a good morning and welcome to the th circuit i got ahead of our clerk mr coleman they are just very briefly i'm judge a g i'm joined today by judge keenan who's on the telephone from northern virginia to judge this morning as they argue try to keep the background noise to a minimum in terms of shuffling papers or if you're at home dogs or children running around and  when one of the judges has a question they'll either raise their hand or start to make noise so that's your signal to wait for a question so with that mr penn ack will be glad to hear from you whether the planet is himself an object of the action or foregone action at issue if he is ordinarily the question the action or inaction has caused him injury and that the judgment preventing are requiring the  the purchaser transferee are empty having a handgun qualification license we are the direct targets of this legislation the legally protected interest here that we're seeking to assert the constitutional right to acquire a handgun now there is no to student and certainly the state has a disputed that the reason exists of such a right after heller that really is beyond dispute so the itself and i think on the face of it so let me just to be clear you're arguing the nd amendment standing question are you also arguing the due process and if i may get to the notes on that i'd like to direct that court's attention to the north carolina right to life versus bartlett case that this court sided and relied on in the canning versus wilson case and it's a direct parallel to the situation we have here where the the court very clearly stated that the states suggestion that they were going to apply the statute and interpret the statute in a different way than with the language of the sta here state relies on the post of the geisha and advice that they probably get it after the most motion to dismiss was denied and they say well not to worry we don't have to worry about receiving the ambiguity associated with that and the ambiguity of the thirty's is profound it affects not only the plants but insects every on assignment for who is an instructor clean myself we do not understand how we see can be we're expense does not constitute an injury in fact it's fact the resources have to be diverted to spend money on educating members regarding new issues is a budgetary consideration but it's not a standing it's not a method of the scavenging standing how do you distinguish your situation from lane versus folder atlantic guns a licensed firearms retailer that has been family owned and operated in maryland since nineteen schist our standing position is quite straightforward handgun license requirement impacts directly on the ability of atlantic guns to sell firearms to qualify customers who do not have a handgun license that in turn creates injury fairly traceable to the law that is keep the statutory prohibition thereby incurring direct economic injury through the construction of its market or to disobey the statutory command and suffer sanctions perhaps loss of license there is no doubt atlantic gonds has a sufficient stake here to vigorously cogently assert the rights of its customers as well as its own when it comes demonstrated its business has been impacted by the handgun licen take your principle argument here is that you your client has standing by virtue of economic injury yes it does because it has economic injury it may represent the rights of its customers this court  not reach the question of whether or not a land of guns has a constitutional right to sell firearms the supreme court press precedents from craig v born and luanne in griswold all make it clear them under these direct standing based on your asserted claim that the seller has his own nd amendment right and the merits of that question ultimately will be resolved its own later point but you're making both standing case and other words the prohibition of the statute on my client's ability to sell impedes the rights of the body or to buy that is just to be sure it would seem to me that if your client has standing the most the simplest basis would be to say that it has its own independent economic injury which gives it standing to challenge the statute and it would be unnecessary to reach any of these other issues that's correct in the loo hand decision makes clear that under rule fifty six the of vermins of my client and his declaration and the other evidence must be taken as true on the question of injury the court must accept them under rule fifty six at this stage of the proceeding injury is clear here principle standing for one is standing for all and there's no question that the retailer here has the most straightforward demonstration of entry in fact and a legal right to represent both its own interests as well as the rights of its customers but that counsel just to make sure that that warps only in so far as we find that you can represent the the constitutional interest of your customers that you have rd party standing because otherwise the scope of your right as a seller may well be different than the scope of the right of an individual so there can well be a difference as to the to the right asserted of a seller d and an individual if we don't find rd party standing for us there's a potential for that i don't know that is present in this case your honor the th circuit and to share when looked at that said ordinarily there will be no need to disentangle and asserted right of a retailer to sell firearms from the rights of potential firearm buyers to acquire them they are the opposite sides of the same coin the right to sell was an aberration on the r m s one that based on the premise that they thought that they were representing the rights of their customers that was and in this case we're representing the rights of our customers typically don't dismiss those others because at that point they are given standing because standing for one is standing for all all right thank you mr sweeney  some time in rebuttal so now we're hear from mr scott good morning your honour's please the court d robert scott assistant attorney general for the state of maryland on behalf of the apple lease in this case governor challenging the maryland law requiring a handgun qualification there are three categories as the court knows of plaintiffs in this case there are the individual plaintiffs then there's  and then there's atlantic guns i'm going to take them one at a time the individual plaintiffs are deborah miller and susan advised that it's they both test neither of them test well before i get into that as the court knows they need to show in order to establish standing in this case that they have suffered an injury in fact which is concrete and particularized and actual or imminent not  hypothetical further because the plaintiffs in this case are seeking only declaratory and injunctive relief they must show that the injury is ongoing and they cannot rely on past the supreme court's decisions and in gratz which is the firm of action set of cases where the court says that an individual had standing to challenge affirmative action able and ready to apply as soon as the policy changed and the the chording grat said that that satisfied standing and so what i'm what i'm curious about is individual plaintiffs here why didn't that same analysis apply that the plaintiffs here are quote able and ready to you know go by they're gone as soon as the state of maryland removed this barrier  and that undergrad that's sufficient to establish all the things you just described but yes your honor i think st of all as a matter of the record none of these either of these plaintiffs testified that they were ready to buy a  gun in fact they had no immediate plans to do so they hadn't decided what kind of gun they wanted they hadn't really decided what kind of features on the gun they wanted they hadn't really shopped for guns well yes your honor what what difference does that make in this setting as i understand it the individual plaintiffs don't want the handgun license so this is a question a claim of an impediment to at least on the nd amendment claim of  their nd amendment right and as i understand the record player and i must add that i want to hand gun for self defense but you are deterred from going forward because of the application of th the statutory standards including cost and the expenditure of their time so not i was confused as to why the district court and in your briefing when in the hall all the discussion of cases the deal with the application of a government policy where somebody wants a permit and they didn't get it for whatever reason or it was denied to them on a discriminatory basis or an additional burden some other segment didn't get but here they're claiming the burden is on their right to acquire a firearm and the exercise of that right they don't want t and then and in lieu hon as the court knows you had a situation where the plaintiffs were challenging the application of the endangered species act and they were claiming that the application that the to the defendant were imposing in that case meant that they were going to be deprived at some future date of going to observe wildlife in their natural natural habitats in foreign countries and the court said that was not i'm not why would that make a difference here the because as i understand what these plaintiffs individual plaintiffs it doesn't matter what the particular model of a handgun is or how much the particular price may be they are for the simple factor of  which and most cases of not always this is the paradigm of injury in fact and the time but some were acquired to apply for the license and go through the fingerprinting and take the the  so it doesn't matter that they whether they want a particular gone on a particular day it will always be the same circumstance that's correct your honor but in order to establish imminent injury there's got to be some concrete plan on their fund their behalf to actually go and purchase things and they don't have that imminent injury because they don't have any concrete plans to go out and buy a gun they just disagree with the law we disagree that they should have to go through these  hoops in order to get that in order to get the license they need to purchase to go on and just disagree though are you with knowledge should you for who say they specifically needed to go through here that they did well they didn't apply for the permit or we didn't get the government privilege and as best i can tell all the cases in the district that's opinion go to that principle here there are going to come out about the application of a government policy but the fact that the policy exists and its existence in payers their rights that's correct your honor but in order to establish standing they have to show an injury in fact and applying for the license would be one way of doing that they didn't do that but they also haven't demonstrated any other injury or example in the st amendment cases count yes your honor did so do i take it you to say that you agree that there would be standing even if they didn't apply for a license but if they had you know picked out the particular gun and they had the  purchase order ready and you know they they you know swore in a blood oath that the minute this this law went away they were going to go buy the gun i mean it sounds like you agree that in that scenario that an individual in that context would have stand with that right now they would that would satisfy the imminent portion of the task under luan in order to establish injury yes your honor of life and so but and so then to if that's true then what i'm hearing you say is you know we're not when you read these deposition transcripts it it seems that you just don't believe their stated intent to go buy a gun and you know mitt you may not believe all right and you may turn out in the long run that that you're able to prove that at trial but don't we have to take their stated intent that they want to buy a gun and if this is just weighted them from doing so don't we have to accept that well the court didn't accept it in lieu haan where the plaintiffs in that case were saying at some future date i want to go through wildlife in a foreign country in the court said without conferee plans to do that that's not an imminent injury but the difference in luan right is that they could have gone and done it today right and they were only asserting something in the future right the problem the plaintiffs have here is they can't go and you know that that may well be you know your view but i don't see how that applies given the standard we've got for us stablish in standing your honor it's not that we that we think the point of sort of  human is simply that they have not put in evidence any facts which show that this is going to be an that this statute is going to be are going to suffer an imminent harm as a result of this statute because there are they have not provided any evidence of concrete plans to go out for a handgun which is the activity which they are claiming they are precluded from engaging in so that's the argument with respect to the imminent portion with respect to the actual injury that well wait a minute that defeats it seems like the whole purpose of the claim that they may have which is the existence of the statute in the payment of the fee impairs my nd amendment right not that the fee is too much because that's not the an issue in standing for that doesn't necessarily have the financial ability to pay it so that may be a different question but again this is not a case where they're challenging the application of the statue to them because they don't want the permit so i'm having difficulty understanding why the fee and the expenses art a sufficient injury in fact and it would be eminent because there's no way they can proceed without paying your are that my point on the cd is simply that the fact that they haven't paid it means that that is not an actual injury because they haven't actually paid the fee that would be one dollar way of establishing an injury if one of these plaintiffs had in fact applied and paid the fee then they would have established an injury but neither of them have done that and so i'd like to move on and talk about m s i before you figure it was the core of the more questions on the individuals because i think church questions that point made clear that an aside does not have organizational standing here they have not it has not established by any evidence that its mission has been impeded by this law to the contrary  mr penn act testified in his deposition that the law has not interfered with m s size ability to communicate its message or or undertake the cause that it wants to undertake and in fact of their members and so like taking mr clarke d as an example sort of going back to my earlier questions it applies to mr clarke as well he says i want your gun and i was dissuaded from going to get it because of the h l and i mean that's what his testimony is what it helped me understand why that's not enough to establish standing for him what more did he have to do you need to name the manufacturer of the gun would that have been sufficient for you if he'd said i want of a larger smith and wesson does need to name the caliber like how specific do you think it has to be to pass muster well your honor she's again it all comes and he can't be anyone because you're h q l correct and he has an applied and he hasn't demonstrated any injury hasn't paid any fee hasn't been inconvenienced in any way he simply disagrees with the requirement and under the court's precedent that is position they're linked those two things are lengths because these plaintiffs all testified well disparate secularly mr clarke testified essentially i did the reason i haven't applied as i disagree with this law that's why i haven't applied for each to our i disagree that i should have to do that and that is not sufficient injury to establish stand and moving on to atlantic guns i would like to address judgment so this is not of the terminations on the merits so in the record as as evidence for summary judgment purposes which we have to take is accurate or if the guns shows as i read it that sense the advised statute their average yearly sale of handguns is down at least five hundred dollars guns in the year and then there's an affidavit from the owner  we would have to take is true and i don't think there's any contradictory evidence and the owner says that atlantic guns turns away every week customers totaling in the hundreds over five years and that they've lost twenty percent of the fire hang gun sales and it goes on to give the cost of a handgun made to me that seems like to be a very concrete injury in fact that has occurred and that's denominated by numbers and dollars why isn't that sufficient to show economic injury here and how is this different from the beer vendor and greg the board well honor i'll take i'll take those one of the time st of all mr schneider's testimony that they have been turning away customers is is based on on hearsay question because it goes to whether or not they've demonstrated injury in fact your honor and if they can identify a single customer who was turned away by this law they haven't shown that the law is the that he's at had he's testifying in that declaration as to what the motivations were the reasons that these in that these customers made a decision not to purchase a gun and we were not able to that oppose that seems backwards he's testifying why they turn them away right so he's testifying to his own motives right they come in they say here's five hundred dollars give me a gun he says where's your age q l i don't have one i must turn you away it's not their motive is not the customer's motivations his own motivation that he's testifying to and i get the no i beam you don't believe the plaintiffs you don't believe him either and you may well prove that but what i don't understand is how we do that at this  honor the critical piece of mr schneider's declaration here is why did these customers decide not to purchase an h q up and we don't know that because he can't tell us what those customers are they may have decided to to not buy a gun or any more for multiple reasons it's pure speculation and last he's going to testify they told me that they decided not to buy a gun because they didn't like  point his point is not his point is we turned them away from buying a gun because they didn't have an h q l that's the injury what their motivation was to not get in h q l is irrelevant from his perspective i thought well i think their motivation is walk what with the motivation of their decision not to proceed with the purchase of dunn is it that's the relevant information and he can't we don't know that because he's been he was not able to identify a single customer who was turned away decided not by john as a result of this law i did jump but i want you to talk if you would just a nd we ended with your colleague for a minute to talk about hinders the individuals from bringing these claims you seem to dispute that and maybe point to the very plaintiffs who are bringing these claims talked to me for a minute about that  that information and so i just don't think the argument that privacy is somehow deterring these these folks from bringing claims withstand scrutiny under those circumstances i see my time is up unless the court and it really doesn't matter why person feels that the state has a feud with that right these it is undisputed that the handgun qualification life and prevents that person acquiring a handgun and maryland in its infinite wisdom decided to impose a primitive system on the right to vote when you had to get a permit issued by state agency had to get pay a fee for that permit had two hours of instruction by state sort of had to get things or print and would just any member of this court hesitate for a moment in the holding that they voted we did not have to actually apply for the permit or pay the fee an order to bring a facial challenge to that permitting system that interfered with his right to vote the same hypothetical could be used for any number of st amendment rights the right to abortion the harm here is wrong the exercise  constitutional right that you may not know the caliber of the guns would like to buy kinds of beside the point that you may not have investigated this is pointless because it's a futile exercise to investigate something you can't exercise when the state stands unspecified harm and you know without a plane ticket and what he would say is without an applications the your plaintiffs are just like the plaintiffs in lieu hon and they should lose testified that they would like to purchase a handgun have been deterred by the handgun complication license from doing so that's the only material fact that puts them they could go out and buy whenever they're ready but they can't do that without going through the hoops and the handgun qualification license that's a media press so that and so the distinction i'm here to draw is that there's a deterrence year of the age q l where in lieu associated with the individual plaintiffs there because remember the statutory scheme there was a direct to the out of state dealer who could not sell to the out of state purchaser and the harm there that the court said was indirect indeed the home was such and direct th the individual plans had to pay no state imposed fee well we have here a direct harm imposed because the statute singles out these individual plans as the object and target of the regulation if that's facts were what i'm worried about in this case for the future is it good enough just to say i want to buy a gun in other words are we ok would we be opening up beyond the nd amendment to any other conceivable claim that somebody says no i want to do what the law doesn't allow your honor i would agree only and leave you on that principle create a problem for the see through the law that's what i'm really worried about in each case of the over very much appreciate the course thank you thank you very much mr sweeney you have some remodel time and not ask you to start with this question  for purposes of argument that we determined atlantic guns had some economic injury sufficient to show standing once this case proceeded to the beyond the argument on behalf of atlanta gunns itself because of its economic injury what do you think lanny guns would be entitled to argue on the merits with respect to the individual plaintiffs in this case by virtue of the standing the staining provisions and other cases where the individual buyer has been affected i have no since i have no doubt your honor that only anacondas configure asli represent the interests of the customers to purchase their nd amendment right is restricted by the enforcement of the handgun requirement by atlantic guns i have no doubt about that i am less certain about the stand in of atlantic guns to articulate and represent the rights of the individual plaintiffs with respect to the due process claims but the nd amendment rights i have no doubt that they lend it guns effectively stands in the shoes of its sufficient hinderance to permit you to assert rd party standing that was next on my list they're wrong and the reason they're wrong is the prudential stander says that  glossed over article three standing requirements do not apply where there is direct impact on the litigant before the court sufficient to provide the stake in the litigation in its outcome to represent rd party interests i refer your honor to the cold wall ski decision of the supreme court that specifically said that hindrance is not a requirement but but the private right just said there have been some st amendment cases where the proposition you put forward has held it doesn't actually say that it extends anywhere else or that we should look to that that exempt parties from the presidential requirements the st is the line of st amendment precedent such as the monks and company case out of maryland the nd line is the craig v born situation where the law directly impacts the leunig and and kowalski makes clear that the provincial requirements are no more required and that's one of circumstances than under the  amendment but i would take that one step further and say by analogy that because we're dealing with nd amendment rights here the same considerations that would exempt standing prudential requirements for a st amendment case should apply here with equal vigor the last point i'd like to make in response to your inquiry judge richardson with respect to share on the th circuit did not find that the individual firearm retailer in that case had a quote free standing right to sell under the nd amendment because all the other firearms retailers in the state could sell and were available to provide firearms to the customers here in maryland that's not the case no firearms retailer can provide handguns to anyone who does not have a handgun license so here that right to sell should pertain because it's not free standing but as to shira said it's entanglement with the right of the customer to acquire and necessary for them where i see my time is up i thank you for your time in your patients my appreciation on behalf of the panel to all of the  fine counsel who have argued today the same porton case and you've all done an excellent job both on brief in an oral argument ordinarily as you know our tradition in the th circuit is to come down from the bench and shake your hand we can't shake hands of both because it's prohibited now by a gubernatorial order apparently and were not present together so if you'll take this is our virtual handshake and we look forward to seeing you in richmond when