good afternoon ladies and gentlemen we are here for rehearing on bach in the consolidated cases of root of versus county of san diego and richards has county of yolo before we begin i want to remind everyone to turn off their cell phone so we don't interrupt the attorneys who are presenting the case may p good cause to require an african to demonstrate that they have a particularly acute need for self defense which distinguishes themselves from their ordinary fellow citizens my clients complaint here is not with the california statutory scheme because the statutory scheme itself can be interpreted to respect second amendment rights indeed it has been so interpreted in the majority of california counties that allow good cause to be interpreted in a way that makes that is much more permissive and allows people to get concealed carry permits for self defense purposes and that includes california counties like sacramento count county that are quite populous that's the source of the constitutional difficulty it with the statutory scheme but it's with san diego's interpretation of the good cause standard in san diego's policy that's striking down seeing diego's policy would not invalid invalidate any statute of the state of california and to the contrary doing so would save those statutes from constitutional doubt now the question here i would also emphasize is not whether there is a constitutional right to concealed care rather the question is whether there is a constitutional right to some outlet to exercise the right to bear or carry arms for purposes of self defense the answer as the heller decision i believe makes abundantly clear is yes the government cannot completely foreclose an avenue for exercising an important second amendment right now the government in response to this would try to suggest that the second amendment is somehow a home band right and thus does not extend to of parade at this point since the sheriff chose not to appeal and now the state's going to be making an argument here and has asked to intervene is a different vehicle now in terms of we have the surrounding cases and then were we were held in abeyance baker can prove to be decided the same without the sheriff here well i think it can be decided the same i mean you know you know i think that might depend alternately on how the court resolves the state's motion to intervene we actually don't have an issue with the state being here to intervene to defend to to get involved in this case we do take issue with them being here under the prong of rule twenty four that justifies them being here as of right because of a federal statute we don't think that properly understood our challenge calls into question the constitutionality of the california statutes for the reasons that i think i've already elaborated we don't have a beef with those statutes if my client was so fortunate as to live in sacramento county there'd be no objection to what the state is done so the objection really is to the county policy in the way that the cot county interpret i think the recent denial of service on the jackson case out in california has any bearing on the supreme court doesn't really seem to like to talk about the second amendment very often years go by without it can we read any tea leaves from that well i suppose that might make this court's decision all the more important but other than that i think all certain denials are worth about the same which is in the cosmic scheme of things not terribly much very important obviously to the client one particular case that their case is over but i think we've been instructed time and time again not to read anything precedential into the simple denial of sir the court could have denied that for any number of reasons mr commit he require a safety course completion that kind of thing absolutely your honor and i think something like a safety course frankly would be much more tethered to the interest that's being asserted here by the county in safety think you know we're not here to take issue with the idea of a licensing regime generally as i said we don't really have a beef with the the way same licensing scheme is administered by the majority of the counties in california where they  require a certificate of training they require certainly other background checks and make sure that somebody is in a category where they are eligible to possess a firearm but we don't think that whatever else good cause can be interpreted to mean and maybe there's some case down the road as to whether a county can have a slightly more restrictive interpretation of good cause but the one thing i don't think it can be is that you only get to show good cause if you show you have a better reason for firearm than your fellow citizen when it comes to self defense when the supreme court in the heller decision said that every citizen the people one of the key words in the heller decision and it's interpretation of the constitution that the people have the right to possess a firearm for purposes of self defense so it seems a little antithetical to the basic thrust of the heller decision to say that the only way that you can exercise your second amendment right is to show that you have a better basis for demonstrate that they require a firearm for self defense regardless of whether it's compared to anyone else's need for self defense i suppose that you know if a county wanted to take a position which says that we want you to in order to satisfy good cause articulate that self defense is your good cause and then essentially hum a few bars and articulate why it is that you feel you have a need for self defense i don't think that we would be here objecting to that because as you say you know it's not just it's not just you know my client who's focused on self defense obviously the supreme court in the heller decision was focused on self defense so we take that as our guide and we think that certainly self defense is something that can be that can satisfy the good cause requirement it may be that you need to explain the basis for your desire for self defense but i don't think it should be that the only way that you can do it is if you say i have an acute need for self defense that distinguishes me from my fellow citizens but under your theory anything defense would be justifiable cause well no i don't think so because i mean you know we take this case as  lies and as it was the san diego policy did not give my client any opportunity to say anything about self defense beyond that it is a distinct right to self defense compared to their citizens so we weren't denied because our self defense argument or articulation wasn't good enough in the abstract we were denied because the county quite emphatically has a policy that requires the showing to be extraordinary these of your fellow citizens and promise for the three judge panel decision was that a law abiding citizen has the right to carry in public whether openly or concealed so that as i read a three judge panel so long as you're not a convicted felon or in saying or a child and zero law abiding adult citizen you have a right to carry whether concealed or open and then it followed from that because california does not allow an unrestricted open carry that the concealed carry had to be very sort of generous or permissive terms of carrying and you share the premises of the three judge panel we think the premise of the three judge panel opinion is correct no i when i say promise i mean your argument then stems from a premise that any law abiding adult citizen has a right to carry whether conceal or open but one of the other i would  even absent any specific showing for a desire for self defense i think they have a second amendment right that doesn't necessarily follow from that that they would have an absolute entitlement to it because the second amendment like all constitutional principles is not a principle without some limits but i certainly think so what limitations do you see well i i don't know that i see any particularly obvious ones in this context but again you know my no that doesn't help me very much you say you can limit the right to carry in public but then you don't tell me what well i mean look as a starting point i think that it's fairly clear that you know states should have the option about how they regulate carry so  wants to prefer open carry and another state wants to impose concealed carry they certainly have that option they may also have options in you know how they go about their licensing regimes whether they require training courses longer training courses in the like now i think with respect to restrictions that went beyond that with all fairness to me and my client i think we'd have to see what the policy is in order to kind of understand whether there's an argument that it conforms with the second amendment or not  to go back to store a cli to roberts and the baldwin where the court basically said that the right of people to keep and bear arms is not infringed by laws that actually prohibit the carrying of concealed is with that kind of fairly almost a black letter last statement how does that he think into your construct and what would you have this do with that case well what i would have you do with that case is to understand that dictum the way i would understand some of the other references even in the heller opinion itself which is and this was the point i was trying to make which is we're not here saying we have an absolute constitutional right to concealed carry and the way i would understand what the roberts in court meant by that dictum which really was i mean super dictum the thirteenth amendment case and they have a paragraph where they're making a drive by statement about six different constitutional rights so i think you have to keep that in context but what i think they meant is on the assumption that there was open carry in that state that a concealed carry restriction would be consistent with the second amendment and i think that's the way that the supreme court in the heller decision understood what was going on in a state like georgia in the  where the court specifically confronted a statute that as it up was applied to firearms in particular for close both open and concealed carry and in that context the georgia court back in the eight hundred twenty eight hundred forty s said you have essentially have a right to carry this one way or the other otherwise you're jumping the tracks from the regulation of the second amendment right to the obliteration of the second amendment rights that's how i understand the robertson dictum in that same thing  if we assume for a moment that that the heller right applies in this context why wouldn't survive strict intermediate scrutiny i'm glad you asked that because you know look there's a healthy debate here about intermediate for sandridge scrutiny all that but i don't think san diego is policy can survive any form of heightened scrutiny and the reason i think that is because there are a couple of hallmarks of every form of heightened scrutiny and they include first of all you relax the presumption that the ordinance or the statu constitutional then you shift the burden to the government to defend the law rather than in the ordinary rational basis the burden is on my client to challenge it and then you require actual evidence and if you look at the evidence in this case it is all of one declaration by professor zimring and this is that the excerpt of the record i think for zero four it starts at and with all due respect that cannot be enough to satisfy why not if it's an expert declaration it is countered by the declarations that were put in by the plaintiff right but here's why i think it can't because he doesn't even get to the relevant question he really sort of makes two observations one less guns less violence and two less concealed guns less violence but he doesn't ask what is really the critical question which is if there are less concealed licensed guns how does that affect the level of violence that's the relevant question in the county has no evidence on that and no excuse for not having the evidence you know this is a situation the district court of conducted a trial there is there a factual dispute here on this question i don't think it's a factual dispute what i think it is is this case went to summary judgment is so they the county had it opportunity to marshal all of its evidence the burdens on it at that point it doesn't get a do over and it marshal what it thought was sufficient evidence with all due respect we don't think they got the job done under intermediate scrutiny and i think just to finish the thought i made before you know this court when it you know the supreme court in a case like turner broadcasting talked about predictive judgments but that was in a context where the had to be a predictive judgment the federal government had never imposed a must carry requirement on cable operators before so you had to make a guess here the answer is sitting in plain sight in sacramento county in fresno county in san bernardino county there is no evidence in this record i don't think there's any evidence in the world which is part of the reason why it's not in this record that when those states adopted a more permissive interpretation of the good cost eight hundred that the sky fell or the violence went up or the crime went up and when you have such an obvious compared are out there and the state doesn't offer you that evidence seems to me that even if we're an intermediate scrutiny and not strict scrutiny that doesn't get the job what do we do with the second circuit the second third and fourth collapse with the other one if you get the other one the third circuit ye drink i think great third circuit they are there the courts the very similar so statutory provisions all survived intermediate scrutiny well they did they did on their own i mean obviously the most obvious thing you know those decisions are binding on th we're going to start with sure but we could look to the seventh circuit to and i think judge posner had a fine opinion in the more case but i think the real difference is all of those cases if they were taking intermediate scrutiny seriously and doing it right were based on the evidentiary records in those cases and i think the situation in new york for example was radically different there were a number of hearings before the new york legislature dealing with the particular provisions there and there was a much richer record in that case that doesn't bear anything like the record in this case and part of that is this oddity that you know if you think about the state's interest in this case it's not even an interest in public safety because they'd be perfectly happy for san diego county to interpret this the same way as sacramento county so from the state level the compelling interest here is giving discretion to county level officials and i don't think that's a good enough interest to satisfy intermediate scrutiny and that's something that's true about this california regime that's not true about any other regime and then what i thought you said with respect to the evidence was available anywhere in the world that there was no such evidence how can you say then that there's such a rich record in new york that supports what they're doing well i was really talking about the record the evidence in california because i think we have here and people behave differently in new york you know what i don't think you have in other states because other states answer this at the state level so what you have in california that really distinguishes it from all these other states is the opportunity to have a very direct comparison are about what would happen if we had a more permissive view of good cause compared to you know the policy that's being supported here and here's their obvious you look to sacramento county to look to fresno county but how long those policies been in effect meaning you can't look at something that's been going on for six months and then draw a legitimate conclusions well i think that the phrase i mean i think each county is a little bit different but i think some of these policies have been in effect for years so i don't think it is it when i see the evidence isn't out there i mean it's because in fact and all the evidence that's been cited that i've seen in the record in the amicus briefs and all of that actually suggests that when jurisdictions adopt a policy of allowing a relatively freer issuance of concealed permit carries one of two things happen you know the crime rate stays exactly the same work goes down so i just you know but but i'm here to tell you that if you apply intermediate scrutiny and i'm wrong about this imperial question and another jurisdiction makes a better case then that will be the consequence in that case that's the great thing about intermediate scrutiny it's not one size fits all and then we're done forever and it mit's of the possibility the cases will be decided differently based on the record in the particular case and the particular jurisdiction and i really would invite you to take a look at that zimring debt declaration because i think that you will see that that i mean i can't think of another context first amendment you name it where that kind of declaration would be enough of an evidentiary basis for a jurisdiction that had the burden under even intermediate scrutiny as opposed to strict scrutiny i'd like to thank you as thomas and me please the court for the richards of collins and if i may reserve three minutes of time for a bottle nobody argues in this case and there's no evidence anywhere that would suggest that people with a heightened need for self defense  somehow by that virtue safer with firearms than are members of the community at large with only an ordinary garden variety need for self defense rather the argument here in this case by the defense is that because carrying guns for self defen is allegedly dangerous they should be able to reduce that danger by reducing the number of people who are carrying handguns sheriff creators policies are therefore nothing more or less than a rationing scheme for a fundamental right that the government believes i somehow so it isn't as harsh as it appears what would be your response to that i mean i think there are certain military people retire place officers how does that factor what would you how would you respond to their argument if my response is this if we have to defer to that balancing to that judgment that the sheriff has made that some people with a certain background are ok to carry because the danger is somehow lessened then the court would also have to defer in at least three other areas number one the court would have to be able to would have to defer to the sheriff's judgment that nobody can accept to be exercised this right if the sheriff says well today i've decided that's just so dangerous no one can have it that same deference would sustain that the second problem would be why only applied to the bare part of the second amendment we heard the same arguments in the heller case that keeping handguns at home is unaccountably dangerous and for  absolute needs of public safety the dish of columbia should have been able to prohibit the possession of handguns in the home well could washington d c enact a statute that said we're going to only allow people with an exceptionally strong of burglary or some extra height need perhaps the they can show that somebody wants to burgle their house only they can keep a handgun at home there's nothing the second amendment that would suggest that this type of heightened self defense interest can apply to one side of the and not the other and third problem is what if we're going to have the sort of deference i didn't need why stop with the second amendment at all after all we can imagine that the fourth amendment is probably the right that the sheriff finds to be most annoying it interferes greatly with the police power that the sheriff can only exercise so much force he might need to get a warrant some time why not only respect the fourth amendment rights of people have a hike need for privacy or trini me your argument seems to suggest that safety concerns are irrelevant and that no sort of restriction is ok he is there any form of restriction that you would find in your view constitutionally permissible yes your honor and it's not our argument that no restrictions can be tolerated rather this is a very narrow challenge the only restriction we're challenging here is on the very entitle meant as it were to exercise a fundamental right there is no challenge in this case to any restriction that the sheriff my place on time place or manner if you can if you want to enact that there are no sensor places frictions here at all there no challenge to the training requirement we except that and we could probably imagine other types of regulations that would pass some level of means and scrutiny so i see because they're dressed in actual danger rather than a regulation like this one which is based on the theory that the right itself can't be tolerated because the sheriff disagrees with the right so it's not like the fourth amendment situation where there might be an accident circumstance and the sheriff can say you know we have a fleeing fel we have the the evidence being destroyed we have a kidnapping with a ticking time bomb we can imagine all those exigent circumstances but wouldn't it be much simpler for the sheriff to say as he does in this case generally speaking overall this idea that people should have a right to demand a reasonable search whatever that might mean that simply has to high a burden on public safety and so i'm only going to be concerned with the rights of people who i believe a special need for those rights that would not fly in this courtroom it doesn't fly in speech cases we know it doesn't work and washing cases because this court decided isaacson horn was isaacson if you want about the state of arizona decided that in its police power and it has the power to regulate medical decisions unquestionably it determined that a fetus can feel pain at twenty weeks and therefore it balanced the ability to access abortion services at the time on a need of medical necessity and this court very properly said no regardless of what one might think about abortion the fact is that the right is recognized within this time frame in therefore it's the woman's right to choose whether to have the procedure not the doctors right to determine that it's medically necessary since this case started there's been a change in circumstances to the law for open carry in california is your suit premised on the change in the law or is it premised on the law as you found it when your client was not allowed the concealed permit the law may have changed our theory has not well but he has to minute just a minute it seems to me that if i am to apply the law that existed as to the carry open carry that existed at the time when your client was not given this concealed permit at that point your client could have open carried if you will an unarmed weapon and also could have carried some ammunition to put in the weapon now it is that he can't carry either does your case live or die on that change no it is not if anything our cases become stronger but at the time why is it stronger that well i didn't change for your client and i'm just trying to say can i apply the facts as they were at the time your client was denied his permit are you suggesting i have to change that theory and apply the change in the law and if so why not go ask the district court again whether you're really right or not i mean i'm just trying to test you sir the district court's opinion didn't really turn on that availability of legal i think it did a because there were i mean if i look at what the district court did i look at pages eight and nine as he relates to what it would be that would be available in this particular situation that would be not in your client's opinion but that would have been in his opinion and page ten of your opinion of the richard's opinion seems to be based on what the basis of the law was on kerry the basis of the second amendment the time we filed the complaint is  unchanged and that is that people have the right to be armed and ready for calm in case of confrontation the opening minute but if i am going to apply a intermediate scrutiny to this particular matter and the law does not say anything about the fact that you're allowed to carry what ever you want on loaded and with ammunition doesn't it seem that that's a pretty big basis to suggest that on intermediate scrutiny the law survives know you are the fact is that first of all let's take the law as it was the beginning the ability to carry an unloaded gun is quite useless in fact if not dangerous it's not that i don't know what there is quite useless or dangerous because we had a similar case in jackson where our court held that having guns in the closet and ammunition there was equal to anything that was needed and the supreme court did not take any chance to undo that action your honor no where in america and never in american history tradition have people carried  management talks about the right to self defense and all we're talking about now is the difference between self defense in the loaded or on loaded with  in heller where people were not allowed to render their arms functional they had to be disassembled or locked up and unloaded and the supreme court said this violates the second amendment because it it there was no exception as in jackson there was an  contained in heller and we have to look at how heller defines the second amendment and i think this is critical heller tells us that the second the to bear arms as using the second amendment is to wear bear or carry upon the person or in the clothing or in a pocket for the purpose of being armed and ready well those are two separate categories of caring upon the person we can imagine is open caring or in the clothing or in a pocket that sounds like concealment and so heller recognize in its definition of the term bear arms that concealed carry can in fact be one way of exercising that right and then of course as is my colleague ably argued earlier the heller opinion made quite clear as did many opinions  earlier in american history that the state can regulate the manner in which guns are carried and because the state can regulate the manner in which they are carried the state can tell people you may not open carry you may not conceal carry and we don't have a claim that we are entitled to carry in any particular manner my clients will take what they're given by the legislature but if the legislature says you can't carry in any way shape or form we're not going to allow open caring and for concealed carry we're going to give you a license which you're simply not entitled to because we don't recognize self defense a generalized interest in self defense as as a as a reason for the license then the right has been effectively destroyed and if  referred to the seventh circuit opinion but of course the seventh circuit opinion was looking at a flat ban correct correct and in that opinion of the court actually contrast the flat ban which was  illinois situation with situation for example in new york and new york had it seems to me that the good cause provision that's very similar to yolo county and to san diego county so maybe you can enlighten me on why you think that more of the madigan of the seventh circuit somehow lends credence to your argument and why these other circuits why we shouldn't be looking to them for what has been held to be constitutional in terms of good cause the new york law would not survive under more of a madigan and perhaps the illinois legislature recognized that when the enacted their legislative response and created a shall issue system the more opinion  goes on at length to discuss how it is that the chicagoans have the same rights to have a gun for self defense on the street as much as they do up in their in their apartments the more opinion goes on and on  flat band we don't have a flat band which you but that of course you would oppose but we don't have that we have a band with a with a preview with the proviso hanging off it but more made clear that the same self defense interest that secures the right to keep arms in the home is the same self defense interest that underlies the right to bear arms outside the home and i don't believe that more suggested and no court really has suggested that this type of good cause scheme would be applicable to the right exercise within the home right now and i am meaning to exclude the home because we're talking about outside but going if the self defense arrest is the same with interest if the constitutional interest it belongs to the people generally is the same inside as well as outside then there's no way that a law like this which starts on the presumption that the population at large is disabled from exercising a final right that could survive if i may reserve my certainly time for a vote thank you c i'm authorized to confirm that sheriff gore as he previously advised the court has not changed his policies or procedures for the issuance of concealed weapons permits pending further guidance from the court and beyond that mr  here to answer any questions for san diego or share of core but otherwise seem to go has graciously ceded his argument time to the state and i will be dividing the time with mr ward sides so mr dumont where were you when we argued th case before the sheriff now isn't going ahead to and we questioned at that particular time we said does the state know about beth oh yes they know about that and you know we had all the discussions about whether you know it implicated a statutory scheme and did the state and then the state just sat on its hands and then lost and here you are and so suddenly you know what indulgence from the court we do think we should be permitted to intervene given the way that this case for these cases together have now become in a sense in essence a challenge to the  california public carrying scheme as a whole you know there are ways that the can't court can and i think should resolve the cases that would not have those implications but we are here because when because two things happen one the pa addressed the issues in a way that has very broad significance potentially for california law in california as ability to regulate and number two sheriffs who are decided at that time not to seek rehearing voc and therefore we made the decision to ask the court the full court to take a second look and we're very mad if we if we allow you to intervene what does that mean for intervention in general because obviously my understanding of the governor and the attorney general's office are supposed to defend laws that they think are constitutional and you know no one seems to want to weigh n on these political issues that's not where and then you know now little isn't that why isn't it too too late with respect when these cases if there were another case there would be no way parties would be able to intervene after they've won they've known about it and they have a clear and was clearly implicated and i agree the circumstances here are unusual and rare and we would not anticipate doing this on a regular basis this is mr mr jamal when i when i was a district judge there was some and we used to get cases like this there was some obligation on the district court to certify to the state or to the attorney general the united states that either federal or state statute had been called into question did the district court make that certification to the state attorney general's office i don't believe the formal sort of cations were made that said i wouldn't want to rely on that because we were aware of the case we knew about the case what i wanted to say was that you know both of these cases as they were presented in the complaints in the district courts presented a couple of different avenues and one of them could have been a very broad view but more particularly they seemed to be focused on the individual exercise of discretion by the sheriffs in these two counties including allegations that the decisions were being made in an arbitrary way or based on favoritism those were not  issues that we thought the state had a compelling reason to get involved in the cases for now as it turns out the case has been decided on much broader legal grounds and that is why we are here if there is a way that is there a way that the good cause requirement could be interpreted to avoid any kind of challenge to the state statute i mean the local interpretation so here as i understand from mr clement he says we're only challenging the interpretation of good caused by the sheriff right i heard him say that you know is there a way that you could interpret this statute to avoid any in this in to avoid the problem that we have but i take it that my friends would be content with an interpretation that said the good cause is assertion by any individual any law abiding individual of the need or desire to carry in self defense that is not the interpretation that that we have put on where we believe that individual sheriffs may put on  and it's possible mr clement offered that there might be some intermediate ground where a share of could make a discretionary decision but i wasn't quite clear what the grounds would be that would be greater than well i would like to carry for self defense  how does the state define good cause in this context the state will use this the state law leaves this up to the individual state of california has no view the state of california state statutory structure is to commit the discretion to define good clause and give the give the responsibility to define good cause to local sheriffs because conditions may vary from place to place and a different local sheriff is locally accountable and aware of local conditions and it may be that the policy that makes state wide definition of good cause that second amendment doesn't change county to county right that's correct thing that we are here to defend the ability the constitutionality of a sheriff imposing the kind of standard that  i want to be careful how i answer that is not argue that the second amendment has no purchase anywhere outside the home but what my friends on the outside like to do is to define of the right recognized in heller as a right to do exactly what they want to do which is carry concealed weapons on the streets in public spaces in the streets and parks and see what squares are san diego or davis and that we do not think heller stands for and let me give you a few reasons for that first of all as history and tradition right heller at least many things unclear but one thing that makes i think passively clear is that restrictions on concealed carry of lethal weapons  given us any guidance about outside the home i think it is candidly hard to read heller and come away with the thought that there is no purchase for the second amendment outside the home but i think it is very easy to read heller in fact necessary to read heller to say that that the second amendment does not confer a right to the concealed carry of handguns especially in cities and towns to pose the concealed concealed carry prohibition is supplemented by an open carry context of public spaces in the cities and towns which is what we're talking about here there is also a long and rich tradition of public regulation of the ability to carry dangerous weapons including handguns and we think that that say there is a very good argument that categorically we are allowed to regulate open carry along with concealed carry when we are talking about the public spaces o town for gun safety brief which has been filed recently in this court goes through a very interesting historical analysis of whether the south was representative of the rest of the country and how much we should and for from what the rule was in the south but my point is not to establish here i don't know th record allows us to establish categorically that we could ban both open and concealed carry but i do think that there is a rich tradition of regulation and what california is doing here is regulation it's not a ban so for instance in unincorporated areas outside cities and towns except for prohibited areas where you're not allowed to discharge a weapon you are free to carry open and loaded in your business your place of business even in san partly because if you kill someone in self defense the d a s office determines that it was a justifiable homicide but without that exception then you would get charged with having a loaded gun in a public place i think and i wasn't really sure what that exception amounted to it amounts to a statutory exemption from what might otherwise be prohibitions in narrow circumstances where you are faced with a life threatening situation and public aid is not  immediately available and i think it's significant but also other ordinary activities for firearms ownership outside the home purchase training sports use camping hunting all of these are accommodated by california's scheme and so the fact that you can't get a concealed weapons permit to allow you to walk on the on the streets and in the parks and in the malls and the parking lots of downtown san diego or downtown davis does not mean that your right to carry a firearm outside the home has been destroyed is this is this argument assume the change in law and now there is no absolutely no carry that is not concealed whereas prior to this change one could carry but one could not carry it loaded as your argument applied to both the two asians or are we only dealing with the situation which would be front of the plaintiff i've been arguing in terms of the current law which i believe is harder for the state  because we the law and now imposes greater restrictions on unloaded open carry not in front of us  given the state i didn't find frankly in any of the facts situation where that was the case which be front of the plane of bring the i agree that at the time that these plaintiffs sought their permits permits were denied that was not the law and i suppose one could evaluate the decision to deny on that basis given the reasons the state is here we have not approached the case on that basis we have taken the view that we should defend the statutory structure on the basis of the statutes as they are now but mr i asked mr comment about the about intermediate scrutiny and the record in this case how do you respond to his statements which do support points that i want to get to in a moment about the degree of danger that concealed or open carry personal carry in public spaces impose if the court feels that the record and i do think you have to understand that the record here was built at a time when first of all the law was very different as to unload it up and carry it well that's the main difference and i think i don't think it would be appropriate to resolve this case at least on a broad basis on the basis of that record so if the court feels that the record here is not sufficient to support the states and the counties positions in the way that the cases develop then i would front of us that at that point we should as i understood is argument grant him summary judgment i believe that's his argument i understand why he would take that position i don't think that's the right answer in the  teresa i'm not sure it would be the right answer under any circumstances but in these circumstances where what is now at least at issue is an issue a very broad significance if the court's going to issue  ruling of broad significance then you should do so either by taking judicial notice of the same sorts of facts that i can recite in the opinions of other courts and i i will say i think most of this about the risk that's posed by these weapons in public places is a matter of and gives them their permits but perhaps leave the sheriff free to build a different record in a different case i suppose that choice would be open to the court your time is expired thank you coun good afternoon chief judge thomas me to please the court john whitesides for the county of yellow and sheriff that i'd like to begin by addressing judge smith's questions about the change in law the law changed after the opening in answering briefs were filed mr gurr referred to it in his reply brief a victory for plaintiffs at the panel level we were asked i believe by chief judge thomas whether or not that would prevent the case from going forward and counsel agreed that it would not in both cases both improve and in richard's and in richards the reason why i took that position was because as i read the district court's opinion the changes that had been made in the law and i'll address those in a minute would not have changed the district court's view of you to claim them a nine in the peru to opinion and page ten of the richard's opinion where it seems to be that both district chords put a lot of emphasis on the present carry policy or carry law of california and suggested then there was maybe some reason why intermediate intermediate scrutiny would not straight down the law because they had carry provisions which were allowed th simply you couldn't put the ammunition with the gun because those exceptions still exist albion in lesser form yes they still exist so the way the current scheme works that's different than the scheme in the old scheme and in the current scheme you could carry loaded on private property business or residential with permission as long as it was in a public place when you got to a public place so let's say a grocery store or a restaurant as opposed to your lawyers office or your accountants office under the new law if you get permission from that property owner or the tenant party entitled the possession to carry you can only do it on load you can still carry but it has to be unloaded under the old law you could carry loaded with permission the other significant change is that under the old law you could carry unloaded on you so for example in a holster open displayed not concealed as long as it was unloaded when you were going down a public street you can't do that now right now it has to be in a lot container so those are the two differences in my view those two differences as i understand the law is now you can't carry openly anything  what you have to do is get the concealed permit and if you don't get the concealed permit you can't carry it all that's only for walking up and down the public street within a city women understand and and that's what i understand the sheriff is putting is regulations to that's true but you have to remember that yolo county is ninety five percent rural and so when we're talking about whether there's a substantial burden on a fundamental right and even if we assume that historically the right to carry a loaded firearm in public was generally observed which we would submit is not the case but even if you assumed it was it's not a substantial burden if your inability to carry is limited to less than one percent of the county i mean if you can go to your relatives you can go to your friends you can go to your neighbors if you can go to your lawyers to your accountant's if you can go to your place of business and do all those things loaded and then when you get to the grocery store the bank and will entertain the fiction that those places would allow you to carry a gun regardless of what state law is but lots of suppose the bank says sure you can come in with your gun all that's left are the streets and people don't walk up and down the street just to walk up and down the street they walk up and down the street to go in and out of businesses so this fear radical burden on their right to carry is only going to be impacted if the business that they're going to would let them in the door with the gun in the first place so to me this burden that's being argued in or understand that because people walk up and down the streets for a lot of reasons and you have to be going somewhere to walk up and down the street you don't have to be i mean if you're worried about self defense you can stroll around in the late evening you can you know circumvent a park you can do all kinds of things but under your theory that's ok because if you're in the country there's no restriction what i'm saying is yes it's a restriction but viewed in the totality of where you can carry it's a small restriction it's not a substantial burden if you can go ninety nine percent of the places you want to go and carry the fact that you can't go to one percent shouldn't be deemed constitutionally problematic so you can't take do you do you take the position then that you start with the premise that heller extends beyond the home gives you that constitutional right outside the home but then you're only narrow going at and as you put it one percent or a very small handful of circumstances is that the construct or do you not agree with that i do adding one layer or and the the layer i would add is that extending beyond the home and extending to kerry in a public area of the city are not the same thing and we've got extensive scholarly expositions by several of the amicus including the league of california cities and every town against gun violence that track the historical progression of restrictions on carry in urban areas all the way from colonial through everyone seems to be in agreement on that but then you seem to be arguing that while yours is not very restrictive it's because you're in a rural area and the really danger is in the cities that are you know very heavily populated that that seems to be the danger but you're saying you're a girl area so what's what's the government interest in why is this so dangerous where you are well i'm not saying it's just because it's a rural area what i'm saying i thought i heard you say we're in a rural area it isn't as dangerous so then they got to say that if i did not say it's not his day i didn't say anything about degree of danger one way or i so you're not saying that no ok now the argument i'm making is nothing to do with what places are more dangerous than others where the individual chooses to go is my point the words it's not a substantial burden if you can choose to go to most places and still have some right to carry the record yes it's in the underlying briefing and of course again the law changed in the ways i just described but you know i mean heller talks about sensitive places this courthouse being one of them so you know it already expresses the idea that at least when you're outside your house there's going to be more restriction tolerated than there is when you're inside the house and it's you know interesting because we talked briefly about the more case and in the subsequent opinion the one that came out after the illinois law was found unconstitutional and then the parties go back because the illinois legislature is not acting quickly enough to suit the plaintiffs and in the subsequent opinion that comes out which is seven thirty four f third seven forty eight judge posner says quote we say only that our mandate did not forbid the state to impose greater restrictions on carrying a gun outside the home then illinois law imposes on possessing a gun in the home so even more acknowledges that once you're outside the home the state can regulate more extensively and we think that scene keeping with the historical precedent that existed from the constitution's founding all the way through ratification until now that was that rational if there's no fundamental right to carry concealed in a public place then it would be rational basis because there's no burden on a fundamental constitutional right and we think that the other circuits stand for that proposition and i'd throw in the first as well in the high tower which we briefed in one of our supplemental briefings that court said and that's it six fifty three of thirds sixty one that the refusal to issue a concealed carry permit to a retired policeman did not burden a course second amendment right because that doesn't exist for concealed carry so in this case we have several layers we have concealed and the plaintiffs fairly concede well that's not a true constitutional right mr gurr referred to the language in heller about in the pocket or the clothing but that language is defining the word carry it's not defining the scope of the constitutional right that's in the second amendment that's just a physical description of what does it mean to carry and that means something more than just to possess you know to bear meaning that you're going somewhere and we feel that the second amendment has always been treated as more extensive outside the home i mean look at hunting i mean that's a core second amendment right isn't it heller tells us that colonial lee you had to keep yourself alive by eating just as much as you did by defending yourself is there anything that's more restricted in modern american cities than the right to hunt probably smoking there you go so sure i mean it is allowed occasionally and there's some cities where there's a deer problem because there's no natural predators and you can get a special license to hunt deer in the city limits but generally i can't do that i can't go out here and say oh boy that's a big fat pigeon and shoot it it's not allowed in and that's not controversy and so what you know california's doing here is it's a spectrum it's allowing you know putting aside local ordinances but as a state it's allowing full rights inside the home and pretty much equal on other private property friends neighbors relatives pretty much equal on private businesses then when you get to where people are congregating the shopping malls the restaurants the department stores then the regulation gets tighter then it's open carry but it has to be unloaded and then finally get to the city streets where we get it's at its most restrictive but we don't feel in any way that that could be deemed a destruction of a fundamental right because it's not a fundamental right historically and there's no destruction at most there's a burden not a substantial one but yes there is a burden far less of a burden and there is on hunting or smoking in richard's which is your case what was the evidence presented that would suggest that the law that was inactive substantially relates to the interest of the york county determines the the only evidence was a declaration from the undersheriff that basically gave the sheriff's reasons as to why they were concerned about issuing a carry permit to anyone who just put that point do i do well unless you found that there's a fundamental burden on earth excuse me a substantial burden on a fundamental constitutional right well just wouldn't be a problem even if supposing that i want to get to the fact that i have to apply intermediate scrutiny and i now get the idea that at that point applying intermediate scrutiny there is a government interest but i can't find any way where the government interest was related to what you did well i think his declaration relates it if a declaration doesn't and what should i do well both sides move any declaration there were declarations that describe the process that they went through but nothing about a particular i's need is mr gurr a said that wasn't their argument their argument wasn't that they had a special need their argument was that i desire self defense and i am not otherwise disqualified by virtue of criminal record or lack of training etc all right thank you thank you counsel thank you think your honor i have three minutes i think i have three points the first i think is the most important because if i heard the other side correctly they centrally concede that the second amendment applies outside the home and they either conceded or came perilously close to conceding that a ban on both open carry and concealed carry would be unconstitutional so then the question that becomes very important is the scope of open carry under california law and mr do not give you an accurate half the story but i want to tell you the other half of the story which is under the new law you have open carry prohibited in the cities which is what they want to talk about but then he also told you that it's prohibited in the prohibited areas of the unincorporated parts of the county now that means that the keyword is prohibited areas and that's defined in the california penal code at seventeen zero three three zero to basically mean anywhere you can't discharge a firearm and the problem is that's almost everywhere that's the streets that's anywhere near a dwelling or an occupied dwelling or a car or an unoccupied car so please don't decide this case on the presumption that you can carry openly in eighty five percent of the county that's unincorporated because you can't carry openly in the prohibited areas in the unincorporated areas and that's almost anywhere you'd ever get if you were on the grid if you were on the streets if you were near a dwelling if you were near a car you cannot carry openly and that's why this is a situation where we're not asking for a constitutional right to concealed carry we are asking for a constitutional right to have some mechanism to exercise what my friends essentially concede we have which is a right to self defense outside the home and that is really being forbidden to us almost anywhere that we could get on the grid the second point is to try to be risk bonce of two why the more case is significant it's actually sick less significant than i thought it would be because it's most significant on the point that the other side is conceded which is judge posner i think emphatically explains why it is that the second amendment extends outside the home and some of the other circuits decided their case either on the assumption that it doesn't or we're sort of do baton today on that question so i think morse principle significance is that the constitutional right to carry does extend outside the home now if you think about the cases that are out there sure there are the second third and the fourth circuit cases there's the seventh circuit case and i will grant you that it's somewhat different but california isn't just like new york it's not just like new jersey it does have no but i mean not just generally but as to the statute and what makes it so different i think is that it leaves it up to the counties and so unlike the states where they make this decision on a statewide basis and a symbol a statewide case for why this is so important to public safety california doesn't with all due respect really care that much they'll leave it up to sacramento county and it's perfectly constitutional so the record then becomes what the record is in each case and the record here is not enough to satisfy strict scrutiny or intermediate scrutiny thank you thank you with three minutes on the clock i think your honors i'd like to make three or four points in the limited time i have your first of all both accounts on either side alluded to the every town briefing other arguments that there is an historical basis for this type of law found in the early part of the twentieth century when new york new jersey enacted those particular types of regulations now what else was going on in the early part of the twentieth century well those were the days of cruikshank right the last word from the supreme court at time was that the second amendment did not apply to the states and so it cannot be that we look to the legislative behavior of legislatures at that time as evidence as to how people understood the second amendment right to exist because if those legislatures it had consulted the supreme court's guidance on the second amendment they would be told that they were completely exempt from having to be concerned about it of course to have been other cases as well it's interesting counsel noted that the high tower case and we filed the twenty j letter on november twenty sixth responded to the to their citation of hightower and in there we noted two things first of all hightower held distinguished the claim that the plaintiff made there because the court found that the plaintiff had the ability to obtain a license to carry a handgun openly a so called class b open carry license in massachusetts obviously that's not on the cards today but in response to that we also noted a couple of other court decision which perhaps merit some discussion first of all we have people versus the rio one hundred nine worth west one twenty seven where the michigan supreme court held in a quote here the exercise of a right guaranteed by the constitution cannot be made subject to the will of the sheriff and there they were talking about the right to have a handgun more recently and versus de barge from the indiana court of appeals essentially this case three ninety eight ne second thirteen thirty nine we had a police chief who decided that he had the ability to evaluate people's claims of self defense as a reason for granting or denying a permit to carry a concealed handgun and the court there struck down restrain the police chief from from behavior holding that such an approach contravenes the central nature of the constitutional guarantee which is essentially of course what this panel here did earlier in the case also of course most be vs divine much more recently the supreme court of our island said that the constitutional right to bear arms would be illusory their words if there were if the ability to carry a gun were committed to the unfettered discretion of the licensing officer finally your honour's counsel states that we did not provide any evidence challenging the wisdom of this kerry policy that's not our burden even under intermediate scrutiny it's the government's burden to prove that it's law actually advances some kind of an important interests in a way that fits properly to that objective so at that point though i do is evaluate what the what the defendants have suggested evidence and if it meets the appropriate level of defining the government interest and fitting the regulation to that government interest then you lose we wouldn't lose because number one they didn't have any evidence but number two the affidavit yes but the but the affidavit didn't show that this policy was necessary to address some feature of carrying handguns with the affidavit basically stated the theory of the case was carrying handguns is dangerous and we want to reduce or eliminate that danger even if we were to concede that they're correct for the sake of argument will tell him it's very dangerous to carry handguns all kinds of terrible things may happen we would still prevail because right or wrong that judgment has been made in the constitution that people ratify that into the second amendment and that policy choice has to be respected thank you thank you all for your arguments and your briefing it was very helpful to the pork and will be in recess