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SJC-13561
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and 13562.
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Commonwealth versus Dean F. Donnell, Jr.
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And Commonwealth versus Philip J. Marquis.
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Okay. Attorney Rall.
Good morning, your honors.
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May it please the Court,
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assistant district Attorney Ryan Rall
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for the Commonwealth on both these cases
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on behalf of Middlesex County.
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The motion judge clearly aired in allowing a motion dismiss
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in both of these cases where Massachusetts has the authority
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to implement a uniform licensing scheme
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to apply to all citizens
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regardless of residency
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under sections chapter one 40, section 131 and 131F.
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Which version of 131F applies to each defendant.
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Just to clarify for me.
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So there is a version of 131F
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that still has the language of the may issue scheme
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and that I believe
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was only effective until August of 2022.
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And then Mr. Marquis has the newest version,
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which is current until of course
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any revisions from the newest firearm legislation
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are applied to 131F.
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So there are two versions, one from 2021 till 2022,
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which still has the may issue language.
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And then Mr. Marquis version of 131F,
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which no longer contains the may issue language.
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And are you defending the may issue one
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after the Bruen case?
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I'm not defending the language may issue
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as I believe that that's not necessary in this appeal
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and also I will point to the fact that
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the may issue language is actually not dispositive
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as the Bruen court identified in the series
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of shall issuing licensing schemes,
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the fact that it says may issue is not itself
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dispositive on whether it is a may issue regime.
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So looking at 131F and-
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No, I'm sorry.
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You're saying it's irrelevant,
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that's the statute for Mr. Donnell is may issue.
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I would first say they don't have standing the challenge,
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the language of the may issue.
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So I would say it's irrelevant for that purpose.
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But I would also say that the licensing scheme
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as applied at the time of Mr. Donnell's prosecution,
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was more akin to a shall issue licensing schemes
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than the may issue that's described
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with the proper cause requirement as in Bruen.
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So it issued in effect as a shall issue regime.
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And that's clear also from the advisory opinion
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of the attorney chair.
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Wait, I don't understand that argument at all.
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I have a chronology here, which I hope I have correct.
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Donnell is pulled over
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after his car accident
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on November 8th, 2021.
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Bruen is decided June
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and at that time
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he's only charged with a misdemeanor, right?
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He's not charged with under Section 10A.
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So he was originally charged with 10H and 10M.
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Okay.
And then the 10,
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there was a decision made
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to keep the case in the district courts,
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so the 10M was no (indistinct)
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and a replacement complaint was taken for 10A.
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Okay. So 10A was not in the case
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when he's originally charged.
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Correct.
Bruens decided
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then the AG issues at advisory
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and then Donnell's charged thereafter with 10A.
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So how is it that at that point
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we can say that the previous version
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of 131F should be construed
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as a shall versus may type of statute.
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When we have an AG advisory saying that's not the case
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and it's not being enforced.
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I guess what I would say is that in being pressed
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that the may issue regime
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as far as that language meant that it was a may issue regime
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that would not be constitutional under Bruen.
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So that specific language in that aspect
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of the licensing scheme provision
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wouldn't be able to be enforced that way.
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But we don't have to reach that-
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So if it can't be enforced,
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then how can there be a charge under 10A at that point?
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Because as this court acknowledged
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in the (indistinct) opinion,
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and as numerous courts,
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as I referenced in my brief in New Jersey and California
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and also New York Post-Bruen have applied,
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just because one provision of the statute
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is unconstitutional,
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does not make the entirety
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of the enforcement of that scheme unconstitutional.
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But that's not the test.
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You don't look at the whole scheme entirely.
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You look at 131F
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and see if that on its face is constitutional
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and that has for Mr. Donnell a may issue provision.
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So every court that's addressed this question
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of the may issue licensing language existing,
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and in fact for the other matter,
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the proper cause which is even more problematic
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and is expressly unconstitutional under Bruen,
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has analyzed this all the same,
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which is they look at the person's underlying conduct.
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And like in the California
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and New Jersey cases that I cited in my brief
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and subsequent New York cases,
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when someone chooses not to get a license at all,
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those provisions are in fact severable
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from their ongoing prosecution.
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They had no effect on their prosecution
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and the court has routinely upheld the licensing scheme
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as it is enforceable to be constitutional.
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Is that the same thing as anybody's convicted under 10A
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pre-Bruen under the may issue statutes
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don't have the benefit of Bruen?
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Correct. Well, yes, except in so far as-
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'Cause they can't say that
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and I forget the name of our cases that hold it.
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They can't say that I would've gotten a license,
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but they never applied for one.
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Correct. And actually the best analysis for that
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is what happened Post-Bruen in New York.
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It's not that every single conviction
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that was previously obtained in New York
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prior to Bruen was invalidated immediately.
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And I think that starting in historical narrative here,
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it's clear that 131F is facially constitutional
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under the Second Amendment.
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Looking to the same historical analogs provided in Bruen
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and reasserted in Rahimi,
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we have the surety laws, we have the going armed laws
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as they're called or the brandishing arms.
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We also have-
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Don't all those statutes involve threats?
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Those involve risks to public safety as-
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By dangerous folk.
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Right. And besides those
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we also have loyalty oath statutes
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that existed as well as a so called events.
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I guess you put you in that strange position
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of arguing like the anti-Catholic cases support you.
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So I'll start by saying
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I don't think you need to get there,
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'cause I believe that the loyalty oath cases
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set a prerequisite that you have to swear
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after the American Revolution.
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You have to swear loyalty to the United States and,
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or your specific colony before you're allowed to be armed.
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And we have the example of the Shays's Rebellion in 1787,
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which makes it clear that people
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who pose a public safety writ
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because of their allegiance to an enemy we just fought
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is a prerequisite to disarm them entirely.
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But don't we have to look at statutes
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that involve regulation of people
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who otherwise would have a legitimate right
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to carry a firearm?
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Right. So when we established
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this uniform licensing scheme,
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I think the best way to look at it
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is the way that Rahimi itself said it,
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which is we look to whether the why is analogous
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and we look to whether the how is analogous.
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And I think that the why is analogous here,
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clearly as in Rahimi.
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I think Bruen made that clear in footnote nine
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when it said there was no question
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as to the constitutionality
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of shall issue licensing schemes generally
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that just check to see if in fact people
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were law abiding responsible citizens.
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When I say responsible,
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I'll adopt the general solicitor's argument in Rahimi,
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which is either pose a risk of harm or danger to others,
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or due to the characteristics
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pose an increased risk of danger.
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Well, what do we have here though
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to have these two cases be informed by Rahimi?
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Because there's a significance to the fact that
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there was a hearing where Rahimi had an opportunity
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to contest the allegations
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and the court made a finding that he was dangerous.
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It was lots of evidence that Mr. Rahimi
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was a danger to the public.
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It wasn't even just the index domestic violence charge.
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Here, what do we have here to say that
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that's all instructive in our analysis?
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So what we have here is a state licensing scheme
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that allows the executive authorities, the state,
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in this case, the Massachusetts State Police
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and the Firearms record bureau
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to identify if people are in fact pose a risk of harm
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of public safety first.
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That's a judicially reviewable decision
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that is allowed to be appealed.
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And so like Rahimi, what we have here
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is a scheme that's designed the exact same way,
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which is to ensure that people who pose a threat,
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or public safety to the community
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are not allowed to be armed.
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We have a judicial reviewable decision
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if they in fact apply for a license.
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And of course this is all presupposing
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that they have standing to raise these various provisions,
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which I won't belabor because we're all here.
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But the point is they do not,
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and the motion judge erred in that regards as well,
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but putting that aside-
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I mean they have standing
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to raise a facial challenge, right?
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They do.
Okay.
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And, but a facial challenge as to sort of
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the provisions that are relevant to their conduct
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and what's relevant to their conduct-
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They have standing to challenge the constitutionality
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of section 10A,
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both as applied to them and on its face.
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I disagree with that, believe that they-
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Okay, why they're being prosecuted under 10A?
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How can they not have standing
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to challenge its application to them?
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This court has repeatedly said in Powell, Loadholt
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and also circuit cases have said in a challenge
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in a criminal conviction,
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when one chooses to violate the law
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and not proceed with the licensing scheme,
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that they are limited to a facial challenge,
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both of the licensing scheme but also 10A.
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But even if the court does choose
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to do an as applied challenge in this case,
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we have two different defendants,
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one of which was recently convicted of drunk driving.
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So I can say this is not just an allegation,
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he was driving drunk through Massachusetts for however long.
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And the other individual works in Massachusetts
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and was traveling to work in Massachusetts
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carrying an unlawful firearm without being licensed.
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So when you apply the conduct,
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what is it that they're being prosecuted for,
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making no attempts to get a license whatsoever.
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It isn't about the may issue language of the regime,
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it isn't about the incorrect interpretation of 131F
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by the motion judge and the defendants
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that it somehow restricts non-resident licenses,
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which it does not.
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They're not really being prosecuted
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for not trying to get a license.
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I mean they're being prosecuted for carrying a firearm,
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or possessing a firearm without having gotten a license.
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I see a distinction between those two things.
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I guess what I would say is they're being prosecuted
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using the plain language as not having an effect a license.
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So to challenge that requirement,
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they have to prove that under no circumstances
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can a non-resident be required to have in effect
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a non-resident license, so-
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Do you lose, if we disagree with your proposition
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that the statute only applies to non-residents
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who are traveling to this commonwealth
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for shooting competitions?
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00:11:46.740 --> 00:11:50.010
I strongly dispute that description of that.
270
00:11:50.010 --> 00:11:51.244
I think the unique-
271
00:11:51.244 --> 00:11:52.077
Okay, like the question I have is,
272
00:11:52.077 --> 00:11:56.283
do you lose on the interstate travel part of this?
273
00:11:57.765 --> 00:11:59.250
So I don't think I lose on it.
274
00:11:59.250 --> 00:12:00.540
First of all, I'd say that
275
00:12:00.540 --> 00:12:02.790
I think the only interpretation is,
276
00:12:02.790 --> 00:12:03.990
as the amicus brief does,
277
00:12:03.990 --> 00:12:06.900
and in fact for this court to agree with the motion judge,
278
00:12:06.900 --> 00:12:10.380
it would turn on its head how we analyze statutes.
279
00:12:10.380 --> 00:12:11.940
It would find the statute
280
00:12:11.940 --> 00:12:13.800
to be unconstitutionally interpreted
281
00:12:13.800 --> 00:12:14.970
in order to get to the result
282
00:12:14.970 --> 00:12:16.200
that the defendant's standing.
283
00:12:16.200 --> 00:12:18.000
Just humor me.
Okay, sorry.
284
00:12:18.000 --> 00:12:20.100
We disagree with you. Do you still lose?
285
00:12:21.083 --> 00:12:22.800
No. And the reason we don't lose
286
00:12:22.800 --> 00:12:26.700
is because even if the provision as it existed
287
00:12:26.700 --> 00:12:29.100
that restriction, they still don't have standing.
288
00:12:29.100 --> 00:12:32.448
So we still have the standing problem here, which is-
289
00:12:32.448 --> 00:12:35.880
But they have the standing to bring the facial challenge.
290
00:12:35.880 --> 00:12:37.167
Right, and this is-
291
00:12:37.167 --> 00:12:38.790
And if the statute only allowed,
292
00:12:38.790 --> 00:12:40.230
and I'm not saying I agree with this,
293
00:12:40.230 --> 00:12:43.080
but if the statute only allowed a non-resident
294
00:12:43.080 --> 00:12:47.190
to get a license not for self-defense,
295
00:12:47.190 --> 00:12:49.020
but only for these competitions
296
00:12:49.020 --> 00:12:51.930
that seems to squarely violate Bruen.
297
00:12:51.930 --> 00:12:54.990
I agree that the restriction would violate Bruen.
298
00:12:54.990 --> 00:12:56.359
I think the issue-
299
00:12:56.359 --> 00:12:58.140
So that means it violates the Second Amendment,
300
00:12:58.140 --> 00:13:00.120
which means you lose.
301
00:13:00.120 --> 00:13:01.800
Where I disagree that I lose
302
00:13:01.800 --> 00:13:04.050
is where we get wrapped into the standing issue,
303
00:13:04.050 --> 00:13:07.950
which is that making no attempt to get a license whatsoever
304
00:13:07.950 --> 00:13:10.058
and their reliance is on-
305
00:13:10.058 --> 00:13:10.891
Why would they get a license
306
00:13:10.891 --> 00:13:12.180
if the provision only allows them
307
00:13:12.180 --> 00:13:14.100
to get a license for competition
308
00:13:14.100 --> 00:13:16.050
and they don't need it for competition?
309
00:13:16.050 --> 00:13:17.850
They need it for self-defense.
310
00:13:17.850 --> 00:13:19.890
There's no provision for them.
311
00:13:19.890 --> 00:13:21.930
So had they applied for a license
312
00:13:21.930 --> 00:13:24.870
and someone tried to restrict their ability
313
00:13:24.870 --> 00:13:26.010
to sporting competition,
314
00:13:26.010 --> 00:13:27.150
they would have a right
315
00:13:27.150 --> 00:13:30.150
to appeal that determination fight that.
316
00:13:30.150 --> 00:13:32.490
They would have various options available to them,
317
00:13:32.490 --> 00:13:35.220
pre-enforcement federal challenges to the statute
318
00:13:35.220 --> 00:13:37.320
if it was actually interpreted that way.
319
00:13:37.320 --> 00:13:39.570
I do think it's somewhat of a legal fiction
320
00:13:39.570 --> 00:13:41.850
because there's no record of anyone
321
00:13:41.850 --> 00:13:43.020
ever receiving this type
322
00:13:43.020 --> 00:13:44.970
of restrictive non-resident license.
323
00:13:44.970 --> 00:13:47.130
There's no evidence of a previous prosecution
324
00:13:47.130 --> 00:13:50.196
for this in the Simkin case, which this court is trust-
325
00:13:50.196 --> 00:13:51.210
We're on a motion to dismiss, right?
326
00:13:51.210 --> 00:13:52.320
Correct.
Okay.
327
00:13:52.320 --> 00:13:55.260
And so there's no rec area in the record
328
00:13:55.260 --> 00:13:57.060
or evidence to support that interpretation
329
00:13:57.060 --> 00:13:57.893
besides the fact-
330
00:13:57.893 --> 00:14:00.390
In one of the amicus briefs there was a,
331
00:14:00.390 --> 00:14:02.610
I think a breakdown of some 5,000 people
332
00:14:02.610 --> 00:14:06.090
who have non-resident licenses. Are you aware of this?
333
00:14:06.090 --> 00:14:07.860
I did see that there was a reference
334
00:14:07.860 --> 00:14:09.870
to a number of people who have non-resident licenses.
335
00:14:09.870 --> 00:14:11.520
Have you looked into this at all?
336
00:14:11.520 --> 00:14:13.110
So I spoke very briefly
337
00:14:13.110 --> 00:14:14.643
and I'm happy to submit something to the court
338
00:14:14.643 --> 00:14:17.850
in a 16L letter with more definitive statistic.
339
00:14:17.850 --> 00:14:19.200
That's what I'd like to know is,
340
00:14:19.200 --> 00:14:22.977
how many LTCs are there for residents
341
00:14:22.977 --> 00:14:24.900
and how many LTCs are there,
342
00:14:24.900 --> 00:14:28.170
or temporary LTCs there are for non-residents?
343
00:14:28.170 --> 00:14:30.900
And did that change when the statute changed?
344
00:14:30.900 --> 00:14:32.880
My understanding is that
345
00:14:32.880 --> 00:14:34.860
the numbers have been jumping up exponentially
346
00:14:34.860 --> 00:14:37.110
over the last few years since,
347
00:14:37.110 --> 00:14:38.730
let's say it's Bruen itself.
348
00:14:38.730 --> 00:14:39.720
So I don't know how-
349
00:14:39.720 --> 00:14:40.737
I like to know the pre-Bruen number
350
00:14:40.737 --> 00:14:42.540
and the post-Bruen number
351
00:14:42.540 --> 00:14:44.790
of non-resident temporary licenses.
352
00:14:44.790 --> 00:14:47.070
Maybe you can submit a-
I can certainly try
353
00:14:47.070 --> 00:14:49.230
to seek that information from the firearm record bureau
354
00:14:49.230 --> 00:14:51.720
who keeps track of the non-resident in particular
355
00:14:51.720 --> 00:14:52.553
and compare that.
356
00:14:52.553 --> 00:14:54.300
You had begun earlier
357
00:14:54.300 --> 00:14:58.020
before I probably cut you off, sorry about that.
358
00:14:58.020 --> 00:15:02.220
To discuss the why and the how historic analogs,
359
00:15:02.220 --> 00:15:07.220
can I ask you to address the how portion in light of the
360
00:15:09.630 --> 00:15:13.530
18 month mandatory minimum for violation.
361
00:15:13.530 --> 00:15:15.270
So as to the how,
362
00:15:15.270 --> 00:15:18.030
I don't think that the 18 month mandatory minimum
363
00:15:18.030 --> 00:15:19.050
plays into that.
364
00:15:19.050 --> 00:15:21.420
And the reason I say that is also why I addressed
365
00:15:21.420 --> 00:15:24.000
that it doesn't constitute cruel unusual punishment
366
00:15:24.000 --> 00:15:27.480
when that's sort of wrapped into a Second Amendment argument
367
00:15:27.480 --> 00:15:31.230
by a defendant Donnell's attorney.
368
00:15:31.230 --> 00:15:34.890
But what I'll say briefly on that is that the how,
369
00:15:34.890 --> 00:15:38.250
you know, Rahimi had to do with a prohibition for him
370
00:15:38.250 --> 00:15:39.840
to have a firearm at all
371
00:15:39.840 --> 00:15:42.390
and be subject to a very high maximum sentence.
372
00:15:42.390 --> 00:15:43.760
My memory of the federal statute
373
00:15:43.760 --> 00:15:45.960
is that it's a 10 year sentence.
374
00:15:45.960 --> 00:15:46.920
And while I understand that,
375
00:15:46.920 --> 00:15:50.340
that's not a mandatory minimum in the normal sense,
376
00:15:50.340 --> 00:15:51.630
federal sentencing guidelines
377
00:15:51.630 --> 00:15:54.750
make it more akin to a mandatory minimum
378
00:15:54.750 --> 00:15:57.270
as a general principle than say Massachusetts law,
379
00:15:57.270 --> 00:16:00.000
which doesn't have codified sentencing guidelines.
380
00:16:00.000 --> 00:16:02.070
So I think that Rahimi,
381
00:16:02.070 --> 00:16:05.190
the how is basically the same,
382
00:16:05.190 --> 00:16:08.730
that the how is that these laws allow the government
383
00:16:08.730 --> 00:16:12.030
to create these types of prophylactic measures
384
00:16:12.030 --> 00:16:14.820
to ensure that the dangerous,
385
00:16:14.820 --> 00:16:17.310
or certain classes people such as the mentally ill,
386
00:16:17.310 --> 00:16:18.630
which pose an increased risk of danger.
387
00:16:18.630 --> 00:16:21.000
But is that the right and now analog,
388
00:16:21.000 --> 00:16:26.000
'cause I mean it's the outta state licensing scheme
389
00:16:26.880 --> 00:16:30.810
that is really the most appropriate analog, isn't it?
390
00:16:30.810 --> 00:16:33.060
Well-
Bear with me for a second
391
00:16:33.060 --> 00:16:35.550
because I mean, they're gonna get up
392
00:16:35.550 --> 00:16:37.590
and talk about sort of the highway men
393
00:16:37.590 --> 00:16:40.170
and the dangers of travel.
394
00:16:40.170 --> 00:16:43.830
Isn't the analog not sort of generalized,
395
00:16:43.830 --> 00:16:46.870
but what is the rule for outta state
396
00:16:49.457 --> 00:16:51.180
in this case, license holders.
397
00:16:51.180 --> 00:16:53.640
They have a license from outta state
398
00:16:53.640 --> 00:16:56.760
and what kind of rules can we impose
399
00:16:56.760 --> 00:17:00.810
and what kind of rules are the historic analogs to those?
400
00:17:00.810 --> 00:17:03.310
Isn't that the better analog rather than
401
00:17:04.320 --> 00:17:07.050
the general one about, you know,
402
00:17:07.050 --> 00:17:09.870
mentally ill or convicted felons?
403
00:17:09.870 --> 00:17:11.430
So I have a few responses to that.
404
00:17:11.430 --> 00:17:12.960
Let me start by saying that,
405
00:17:12.960 --> 00:17:14.880
I think that the traveler's exemption
406
00:17:14.880 --> 00:17:16.320
as is a sort of outlined
407
00:17:16.320 --> 00:17:18.783
in the NRA amicus brief in particular.
408
00:17:19.950 --> 00:17:23.670
I think it makes too much of that exemption to be applicable
409
00:17:23.670 --> 00:17:25.350
to non-residents generally.
410
00:17:25.350 --> 00:17:28.740
I think the Massachusetts Attorney General amicus brief
411
00:17:28.740 --> 00:17:30.270
does an excellent job of describing
412
00:17:30.270 --> 00:17:33.150
how the history of this has to do nothing
413
00:17:33.150 --> 00:17:35.910
with whether you were a resident or non-resident at all.
414
00:17:35.910 --> 00:17:40.910
That being said, the analysis as the commonwealth sees it.
415
00:17:41.045 --> 00:17:42.180
Well that can't be true though
416
00:17:42.180 --> 00:17:46.380
because the statutes draw distinctions
417
00:17:46.380 --> 00:17:50.070
between residents and non-residents and aliens.
418
00:17:50.070 --> 00:17:53.730
There's a 1957 statute, there's a 19, I can't remember,
419
00:17:53.730 --> 00:17:55.950
70 something statute.
420
00:17:55.950 --> 00:17:58.560
So this idea of the different classes
421
00:17:58.560 --> 00:18:00.510
was on people's minds, wasn't it?
422
00:18:00.510 --> 00:18:01.830
Well the modern statutes do,
423
00:18:01.830 --> 00:18:03.330
but that's what's sort of interesting
424
00:18:03.330 --> 00:18:06.600
about the historical analogs and history of this country,
425
00:18:06.600 --> 00:18:08.610
which is why the Commonwealth focuses heavily
426
00:18:08.610 --> 00:18:10.140
on pointing out that,
427
00:18:10.140 --> 00:18:13.320
that Massachusetts as all colonies and states,
428
00:18:13.320 --> 00:18:14.730
whether we're talking about the founding area,
429
00:18:14.730 --> 00:18:17.640
or moving forward into the passage of the 14th Amendment,
430
00:18:17.640 --> 00:18:19.230
have this foremost prerogative
431
00:18:19.230 --> 00:18:21.180
and sovereignty to create their own criminal code
432
00:18:21.180 --> 00:18:23.160
and enforce it as a general principle
433
00:18:23.160 --> 00:18:25.710
against all who go within its borders.
434
00:18:25.710 --> 00:18:29.610
And that is, I think the correct historical analysis here.
435
00:18:29.610 --> 00:18:34.396
As the Hamilton and Pallozzi case said, we live in a nation.
436
00:18:34.396 --> 00:18:35.730
I get the general federalism principles.
437
00:18:35.730 --> 00:18:40.470
I'm more focused on the analog
438
00:18:40.470 --> 00:18:43.020
and also one thing you jumped to
439
00:18:43.020 --> 00:18:44.670
that it's rational basis.
440
00:18:44.670 --> 00:18:46.620
So we don't have a uniform standard.
441
00:18:46.620 --> 00:18:49.500
We apply different standards to non-residents
442
00:18:49.500 --> 00:18:51.420
and aliens than we do to residents.
443
00:18:51.420 --> 00:18:56.280
It's not totally different, but it is different.
444
00:18:56.280 --> 00:18:58.740
Do we subject that to strict scrutiny,
445
00:18:58.740 --> 00:19:00.780
or do we subject that to rational basis?
446
00:19:00.780 --> 00:19:03.930
'Cause I think the US Supreme Court's saying
447
00:19:03.930 --> 00:19:08.930
the right to carry a gun is a fundamental right if in,
448
00:19:10.920 --> 00:19:11.753
is that right?
449
00:19:11.753 --> 00:19:13.200
Are they saying that, you know?
450
00:19:13.200 --> 00:19:14.100
They are saying that,
451
00:19:14.100 --> 00:19:17.040
but it still gets you to rational basis and here's why.
452
00:19:17.040 --> 00:19:19.650
First non-residents are not a suspect class,
453
00:19:19.650 --> 00:19:21.900
so we take that out. I know that-
454
00:19:21.900 --> 00:19:24.930
But if fundamental rights and equal protection,
455
00:19:24.930 --> 00:19:26.790
there are two ways to strict scrutiny,
456
00:19:26.790 --> 00:19:29.520
fundamental rights generate strict scrutiny
457
00:19:29.520 --> 00:19:31.530
and equal protection violations
458
00:19:31.530 --> 00:19:33.270
generate strict scrutiny, right?
459
00:19:33.270 --> 00:19:35.940
Correct. And so when you're asking the question,
460
00:19:35.940 --> 00:19:40.650
it's not whether any regulation on a fundamental right
461
00:19:40.650 --> 00:19:42.240
is not allowed on a non-resident.
462
00:19:42.240 --> 00:19:44.670
And it's not even that there can't be differences
463
00:19:44.670 --> 00:19:45.690
between non-residents
464
00:19:45.690 --> 00:19:48.120
and residents in how it's applied in the law.
465
00:19:48.120 --> 00:19:50.040
What it requires is that,
466
00:19:50.040 --> 00:19:51.180
it be substantially burdened
467
00:19:51.180 --> 00:19:53.580
that it burdens a fundamental right.
468
00:19:53.580 --> 00:19:55.980
And the commonwealth would argue that the distinctions
469
00:19:55.980 --> 00:19:58.470
that the motion judge relied upon and the amicus
470
00:19:58.470 --> 00:20:01.350
and the defendants point to, such as waiting periods,
471
00:20:01.350 --> 00:20:03.300
or the length of a license,
472
00:20:03.300 --> 00:20:04.500
these don't rise to level
473
00:20:04.500 --> 00:20:06.450
of burdening the fundamental right.
474
00:20:06.450 --> 00:20:07.770
Even if they did,
475
00:20:07.770 --> 00:20:10.560
and I argued rational basis is applicable here,
476
00:20:10.560 --> 00:20:12.030
but even if it did,
477
00:20:12.030 --> 00:20:15.094
I think that the Bach case and the wrong-
478
00:20:15.094 --> 00:20:15.927
I'm confused by that.
479
00:20:15.927 --> 00:20:20.010
So if I'm licensed in New Hampshire,
480
00:20:20.010 --> 00:20:24.010
I have a license to a gun, and I work in Massachusetts
481
00:20:26.310 --> 00:20:28.170
and I can't get that,
482
00:20:28.170 --> 00:20:30.570
I can't use that gun for
483
00:20:30.570 --> 00:20:32.310
a fairly significant period of time,
484
00:20:32.310 --> 00:20:34.620
'cause we don't do them quickly.
485
00:20:34.620 --> 00:20:37.383
That doesn't burden the right?
486
00:20:39.156 --> 00:20:39.989
I just wanna make sure
487
00:20:39.989 --> 00:20:41.940
I understand your argument on that.
488
00:20:41.940 --> 00:20:45.570
My argument is that all of the requirements,
489
00:20:45.570 --> 00:20:48.120
even the differences non-resident and residents
490
00:20:48.120 --> 00:20:51.780
are constitutionally permissible under the Second Amendment.
491
00:20:51.780 --> 00:20:54.480
I do acknowledge that there are some distinctions,
492
00:20:54.480 --> 00:20:56.040
these defendants don't have standing to raise them.
493
00:20:56.040 --> 00:20:57.060
But there are some distinctions
494
00:20:57.060 --> 00:20:58.140
between non-resident, resident,
495
00:20:58.140 --> 00:21:02.160
but why they are satisfying a compelling interest
496
00:21:02.160 --> 00:21:03.780
and they satisfy strict scrutiny.
497
00:21:03.780 --> 00:21:06.870
Is the compelling interest is the one that is fundamental
498
00:21:06.870 --> 00:21:09.660
to the entire licensing scheme. It's designed to -
499
00:21:09.660 --> 00:21:11.850
I think you may be right,
500
00:21:11.850 --> 00:21:14.070
but you are applying strict scrutiny there,
501
00:21:14.070 --> 00:21:17.640
you're not applying a rational basis if you're saying
502
00:21:17.640 --> 00:21:22.020
there's a compelling interest in support of that regulation
503
00:21:22.020 --> 00:21:26.400
and it's the least restrictive, which you're,
504
00:21:26.400 --> 00:21:28.800
I don't know if it is, but that's the harder part.
505
00:21:28.800 --> 00:21:31.080
Right, so I do think rational basis
506
00:21:31.080 --> 00:21:32.490
is the appropriate test.
507
00:21:32.490 --> 00:21:33.330
And I say that
508
00:21:33.330 --> 00:21:36.240
because the difference in the length of time, for example,
509
00:21:36.240 --> 00:21:38.520
is not a burden on the fundamental right.
510
00:21:38.520 --> 00:21:42.363
Is US Supreme Court said it's a rational basis that,
511
00:21:43.500 --> 00:21:46.350
where they said it's a compelling interest
512
00:21:46.350 --> 00:21:48.240
and I just don't,
513
00:21:48.240 --> 00:21:50.070
I don't know what Bruen says on this.
514
00:21:50.070 --> 00:21:51.840
So I think the fundamental principle
515
00:21:51.840 --> 00:21:53.550
both in Massachusetts and federal laws,
516
00:21:53.550 --> 00:21:55.890
that when we get past the equal protection issue,
517
00:21:55.890 --> 00:21:57.330
which I don't think is an issue here,
518
00:21:57.330 --> 00:21:59.340
it's whether it's burdening of fundamental rights.
519
00:21:59.340 --> 00:22:01.170
So the first question is whether the difference
520
00:22:01.170 --> 00:22:03.510
in the length of time is burdening the fundamental right
521
00:22:03.510 --> 00:22:08.010
to keep in bear arms, for example. And I would argue-
522
00:22:08.010 --> 00:22:09.720
Could you analyze that for us then?
523
00:22:09.720 --> 00:22:13.890
So this man apply, he doesn't apply for license.
524
00:22:13.890 --> 00:22:16.620
I get your argument that he loses no matter what,
525
00:22:16.620 --> 00:22:20.130
but if he can challenge the statute on its face
526
00:22:20.130 --> 00:22:22.410
and there's no way he could have gotten the license,
527
00:22:22.410 --> 00:22:23.243
what's the time?
528
00:22:23.243 --> 00:22:26.250
There's no timeframe for getting a license, right?
529
00:22:26.250 --> 00:22:28.740
There's no timeframe for what sort of a waiting period,
530
00:22:28.740 --> 00:22:29.670
correct.
531
00:22:29.670 --> 00:22:31.470
There's a time period to process the application
532
00:22:31.470 --> 00:22:32.370
that is slightly different
533
00:22:32.370 --> 00:22:34.500
for non-residents than residents.
534
00:22:34.500 --> 00:22:36.240
What is the difference?
535
00:22:36.240 --> 00:22:39.561
My memory is that the maximum waiting period,
536
00:22:39.561 --> 00:22:40.530
90 days.
for the processing
537
00:22:40.530 --> 00:22:44.100
of the application for non-residents is six months.
538
00:22:44.100 --> 00:22:48.243
And the maximum for residents is 90 days.
539
00:22:49.200 --> 00:22:50.430
It's actually shorter than 90 days,
540
00:22:50.430 --> 00:22:51.450
I believe it's 60 days.
541
00:22:51.450 --> 00:22:52.980
And then, but once it hits 90 days,
542
00:22:52.980 --> 00:22:54.810
they have an automatic right of appeal
543
00:22:54.810 --> 00:22:56.700
for a timeliness issue
544
00:22:56.700 --> 00:22:58.380
that gives them sort of a presumption
545
00:22:58.380 --> 00:23:00.270
that the license is issued.
546
00:23:00.270 --> 00:23:01.700
And so-
So if that-
547
00:23:01.700 --> 00:23:06.480
So non-residents wait up to three times as long
548
00:23:06.480 --> 00:23:09.990
to get a temporary one year license
549
00:23:09.990 --> 00:23:13.830
as residents who get a five to six year license,
550
00:23:13.830 --> 00:23:14.700
is that right?
551
00:23:14.700 --> 00:23:15.630
I wouldn't say
552
00:23:15.630 --> 00:23:17.280
and there's no evidence of record
553
00:23:17.280 --> 00:23:19.050
as to how long these actually takes.
554
00:23:19.050 --> 00:23:20.610
So I don't wanna say that that,
555
00:23:20.610 --> 00:23:24.090
I said the maximum period that is allowed under the statute.
556
00:23:24.090 --> 00:23:26.640
And I think the reason for that is,
557
00:23:26.640 --> 00:23:29.910
is very clear in the Bach and Cult cases, which is that
558
00:23:29.910 --> 00:23:32.280
the state has an interest in monitoring
559
00:23:32.280 --> 00:23:33.960
and collecting information.
560
00:23:33.960 --> 00:23:36.030
If it is a Massachusetts resident,
561
00:23:36.030 --> 00:23:38.130
they have access to all of the authorities
562
00:23:38.130 --> 00:23:40.950
that law enforcement have in Massachusetts.
563
00:23:40.950 --> 00:23:43.710
They have access to all these police reports, CAD reports,
564
00:23:43.710 --> 00:23:45.300
other incident reports,
565
00:23:45.300 --> 00:23:48.030
and they're able to make a quick determination
566
00:23:48.030 --> 00:23:49.050
as to whether or not
567
00:23:49.050 --> 00:23:51.960
the person is a law abiding responsible citizen.
568
00:23:51.960 --> 00:23:53.760
There's no requirements, for example,
569
00:23:53.760 --> 00:23:55.500
and I know this in my reply brief
570
00:23:55.500 --> 00:23:57.600
for New Hampshire to tell even
571
00:23:57.600 --> 00:23:59.850
the federal government in terms of background check
572
00:23:59.850 --> 00:24:01.005
about disqualifying.
573
00:24:01.005 --> 00:24:04.110
I get why we want more strict requirements
574
00:24:04.110 --> 00:24:06.772
and I get that we can impose more strict requirements,
575
00:24:06.772 --> 00:24:10.124
but I'm wondering whether that,
576
00:24:10.124 --> 00:24:12.960
and I get you may be right that it satisfies rational basis,
577
00:24:12.960 --> 00:24:17.070
but these extent that means this person has no right
578
00:24:17.070 --> 00:24:20.433
to come into Massachusetts with a gun,
579
00:24:21.690 --> 00:24:24.477
or even though they're working in Massachusetts
580
00:24:24.477 --> 00:24:26.340
for as long as six months, maybe even longer.
581
00:24:26.340 --> 00:24:27.447
I don't, isn't that-
582
00:24:27.447 --> 00:24:29.310
And you have another problem too is
583
00:24:29.310 --> 00:24:30.870
Justice Kafker's point, right?
584
00:24:30.870 --> 00:24:32.820
Because you are waiting
585
00:24:32.820 --> 00:24:36.720
and they have a right for self-defense
586
00:24:36.720 --> 00:24:38.520
and if they come in,
587
00:24:38.520 --> 00:24:41.657
they're looking at an 18 month man, man, right?
588
00:24:41.657 --> 00:24:43.860
Right. But in so far as that is a problem
589
00:24:43.860 --> 00:24:45.840
is also a problem for a normal resident
590
00:24:45.840 --> 00:24:47.730
who needs to wait until the background check
591
00:24:47.730 --> 00:24:48.810
and processes are done
592
00:24:48.810 --> 00:24:51.840
before they start carrying a firearm within Massachusetts.
593
00:24:51.840 --> 00:24:53.791
And I think that that-
594
00:24:53.791 --> 00:24:55.410
It's a much shorter timeframe.
595
00:24:55.410 --> 00:24:57.510
So if you look at both sides of,
596
00:24:57.510 --> 00:24:59.790
if you're saying the strict scrutiny
597
00:24:59.790 --> 00:25:04.680
and you're saying the least restrictive, right?
598
00:25:04.680 --> 00:25:07.773
The least restrictive is the 18 month hit.
599
00:25:08.970 --> 00:25:12.270
Right, so I don't wanna intermix the potential penalty
600
00:25:12.270 --> 00:25:15.000
with the analysis under the burden
601
00:25:15.000 --> 00:25:16.530
for the constitutional right to travel
602
00:25:16.530 --> 00:25:19.110
because I think that it is first of all
603
00:25:19.110 --> 00:25:20.620
the same for residents and non-residents.
604
00:25:20.620 --> 00:25:24.180
Okay, but why isn't the penalty even if it's the same
605
00:25:24.180 --> 00:25:25.353
part of the burden?
606
00:25:26.430 --> 00:25:30.870
So I think that the question of the burden
607
00:25:30.870 --> 00:25:33.060
stems from what the regulation is requiring,
608
00:25:33.060 --> 00:25:34.860
not noncompliance with the regulation
609
00:25:34.860 --> 00:25:36.180
under a subsequent statute.
610
00:25:36.180 --> 00:25:40.529
So I think that the question about whether 131F's
611
00:25:40.529 --> 00:25:43.260
longer period of time it takes to sort
612
00:25:43.260 --> 00:25:45.660
of finish the background check process
613
00:25:45.660 --> 00:25:46.770
is an interesting one.
614
00:25:46.770 --> 00:25:48.270
I think it's one that,
615
00:25:48.270 --> 00:25:50.970
if these defendants were in fact waiting,
616
00:25:50.970 --> 00:25:53.430
there may be a decent argument here about that.
617
00:25:53.430 --> 00:25:55.737
But in terms of how 10A is applied
618
00:25:55.737 --> 00:25:58.140
and the penalty portion is applied,
619
00:25:58.140 --> 00:25:59.910
that's not the burden we're talking about
620
00:25:59.910 --> 00:26:01.290
when we're talking about this regulation
621
00:26:01.290 --> 00:26:04.350
because it's a choice of non-compliance.
622
00:26:04.350 --> 00:26:05.760
May I ask a question
623
00:26:05.760 --> 00:26:08.670
that builds on Justice Kafker's question,
624
00:26:08.670 --> 00:26:12.630
and I'm trying to probe what the outer limits
625
00:26:12.630 --> 00:26:14.103
of your argument are.
626
00:26:15.180 --> 00:26:18.360
If you have a New Hampshire resident
627
00:26:18.360 --> 00:26:22.510
who lawfully possesses a firearm
628
00:26:27.240 --> 00:26:31.590
and has, let's just assume for this hypothetical,
629
00:26:31.590 --> 00:26:33.600
has a New Hampshire license,
630
00:26:33.600 --> 00:26:35.220
that's my understanding is New Hampshire
631
00:26:35.220 --> 00:26:37.890
is a voluntary licensing jurisdiction,
632
00:26:37.890 --> 00:26:39.120
so they can get a license.
633
00:26:39.120 --> 00:26:41.110
So let's just assume he has a license
634
00:26:42.150 --> 00:26:44.914
and that New Hampshire resident
635
00:26:44.914 --> 00:26:47.580
wants to drive from New Hampshire to Connecticut,
636
00:26:47.580 --> 00:26:49.330
passing through Massachusetts
637
00:26:50.430 --> 00:26:53.100
and the New Hampshire resident complies
638
00:26:53.100 --> 00:26:55.450
with the federal rule of
639
00:26:58.140 --> 00:26:59.430
unloading the gun
640
00:26:59.430 --> 00:27:01.920
and keeping it in a locked container
641
00:27:01.920 --> 00:27:06.480
while he's in transit.
642
00:27:06.480 --> 00:27:10.380
I take it, if I understand your argument correctly,
643
00:27:10.380 --> 00:27:12.160
that from the moment that resident
644
00:27:14.612 --> 00:27:16.500
crosses the border into Massachusetts
645
00:27:16.500 --> 00:27:20.430
until the moment he crosses out into Connecticut,
646
00:27:20.430 --> 00:27:24.420
he is violating, he could be charged under 10A.
647
00:27:24.420 --> 00:27:26.280
No.
Why not?
648
00:27:26.280 --> 00:27:27.990
And this actually speaks to the point
649
00:27:27.990 --> 00:27:29.430
of why non-residents,
650
00:27:29.430 --> 00:27:30.690
I mean, not that we're required
651
00:27:30.690 --> 00:27:31.680
to give them greater privilege,
652
00:27:31.680 --> 00:27:34.470
but in fact they have greater privileges than residence,
653
00:27:34.470 --> 00:27:39.470
18 USC 926A, which is the carrying through statute is,
654
00:27:40.620 --> 00:27:42.690
there's a state exemption for that,
655
00:27:42.690 --> 00:27:45.450
but it's also the federal exemption applies.
656
00:27:45.450 --> 00:27:46.800
And so if you can show
657
00:27:46.800 --> 00:27:48.420
that you are statutorily exempt
658
00:27:48.420 --> 00:27:51.270
from following the license laws under 10A,
659
00:27:51.270 --> 00:27:53.430
you can't be prosecuted for it.
660
00:27:53.430 --> 00:27:57.180
So you can and not in fact be prosecuted
661
00:27:57.180 --> 00:27:59.190
if it's being faithfully applied
662
00:27:59.190 --> 00:28:00.750
the way it's supposed to be.
663
00:28:00.750 --> 00:28:02.580
And there are various other exemptions
664
00:28:02.580 --> 00:28:04.170
that are given to non-residents.
665
00:28:04.170 --> 00:28:07.430
Where is the exemption? Where is that exemption?
666
00:28:07.430 --> 00:28:12.430
So 18 USC 926A is the exemption for the federal and-
667
00:28:14.200 --> 00:28:15.148
Are you are,
668
00:28:15.148 --> 00:28:19.230
so are are you saying that in the in transit circumstance,
669
00:28:19.230 --> 00:28:23.820
the person is exempt from having to obtain a 131F license?
670
00:28:23.820 --> 00:28:25.590
Correct.
Under state law?
671
00:28:25.590 --> 00:28:26.670
Correct.
Okay.
672
00:28:26.670 --> 00:28:31.200
And but if he's coming in and it's not just in transit,
673
00:28:31.200 --> 00:28:34.950
it is, for example, well, we don't know in the case
674
00:28:34.950 --> 00:28:38.040
of Donnell whether he was in transit or not. Correct?
675
00:28:38.040 --> 00:28:39.240
Well, all we know is that
676
00:28:39.240 --> 00:28:40.380
he was driving drunk in Massachusetts.
677
00:28:40.380 --> 00:28:43.440
Okay, but we don't know whether he was in transit.
678
00:28:43.440 --> 00:28:45.210
Correct.
Okay. So he may have been
679
00:28:45.210 --> 00:28:46.680
entitled to that exemption
680
00:28:46.680 --> 00:28:48.450
If at trial if he can show
681
00:28:48.450 --> 00:28:50.820
that he was traveling from New Hampshire to another state
682
00:28:50.820 --> 00:28:52.380
where he was lawfully allowed to carry,
683
00:28:52.380 --> 00:28:55.950
and it was, and my memory is that
684
00:28:55.950 --> 00:28:57.870
they were not properly secured
685
00:28:57.870 --> 00:28:59.580
under what would be the state exemption,
686
00:28:59.580 --> 00:29:02.031
but he may qualify for the federal exemption.
687
00:29:02.031 --> 00:29:04.238
So-
Loaded as well, right?
688
00:29:04.238 --> 00:29:05.071
Right.
So it doesn't matter.
689
00:29:05.071 --> 00:29:06.830
Yeah.
So my memory was that
690
00:29:06.830 --> 00:29:08.162
it was-
691
00:29:08.162 --> 00:29:08.995
That Donnell was loaded,
692
00:29:08.995 --> 00:29:10.590
that's why I charged him on the 10M.
693
00:29:10.590 --> 00:29:13.230
10M was a large capacity magazine found next to him,
694
00:29:13.230 --> 00:29:14.730
I don't actually believe it was loaded.
695
00:29:14.730 --> 00:29:18.690
There was ammunition in the large capacity,
696
00:29:18.690 --> 00:29:19.853
which we chose not-
697
00:29:19.853 --> 00:29:20.686
I thought it was one bullet.
698
00:29:20.686 --> 00:29:21.864
There wasn't one bullet?
699
00:29:21.864 --> 00:29:22.777
There wasn't one bullet.
700
00:29:22.777 --> 00:29:24.570
Yeah, it was one bullet, right?
701
00:29:24.570 --> 00:29:26.029
In the gun.
702
00:29:26.029 --> 00:29:26.970
I misspoke, I apologize.
703
00:29:26.970 --> 00:29:28.710
But either way,
704
00:29:28.710 --> 00:29:30.870
he wouldn't be qualified for the exemption if it was-
705
00:29:30.870 --> 00:29:32.970
So Marquis in your view,
706
00:29:32.970 --> 00:29:35.490
Marquis doesn't qualify for the exemption
707
00:29:35.490 --> 00:29:37.680
because he was coming to work,
708
00:29:37.680 --> 00:29:40.320
rather than simply passing through?
709
00:29:40.320 --> 00:29:43.290
Correct. He was not going from one state to another.
710
00:29:43.290 --> 00:29:46.110
He was not using it for one of the many exemptions
711
00:29:46.110 --> 00:29:47.883
that non-residents have,
712
00:29:48.750 --> 00:29:51.150
such as for hunting, or shooting range,
713
00:29:51.150 --> 00:29:54.060
or a pistol competition, or a shooting competition.
714
00:29:54.060 --> 00:29:57.420
So he was required to get a non-resident license
715
00:29:57.420 --> 00:29:59.460
if he chose to carry it for all purposes
716
00:29:59.460 --> 00:30:02.160
while he goes back and forth to work in Massachusetts.
717
00:30:03.480 --> 00:30:04.860
And that's just consistent
718
00:30:04.860 --> 00:30:07.830
with what residents in Massachusetts have to do.
719
00:30:07.830 --> 00:30:09.600
I know I'm well over time,
720
00:30:09.600 --> 00:30:12.570
but I would be remiss if I didn't at least make
721
00:30:12.570 --> 00:30:15.480
some comment briefly on
722
00:30:15.480 --> 00:30:19.650
the request from defendant Donnell to add an element
723
00:30:19.650 --> 00:30:24.650
to 10A of essentially knowledge that it's illegal to,
724
00:30:25.710 --> 00:30:28.020
I think that my brief addressed this sufficiently,
725
00:30:28.020 --> 00:30:29.850
but I just want to say that
726
00:30:29.850 --> 00:30:32.040
even the logical extension of that argument
727
00:30:32.040 --> 00:30:34.920
would be that the defendant needed to know
728
00:30:34.920 --> 00:30:37.770
that he didn't have a non-resident license.
729
00:30:37.770 --> 00:30:40.470
Not that he didn't know that it was illegal,
730
00:30:40.470 --> 00:30:42.480
or that he was not in compliance.
731
00:30:42.480 --> 00:30:44.229
I just wanna leave it at that and say that,
732
00:30:44.229 --> 00:30:46.500
'cause I don't know that that was clear from my reply brief,
733
00:30:46.500 --> 00:30:48.300
but if there's no other questions,
734
00:30:48.300 --> 00:30:49.530
I'll yield the rest of my time,
735
00:30:49.530 --> 00:30:51.339
which I don't have to my brief.
736
00:30:51.339 --> 00:30:54.180
(all laughing)
737
00:30:54.180 --> 00:30:57.753
Thank you. Okay, Attorney Levin.
738
00:31:07.410 --> 00:31:08.730
Good morning.
739
00:31:08.730 --> 00:31:10.050
May I please the court?
740
00:31:10.050 --> 00:31:12.813
Patrick Levin on behalf of Dean Donnell.
741
00:31:14.608 --> 00:31:17.190
I hope to discuss the issues that I've raised
742
00:31:17.190 --> 00:31:19.650
in the brief regarding Section 10A
743
00:31:19.650 --> 00:31:21.480
as well as the Second Amendment issues
744
00:31:21.480 --> 00:31:24.720
relating to the unconstitutional may issue scheme
745
00:31:24.720 --> 00:31:26.920
that previously existed in the Commonwealth.
746
00:31:27.885 --> 00:31:28.950
Attorney Barnwell will address
747
00:31:28.950 --> 00:31:30.357
the broader Second Amendment questions
748
00:31:30.357 --> 00:31:31.773
and the right to travel.
749
00:31:32.850 --> 00:31:37.230
Before I get to that hard stuff, I just want to emphasize
750
00:31:37.230 --> 00:31:40.680
that the affirmance in Mr. Donnell's case must,
751
00:31:40.680 --> 00:31:43.320
that the dismissal in Mr. Donnell's case must be affirmed
752
00:31:43.320 --> 00:31:45.750
because this complaint does not allege a crime.
753
00:31:45.750 --> 00:31:49.020
He cannot be prosecuted on a complaint
754
00:31:49.020 --> 00:31:51.720
that doesn't allege that he was not licensed to carry.
755
00:31:53.280 --> 00:31:56.460
So moving to the issues that I've raised
756
00:31:56.460 --> 00:31:58.740
with respect to Section 10A,
757
00:31:58.740 --> 00:32:01.380
there are two provisions of the statute
758
00:32:01.380 --> 00:32:03.720
that I take issue with and they're intertwined.
759
00:32:03.720 --> 00:32:08.720
So the fact that the statute does not require any awareness
760
00:32:09.840 --> 00:32:14.840
of wrongful conduct is a huge problem in light of
761
00:32:15.540 --> 00:32:18.510
the stiff mandatory minimum sentence.
762
00:32:18.510 --> 00:32:20.820
Or alternatively, you can view it the other way
763
00:32:20.820 --> 00:32:24.270
that the mandatory minimum sentence is a huge problem,
764
00:32:24.270 --> 00:32:25.800
especially in light of the fact that
765
00:32:25.800 --> 00:32:27.840
no knowledge of wrongful conduct
766
00:32:27.840 --> 00:32:29.400
as required under the statute.
767
00:32:29.400 --> 00:32:32.400
Can I just, sorry, you had made an initial point,
768
00:32:32.400 --> 00:32:36.180
and I'm just looking at the complaint it says that,
769
00:32:36.180 --> 00:32:39.480
Donnell had the firearm,
770
00:32:39.480 --> 00:32:42.840
not having in effect a license to carry firearms.
771
00:32:42.840 --> 00:32:44.043
Why isn't that enough?
772
00:32:45.510 --> 00:32:47.430
Your Honor, I apologize.
773
00:32:47.430 --> 00:32:49.470
I don't have the complaint right in front of me, but-
774
00:32:49.470 --> 00:32:51.060
I do.
775
00:32:51.060 --> 00:32:53.700
But I thought your position was,
776
00:32:53.700 --> 00:32:56.340
they didn't allege that he didn't have a license,
777
00:32:56.340 --> 00:32:58.200
but it sounds like they did.
778
00:32:58.200 --> 00:33:03.200
So your Honor, I don't agree.
779
00:33:03.210 --> 00:33:05.430
And so the complaint,
780
00:33:05.430 --> 00:33:08.070
so there's two complaints against Mr. Donnell,
781
00:33:08.070 --> 00:33:09.570
they're both in the record,
782
00:33:09.570 --> 00:33:12.660
but the complaint at issue here,
783
00:33:12.660 --> 00:33:15.330
all it does is add that the 10A charge.
784
00:33:15.330 --> 00:33:20.280
But the application for the complaint
785
00:33:20.280 --> 00:33:21.180
does not say that
786
00:33:21.180 --> 00:33:23.040
Mr. Donnell did not have a license to carry.
787
00:33:23.040 --> 00:33:26.820
It doesn't suggest any investigation into that.
788
00:33:26.820 --> 00:33:30.810
And in fact, to the extent
789
00:33:30.810 --> 00:33:34.230
that the application did contain any allegation,
790
00:33:34.230 --> 00:33:37.830
it alleged that he did have a license
791
00:33:37.830 --> 00:33:40.950
because the initial complaint charged him with
792
00:33:40.950 --> 00:33:45.950
carrying a firearm while licensed and intoxicated.
793
00:33:47.460 --> 00:33:51.449
So moving back to the constitutional-
794
00:33:51.449 --> 00:33:52.710
There was no motion
795
00:33:52.710 --> 00:33:54.123
for a bill of particulars?
796
00:33:55.230 --> 00:33:57.270
No, your Honor, there was a motion to dismiss for absence
797
00:33:57.270 --> 00:33:58.260
of probable cause,
798
00:33:58.260 --> 00:34:00.693
which that's what we're here on appeal of.
799
00:34:05.999 --> 00:34:08.832
So coming back to this question of
800
00:34:11.250 --> 00:34:13.690
whether the statute now in the wake of Bruen
801
00:34:14.556 --> 00:34:16.620
and Guardado should be construed
802
00:34:16.620 --> 00:34:21.060
to require knowledge as to all of the elements
803
00:34:21.060 --> 00:34:25.383
that follow the knowingly phrase in Section 10A.
804
00:34:26.850 --> 00:34:31.850
This is a classic principle of statutory interpretation
805
00:34:32.070 --> 00:34:36.180
that we presume that a statute that says, you know,
806
00:34:36.180 --> 00:34:37.800
you're in violation if you knowingly
807
00:34:37.800 --> 00:34:42.690
and then enumerates the elements applies that mens rea
808
00:34:42.690 --> 00:34:44.940
to all of the following elements.
809
00:34:44.940 --> 00:34:46.260
And the fact that,
810
00:34:46.260 --> 00:34:50.580
that this court has now recognized that the non-compliance
811
00:34:50.580 --> 00:34:54.720
with regulatory requirements is an element of the crime
812
00:34:54.720 --> 00:34:59.700
also requires you to apply that knowingly mens rea
813
00:34:59.700 --> 00:35:02.160
to that element.
814
00:35:02.160 --> 00:35:05.880
Because that element is the only thing
815
00:35:05.880 --> 00:35:09.690
that distinguishes constitutionally protected conduct
816
00:35:09.690 --> 00:35:10.683
from a felony.
817
00:35:13.320 --> 00:35:17.580
I think if you synthesize this court's decisions
818
00:35:17.580 --> 00:35:20.130
in Jackson and Kelly and Guardado
819
00:35:20.130 --> 00:35:24.090
with the US Supreme Court's decisions in
820
00:35:24.090 --> 00:35:25.920
Lambert versus California,
821
00:35:25.920 --> 00:35:29.160
and the statutory construction cases following Morissette
822
00:35:29.160 --> 00:35:31.983
and especially Staples versus United States,
823
00:35:33.510 --> 00:35:36.120
you cannot come to another conclusion
824
00:35:36.120 --> 00:35:38.820
that in Jackson this court concluded
825
00:35:38.820 --> 00:35:40.890
that Section 10A was not intended
826
00:35:40.890 --> 00:35:43.380
to be a public welfare offense.
827
00:35:43.380 --> 00:35:47.370
That it does, it was intended to incorporate some mens rea
828
00:35:47.370 --> 00:35:49.830
and they rely on the Lambert decision
829
00:35:49.830 --> 00:35:52.653
and that's in part a constitutional avoidance holding.
830
00:35:54.998 --> 00:35:58.410
But in so holding, they confront the very argument
831
00:35:58.410 --> 00:35:59.730
that I'm making here,
832
00:35:59.730 --> 00:36:01.350
that awareness of the requirement
833
00:36:01.350 --> 00:36:03.450
of licensure was also required.
834
00:36:03.450 --> 00:36:06.990
And they say no, that's not necessary
835
00:36:06.990 --> 00:36:11.010
to distinguish a guilty mind from an innocent mind because,
836
00:36:11.010 --> 00:36:12.133
and they rely solely on
837
00:36:12.133 --> 00:36:16.290
a United States Supreme Court decision that says, you know,
838
00:36:16.290 --> 00:36:19.080
that possessing hand grenades is not an innocent act.
839
00:36:19.080 --> 00:36:21.000
Well, in Staples, the US Supreme Court
840
00:36:21.000 --> 00:36:22.830
makes clear that that's an error.
841
00:36:22.830 --> 00:36:24.930
That knowing that you possess a hand grenade
842
00:36:24.930 --> 00:36:27.240
is very different than knowing you possess a gun.
843
00:36:27.240 --> 00:36:31.090
And in fact, if you look at Heller
844
00:36:32.640 --> 00:36:35.010
and compare Heller with Staples,
845
00:36:35.010 --> 00:36:38.400
the line that they're drawing in Staples in some ways
846
00:36:38.400 --> 00:36:40.890
is the same line that Heller draws
847
00:36:40.890 --> 00:36:42.270
in terms of what is an arm
848
00:36:42.270 --> 00:36:43.770
that's protected by the Second Amendment
849
00:36:43.770 --> 00:36:46.080
and what is a dangerous and unusual weapon,
850
00:36:46.080 --> 00:36:49.560
or a weapon that's not in common use for a lawful purpose.
851
00:36:49.560 --> 00:36:50.820
What Staples says is,
852
00:36:50.820 --> 00:36:52.860
if all you know is I have a gun
853
00:36:52.860 --> 00:36:54.690
in the ordinary meaning of the word,
854
00:36:54.690 --> 00:36:57.300
an instrument that is commonly possessed
855
00:36:57.300 --> 00:36:59.730
for lawful purposes, that does not,
856
00:36:59.730 --> 00:37:03.090
that's not a guilty mind and we shouldn't-
857
00:37:03.090 --> 00:37:04.560
I'm just trying to make sure I understand your argument.
858
00:37:04.560 --> 00:37:08.520
Are you saying that you need to know,
859
00:37:08.520 --> 00:37:09.690
you need to be licensed,
860
00:37:09.690 --> 00:37:11.340
or do you need to know that
861
00:37:11.340 --> 00:37:14.250
you need to get a second license?
862
00:37:14.250 --> 00:37:16.650
That you need to know you're not allowed
863
00:37:16.650 --> 00:37:19.803
to have the gun in Massachusetts as applied to this case.
864
00:37:21.390 --> 00:37:23.190
So there should be a showing,
865
00:37:23.190 --> 00:37:26.340
and this is hardly an impossible showing to make
866
00:37:26.340 --> 00:37:28.590
any evidence of consciousness, of guilt,
867
00:37:28.590 --> 00:37:31.170
of concealment of the gun from authorities.
868
00:37:31.170 --> 00:37:32.494
Certainly would-
869
00:37:32.494 --> 00:37:33.420
Well what about the fact that
870
00:37:33.420 --> 00:37:36.570
there's something in the record that New Hampshire
871
00:37:36.570 --> 00:37:39.660
says that your license only applies in New Hampshire.
872
00:37:39.660 --> 00:37:41.460
Is that enough that you-
873
00:37:41.460 --> 00:37:42.853
Yes.
874
00:37:42.853 --> 00:37:43.980
If there was evidence of that at trial, certainly.
875
00:37:43.980 --> 00:37:46.440
But there's no allegation of that in this complaint.
876
00:37:46.440 --> 00:37:47.640
And that's the point,
877
00:37:47.640 --> 00:37:50.640
is that the complaint doesn't set forth probable cause
878
00:37:50.640 --> 00:37:52.120
that Mr. Donnell
879
00:37:53.250 --> 00:37:56.220
did not have a wholly innocent mental state.
880
00:37:56.220 --> 00:37:59.280
So if I understand what you're arguing,
881
00:37:59.280 --> 00:38:04.280
mens rea would require not simply the mens rea of facts,
882
00:38:05.100 --> 00:38:07.500
but mens rea of the law.
883
00:38:07.500 --> 00:38:12.000
So what it requires is knowledge as to the element
884
00:38:12.000 --> 00:38:15.270
that provides the distinction between innocent conduct
885
00:38:15.270 --> 00:38:16.740
and wrongful conduct.
886
00:38:16.740 --> 00:38:19.080
And when the Supreme Court confronts-
887
00:38:19.080 --> 00:38:19.913
Which in this case
888
00:38:19.913 --> 00:38:21.782
would be that he had to get a license.
889
00:38:21.782 --> 00:38:22.615
Right.
890
00:38:22.615 --> 00:38:26.580
And so when you look at cases like Lambert versus California
891
00:38:26.580 --> 00:38:29.130
and then Liparota versus United States,
892
00:38:29.130 --> 00:38:30.900
and Rehaif versus United States,
893
00:38:30.900 --> 00:38:32.910
and Ruan versus United States,
894
00:38:32.910 --> 00:38:35.580
these are all cases where that key element
895
00:38:35.580 --> 00:38:38.130
is a lawful or a regulatory element.
896
00:38:38.130 --> 00:38:40.470
And the Supreme Court doesn't hesitate
897
00:38:40.470 --> 00:38:43.500
to construe federal statutes to require knowledge
898
00:38:43.500 --> 00:38:45.270
of that regulatory element.
899
00:38:45.270 --> 00:38:47.070
Or in the case of Lambert,
900
00:38:47.070 --> 00:38:48.390
which is the only one of those cases
901
00:38:48.390 --> 00:38:50.670
that involves a state statute to say that
902
00:38:50.670 --> 00:38:53.310
the due process clause requires such knowledge
903
00:38:53.310 --> 00:38:55.320
to be imputed to-
904
00:38:55.320 --> 00:38:58.500
Did New Hampshire ever require licenses?
905
00:38:58.500 --> 00:39:00.513
Yes.
And when did that end?
906
00:39:02.040 --> 00:39:06.210
I believe it was 2017 or 18,
907
00:39:06.210 --> 00:39:08.130
but I wouldn't want to-
908
00:39:08.130 --> 00:39:10.230
And when is, what is the,
909
00:39:10.230 --> 00:39:15.150
as I understand there are voluntary licensing regime now,
910
00:39:15.150 --> 00:39:18.300
what are the benefits to getting a license?
911
00:39:18.300 --> 00:39:20.523
Why would a person get a license?
912
00:39:21.471 --> 00:39:26.471
So I think the likeliest reason would be that many states,
913
00:39:28.560 --> 00:39:32.370
although not Massachusetts, do have reciprocity agreements.
914
00:39:32.370 --> 00:39:34.950
And so if you are licensed in New Hampshire
915
00:39:34.950 --> 00:39:38.193
and you travel to a state where there is reciprocity,
916
00:39:39.090 --> 00:39:40.353
then you don't need a license from the-
917
00:39:40.353 --> 00:39:42.120
Does does your argument
918
00:39:42.120 --> 00:39:44.943
writ large mandate reciprocity?
919
00:39:51.480 --> 00:39:52.923
I think,
920
00:39:59.310 --> 00:40:00.143
well
921
00:40:04.260 --> 00:40:08.280
I think that the answer is yes,
922
00:40:08.280 --> 00:40:13.280
provided that the home state has, you know, some,
923
00:40:15.990 --> 00:40:18.210
like I think there could be some minimum,
924
00:40:18.210 --> 00:40:19.470
like a statute that provides
925
00:40:19.470 --> 00:40:23.100
for some minimum level of screening in the home state.
926
00:40:23.100 --> 00:40:25.080
And then you could say, okay-
927
00:40:25.080 --> 00:40:26.040
Well what if the home state's
928
00:40:26.040 --> 00:40:27.990
a constitutional carry state?
929
00:40:27.990 --> 00:40:32.610
So in that case that, I mean the reciprocity
930
00:40:32.610 --> 00:40:34.510
question is not quite the same, right?
931
00:40:35.700 --> 00:40:37.410
There is, it's not reciprocity,
932
00:40:37.410 --> 00:40:41.430
it's nullification almost, right?
933
00:40:41.430 --> 00:40:43.650
So to take an easy example,
934
00:40:43.650 --> 00:40:47.523
non-controversial assault rifles, right?
935
00:40:50.433 --> 00:40:52.686
And the two way advocates would say
936
00:40:52.686 --> 00:40:54.930
there's no such thing as an assault white rifle.
937
00:40:54.930 --> 00:40:58.170
That's a made up term.
Right.
938
00:40:58.170 --> 00:40:59.820
Some other states like this one says
939
00:40:59.820 --> 00:41:01.050
it's absolutely a term,
940
00:41:01.050 --> 00:41:03.693
it's very controversial in the two-way world.
941
00:41:05.550 --> 00:41:10.140
If someone in a constitutional carry state
942
00:41:10.140 --> 00:41:14.730
were to comply with the Second Amendment,
943
00:41:14.730 --> 00:41:16.260
you have a absolute right to carry
944
00:41:16.260 --> 00:41:20.130
what we call in this state of assault rifle.
945
00:41:20.130 --> 00:41:22.740
Could that person under your scheme
946
00:41:22.740 --> 00:41:25.680
driving to Massachusetts, visit Massachusetts
947
00:41:25.680 --> 00:41:28.143
with an assault rifle in the backseat?
948
00:41:30.180 --> 00:41:34.860
So your Honor, I suppose that my real answer to that
949
00:41:34.860 --> 00:41:37.290
is I don't need to go that far,
950
00:41:37.290 --> 00:41:38.427
because Mr. Donnell is being-
951
00:41:38.427 --> 00:41:41.100
I'm gonna press you for an answer.
952
00:41:41.100 --> 00:41:45.077
Well, so your honor, if you're gonna force me-
953
00:41:45.077 --> 00:41:48.660
'Cause this would lead to that hypothetical
954
00:41:48.660 --> 00:41:53.160
because we're talking about essentially Bruen allowed for
955
00:41:53.160 --> 00:41:55.110
exchanged Howard McDonald to say
956
00:41:55.110 --> 00:41:58.813
the right to carry is no longer in the house,
957
00:41:58.813 --> 00:42:00.450
it's the right to carry outside the house.
958
00:42:00.450 --> 00:42:01.500
Now as I read this,
959
00:42:01.500 --> 00:42:03.180
this is the right to carry outside the house,
960
00:42:03.180 --> 00:42:05.610
Right.
and into another state.
961
00:42:05.610 --> 00:42:08.763
So again, getting back to the hypothetical,
962
00:42:09.930 --> 00:42:12.780
would the exercise of the right,
963
00:42:12.780 --> 00:42:14.490
the Second Amendment right
964
00:42:14.490 --> 00:42:16.413
in a constitutional carry state,
965
00:42:17.370 --> 00:42:20.463
allow someone to enter this state with an assault weapon?
966
00:42:21.840 --> 00:42:26.160
So your Honor, I think that the answer to that question
967
00:42:26.160 --> 00:42:27.660
actually depends on the answer
968
00:42:27.660 --> 00:42:29.210
to the assault weapon question.
969
00:42:30.120 --> 00:42:33.630
If that's an arm or not under the Second Amendment and-
970
00:42:33.630 --> 00:42:37.080
Well, so the constitutional carrier state
971
00:42:37.080 --> 00:42:38.970
would say absolutely,
Right.
972
00:42:38.970 --> 00:42:42.240
and this state says no.
And so I'm not arguing
973
00:42:42.240 --> 00:42:44.790
that Massachusetts is required to defer
974
00:42:44.790 --> 00:42:47.550
to the law of other states on all questions.
975
00:42:47.550 --> 00:42:51.330
And so if you accept as correct, for example,
976
00:42:51.330 --> 00:42:54.090
the recent fourth circuit en banc decision
977
00:42:54.090 --> 00:42:56.400
that says assault weapons don't fall
978
00:42:56.400 --> 00:42:58.350
within the Second Amendment's protection,
979
00:42:58.350 --> 00:43:00.870
then obviously Massachusetts is free
980
00:43:00.870 --> 00:43:02.190
to criminalize those weapons.
981
00:43:02.190 --> 00:43:03.023
And so this is,
982
00:43:03.023 --> 00:43:05.369
it's a separate question than the right to travel question
983
00:43:05.369 --> 00:43:06.202
that's what I'm saying.
984
00:43:06.202 --> 00:43:08.670
And the reason I didn't raise the extended magazine,
985
00:43:08.670 --> 00:43:10.140
or the high capacity magazine,
986
00:43:10.140 --> 00:43:14.310
because that's part of 131F, right?
987
00:43:14.310 --> 00:43:15.143
Well that's true,
988
00:43:15.143 --> 00:43:17.130
but also he's not charged with that anymore.
989
00:43:17.130 --> 00:43:19.681
Right. I know that, but I'm just think thinking about
990
00:43:19.681 --> 00:43:20.514
these hypotheticals,
991
00:43:20.514 --> 00:43:23.970
about how far this force reciprocity goes,
992
00:43:23.970 --> 00:43:25.800
Right.
to this state.
993
00:43:25.800 --> 00:43:29.520
Well, and if I may, your Honor, if you'll forgive me
994
00:43:29.520 --> 00:43:31.740
and if allow me to defer some of these questions
995
00:43:31.740 --> 00:43:33.060
to Attorney Barnwell.
All right.
996
00:43:33.060 --> 00:43:35.070
And fall back on
997
00:43:35.070 --> 00:43:37.080
because Mr. Donnell is being prosecuted.
998
00:43:37.080 --> 00:43:38.880
I would forward to asking him Attorney Barnwell
999
00:43:38.880 --> 00:43:41.780
these questions.
Because the thing is that,
1000
00:43:41.780 --> 00:43:44.010
my case is much easier than that.
1001
00:43:44.010 --> 00:43:46.740
Mr. Donnell is being prosecuted under a statutory regime
1002
00:43:46.740 --> 00:43:48.090
that even the Commonwealth concedes
1003
00:43:48.090 --> 00:43:51.351
is not constitutional. This may issue regime-
1004
00:43:51.351 --> 00:43:54.300
And where does this take us as far as
1005
00:43:54.300 --> 00:43:56.220
Guardado on steroids essentially,
1006
00:43:56.220 --> 00:44:01.060
if we say that the May versus shall license in scheme
1007
00:44:01.920 --> 00:44:05.610
makes it constitutionally infirm for these people.
1008
00:44:05.610 --> 00:44:08.220
Does that lead us to our case law
1009
00:44:08.220 --> 00:44:10.950
about you didn't have a license,
1010
00:44:10.950 --> 00:44:12.690
you don't get to play essentially,
1011
00:44:12.690 --> 00:44:15.720
does that hold true for all the Guardado folks
1012
00:44:15.720 --> 00:44:16.870
as well as your client?
1013
00:44:17.820 --> 00:44:20.430
Anyone that was convicted on the 10A?
1014
00:44:20.430 --> 00:44:23.209
I'm not sure I'm following your question.
1015
00:44:23.209 --> 00:44:24.042
Right.
So is it
1016
00:44:24.042 --> 00:44:24.875
a retroactivity question
1017
00:44:24.875 --> 00:44:27.420
or is it a standing question?
1018
00:44:27.420 --> 00:44:29.660
So right now the law is that,
1019
00:44:30.720 --> 00:44:33.617
you can't say I would've gotten a license,
1020
00:44:33.617 --> 00:44:35.160
Right.
that's not a defense
1021
00:44:35.160 --> 00:44:36.990
to 10A violation.
Right. Okay.
1022
00:44:36.990 --> 00:44:40.983
Right. If we agree with you, does that law go away?
1023
00:44:43.170 --> 00:44:46.127
So as to people charged-
Postpone, I guess.
1024
00:44:46.127 --> 00:44:47.375
As to people charged
1025
00:44:47.375 --> 00:44:48.331
under the unconstitutional may issue statute,
1026
00:44:48.331 --> 00:44:52.212
the answer is in effect yes.
1027
00:44:52.212 --> 00:44:55.265
Although not quite in that way.
1028
00:44:55.265 --> 00:44:57.153
That the point is that,
1029
00:44:57.153 --> 00:45:02.153
if there is no facially constitutional means
1030
00:45:03.330 --> 00:45:05.520
of obtaining a license,
1031
00:45:05.520 --> 00:45:07.680
then what you have in 10A
1032
00:45:07.680 --> 00:45:11.780
is just a ban on carrying guns effectively, so-
1033
00:45:11.780 --> 00:45:14.160
So we basically take the hold in Guardado
1034
00:45:14.160 --> 00:45:15.933
and we say Post-Bruen,
1035
00:45:16.800 --> 00:45:21.800
all the 10A violations for residents as well are invalid?
1036
00:45:24.660 --> 00:45:26.010
Yes. As to people-
1037
00:45:26.010 --> 00:45:28.530
'Cause we had the may issue statute.
1038
00:45:28.530 --> 00:45:31.500
Right. As to people charged under the may issue regime,
1039
00:45:31.500 --> 00:45:32.970
that's correct.
1040
00:45:32.970 --> 00:45:35.920
That's a result of what you want us to rule in this case.
1041
00:45:37.704 --> 00:45:38.580
It in effect, yes.
1042
00:45:38.580 --> 00:45:40.770
Although this case
1043
00:45:40.770 --> 00:45:43.860
by its terms only presents the application
1044
00:45:43.860 --> 00:45:47.850
of Section 10A3 and section 131F.
1045
00:45:47.850 --> 00:45:50.010
Right. This this only applies to non-resident, right?
1046
00:45:50.010 --> 00:45:51.120
Right.
But the result
1047
00:45:51.120 --> 00:45:52.500
of that ruling would be
1048
00:45:52.500 --> 00:45:55.650
residents would get the benefit of the elimination
1049
00:45:55.650 --> 00:45:58.380
of the licensing requirement.
1050
00:45:58.380 --> 00:45:59.700
Yes, I believe so.
1051
00:45:59.700 --> 00:46:02.430
Although I do note in the brief
1052
00:46:02.430 --> 00:46:06.090
that section 131F is actually in some ways
1053
00:46:06.090 --> 00:46:09.060
a doubly problematic may issue statute.
1054
00:46:09.060 --> 00:46:12.000
It entails more discretion
1055
00:46:12.000 --> 00:46:13.740
on the part of the state police colonel
1056
00:46:13.740 --> 00:46:18.740
than even the section 131 little D
1057
00:46:18.990 --> 00:46:20.760
does to the licensing authorities
1058
00:46:20.760 --> 00:46:22.650
for Massachusetts residents.
1059
00:46:22.650 --> 00:46:24.330
And so it's, I mean,
1060
00:46:24.330 --> 00:46:28.470
even if you were to uphold the, you know,
1061
00:46:28.470 --> 00:46:33.210
to somehow sever and uphold pieces of section 131,
1062
00:46:33.210 --> 00:46:36.780
but I will, you know, to the extent that
1063
00:46:36.780 --> 00:46:38.220
what you're trying to do
1064
00:46:38.220 --> 00:46:42.147
is save some of these prosecutions. I also would say-
1065
00:46:42.147 --> 00:46:43.950
That I just talked, I'm dealing with the consequences
1066
00:46:43.950 --> 00:46:45.660
as you well know from Guardado.
1067
00:46:45.660 --> 00:46:48.450
Right.
And now we don't have
1068
00:46:48.450 --> 00:46:51.150
a new trial, we have a prohibition as well, right?
1069
00:46:51.150 --> 00:46:54.610
Well, so what I was gonna say is that
1070
00:46:55.800 --> 00:47:00.510
potentially, in terms of, you know,
1071
00:47:00.510 --> 00:47:03.663
which parts of these statutes it's possible to save.
1072
00:47:04.980 --> 00:47:07.230
The prohibitive person section
1073
00:47:07.230 --> 00:47:09.300
is not challenged in this case.
1074
00:47:09.300 --> 00:47:13.140
And frankly, it tracks pretty closely
1075
00:47:13.140 --> 00:47:17.940
with the prohibitions in federal law of, you know,
1076
00:47:17.940 --> 00:47:20.610
under section 922G of people
1077
00:47:20.610 --> 00:47:21.990
who are not allowed to carry guns at all
1078
00:47:21.990 --> 00:47:23.370
anywhere in the country.
1079
00:47:23.370 --> 00:47:26.850
And you know, that's Judge Coffey's point below
1080
00:47:26.850 --> 00:47:29.040
to a certain extent is that, you know,
1081
00:47:29.040 --> 00:47:31.530
we have the Massachusetts prohibitive persons
1082
00:47:31.530 --> 00:47:34.410
and the federal prohibitive persons are basically the same.
1083
00:47:34.410 --> 00:47:36.150
And if you're a prohibitive person federally,
1084
00:47:36.150 --> 00:47:39.240
you're also not lawfully allowed to carry in New Hampshire.
1085
00:47:39.240 --> 00:47:41.760
So, you know, as to anyone who's lawfully allowed
1086
00:47:41.760 --> 00:47:45.000
to carry a gun in New Hampshire, we already,
1087
00:47:45.000 --> 00:47:47.190
if you're allowed to carry a gun in New Hampshire,
1088
00:47:47.190 --> 00:47:49.710
then that means you're not a prohibited person
1089
00:47:49.710 --> 00:47:50.880
in Massachusetts either.
1090
00:47:50.880 --> 00:47:53.850
And the only basis to have denied a license
1091
00:47:53.850 --> 00:47:57.660
would've been the unconstitutional discretionary basis.
1092
00:47:57.660 --> 00:47:58.937
Do you see what I mean?
1093
00:47:59.809 --> 00:48:01.890
I do.
And so in, you know,
1094
00:48:01.890 --> 00:48:04.560
in terms of severing pieces of the statute
1095
00:48:04.560 --> 00:48:06.153
and striking them down,
1096
00:48:08.550 --> 00:48:11.880
even if you say the only parts of the statute
1097
00:48:11.880 --> 00:48:14.550
that were unconstitutional
1098
00:48:14.550 --> 00:48:17.703
were the discretionary may issue parts of the statute.
1099
00:48:18.810 --> 00:48:23.370
Okay, so perhaps it would have been constitutional
1100
00:48:23.370 --> 00:48:26.520
even under that statute as severed
1101
00:48:26.520 --> 00:48:28.983
to prosecute someone who was a prohibited person,
1102
00:48:30.121 --> 00:48:31.103
do you see what I mean?
1103
00:48:32.730 --> 00:48:33.900
But of course, in this case,
1104
00:48:33.900 --> 00:48:36.900
we have two New Hampshire residents
1105
00:48:36.900 --> 00:48:39.360
who were lawfully permitted to carry in New Hampshire.
1106
00:48:39.360 --> 00:48:41.370
And so it was only under
1107
00:48:41.370 --> 00:48:44.370
the unconstitutional may issue provisions
1108
00:48:44.370 --> 00:48:45.930
that they could have ever been denied
1109
00:48:45.930 --> 00:48:47.610
a non-resident license.
1110
00:48:47.610 --> 00:48:48.990
When you say lawfully permitted,
1111
00:48:48.990 --> 00:48:50.190
do you mean lawfully allowed
1112
00:48:50.190 --> 00:48:52.320
as opposed to having a permit in New Hampshire?
1113
00:48:52.320 --> 00:48:53.460
Right. There's no suggest,
1114
00:48:53.460 --> 00:48:55.260
there's no evidence in this case that either
1115
00:48:55.260 --> 00:48:58.170
of these defendants had the optional permit.
1116
00:48:58.170 --> 00:49:00.180
It's just that they were lawfully allowed to carry
1117
00:49:00.180 --> 00:49:02.070
because they were not prohibited
1118
00:49:02.070 --> 00:49:03.670
by federal or New Hampshire law.
1119
00:49:05.280 --> 00:49:07.740
And so just to circle back-
1120
00:49:07.740 --> 00:49:09.553
Oh no. Wait.
1121
00:49:09.553 --> 00:49:10.558
Yeah, I'm sorry.
1122
00:49:10.558 --> 00:49:13.188
So we're 10 minutes over and I just wanna make sure that
1123
00:49:13.188 --> 00:49:14.850
whatever it is you were gonna say,
1124
00:49:14.850 --> 00:49:18.208
it sounds like it might be something you said already.
1125
00:49:18.208 --> 00:49:19.590
I was just gonna ask
1126
00:49:19.590 --> 00:49:20.910
if anyone had any questions about this.
1127
00:49:20.910 --> 00:49:23.141
Oh, good. That was what I was gonna ask as well.
1128
00:49:23.141 --> 00:49:24.053
(audience laughing)
1129
00:49:24.053 --> 00:49:25.946
About the standing in particular.
1130
00:49:25.946 --> 00:49:26.779
Okay.
Okay.
1131
00:49:26.779 --> 00:49:28.043
Thank you so much.
Thank you very much.
1132
00:49:35.279 --> 00:49:36.413
Okay, Attorney Barnwell.
1133
00:49:42.330 --> 00:49:43.770
Good morning your honors,
1134
00:49:43.770 --> 00:49:46.053
Hayne Barnwell on behalf of Phillip Marquis.
1135
00:49:47.100 --> 00:49:49.080
So there have been
1136
00:49:49.080 --> 00:49:52.110
a lot of issues touched on in this case.
1137
00:49:52.110 --> 00:49:53.980
I would just like to zoom out a bit
1138
00:49:55.380 --> 00:49:58.830
and to state that, whether it's in their brief or today,
1139
00:49:58.830 --> 00:50:00.900
the Commonwealth has not shown
1140
00:50:00.900 --> 00:50:05.643
a relevantly similar historical analog to this law.
1141
00:50:06.750 --> 00:50:10.920
Rahimi also, I mean, beyond Bruen,
1142
00:50:10.920 --> 00:50:13.140
Rahimi also dooms its argument
1143
00:50:13.140 --> 00:50:17.880
because Rahimi makes clear how narrow the holding is.
1144
00:50:17.880 --> 00:50:22.590
We are only today saying that if a court,
1145
00:50:22.590 --> 00:50:24.510
and specifically a court finds
1146
00:50:24.510 --> 00:50:26.670
that this person is dangerous,
1147
00:50:26.670 --> 00:50:31.670
that the state can regulate or even, you know,
1148
00:50:31.710 --> 00:50:35.370
ban that person from having a firearm.
1149
00:50:35.370 --> 00:50:37.290
But it also cautioned
1150
00:50:37.290 --> 00:50:39.930
after that narrow holding that the broader you go,
1151
00:50:39.930 --> 00:50:42.600
the broader the prohibition is,
1152
00:50:42.600 --> 00:50:46.440
the more constitutional peril the state will be in.
1153
00:50:46.440 --> 00:50:49.860
But counsel, how about the circumstance
1154
00:50:49.860 --> 00:50:52.050
that you're pointing out though,
1155
00:50:52.050 --> 00:50:53.880
I get you with Rahimi,
1156
00:50:53.880 --> 00:50:57.090
that's not necessarily instructive here,
1157
00:50:57.090 --> 00:51:02.090
but getting aside from the optional licensing
1158
00:51:02.220 --> 00:51:04.890
that you might do if you are a New Hampshire resident,
1159
00:51:04.890 --> 00:51:09.450
if you are the going the route of the constitutional carry,
1160
00:51:09.450 --> 00:51:13.470
why is it that there is an even under a rational basis,
1161
00:51:13.470 --> 00:51:15.360
a reason for this Commonwealth
1162
00:51:15.360 --> 00:51:17.520
to say there's been no vetting
1163
00:51:17.520 --> 00:51:20.010
of the New Hampshire resident?
1164
00:51:20.010 --> 00:51:22.830
So even if you have this right,
1165
00:51:22.830 --> 00:51:25.920
that Bruen has again reaffirmed
1166
00:51:25.920 --> 00:51:29.580
that Massachusetts shouldn't just be allowed
1167
00:51:29.580 --> 00:51:31.833
or forced to just say ole.
1168
00:51:34.410 --> 00:51:37.350
Because well that gets to reciprocity.
1169
00:51:37.350 --> 00:51:38.970
My answer is that Massachusetts
1170
00:51:38.970 --> 00:51:41.670
does not have to have a reciprocal regime,
1171
00:51:41.670 --> 00:51:45.270
or recognize a New Hampshire license, for example,
1172
00:51:45.270 --> 00:51:46.560
or authorization.
1173
00:51:46.560 --> 00:51:47.880
It's just that Massachusetts
1174
00:51:47.880 --> 00:51:49.950
can't be less protected than the Second Amendment,
1175
00:51:49.950 --> 00:51:52.050
and that's the problem.
Well I guess it depends
1176
00:51:52.050 --> 00:51:53.147
on whose Second Amendment.
Right.
1177
00:51:53.147 --> 00:51:55.260
'Cause that's the hypothetical I have
1178
00:51:55.260 --> 00:51:57.060
about the constitutional carry states,
1179
00:51:57.060 --> 00:51:59.700
Right.
in this notion
1180
00:51:59.700 --> 00:52:01.860
of forced reciprocity,
1181
00:52:01.860 --> 00:52:04.200
or mandatory reciprocity.
1182
00:52:04.200 --> 00:52:06.136
what's your answer to the hypothetical
1183
00:52:06.136 --> 00:52:08.400
about the person who comes in
1184
00:52:08.400 --> 00:52:10.680
from a constitutional carry state
1185
00:52:10.680 --> 00:52:15.680
with a magazine over 10 rounds and or an assault weapon?
1186
00:52:17.220 --> 00:52:19.740
So that comes down to not what,
1187
00:52:19.740 --> 00:52:22.800
it's not about what New Hampshire allows or doesn't allow.
1188
00:52:22.800 --> 00:52:23.910
It's whether that comports
1189
00:52:23.910 --> 00:52:25.230
with the Second Amendment period,
1190
00:52:25.230 --> 00:52:26.580
whether you can-
Okay, so-
1191
00:52:26.580 --> 00:52:28.930
Whether you can (indistinct) or you ban that.
1192
00:52:29.951 --> 00:52:31.530
And I apologize,
1193
00:52:31.530 --> 00:52:33.750
I'm not prepared to talk about those cases.
1194
00:52:33.750 --> 00:52:35.430
I know there are cases percolating up
1195
00:52:35.430 --> 00:52:38.820
to the US Supreme Court on this very question,
1196
00:52:38.820 --> 00:52:41.070
on the question of can assault weapons
1197
00:52:41.070 --> 00:52:43.173
be effectively banned or you know?
1198
00:52:44.418 --> 00:52:47.340
So obviously McDonald, Heller,
1199
00:52:47.340 --> 00:52:50.040
they all say there can be reasonable regulation
1200
00:52:50.040 --> 00:52:53.550
and this can be 50 different states, right?
1201
00:52:53.550 --> 00:52:55.320
Obviously 50 different regulations,
1202
00:52:55.320 --> 00:52:56.790
or types of regulations,
1203
00:52:56.790 --> 00:52:59.460
as long as they don't impede the Second Amendment,
1204
00:52:59.460 --> 00:53:00.993
which is the bellwether.
1205
00:53:03.000 --> 00:53:06.300
But what if someone's from the state of Oklahoma
1206
00:53:06.300 --> 00:53:09.540
and they think there's no such thing as an assault weapon
1207
00:53:09.540 --> 00:53:11.157
and that's fine there
1208
00:53:11.157 --> 00:53:14.730
and they drive into Massachusetts. Is that a problem?
1209
00:53:14.730 --> 00:53:18.450
So if the US Supreme Court declares
1210
00:53:18.450 --> 00:53:21.330
that that's both a dangerous and unusual weapon
1211
00:53:21.330 --> 00:53:23.340
and therefore it doesn't come under the protection
1212
00:53:23.340 --> 00:53:25.920
of an arm, then can do that.
1213
00:53:25.920 --> 00:53:28.500
It can be, you know, in my view,
1214
00:53:28.500 --> 00:53:31.560
it can be strictly to the Second Amendment.
1215
00:53:31.560 --> 00:53:33.150
Not less than, but strictly to,
1216
00:53:33.150 --> 00:53:35.010
it doesn't have to go beyond,
1217
00:53:35.010 --> 00:53:38.610
that would be my argument there.
1218
00:53:38.610 --> 00:53:41.130
But the problem with this statute is that
1219
00:53:41.130 --> 00:53:44.583
it temporarily disarms.
1220
00:53:44.583 --> 00:53:45.900
But what about the reciprocity that-
1221
00:53:45.900 --> 00:53:47.400
I'm sorry.
What about the reciprocity
1222
00:53:47.400 --> 00:53:50.889
from the person, from the constitutional carry state?
1223
00:53:50.889 --> 00:53:54.390
We don't have to extend the reciprocity to that level.
1224
00:53:54.390 --> 00:53:57.332
I haven't argued full faith and credit.
1225
00:53:57.332 --> 00:54:00.600
I feel like that was persuasively handled
1226
00:54:00.600 --> 00:54:02.310
in Commonwealth versus Harris.
1227
00:54:02.310 --> 00:54:04.710
Again, I think it really just comes down to,
1228
00:54:04.710 --> 00:54:06.330
is the US Supreme Court,
1229
00:54:06.330 --> 00:54:08.040
I hope it eventually gets up there
1230
00:54:08.040 --> 00:54:09.750
because I think that needs to be settled.
1231
00:54:09.750 --> 00:54:12.900
Whether that's a dangerous and unusual weapon.
1232
00:54:12.900 --> 00:54:14.910
And this court's of course,
1233
00:54:14.910 --> 00:54:19.080
opinion in Kendra is instructive on that, you know,
1234
00:54:19.080 --> 00:54:22.170
what kind of historical analog
1235
00:54:22.170 --> 00:54:24.210
are you going to sort of see with that?
1236
00:54:24.210 --> 00:54:25.800
And I can't think of one.
1237
00:54:25.800 --> 00:54:27.510
I don't know where the commonwealth will go.
1238
00:54:27.510 --> 00:54:28.710
Would they go to Cannons?
1239
00:54:28.710 --> 00:54:31.592
You know, maybe there was a Cannon ban and they can say,
1240
00:54:31.592 --> 00:54:32.850
well therefore I just don't know.
1241
00:54:32.850 --> 00:54:37.850
But I don't think the (indistinct) of it is reciprocity its,
1242
00:54:38.010 --> 00:54:39.924
does Massachusetts,
1243
00:54:39.924 --> 00:54:43.413
this particular law does a comport the Second Amendment?
1244
00:54:43.413 --> 00:54:45.735
No, I believe, I fully understand that
1245
00:54:45.735 --> 00:54:49.152
the floor has to be the Second Amendment.
1246
00:54:50.760 --> 00:54:52.320
And if the Supreme Court says that
1247
00:54:52.320 --> 00:54:53.880
there's no such thing as assault rifle,
1248
00:54:53.880 --> 00:54:56.010
that's what we have to apply.
1249
00:54:56.010 --> 00:54:57.690
But I'm trying to explore
1250
00:54:57.690 --> 00:55:00.210
what happens to these folks who come in.
1251
00:55:00.210 --> 00:55:02.250
Yeah.
And we don't know
1252
00:55:02.250 --> 00:55:05.010
about fitness, we don't know about mental ability.
1253
00:55:05.010 --> 00:55:06.570
We don't know about criminal records.
1254
00:55:06.570 --> 00:55:08.310
And on that, I defer
1255
00:55:08.310 --> 00:55:10.110
to Attorney Levin's excellent argument that
1256
00:55:10.110 --> 00:55:12.690
that's yet another reason to put a men's ray
1257
00:55:12.690 --> 00:55:14.670
attached to this.
1258
00:55:14.670 --> 00:55:17.040
That, you know, usually
1259
00:55:17.040 --> 00:55:18.840
ignorance of the law isn't an excuse,
1260
00:55:18.840 --> 00:55:20.820
but there are those cases like Rehaif,
1261
00:55:20.820 --> 00:55:22.890
where you know, one status,
1262
00:55:22.890 --> 00:55:25.605
you do have to know your status. And I think-
1263
00:55:25.605 --> 00:55:27.270
But how does that affect the reciprocity issue
1264
00:55:27.270 --> 00:55:29.310
if go to your client, right?
1265
00:55:29.310 --> 00:55:33.690
So your client comes over, he doesn't have the benefit.
1266
00:55:33.690 --> 00:55:36.933
He's unlike Mr. Levin's client as far as the statute goes,
1267
00:55:38.340 --> 00:55:41.760
but we don't know where he fits as far as suitability
1268
00:55:41.760 --> 00:55:46.350
because he has a constitutional carry permission
1269
00:55:46.350 --> 00:55:48.810
to carry from New Hampshire.
1270
00:55:48.810 --> 00:55:50.489
Well, so we-
Don't know if he's
1271
00:55:50.489 --> 00:55:51.322
I'm sorry.
right.
1272
00:55:51.322 --> 00:55:53.163
So tell me how we handle that.
1273
00:55:54.960 --> 00:55:56.670
Sure. So with suitability,
1274
00:55:56.670 --> 00:55:58.500
suitability actually proves that
1275
00:55:58.500 --> 00:56:01.350
this is still a may issue regime.
1276
00:56:01.350 --> 00:56:02.940
And if you look at Bruen-
1277
00:56:02.940 --> 00:56:07.860
But the Supreme Courts allow us to look into suitability.
1278
00:56:07.860 --> 00:56:09.210
Actually Bruen says the opposite-
1279
00:56:09.210 --> 00:56:10.290
But not suitability,
1280
00:56:10.290 --> 00:56:13.140
as far as mental illness in the like, right?
1281
00:56:13.140 --> 00:56:14.713
Oh, I'm sorry. Whether we're worried to hell-
1282
00:56:14.713 --> 00:56:15.546
Or whether or not they're felon,
1283
00:56:15.546 --> 00:56:16.379
what categories,
1284
00:56:16.379 --> 00:56:19.290
whether or not they're felon or mentally ill.
1285
00:56:19.290 --> 00:56:21.090
But those are objective standards
1286
00:56:21.090 --> 00:56:23.210
and we can get in an argument about whether that's
1287
00:56:23.210 --> 00:56:24.397
or not in Heller,
1288
00:56:24.397 --> 00:56:27.917
but assuming that's operative law,
1289
00:56:27.917 --> 00:56:28.750
Right.
that's still
1290
00:56:28.750 --> 00:56:29.583
an objective standard.
1291
00:56:29.583 --> 00:56:30.960
And so what Bruen points out,
1292
00:56:30.960 --> 00:56:33.120
I think it's page 13 of Bruen,
1293
00:56:33.120 --> 00:56:36.840
it singles out regimes that have a quote.
1294
00:56:36.840 --> 00:56:39.900
You know, if you have a perceived lack of need,
1295
00:56:39.900 --> 00:56:43.110
you don't get the license or suitability, right?
1296
00:56:43.110 --> 00:56:44.340
And so we still have-
1297
00:56:44.340 --> 00:56:46.020
I misspoke on suitability,
1298
00:56:46.020 --> 00:56:48.927
but I'm more concerned about the categories
1299
00:56:48.927 --> 00:56:53.130
we know that are uncontroversial as far as criminal history
1300
00:56:53.130 --> 00:56:54.630
and or mental illness.
1301
00:56:54.630 --> 00:56:56.920
You agree with me that those even under Bruen
1302
00:56:58.256 --> 00:56:59.220
are disqualifiers?
1303
00:56:59.220 --> 00:57:01.500
Those are disqualifiers.
Okay.
1304
00:57:01.500 --> 00:57:03.750
The problem is how you administer it.
1305
00:57:03.750 --> 00:57:05.940
And we have to look at the historical tradition.
1306
00:57:05.940 --> 00:57:08.880
We can't look at, I mean the Supreme Court has told us,
1307
00:57:08.880 --> 00:57:12.030
again and again, we can't look at administrative convenience
1308
00:57:12.030 --> 00:57:12.863
or the like,
1309
00:57:12.863 --> 00:57:15.660
we have to keep to the historical tradition test.
1310
00:57:15.660 --> 00:57:16.770
And the question is,
1311
00:57:16.770 --> 00:57:20.730
can you as a state temporarily disarm the entire,
1312
00:57:20.730 --> 00:57:24.390
like literally the entire public outside of Massachusetts
1313
00:57:24.390 --> 00:57:27.060
while that person tries to go through
1314
00:57:27.060 --> 00:57:29.907
the hoops of a discretionary licensing regime.
1315
00:57:29.907 --> 00:57:33.180
But we do temporarily disarm everybody,
1316
00:57:33.180 --> 00:57:38.180
but I take it we're disarming outta staters much longer.
1317
00:57:38.460 --> 00:57:39.293
Much longer,
1318
00:57:39.293 --> 00:57:41.430
and that makes it even more problematic. Yes.
1319
00:57:41.430 --> 00:57:45.720
But are you suggesting that you can't temporarily disarm
1320
00:57:45.720 --> 00:57:47.460
prohibited persons,
1321
00:57:47.460 --> 00:57:51.030
or to determine whether somebody's a prohibited person?
1322
00:57:51.030 --> 00:57:52.500
'Cause that's the objective standard,
1323
00:57:52.500 --> 00:57:54.390
I think is what you're talking about, right?
1324
00:57:54.390 --> 00:57:57.330
If it were just on the prohibited.
1325
00:57:57.330 --> 00:57:59.220
So if it's just on the,
1326
00:57:59.220 --> 00:58:00.420
so we're taking out suitability,
1327
00:58:00.420 --> 00:58:02.400
I'm assuming in your hypothetical, okay?
1328
00:58:02.400 --> 00:58:05.610
And so then the only guidance we have on that
1329
00:58:05.610 --> 00:58:06.690
temporarily disarming someone,
1330
00:58:06.690 --> 00:58:08.490
so you can find out whether he or she
1331
00:58:08.490 --> 00:58:10.950
is a prohibited person.
1332
00:58:10.950 --> 00:58:12.360
The only guidance we have on that
1333
00:58:12.360 --> 00:58:13.893
is footnote nine and Bruen.
1334
00:58:15.600 --> 00:58:17.040
That footnote is dicta
1335
00:58:17.040 --> 00:58:20.760
because it doesn't have any historical analysis.
1336
00:58:20.760 --> 00:58:25.260
So then the question is how,
1337
00:58:25.260 --> 00:58:27.960
like how long can you make that person wait?
1338
00:58:27.960 --> 00:58:29.347
So you to determine-
1339
00:58:29.347 --> 00:58:31.320
So you can make them wait for some time.
1340
00:58:31.320 --> 00:58:33.360
And we can argue about what the reasonableness
1341
00:58:33.360 --> 00:58:34.410
of what that time is.
1342
00:58:34.410 --> 00:58:37.740
But there is the possibility,
1343
00:58:37.740 --> 00:58:39.480
consistent with the Second Amendment
1344
00:58:39.480 --> 00:58:43.440
to temporarily disarm somebody, as you say,
1345
00:58:43.440 --> 00:58:45.270
in order to determine whether
1346
00:58:45.270 --> 00:58:47.973
they are an objectively prohibited person.
1347
00:58:48.990 --> 00:58:51.150
Well, the problem is, again, footnote nine is dicta.
1348
00:58:51.150 --> 00:58:52.650
So there's no historical analysis.
1349
00:58:52.650 --> 00:58:55.590
I don't know what the historical analog would be
1350
00:58:55.590 --> 00:58:56.423
because again,
1351
00:58:56.423 --> 00:58:58.936
Rahimi only talks about after the person is found.
1352
00:58:58.936 --> 00:59:01.050
So your position is that Massachusetts
1353
00:59:01.050 --> 00:59:06.050
and all states need to allow everybody to be armed
1354
00:59:06.510 --> 00:59:09.420
until they determine
1355
00:59:09.420 --> 00:59:11.970
that they are prohibited person?
1356
00:59:11.970 --> 00:59:15.960
So that even the temporary disarmament
1357
00:59:15.960 --> 00:59:18.873
of somebody would violate the Second Amendment,
1358
00:59:19.950 --> 00:59:21.990
even if it's only for reasonable period
1359
00:59:21.990 --> 00:59:24.000
to determine if somebody's prohibited.
1360
00:59:24.000 --> 00:59:27.180
Well, Massachusetts can say these are prohibitive people,
1361
00:59:27.180 --> 00:59:29.610
meaning you need not apply,
1362
00:59:29.610 --> 00:59:32.357
you are banned as long as those prohibited.
1363
00:59:32.357 --> 00:59:34.140
Well they have.
Well, as long
1364
00:59:34.140 --> 00:59:36.810
as the prohibited people categories
1365
00:59:36.810 --> 00:59:38.130
are tailored to dangerousness
1366
00:59:38.130 --> 00:59:41.160
and there are some that are not.
1367
00:59:41.160 --> 00:59:43.080
Right, so let's just stick with the hypothetical
1368
00:59:43.080 --> 00:59:47.460
where they're just tailored to dangerousness, then?
1369
00:59:47.460 --> 00:59:50.040
That might be constitutional.
1370
00:59:50.040 --> 00:59:51.690
I just don't, the problem is,
1371
00:59:51.690 --> 00:59:52.650
is that the footnote nine
1372
00:59:52.650 --> 00:59:54.510
just doesn't have any historical analysis-
1373
00:59:54.510 --> 00:59:56.859
But we don't know about your client.
1374
00:59:56.859 --> 00:59:57.692
Right.
That's the problem.
1375
00:59:57.692 --> 00:59:59.430
Right. But I think your position is that,
1376
00:59:59.430 --> 01:00:02.550
even temporarily determining
1377
01:00:02.550 --> 01:00:06.870
to disarming somebody, violates a Second Amendment-
1378
01:00:06.870 --> 01:00:09.957
Because again, I realize footnote nine-
1379
01:00:09.957 --> 01:00:11.730
Even if's only for a reasonable period.
1380
01:00:11.730 --> 01:00:12.810
Yes.
You know, regardless
1381
01:00:12.810 --> 01:00:15.150
of footnote nine, your position though is that,
1382
01:00:15.150 --> 01:00:17.280
Second Amendment prohibits a state
1383
01:00:17.280 --> 01:00:20.964
from temporarily disarming somebody, period.
1384
01:00:20.964 --> 01:00:24.180
I'm sorry.
Unless they then determine
1385
01:00:24.180 --> 01:00:25.920
that they're a prohibited person.
1386
01:00:25.920 --> 01:00:27.270
While they're armed they can,
1387
01:00:27.270 --> 01:00:29.610
while they're armed they may or may not be prohibited,
1388
01:00:29.610 --> 01:00:32.280
but we don't have a time at all,
1389
01:00:32.280 --> 01:00:34.590
zero time to determine.
1390
01:00:34.590 --> 01:00:38.970
Unless and until the person is actually found dangerous
1391
01:00:38.970 --> 01:00:40.140
or the commonwealth,
1392
01:00:40.140 --> 01:00:41.490
and again, I don't know what that is,
1393
01:00:41.490 --> 01:00:44.340
but if the Commonwealth puts up a historical analog
1394
01:00:44.340 --> 01:00:45.540
where there's-
1395
01:00:45.540 --> 01:00:48.361
How they can't be right?
1396
01:00:48.361 --> 01:00:51.093
How would the forum ever know?
1397
01:00:51.990 --> 01:00:53.460
How would they ever know?
1398
01:00:53.460 --> 01:00:56.430
If we just limit it to prohibited persons
1399
01:00:56.430 --> 01:00:59.160
and you're saying that every state could just
1400
01:00:59.160 --> 01:01:01.980
enact a statute that says if you're a prohibited person,
1401
01:01:01.980 --> 01:01:03.030
you can't carry.
1402
01:01:03.030 --> 01:01:04.860
Who's walking into the state saying,
1403
01:01:04.860 --> 01:01:08.329
hey, here by the way, I'm a prohibited person?
1404
01:01:08.329 --> 01:01:10.200
I realize that that is a compelling, you know,
1405
01:01:10.200 --> 01:01:11.400
administrative reason.
1406
01:01:11.400 --> 01:01:15.214
And if we were in a means in scrutiny world,
1407
01:01:15.214 --> 01:01:17.964
that would probably be dispositive.
1408
01:01:17.964 --> 01:01:19.320
Okay.
But again, Bruen,
1409
01:01:19.320 --> 01:01:20.730
the body of Bruen says,
1410
01:01:20.730 --> 01:01:22.110
you gotta do historical tradition.
1411
01:01:22.110 --> 01:01:23.456
I just dunno what that is.
1412
01:01:23.456 --> 01:01:24.289
I frame this just a little bit
1413
01:01:24.289 --> 01:01:25.560
just to follow up on the way Justice (indistinct)
1414
01:01:25.560 --> 01:01:26.580
phrase this.
1415
01:01:26.580 --> 01:01:30.180
So we have the standing put back in standing.
1416
01:01:30.180 --> 01:01:33.090
Your client didn't request,
1417
01:01:33.090 --> 01:01:34.080
I'm trying to understand
1418
01:01:34.080 --> 01:01:36.690
what your client can actually challenge.
1419
01:01:36.690 --> 01:01:37.950
Yes.
So your client
1420
01:01:37.950 --> 01:01:41.373
didn't request a license.
1421
01:01:43.380 --> 01:01:48.380
He, so we're this discretionary part of this it,
1422
01:01:48.690 --> 01:01:51.400
so he doesn't request a license
1423
01:01:52.350 --> 01:01:54.930
and I'm just trying to get a sense of how that adds to this.
1424
01:01:54.930 --> 01:01:57.780
So the Commonwealth has a legitimate interest
1425
01:01:57.780 --> 01:02:00.660
in at least screening for the bad guys.
1426
01:02:00.660 --> 01:02:03.180
Whether your guy is in that category or not,
1427
01:02:03.180 --> 01:02:04.290
they don't know.
1428
01:02:04.290 --> 01:02:07.590
Your person doesn't request the license.
1429
01:02:07.590 --> 01:02:10.020
So they still have this legitimate concern.
1430
01:02:10.020 --> 01:02:11.850
They don't know whether your person
1431
01:02:11.850 --> 01:02:15.300
is in one of those categorical,
1432
01:02:15.300 --> 01:02:18.780
so they have to have some time to make that determination.
1433
01:02:18.780 --> 01:02:21.213
How does this case play out given that?
1434
01:02:22.110 --> 01:02:23.850
Well as applied to Mr. Marquis,
1435
01:02:23.850 --> 01:02:27.431
he is a law abiding citizen, he's an adult, he's authorized.
1436
01:02:27.431 --> 01:02:30.088
We don't know that, but we don't know that based on,
1437
01:02:30.088 --> 01:02:32.070
'cause he doesn't go for a license.
1438
01:02:32.070 --> 01:02:33.210
Well we do know that
1439
01:02:33.210 --> 01:02:35.100
because the Commonwealth would've,
1440
01:02:35.100 --> 01:02:36.570
No, that's not case.
told us that
1441
01:02:36.570 --> 01:02:38.340
he's got this conviction or that.
1442
01:02:38.340 --> 01:02:39.630
They've done that in Loadholt,
1443
01:02:39.630 --> 01:02:41.070
they've done that in Johnson,
1444
01:02:41.070 --> 01:02:43.260
they've not made that claim here.
1445
01:02:43.260 --> 01:02:45.750
But even if the court sticks with Powell,
1446
01:02:45.750 --> 01:02:48.900
and I think Powell is effectively overruled by Bruen
1447
01:02:48.900 --> 01:02:51.570
because it was basically,
1448
01:02:51.570 --> 01:02:53.490
this court decided that the right
1449
01:02:53.490 --> 01:02:55.800
does not extend outside the home.
1450
01:02:55.800 --> 01:02:58.020
But even if you find that they don't have standing,
1451
01:02:58.020 --> 01:02:59.220
you still have to grapple with,
1452
01:02:59.220 --> 01:03:02.070
just like they did in Rahimi, a facial challenge.
1453
01:03:02.070 --> 01:03:04.260
The United States Supreme Court could have
1454
01:03:04.260 --> 01:03:06.420
had a two page decision and said,
1455
01:03:06.420 --> 01:03:09.690
well, Mr. Rahimi is obviously a violent, dangerous person,
1456
01:03:09.690 --> 01:03:10.523
game over,
1457
01:03:10.523 --> 01:03:13.380
but they instead grappled with a historical tradition.
1458
01:03:13.380 --> 01:03:15.210
And there's just not a relevantly similar
1459
01:03:15.210 --> 01:03:16.890
historical analog here.
1460
01:03:16.890 --> 01:03:21.720
If we were to posit a version of,
1461
01:03:21.720 --> 01:03:25.440
just accept a version of 131F
1462
01:03:25.440 --> 01:03:28.740
that complies with the Second Amendment.
1463
01:03:28.740 --> 01:03:32.460
Okay, just accept that it is.
1464
01:03:32.460 --> 01:03:35.640
Can you then explain what remains in your view
1465
01:03:35.640 --> 01:03:39.483
of the interstate travel argument, if anything?
1466
01:03:41.100 --> 01:03:42.543
So the,
1467
01:03:44.070 --> 01:03:46.050
I'm just trying to make sure I understand the hypothetical.
1468
01:03:46.050 --> 01:03:50.190
So the firearms competition restriction is effectively not-
1469
01:03:50.190 --> 01:03:52.530
Let's just all assume that, you know,
1470
01:03:52.530 --> 01:03:57.390
there's a 131F that satisfies the Second Amendment,
1471
01:03:57.390 --> 01:04:00.123
that's fully satisfies the Second Amendment.
1472
01:04:01.320 --> 01:04:02.790
I'm trying to figure out
1473
01:04:02.790 --> 01:04:05.550
whether the interstate travel right
1474
01:04:05.550 --> 01:04:09.060
is coterminous with the Second Amendment,
1475
01:04:09.060 --> 01:04:13.240
or it does something survive of it beyond the challenge
1476
01:04:14.160 --> 01:04:16.440
on Second Amendment grounds to 131F.
1477
01:04:16.440 --> 01:04:20.340
I see, I see. So there are two issues
1478
01:04:20.340 --> 01:04:22.080
I would see remaining.
1479
01:04:22.080 --> 01:04:26.040
One is that there still is that fundamental right to carry.
1480
01:04:26.040 --> 01:04:29.640
And so it's at least impacted by one's decision to travel,
1481
01:04:29.640 --> 01:04:31.290
if that makes sense. But the, oh, go ahead.
1482
01:04:31.290 --> 01:04:34.200
That seems to me reciprocity,
1483
01:04:34.200 --> 01:04:36.870
like if every state gets to regulate what's happening
1484
01:04:36.870 --> 01:04:38.280
in its own state.
1485
01:04:38.280 --> 01:04:41.310
But it deters and burdens Mr. Marquis's travel.
1486
01:04:41.310 --> 01:04:42.720
But aside from that,
1487
01:04:42.720 --> 01:04:44.160
there's also the issue of the fact that
1488
01:04:44.160 --> 01:04:47.940
in 129C, I believe it's 129CH,
1489
01:04:47.940 --> 01:04:49.860
there's the equal protection problem
1490
01:04:49.860 --> 01:04:51.870
of people carrying rifles
1491
01:04:51.870 --> 01:04:54.570
and shotguns are exempted from a 10A prosecution.
1492
01:04:54.570 --> 01:04:57.450
While if you've got a normal handgun, you're not exempted,
1493
01:04:57.450 --> 01:04:59.490
I think that is huge.
1494
01:04:59.490 --> 01:05:00.714
That one is burden with-
1495
01:05:00.714 --> 01:05:02.550
Do you think it's not rational,
1496
01:05:02.550 --> 01:05:03.570
when there's no protected?
1497
01:05:03.570 --> 01:05:05.610
I don't think it's even rational
1498
01:05:05.610 --> 01:05:08.910
because if you have an unloaded handgun in your car,
1499
01:05:08.910 --> 01:05:11.160
it's the same as an unloaded rifle
1500
01:05:11.160 --> 01:05:13.860
and yet one is subjected to a 10A,
1501
01:05:13.860 --> 01:05:15.540
18 month mandatory minimum sentence
1502
01:05:15.540 --> 01:05:17.370
and the other isn't at all.
1503
01:05:17.370 --> 01:05:19.350
So I don't even think that survives a rational basis.
1504
01:05:19.350 --> 01:05:20.940
The fact that one's concealable
1505
01:05:20.940 --> 01:05:22.380
doesn't do anything for you.
1506
01:05:22.380 --> 01:05:23.340
I'm sorry.
The fact that
1507
01:05:23.340 --> 01:05:25.140
one's concealable.
1508
01:05:25.140 --> 01:05:27.300
One that's concealable but unloaded
1509
01:05:27.300 --> 01:05:29.040
and you're traveling in a car,
1510
01:05:29.040 --> 01:05:30.840
I don't see that that's a distinction at all.
1511
01:05:30.840 --> 01:05:32.910
And if you're given the same rights
1512
01:05:32.910 --> 01:05:34.770
as a rifle shotgun carrying person,
1513
01:05:34.770 --> 01:05:37.140
then you would have it enclosed, et cetera.
1514
01:05:37.140 --> 01:05:38.970
So I think that still survives,
1515
01:05:38.970 --> 01:05:41.320
'cause that's still a legal protection problem.
1516
01:05:42.302 --> 01:05:43.230
And there's all the problems,
1517
01:05:43.230 --> 01:05:44.280
I won't get into all of them now,
1518
01:05:44.280 --> 01:05:47.010
but the, you know, the wait time,
1519
01:05:47.010 --> 01:05:49.410
the processing burdens,
1520
01:05:49.410 --> 01:05:51.750
the fees that are involved, et cetera,
1521
01:05:51.750 --> 01:05:53.193
those still survive as well.