:33:50] Speaker 02: So should this court choose to rely on that, that sort of narrower ground to uphold the statutes application? [00:33:57] Speaker 02: I think there would be ample evidence in the record and judicially noticeable evidence to do so. [00:34:02] Speaker 01: And what's your response to your friend on the other side's assertion that we can't consider things like supervised release, even if that's true? [00:34:13] Speaker 02: Sure, Your Honor, the government's view is that the way to think about an as applied challenge is that when you have a law that is facially valid and presumptively lawful, as the Supreme Court has said, then it's really the defendant has to, and this is consistent with Medina too, the defendant has to do something to take himself out of the sort of mind run of applications where the law is constitutional and show that he's somehow different from [00:34:41] Speaker 02: of those other people. [00:34:42] Speaker 02: He needs to show that he's different from Medina who engaged in mortgage fraud. [00:34:45] Speaker 02: And this court concluded that that 20, 25 year old mortgage fraud conviction was enough to disarm him. [00:34:50] Speaker 02: And in order to do that, it seems like it's perfectly fair to consider not just the bare allegations in the indictment, which the allegation was simply that he was [00:35:02] Speaker 02: convicted of a crime punishable by for a term exceeding one year and consider the defense once you get to consider the nature of those underlying charges which is I think as you pointed out an inconsistency in their view but the government's view is that once you are trying to demonstrate that you don't fall within the [00:35:20] Speaker 02: that sort of within the group of people to which a statute can be constitutionally applied, you have to show that based on your specific circumstances. [00:35:28] Speaker 02: And the government then can come back with additional specific circumstances to say, no, this is a perfectly constitutional application to this person. [00:35:37] Speaker 01: Do you have any case law or authorities that support this view, which makes a lot of sense to me? [00:35:42] Speaker 02: So, Your Honor, we do have the decisions from the Third and the Fifth Circuit. [00:35:46] Speaker 02: The Sixth Circuit says that it's really totally an anything-goes analysis. [00:35:52] Speaker 02: In the Williams case, we've cited these in our brief. [00:35:56] Speaker 02: The Williams case from Sixth Circuit, Diaz from the Fifth Circuit, and the Moore case, which again maybe has had some doubt cast on it in the Third Circuit. [00:36:04] Speaker 02: Beyond that, I do think that if you read the Supreme Court decisions that the defense relies on, such as Patel, they're misunderstanding what those decisions said. [00:36:14] Speaker 02: So Patel dealt with a law that allowed the city to engage in warrantless searches. [00:36:22] Speaker 02: And the government of the city responded in defense of that law that, well, you can think of at least some valid applications of this warrantless search statute because maybe there was consent. [00:36:35] Speaker 02: And the Supreme Court said, well, if there's consent, you don't even apply the warrantless search statute. [00:36:38] Speaker 02: So there's just no application. [00:36:40] Speaker 02: The law has no work to do. [00:36:41] Speaker 02: In this case, it's very different because here section 922 G1 clearly has work to do. [00:36:46] Speaker 02: It applies to someone who has been convicted of a crime punishable by a term exceeding one year. [00:36:52] Speaker 02: The question is just whether there are some additional facts beyond those elements that might show that it was constitutional or unconstitutional as applied to someone. [00:37:01] Speaker 01: So Patel suggests that if a defendant came in and said, this is not constitutional as applied to me, the government can say, but you consented. [00:37:08] Speaker 01: And so therefore, it is constitutional as applied to you. [00:37:11] Speaker 02: No, Your Honor, but that's not what Patel said. [00:37:13] Speaker 02: Patel said that if, in the context of a warrantless search statute, that the government can't defeat a facial challenge by hypothesizing non-applications of the statute. [00:37:25] Speaker 02: So if I were here saying, well, Section 922, G1 is constitutional. [00:37:31] Speaker 01: it to the question before us, which is can we consider things beyond what? [00:37:37] Speaker ?: Yeah. [00:37:39] Speaker 02: Patel didn't resolve that one way or another, Your Honor. [00:37:41] Speaker 04: Patel is a facial challenge. [00:37:44] Speaker 02: That's correct. [00:37:45] Speaker 04: It's facial challenge law. [00:37:46] Speaker 04: It's about [00:37:47] Speaker 04: how to apply Salerno and what the relevant denominator is for the all possible applications inquiry, I thought. [00:37:57] Speaker 02: No, that's absolutely correct. [00:37:58] Speaker 02: And the reason that Patel doesn't support Mr. Richardson's argument here is that Patel, contrary to what Mr. Richardson argues, Patel doesn't say that a statute like 922G1 has no application. [00:38:16] Speaker 02: in this context, it clearly has application in this context. [00:38:18] Speaker 02: What Patel simply said is you can't hypothesize non-applications of a statute in order to defeat a facial challenge. [00:38:24] Speaker 02: Here, in order to defeat the facial challenge Mr. Richardson raises, we're not raising non-applications of a statute. [00:38:31] Speaker 02: For example, an application of this statute has applied to someone with a murder conviction. [00:38:36] Speaker 02: That's an application of the statute. [00:38:37] Speaker 02: And we're saying that's clearly constitutional. [00:38:39] Speaker 02: He can't win on a facial challenge. [00:38:41] Speaker 02: So that was my only point with respect to Patel. [00:38:44] Speaker 04: Just for a second, back to your exchange with Judge Pan about how has applied challenges work. [00:38:52] Speaker 04: You said that the defendant statute that is facially constitutional, no problem applying this statute to murder predicates. [00:39:06] Speaker 04: the defendant or the challenger in an as-applied challenge has to do something to take himself out of the heartland of the statute. [00:39:14] Speaker 04: And that seems right to me in general, but is there any tension with the instruction in Bruin that the government bears the burden of proving the relevant tradition [00:39:32] Speaker 04: with sufficient specificity. [00:39:34] Speaker 04: So they do that writ large for felons, and that establishes facial constitutionality. [00:39:44] Speaker 04: And then you have an edge case with the conviction for opening the ketchup bottle or whatever, some weird felony. [00:39:55] Speaker 04: You said the challenger has to do something to take him out of the heartland. [00:40:08] Speaker 04: Why isn't it the government's burden to show that the general tradition extends to [00:40:17] Speaker 04: the kind of conduct in the case. [00:40:19] Speaker 02: Well, Your Honor, I'm sort of going beyond what the Supreme Court has clearly addressed. [00:40:25] Speaker 02: But here's how I would think about it. [00:40:26] Speaker 02: And these are admittedly complicated issues. [00:40:29] Speaker 02: The way I would think about it is [00:40:31] Speaker 02: The government's top line view that's consistent with Medina is that we have shown that section 922 G1 is constitutional in all its applications to the extent there are questionable problematic cases. [00:40:43] Speaker 02: Congress dealt with that in 925 C, which the department has recently revived. [00:40:48] Speaker 02: And so you don't need there's sort of. [00:40:51] Speaker 02: I'm sorry, Your Honor, the section 925C, we cite this in our brief, is a statute that Congress passed that says that someone can regain their right to possess firearms if they can show they're not a danger to the community. [00:41:06] Speaker 03: So, so that- I'm questioning the Attorney General, isn't it? [00:41:09] Speaker 02: That's correct. [00:41:10] Speaker 02: Petitioning attorney general. [00:41:11] Speaker 02: So that's our sort of top line view. [00:41:14] Speaker 02: So let's assume we're wrong. [00:41:15] Speaker 04: Suppose I think you've proven constitutionality for the Heartland application, but I'm worried about [00:41:24] Speaker 02: um these edge cases exactly in that in that situation your honor i think the best way to think about it would be to say that the defendant needs to come forward with with something to show that that he he falls outside the heartland it would be very odd if the government had the burden of digging up every possible fact about you know the the age of the defendant's criminal history or his rehabilitation that sort of thing [00:41:49] Speaker 02: Again, I could be wrong on that. [00:41:51] Speaker 02: And if the government does bear the burden even there, I think we could satisfy it in Mr. Richardson's case. [00:41:56] Speaker 02: But I think the defendant would need to come forward, at least make an allegation and a motion to dismiss an indictment saying, you know, this can't be constitutionally applied to me because of X. And then I think the government would have the burden of showing no. [00:42:08] Speaker 04: It's a burden of production or articulation. [00:42:12] Speaker 04: And then you show that the tradition applies with sufficient. [00:42:17] Speaker 02: That's correct, Your Honor. [00:42:19] Speaker 02: So I think probably the best way to understand the Supreme Court's decision in Bruin is that the government bears the burden of persuasion on the constitutional question at the first level, in sort of the general applications, and then when facing an as-applied challenge, can respond to the defendant's challenge. [00:42:35] Speaker 02: And our view is that when we're responding to that challenge, we can point to things outside of the bare elements of the offense, because that's exactly what the defense is doing in that situation. [00:42:44] Speaker 04: That makes sense. [00:42:45] Speaker 04: Okay. [00:42:45] Speaker 04: Judge Pan, anything else? [00:42:47] Speaker 04: Judge Ginsburg? [00:42:48] Speaker 04: Thank you. [00:42:48] Speaker 02: We'd ask the court to affirm. [00:42:50] Speaker 02: Thank you. [00:42:52] Speaker 04: Ms. [00:42:53] Speaker 04: Millian, we'll give you three minutes. [00:42:59] Speaker 05: Thank you, your honors. [00:43:00] Speaker 05: Really quick to start, I actually have the case number for the Third Circuit case where they granted en banc. [00:43:06] Speaker 05: So in Boost, it is 24-17-19. [00:43:08] Speaker 05: And that cites the civil case where they granted en banc review as well in that en banc order. [00:43:17] Speaker 05: And that'll have the case number for that case for you. [00:43:20] Speaker 04: I'm sorry. [00:43:21] Speaker 04: One is 241719. [00:43:24] Speaker 05: Unfortunately, I don't have the case number for the other one, but if you read the pointer, it will find it in boost. [00:43:29] Speaker 05: Yes, exactly. [00:43:31] Speaker 05: Got it. [00:43:33] Speaker 05: So. [00:43:35] Speaker 05: I just, Your Honor, asked some questions about whether the burden makes a difference in the Medina decision. [00:43:40] Speaker 05: And I just want to quickly dwell on that for a minute, because I think it makes a huge difference in why the court came out the way it did. [00:43:47] Speaker 05: It specifically noted that there were few primary sources directly on point. [00:43:52] Speaker 05: It noted the absence of founding error regulations disarming individuals for past convictions, and it used language like on balance to describe the way it was coming out in that case, indicating that it found the issue to be in relative equal voice. [00:44:06] Speaker 05: And so the fact that it seemed to understand the burden to rest with the plaintiff is what drove its decision. [00:44:17] Speaker 05: That was the main point I wanted to make, but I welcome any additional questions you all have. [00:44:23] Speaker 01: I know it's not entirely clear in Medina, but I just remember seeing them noting that it was the government's burden, at least to the extent of proving that the defendant was dangerous. [00:44:39] Speaker 01: I just don't think it was very clear that they were assigning the burden to the defendant. [00:44:44] Speaker 05: If you don't mind, let me grab a copy. [00:44:51] Speaker 05: So I'm not sure what you're referring to, Your Honor. [00:44:55] Speaker 05: But I mean, the points that I mentioned before, I think, demonstrate the importance of the burden. [00:45:00] Speaker 05: It specifically notes that none of the sources cited by Medina compels the conclusion that only dangerous people can be disarmed, which, of course, was the context of his at-supply challenge. [00:45:12] Speaker 05: He argued that only dangerous felons could be disarmed. [00:45:17] Speaker 05: And it says things like, [00:45:22] Speaker 05: To the extent it may be possible for a felon to show that his crime was so minor or regulatory that he did not forfeit his right to arms by committing it. [00:45:29] Speaker 05: Medina has not done so. [00:45:30] Speaker 05: Again, that's evidence that the court is placing the burden on Medina to prove that this particular historical tradition permits him to carry his firearm rather than the reverse. [00:45:46] Speaker 04: Thank you. [00:45:47] Speaker 04: Judge Ginsburg? [00:45:48] Speaker 04: Okay, thank you counsel. [00:45:50] Speaker 04: Thanks to both counsel for really exceptionally good briefing and advocacy. [00:45:56] Speaker 04: We appreciate it. [00:45:57] Speaker 04: The case is submitted.