applied to firearms in particular for both. in that context it said you have to essentially have a right to carry this one way or another otherwise your jumping the tracks to the obliteration of the second amendment right so i understand that. >> if we assume for a moment that it applies in this context, why wouldn't it survive the intermediate scrutiny? >> i'm glad you asked that

because there is an intermediate but i don't think san diego policy can describe any form of scrutiny. they include first of all you relax the statutes are unconstitutional rather than the ordinary rational basis and the burden 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 and that this is 404. with all due respect that cannot be enough to satisfy -- and it gets countered by the declarations by the plaintiffs. >> but he doesn't even get to the relevant question. he makes two observations. less guns and violence and come

field guns and violence but he doesn't ask what is the critical question which is if there are less concealed licensed guns how does that affect the level. this is -- >> has the court conducted a trial, is there a fact on the question? >> this case went to the judgments of the county had its opportunity to marshal all of its evidence. at that point it doesn't get a do over and marshal the thought was sufficient evidence. we don't think they got the job done under the intermediate scrutiny. the court in a case like turner broadcasting talked about the judgment but that was in the context where there had to be the judgment. the government never imposed

requirements before. here's the answer is in plain sight in fresno county and the san bernardino county. there is no evidence in this record and this is part of the reason it's not in the record when they adopted the good cause of standard the crime went up and the state doesn't offer that evidence. it seems even if we are in the intermediate scrutiny that doesn't get the job done. >> with the second, third and fourth and what was the other one? there are statutory provisions all in the they are

binding on the court and the judge had a fine opinion but the difference is all of those cases if they wereirt any a skirt in a different brace on the evidentiary records in the cases so there were a number of hearings before the new york legislature dealing with a particular provisions and there was a record in the case that doesn't bear anything like the record in this case and part of it is this oddity that if you think about the states interest in the case it's not even an interest ld san diego county to interpret this the same way as sacramento counties over the state level the compelling interest is given to the county level officials and i don't think that's enough to satisfy and that's something true about the california regime

>> i thought you said with respect how can you say that there is a record in new york that supports what they are doing >> i was talking about the record in california because -- >> do people behave differently in new york tax >> what you have in california that distinguishes it from the other states is the opportunity to have a direct competitor about what would happen if we had a more permissive view compared to the policy that's being supported and there are obvious comparators. >> but how long have those policies then and affect? you can't look at something that's been going on for six months and then draw legitimate conclusions. >> i think each county is a

little bit different but some of the policies have been in effect for years. so when i say the evidence isn't out there i mean it's because in fact all the evidence that has been cited in the amicus briefs and all that actually suggests that when the jurisdictions adopt policy of allowing relatively free issuance of concealed permit carries one of two things happened that the crime rate the same. if you apply intermediate scrutiny and i'm wrong and the jurisdiction makes a a better case than i will be the consequence of that case. that's the great thing about the intermediate scrutiny. it's not one-size-fits-all and then we are done. it admits the possibility they will be decided differently based on the record in the particular case and jurisdiction i would invite you to take a look at the declaration because i think that you will see -- i

can't think of another context and the first amendment, you name it where that kind of declaration of the enough of the evidentiary of a basis for the the jurisdiction that has a burden under even intermediate scrutiny as opposed to strict scrutiny. >> thank you. if i may reserve three minutes of time for that rebuttal. nobody argues in this case and there is no evidence that would suggest that people with a high need for self-defense or somehow by that virtue safer firearms than the members of the community at large with all of me in ordinary garden variety of self-defense and rather the argument here in the case by the defense is because carrying guns for self-defense is allegedly dangerous they should be able to reduce that by reducing the

number of people who are carrying handguns. the policies are there for nothing more < schema for the fundamental rights the of the government believes it is too dangerous to allow. >> i'm sorry. go ahead. i think the government is going to argue that because there are certain exceptions of people that can have concealed weapons but that somehow it isn't as harsh. what would be your response to that? are there certain military people or retired police officers and how does that factor, how would you respond to the argument? >> if we have have to beat her to death balancing judgment that the sheriff has made that some people with a certain background are okay to carry because the danger is somehow lessened, then the court would also have to be for him at least three other areas. the court would have to divert the sheriff's judgment that

nobody can accessibly -- excessively. the same reference book sustainment. the second problem would be why only apply to bear part of the second amendment when we heard the same arguments in the case that keeping handguns at home is dangerous and four the absolute need of the public safety, the district in columbia should have been able to prohibit handguns in the home. could washington, d.c. enact a statute that said we are going to allow people only with an exceptional strong need that can show somebody wants to burglar their house only they can keep it home. there is nothing that would suggest this interest can apply to one side of the second amendment and not the other end of the third problem is if we are going to have this sort of difference why stop with the

second at all? we can imagine it's what the sheriff finds to be most annoying and interferes in the great police power the sheriff can only exercise so much force. why not only respect the fourth amendment rights of people have heightened need for privacy or -- >> but that is an area in which danger plays a role because the doctrine of the circumstances come into play when danger is appearance and immediate. if taken to its extreme, your argument seems to suggest safety concerns are arab event and no sort of restriction is okay. is there any form of restructuring that you would find in your view constitutionally permissible? >> yes, your honor and it's not the argument that it can't be

tolerated. this is a very narrow challenge. the only restriction that we are challenging us on the very entitlement as it were to exercise the fundamental right there their fundamental right there is no challenge in this case to any restriction the sheriff might place on time place or manner if you want to enact that there are no restrictions here at all and there is no challenge to the training required. we accept that and we can manage other kinds of regulations that would pass a level of means into scrutiny precisely because they are addressed in the actual danger rather than a regulation like this one which is based on the right itself can't be tolerated because the sheriff disagrees with the right. so it's not like the situation where there might be an exigent circumstance and the sheriff can say we have a filling, we have the evidence being destroyed with kidnapping a ticking timebomb. wouldn't it be simpler to say as

he does in this case generally speaking overall this idea that people should have a right to demand a reasonable search that simply has too high a burden on public safety so i'm only going to be concerned with the rights of people that i believe have a special need of the right. that doesn't fly in the speech cases because the courts decided the state of arizona decided in its police power it has the right to regulate medical decisions unquestionably. it determined that a fetus can feel pain after 20 weeks and therefore it balanced the ability to access abortion services at the time i'm in need of medical necessity and this court properly said no. regardless of what one might think of a portion, the fact is that the right is recognized within this timeframe and

therefore it's a woman's right to choose not the doctor's right to determine that it's medically necessary. >> since the case started there's been a change in circumstances for the open carry in california. is your suit premised on the change in the law or as you found it when your client wasn't allowed to concealed permit? >> if they have changed the theory has not. >> just a minute. it seems to me that if i am to apply the law that existed to the kerry that existed at the time in your client wasn't giving this concealed permit your client could have open carry if you go on will on an unarmed weapon and could have.

some ammunition to put in the western. now they can't carry either. does your case live or die on that change? >> if anything it's become stronger. >> i am just trying to say can i i apply the facts as they were at the time your client was denied his permit are you suggesting i have to change the theory into play the change in the law and if so why not ask the district court again whether you are really right or not? i am just trying to test you. >> it didn't really turn. >> i think it did. if i look at the district court did i look at pages eight and nine as it 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 commanded each ten of your opinion. it seems to be based on what the basis of the law was on kerry. >> the people have the right to be armed and ready in the case of confrontation. >> but if i am going to apply an intermediate scrutiny to this particular matter, and the law doesn't say anything about the fact that you're allowed to carry whatever you want unloaded in with ammunition does it seem that is a pretty good basis to suggest that on intermediate scrutiny it survives? >> the fact is first of all but take it as it was at the

beginning. the ability to carry an unloaded gun is quite useless in fact it's not dangerous. >> i don't know whether it is useless or dangerous because we had a similar case in jackson where our court held that having guns in the closet and ammunition was cool to anything that was needed and the supreme court to not take any chance to undo that. >> nowhere in the american tradition of people carried unloaded guns for self-defense. that is simply not part -- >> of -- >> where is that in the record? that may be the great argument but i didn't find that in the record anyplace. >> the amendment states people have the right. >> the second amendment talks about the right to self defense and all we are talking about is the different institutions and

the loaded or unloaded with ammunition. >> neither now or then did my clients have the ability to carry a functional firearm for self-defense. right now today they certainly can't -- >> what do you mean by functional? >> if it isn't a disassembled it actually loaded and ready to be used. >> loaded and functional are two different things. the main functional or loaded? >> i guess loaded is the list included. we are talking about functional. in fact we had this issue in heller where people are not able to render their arms functional. they had to be disassembled walk to be uploaded and they said this violates the second amendment because there was no exception as in jacksonville was an exception. this is a violation because there was nobody to be totally people could use their gun in self-defense but i would also like to respond to the question that was received earlier about

robertson baldwin. we have to look at how they defined the second amendment and i think this is critical. they tell us that to bear arms that as as it is used in the second amendment is to carry upon the person in the clothing or in the pocket a pocket for the purpose of being armed and ready. those are two separate categories upon the person we can imagine or in the clothing or the pocket that sounds like concealment and so they recognized in the definition of the terms concealed carry can in fact be one way of exercising that right and as my colleague argued earlier it made it quite clear they can regulate the manner in which they are carried and because the state can regulate the manner of the states can tell people you may not open carry, you may not

concealed carry and we don't have a claim that we are entitled in any particular matter. my clients will take what they are given by the the legislature pathologist teacher says you can't carry in any way, shape or form coming into for the concealed carry we are going to need a license to to which to or not and which you're not in title but to because we do not recognize self-defense, the generalized interest then the right has been effectively destroyed. >> your colleagues they were looking at the flack dan correct? it was the illinois situation with the situation for example in new york, and new york it seems to me had a good cause provision that's very similar to

the county and san diego county so maybe you can enlighten me on how the credence to the argument and why these other circuits why we shouldn't be looking to them what has been held to the constitution in terms of good cause. >> it wouldn't survive under and perhaps they recognized that that for me and acted as a legislative response and created a system. the more the opinion goes on at length to discuss how it is that they have the same rights to have have a compass of defense on the street as much as they do out in their apartment. the more it goes on and on. >> that they flack dan. of course he would oppose. but we don't have that. we have the band with a proviso hanging off of it.

>> but the same self-defense interest that secures the right to keep arms in the home is the same self-defense interest that underlines the right to bear arms outside of the home and i don't believe moore is suggested that this type of good cause would be applicable to the right exercise within the home. >> and i'm meaning to exclude the home. >> if it's the same. if it is a constitutional interest that belongs to the people generally is the same inside as well as outside then there is no way that the law like this that starts in the presumption that the petitioners the petition at large is disabled from exercising a fundamental right could survive if i may reserve my time for rebuttal.

>> i am here with james for san diego county and the sheriff and her yellow county. unauthorized to confirm the sheriff hasn't changed his policies or procedures for the issuance of concealed weapons permit pending further guidance from the court. beyond that, he's here to answer any questions for the core but otherwise san diego has graciously ceded its time and i will be dividing the time. >> where were you when we argued the case before? the sheriff now isn't going ahead and we said does the

states know about that? yes they know about that. and we had discussions about whether it implicated the statutory scheme and the state just sat on its hands and lost in here you are and so suddenly why should we let you intervene at this point? >> we appreciate the ability to be here today. whether we are permitted to intervene or not and we appreciate that. we do think we should be permitted given the way that the cases have now become a challenge to the constitutionality of california public hearing schemes as a whole. there are ways to court can and should resolve the cases that would not have those applications but we are here to

address the issues in a way that has a broad significance and number two, the sheriff decided at that time not to seek the hearing and therefore we made the decision to ask the court to take a second look. >> if we allow that to intervene but does that mean in general because obviously my understanding of the governor and the attorney general's office they are supposed to defend the laws that they think are unconstitutional and no one seems to want to weigh in on these political issues as it were and why isn't it too late? >> if there were another case there is no way that they would

be able to intervene when they've known about it and when they have clear -- was clearly implicated. >> the circumstances here are unusual and rare and we wouldn't anticipate doing this on a regular basis. >> leaves to get cases like this. there is an obligation on the kate david cook is to certify that the very federal or state called into question. did the court make that certification quick >> i don't belief they were made. we were aware of the case and we do i. but i wanted to say was both of these cases as they were presented in the complaint to the district court presented a couple of different avenues and one of them could have been a broad view but more particularly amazing to be they seem to be focused on the individual exercise of discretion in these counties including allegations that the decisions were being

made in an arbitrary way based on arbiters debate coach arbitrary. those were not to get involved in the cases. as it turns out the case has been decided on much broader legal grounds and that is why we are here. >> is there a way that the requirement could be interpreted to avoid any kind of challenge to the state statute. the local interpretation. so, as i understand he is challenging the interpretation by the sheriff. his theory we could interpret the statute to avoid the problem that we have here. >> it is satisfied by an assertion by any individual, any law-abiding individual or desire to carry in self-defense. that is not the interpretation that we have put out or that we

believe individual sheriffs may put out. it's possible, he argued that there might be some area where a sheriff could make a discretionary decision but i wasn't quite clear what the grounds with the. they would be greater than i would like to carry self-defense. >> how do they find good cause in this context? spacemac the state of california has no view. >> the statutory structure is to come commit the discretion to define good cause and give the responsibilities to find good cause to the local sheriffs because conditions may vary from place to place and they are aware of the local conditions and it may be that the policy that makes sense is different in yellow county were san diego county. so we don't believe that there is -- there may be a baseline

but there's not a one state definition of cause. >> the second amendment doesn't change county to county. >> we are here to defend the ability of the constitutionality of the sheriff in posing the kind of standard that the sheriff had imposed which is the kind of standard imposed under the statute and that's been upheld as you said. >> so did they view that -- is interviewed doesn't apply in this context? >> i want to be careful. it's not our view that it has no purchase anywhere outside of the home but with my friends on the other side like to do is plant the right recognized as the right to do exactly what they want which is carry concealed weapons on the public squares in san diego or that we do not

think it stands for and let me give you a few reasons for that. one thing is the restrictions on the concealed carry of lethal weapons that do not conflict in the second amendment right. >> it is the state's position that the right can apply outside of the home. the rights to use a right to use a firearm for self defense can apply outside the home is on the? >> yes, with a qualification which is we think the supreme

court has not addressed this or giving us any guidance outside of the home. it's necessary to say that doesn't come for the rights to the concealed carry. >> the prohibition is supplemented by the prohibition so it equals the total prohibition. what is your position on that? >> it is twofold. there is a lot of historical evidence that in the context of the public spaces in cities and towns which we are talking about here is a long and rich tradition of the regulation of the ability to carry dangerous

weapons including handguns and we think that history has been either moderated in fact drake relies upon it for its holding and in part we would say there is a very good argument that categorically we are allowed to regulate when we are talking about the cities and spaces and towns. >> the justice said that members of the state was a perfect embodiment of the concept and also the louisiana case. both of those were open spaces were they not?

>> it was. the recollection of the cases that the statute applies statewide. what the court held is yes you can ban concealed carry which of course would be enough here. >> whether the south was represented for the rest of the country. >> i don't have the record allows us to establish categorically. >> of california is doing his regulation. >> you're not allowed to discharge the weapon even in san

diego you are allowed to take your gun and keep it there and carry it there. if you find yourself in the emergency and your gun is nearby, you are about to load it and have it that the nation. >> it is a justifiable homicide but without the exception then you would get charged with having a loaded gun in a public place. i wasn't sure what that exception unmounted to. >> and the statutory exemption from what might otherwise be prohibitions in the narrow circumstances where you are faced with a life-threatening situation in public aid is not immediately available i think it is second but also ordinary activities for firearms ownership purchase training

sports use camping hunting. all of these are accommodated by the scheme and so the fact that you can't get a concealed weapons permit to allow you to walk on the street and in the parks and in the malls into the parking lots of downtown san diego or downtown davis doesn't mean you have the right to carry a firearm outside of the home has been destroyed. >> does this assume the change in law and there are no. that is not concealed, whereas prior to this change, one could carry that one could not carry it loaded. are we only deal with a situation which befriended these

plaintiffs? >> -- are giving in terms of print law which is harder for the state because now it imposes greater restrictions on the open carry. >> is that in front of us? >> that was the case that befriended those. >> i agree at a time they stop their permits and they were denied that was not the law. >> we haven't approached the basis where we take the view that we should defend the statutory structure on the basis as they are now. >> i asked about this. how do you respond to the

argument. >> it's not really worth much. >> it has in the voice of expert a long-standing and very experienced professor a variety of statements which do support the points i want to get to in a moment about the degree of danger of the concealed or open carry personal carry in public spaces and imposed. it was very different to the unloaded open. that's been the main difference.

>> if it is insufficient to support the state and the county's positions in the way the case has developed an eye would suggest the right thing is to reverse in favor of the counties and remanded for the development of the greater record. >> the council suggested that the evidence isn't sufficient in the affidavits that we have in front of us then at that point does the argument grant him the judgment of? spinning i believe that is his argument. i don't think that is the right answer. for two reasons. i'm not sure that would be the right answer. it is an issue of the very broad significance. if the court is going to issue

the ruling in the broadest significance than you should do so either by taking the judicial notice of the facts that have been recited in the opinions of the other records and i would say most of us, but the risk that is posed by the weapons in public places is a matter of common sense and could be subject to the judicial notice but if the court is going to issue the broad ruling it should be done on the basis of the good record and if the court wants to resolve the case a very narrow way that applies for example all the way to these plaintiffs and gives them their permits but to build a different record in a different case i suppose that would be open to the court. >> your time is expired.

>> good afternoon. may may i please the court. for the county and the sheriff i would like to begin by addressing judge smith to questions about the change in law. it changed after the opening and answering briefs were filed and he referred to it as a victory for plaintiffs. at the panel level we were asked by the chief judge thomas whether that would prevent the case from going forward. and at the council agreed that it would not in both cases. 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 will address those in a minute with within have changed the district court view. >> would you explain page eight and nine in the opinion of ten in the richards opinion where it seems to be that both the district court's put a lot of emphasis on the present policy or the law of california and suggested then that that was maybe some reason why it would strike down the law because they had provisions which were allowed then that simply you couldn't could put the ammunition with the gun. >> because those exceptions still exist albeit in lesser form they still exist. so the way the current scheme

works is different than the old. in the old in the current come you could carry loaded on private property business or residential with permission as long as it was in the public place. when you've got to the public place, so what to consulate to say a grocery store or a restaurant as opposed to your lawyer's office were accountants office under the new law if you get permission from the property owner or the tenant, party and titled position to carry coming you can only do that unloaded. you can still carry that it has to be unloaded. under the old law you could carry with permission. the other significant change is that you could carry unloaded so for example open display, not concealed as long as it was unloaded when you were going down a public street. you can't do that now.

now it has to be in a locked container so those are the differences. in my view, the differences -- >> as i understand, you can't carry openly anything and what you have to do is get the concealed permit and if you don't get the permit, you can't carry it all. >> that's only for walking up and down the street in the city limit. >> and that's what i understand that the sheriff is putting his regulations to. >> that's true but you have to remember it is 95% rural. if we assume that the right to carry carry a loaded firearm in public was generally observed which we would submit is not the case that even if you assumed it

was, it's not a substantial burden if your inability to carry is limited to less than 1% of the county. if you can go to your relatives and friends and neighbors and if you can go to your warriors and accountants into place of business and do all those things and then when you get to the grocery store into the bank and entertain the fiction that those places with allowing you to carry regardless of what the state law is that what's supposed the bank says sure you can come in with your guns. 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 to go to the businesses so the burden on the right to carry is only going to be impacted if the business they are going would let them in in the first place.

so to me this burden that is being argued. >> people walk up and down the street for a lot of reasons and you have to be going somewhere. >> you don't have to be. >> if you are worried about self defense you can stroll around and circumvent the park and do all kinds of things but under your theory, that's okay. >> viewed in the totality of where you've can carry it's a small restriction. it's not a substantial burden if you can go 99% of the places you want to go and kerry, the fact you can't go to 1% showed them to be deemed constitutionally problematic. >> do you take the position that you start with a premise that

gives you that rate outside the home but then you are only narrowing it and as you put it 1% or a small handful of circumstances is that the construct or do you not agree? >> i do with adding one layer and that is extending beyond the home to carry in a public area of the city are not the same thing, and we've got extensive scholarly expositions by several including the league of california cities and every town against gun violence that track the historical progression of restructuring fund carrying urban areas all the way from colonial through antebellum post ratification for work.

>> what is unusual about your argument, i'm hearing you concede that it doesn't restrict self-defense to the home. as everyone seems to so everyone seems to be in agreement on that. but then you seem to be arguing that while yours isn't a very restricted is because the war in a rural area and the danger is in the cities that are very heavily populated and that seems to be the danger that you are a rural area so what is the government interest in why is this so dangerous where you are? >> i'm not just saying because it is a rural area. >> i heard you say it isn't as dangerous precedent for government -- >> i didn't say anything about the degree of danger one way or another. the argument i'm making has nothing to do with what places

are more dangerous than others. where the individual chooses to go is my point. for the other words it's not a substantial burden if you can choose to go to most places and still have some right to carry. >> was this all in the record? >> it's in the underlining briefing and again it's changed in the ways i just described. they talk about sensitive places, the courthouse being one of them. so you know it already expresses the idea that at least when you are outside your house, there's going to be more restriction tolerated then there is when you are inside the house. we talked about the case and in the subsequent opinion, the one that came out after the illinois

law was found unconstitutional and that the parties go back because the legislature isn't acting quickly enough to suit the plaintiffs and then in a subsequent opinion that comes out, which is 734 748, judge poser said quote, we say only that our mandate didn't forbid the state to impose greater restrictions on carrying the gun outside the home at them in the illinois law imposes inside the home so even more it acknowledges that once you are outside of the home the state can regulate more extensively coming and we think that is in keeping with the historical precedent that existed from the constitution's founding all the way through the ratification until now. >> so was it intermediate scrutiny or strict scrutiny? >> if there is no right to three

in the concealed place, then it would be the rational basis because there is no burden on the fundamental constitutional right. and we think that the other circuit stands for that proposition. and i would throw in the first as well in hightower which we briefed in one of those applicable briefings that court said that the refusal to issue the concealed carry permits to the retired policemen did not burden the poor second second amendment right because that doesn't exist for the concealed carry so we have several layers command they concede that's not a troop constitutional right. we'll refer we will refer you to the language about the pocket clothing but that is the defining work.

it's not defining the scope of the constitutional right that's in the second amendment that is just a physical description of what does it mean. and that is something more than just to possess meaning that you are going somewhere and we feel it's always been treated as more extensive outside of the home. that is a second amendment right. they told us that colonial you have to keep yourself a life by eating just as much as by defending yourself. is there anything that is more restricted in the modern american cities than the right to hunt? >> probably smoking. [laughter] >> it is allowed occasionally where there is a problem because there are no natural predators and you can get a special license, but generally i can't

do that. i can't go out here and say that is a big fat pitch in and shoot it. that's allowed and it's not controversial. what california is doing is a spectrum. friends, neighbors relatives pretty much equal in the private businesses. then when you get to where people are congregating in the shopping malls, restaurants, department stores, then the regulation gets tighter. it's open. but it has to be unloaded and finally to get to the city streets at its most restrictive. but we don't feel in any way that could be deemed a distraction of a fundamental right because it's not a fundamental right historically and there is no distraction.

at most there is a burden, not a substantial one but yes there is a burden. far less than on hunting or smoking. [laughter] >> is there evidence that would suggest the law that was enacted relates to the interest of the city or county determines they have? >> the only evidence was a declaration from the sheriff that basically gave the sheriff reasons for why they were concerned about issuing a permit to anyone that just put down -- >> if in fact the declaration of the sheriff is not sufficient to provide this essential interest of the county then what was at that point do i do?

>> unless unless you found that there is a fundamental burden of substantial burden on a fundamental constitutional right it wouldn't be a problem. >> even supposing i get to the fact i have to imply the intermediate scrutiny and i now get to the idea that applying the intermediate scrutiny there is a government interest, but i can't find any way the government interest is related to what it had. >> i think it is as related. >> then what should i do? a >> both sides move for the summary judgment so if you find that either have sufficient evidence to warrant at the summary judgment, then we have to send it back. >> is there any evidence from the plaintiffs in your particular case?

>> no. >> was there a declaration of >> there were declarations to describe the process they went through. but nothing about a particular need. i wasn't there argument. there argument wasn't that they have a special need. their argument was i a desire self defense and i am not otherwise disqualified by the virtue of criminal record or lack of training etc.. >> we will give you three minutes. >> thank you, your honor. the first is the most important because if i heard the other side correctly they concede the second amendment applies outside of the home and they either conceited or claimed close to conceding the ban on those open carry would be unconstitutional

such the scope of open carry under california law. they gave you an accurate half of the story that i went to give you the other half, which is under the new law you have open carry permit in the cities which is what they want to talk about, but then he also told you it's in the prohibited areas of the unincorporated parts of the the county so that means the key word is prohibited areas and that is defined in the california code of 17303 to basically mean anywhere you can't discharge a firearm and the problem is that almost everywhere. that's the streets come anywhere near a dwelling or occupied dwelling or car were unoccupied so please don't decide this on the presumption that you can carry openly and 85% of the county that unincorporated because you can't carry openly in the prohibited areas in the unincorporated areas and that's

almost anywhere you would almost get. if you are on the grid, on the streets, near the dwelling you cannot carry openly and that's why this is the situation we are not asking for the constitutional right. we are asking for the constitutional right to have some mechanisms to exercise with my friends friends conceivably friends concede we have, which is the right to self-defense outside of the home and that is being forbidden to us almost anywhere that we can get on the grid. the second point is to be responsive on why the case is significant. it's actually less significant than i thought it would be. the judge explains why it is the second second amendment extends outside of the home and some of the other circuits decided the case on the summary that it doesn't or that we are sort of on that question.

so the constitutional right to carry does extend outside of the home. if you think about the cases out there sure there's a second and third and fourth circuit case and there's the second and i will grant you it is a somewhat different california isn't just like new york or new jersey. unlike the statewide case california with all due respect doesn't care that much they believe it is a commodity to the 56th secretary did debate could -- sacramento county so it's not enough to have the intermediate scrutiny.

spirit think you your honor. i would like to make three or four points in a limited time. the council of the other side he alluded to the arguments of those in the historical basis for this type of law. the average brief rate is a fantastic job of marshaling evidence for the proposition that the right to guns. but it dates back earlier than as the court found the early part of the 20th century when new york and new jersey enacted those regulations. so those were the days of the second amendment didn't apply to the state and so it cannot be that we looked to the legislative behavior of the legislatures of the time as evidence to help people understood the second amendment rights and if the voters or

jurors consulted the guidance on the second amendment, they would be told that they are not completely exempt from having to be concerned about it. so they responded to the citation and then we noted two things. they held with the plaintiffs made because the court found the plaintiff had the ability to obtain a license to carry the handgun openly in the so-called open carry in massachusetts and obviously that isn't on the cards today but we also noted a couple of other decisions which perhaps merits some discussion. we have people versus 30181 verse 927 where the michigan supreme court held the exercise of the rights guaranteed by the constitution cannot be made subject to the will of the sheriff and therefore they took

up the right to have a handgun. more recently in the indiana court of appeals under the second we had the police chief for self-defense as a reason for granting or denying the permit to carry a concealed handgun to restrain them from behaving in that in such the approach intervened in the nature of the constitutional guarantee that it's a cinch we of course want the panel did earlier. ..

>> >> the affidavit did not show that this policy was necessary to put to a feature of carrying handguns

a basically said the death theory was is dangerous we want to reduce the danger even if they are correct for the sake of argument it is very dangerous to carry handguns we will still prevail right or wrong that judgment has been made in the constitution with the second amendment and that has to be respected. >> thank you for your arguments and your briefing it is helpful to the courts and we will recess. [inaudible conversations]

[inaudible conversations] then morning. the hearing will come to order a recall that for a very somber reason defective airbags are hurting people.

we still haven't figured out why or how to prevent these issues from occurring in the future. is a pivotal time been vehicle safety that they are safer than they have been advances the of innovation initiatives to reduce the number of deaths of the road but still tragically more than 30,000 people die every year due to murder vehicle accidents. airbags is one of the most effective tools in today will ask witnesses for efforts for the of slater's that has been linked to eight deaths and hundreds of injuries. the complexity of the lack of identified of that age of the vehicle to remedy the problem with the nhtsa and

the shared obligation. the first brigade should be fixing recalled vehicles as soon as possible. takata and other suppliers have ramped up production and they seek to contact effective owners with swift repairs to find that if it is truly saved. with testing to be on going with the root cause of the inflator defect. this testing will help the scope of the recall. of the alarming recalls underscore the importance of clear and accurate information for consumers the takata recall website

the recall fatigue and confusion is growing part of a large number of vehicles involved the number times it can be sent into recall. with an all-time record of 64 million automobiles i appreciate nhtsa in the auto industrial looking for ways to improve the process it is a key issue afford to hearing more about the inspector general's audit report that raises serious instances where the grave agency dropped the ball with the ignition switch defect to conduct the adequate data that it can effectively identify investigate a safety problem to carry up the safety mission the findings are especially disconcerting given the

complexity of the defect also know the administrator has concurred with all recommendations and is committed to open -- implement them. that is why we worked with senator nelson for the whistleblower act to encourage employs to report safety concerns before they become larger problems as a result of a safety defect under the of leadership nhtsa is looking for ways to improve. in a plan for a path forward now was a time for accountability the agency automakers and suppliers must work together to reach deuce death of the roadways. it will conduct oversight of the takata recall and i appreciate takata general

cooperation with the respect -- request today in read just received another large production of documents a few days ago. some automakers are also providing documents is important to see if your vehicle there is a tool on line at safer car .gov. now for the administrator rose kind since his confirmation last december also the inspector general back to the committee and of were witnesses for the second hearing on this issue. thank you for being here to dallas for word to your testimony mr. rose kind please proceed i apologize.

my mistake the senator from florida please make your opening statement. >> thank you, mr. chairman. we have had an investigation done the danger behind though we'll with the takata crisis how to fix the broken auto recall process from our minority committee staff to have it entered. >> without objection. >> thank you for your cooperation in you will recall last year we actually started the hearings on the airbag defect. the news was not good. at that point we had five

deaths and dozens of injuries tied to the defective takata airbags. and we had testimony from an airforce lt. who suffered severe facial injuries and almost lost one of her eyes when her airbag exploded after a relatively minor accident in the florida panhandle near the air force base. but since then the recall has revved up appropriately but unfortunately the tragedies have continued. nextgen this year in houston a man was killed by a takata airbag that exploded in his vehicle after a minor

accident. in april a 22 year-old was involved in an accident in louisiana but as you can see , looking at this airbag. three have the pictures? you can see this is a normal airbag deployed. this is the front of what would be facing the driver of the steering wheel if it

deploys normally it is supposed to look like that. this is what happened in this case that i just reference to the b.c. and the. that is blood bullet that the tear in the airbag. you can see obviously it has been punctured. instead of it being like that, the shrapnel from the inflator, this device in the steering wheel, underneath the steering wheel explodes to send hot gas out to inflate the airbag. with it is defective, it explodes with such force

them breaks open the metal and then of course, instead of the airbag it is killing people. let me show you. that is a piece of metal that actually came out on this lady and this lady in miami last july. locale big that is. that hit her and thank goodness it had heard there in a relatively superficial wound that is a permanent scar but what if it hit her

there? or their? this is deadly serious business. just last friday we learned of the eighth death of southern california tied to a defective takata airbag they got recall notices after their loved ones were killed and there has been allegations of over 100 serious injuries.

there was a woman killed in orlando one year ago. that is how i got into it. they thought it was a homicide in somebody slashed her throat and only after words did they find out that in fact this is what it was. then i was into it because of a firefighter in the orlando area he will not be a firefighter again because he lost his eye. i can go on and on justin florida alone but the bottom line is we need to get these cars fixed we have been talking about this since last year.

doctorow's kind has ben have breath of fresh air into a taken numerous actions to speed up the process but nhtsa still faces the challenges no doubt it is underfunded. it lacks the necessary funding to make sure automakers to get the automakers to be forthcoming about the recalls. this isn't the only thing. we're not just picking on takata and how many deaths occurred from the gm defective steering ignition switches. gm head a defect for over a decade.

at least 114 people died. this is awful. and for that nhtsa could only find -- flying at gm and easily $35 million and that is less than one-hundredth of a percent of what gm makes in a quarter. and nhtsa also appears to have serious internal and managerial issues. the challenges were detailed with the department of transportation inspector general report released yesterday there reveals serious problems of the nhtsa defect investigation handling said gm crisis last year. so i can tell you the senator will fight for

additional funding for nhtsa but there also has to be accountability and there was severe deficiencies in its ability to collect and analyze safety data as well as conduct investigations. it lacks protocols and procedures and staff are inadequately trained to do their job. we need accountability and i look forward how you intend to respond to this report that has been put in the record in how you continue to modernize the agency and also the representatives of takata park yesterday the staff issued a report detailing the initial findings in a month-long investigation.

for years it is obvious they did not put safety first. it appears takata knew or should have known as early as 2001, 14 years ago that there were serious quality lapses in the airbag production process and he would have think they would step up the safety efforts after stock discovering those efforts. now there are eight people dead. instead internal emails suggest they suspended global safety audits 2009 through 2011 for cost-cutting reasons and how the company responsible is making this nearly making all of the replacement

airbags for the recalled vehicles. that does not set well with a lot of americans and takata has serious explaining to do. for the automakers to the suppliers we need to improve as fast as possible. and we need to get the recall completed but also make sure the safety issues are spotted sooner so dangerous vehicles are identified and fixed faster. and to help which is to help keep consumers saved. mr. chairman, if i sound i and invested in this issue, when i saw the pictures of that woman with her neck lacerated, i am invested. when i talked to the

firefighter with his little boy with him that will never be a firefighter again because he does not have been i, i invested. thank you for calling the hearing. >> we will now proceed to the panel. >> chairman, ranking member and members of the committee thinks the opportunity to provide an update including the defective takata airbags they misrepresent the largest national consumer safety recall in history and it is one of the most complicated per called the actions are targeted to one goal of a safe airbag in every vehicle. we took a significant step to announce that takata at the agency's assistance

filed for defect reports of an estimated 33.8 million defective inflator is. they have now made available vehicle identification numbers to go to safercar.gov to determine if their vehicle needs a recall. you should schedule a replacement airbag as soon as possible. you can even ask for a rental from the dealer. there are about 34 million defective airbags 32 million vehicles with the consent order for the first time ever nhtsa a schussing a 30 -- authority to remedy efforts. late last week nhtsa said

information requests to all suppliers seeking information as part of a coordinated from the program. with those initial discussions on a protective order to allow them to share business information with the confidentiality concern to not interfere with safety efforts. and to be in the process to be in violation of the safety act requirement and via schedule the july 2nd hearing to affect more than 11 million vehicles. we are determined to use every tool available and one critical tool is self evaluation. at the urging of secretary fox with the staff in the leadership nhtsa was involved in tough self examination.

on june 5 it released to records that are essentials. the first provides the results of a due diligence review of our process profound weaknesses to redress the defect. we're addressing those with the improvements already a under way with existing resources. the second is the work force assessment of the budget will replace the needs and in addition it examines the 265 million vehicles we monitor with the safety investigation and other modes of transportation for one path to match the work force to those challenges. at the secretary's request the inspector general will perform an audit of the ignition switch defect. thank you to the staff for their diligence it is a helpful contribution to our

efforts we have concurred with all recommendations. to give you a sense of commitment to identify safety we have implemented or initiated 44 changes to improve including efforts to address 10 of 17 recommendations from the ig audit that was already under way before the release. those are essential to achieve the mission the first is concealment of critical affirmation from nhtsa. a single phrase would be questioned assumption to question their own assumptions. second incited the inspector general audit is the resources the same 50 people managing the takata recall to receive the recall campaign and 16 others will investigate other defects.

the agency has accomplished the budget of 23% lower than 10 years ago. via 416 budget request needs to keep america safe for a secretary fox has proposed an act to a stable increase funding to help nhtsa in the mission it is clear there is no known safety risk that members of this committee could help nhtsa address the rest to keep the traveling public safe. they give for the opportunity to testify. >> chairman, ranking member nelson and members of the committee. thank you for inviting me to you discussed nhtsa oversight. it is critical for action against vehicle defect against the gm faulty ignition switch. this has been linked to more

than 110 fatalities airbag space deployment from basilican vehicles as early as 2007 but they determined and investigation was not warranted now we know the faulty ignition switch could disable power steering and power brakes and airbags so with the od i procedures and to determine which is used for further investigation also show the weaknesses are identified on the odi handling of the defect we identified three areas of weakness that undermined the efforts to identify and investigate vehicle safety concerns. first odi lax procedures need to collect complete and

accurate safety data. the use of odi data is limited to to the inconsistencies of how manufacturers categorize safety incidents. the zero of the 24 categories relate to an average of 15,000 vehicle components for the manufacturers to use broad discretion when reporting the data and customer complaints lacked information to correctly identify the systems involved due in large part with guidance to consumers odi does not verify mfg. data or take timely action to match compliance with reporting. o day i does not follow statistical practices to analyze early reporting data

cannot identify a statistically significant trends to indicate a safety issue should be pursued. in addition and despite the volume of consumer complaints that averaged 330 per day odi only has one screener in the first phase of the process. believes the office vulnerable to a single point of failure and runs the risk of complaints with safety significance may not be selected for further review inadequate training and supervision screeners increase the risk. third, ed odi emphasizes investigating issues resulting in recalls that has blurred the lines between the investigative duties such as research and engineering analysis work are performed often by

screeners you are not trained to carry out these responsibilities and in addition stakeholders have not reached a consensus on the type given permission to open investigations a dozen of zero ways to document those decisions not to investigate safety issues. the lack of transparency and accountability with their decisions undermined the efforts for needed recalls and other corrective actions. these three weaknesses with the handling of the ignition switch defined dash defect. gm submitted over 15,000 field reports 2000 death and injury reports one vehicles that would be subject to the ignition switch recall however and consistently mis

categorize reports may have masked potential safety trends for gm did not a sign a code to re death and injury report nonelectrical or a commission even though the state troopers report indicated the ignition switch was involved as of possible cause of airbag non deployment at least 12 field reports categorized under airbags may have been related to the ignition switch were not reviewed before the recall because the analytical tools could not read the report format used by gm. the odi staffer did not note until after the recall. they also missed opportunities to connect the defect to non the planet. odi employs overlook documentation on the fatal accident on a kobold that

linked said defaults to non deployment including the investigation report and a special crash investigation report. calls were some of the overlooked in 2007 the association administrator for enforcement noted the proposal looks like one way want to jump on and learn as much as we can quickly. although assigned to monitor the issue the chiefs did not reassign responsibilities after the screener left nhtsa in 2008 ben odi screeners adjusted revisiting the investigation proposal on arab flag and you did -- and appointed because of new complaints to river they reported dead down word rate so the screener decided the issue was not of a safety trend to pose another investigation according to staff there

were no discussion of the ignition switch defect that caused on the planet prior to the recall. in hindsight officials told us they did not understand the consequences of the defect with the flawed understanding of their bag technology. nhtsa has taken aggressive action to strengthen vehicle safety oversight. expensive changes have been implemented and more or are under way. the audits and investigations support the oversight mandate and our agents played a critical role in the multi agency criminal probe of for yoda and continue to actively pursue vehicle safety auditors are currently assessing the actions to the recommendations made in 2011 and will report findings

later this year of a bike briefly to address those who have been injured for those who have been lost in end crashes with the defective switch. and testifying last year by promised my staff and i would work relentlessly to determine what nhtsa knew of the defect when and what actions it took in our audit report issued last week and my testimony today fell the promise and the offering gingrich deepest sympathy. this concludes my prepared statement and answer any questions you may have. >> administrator rose kind you took home last year since cancelling the vehicle and you have your work cut out for you but the inspector general's report reaches some serious conclusions regarding nhtsa

rabil at - - ability to d text -- to detect the analysis of inadequate training and supervision as a major problem for the agency. while we have to insurer they all properly report safety violations, it does not help if nhtsa staffer not even reviewing the information or if they do they don't employ a proper statistical analysis. nhtsa to follow best practice is in the process that cannot be solved by throwing additional resources that the problem. have you propose to address these issues? >> thank you for acknowledging the challenges. we concur with all 17 recommendations that

validates as well so i will provide the actions we already have under way those that are addressed for each action on each element from communication to case management to statistics and i am just highlighting there were 17 in our auctions are already at 44 we will look everyplace possible to make changes. >> also what is critical to talk about the resources so many people of heard we discuss 80,000 complaints merely review looking at an individual screener having five reports analyzed every hour each report actually takes an hour. when it says it is inadequate i agree and we have to change those. >> you identified three

general areas of concern with the pre-investigation practices. it your opinion what does nhtsa need most? more information? more expertise? better practices? >> right now i would say the onus is on nhtsa for the process we have outlined in my testimony today i am pleased to understand the administrator has concurred in all 17 recommendations and in respect to report has an aggressive schedule to signal his intent to press for read as quickly as possible. i am understand the request for resources that ultimately represents up always - - policy decision and i am cognizant of that but i would have to say that

allocating more resources to an effort or agency whose processes are not in line in the first place does not seem like a good idea. river birch the administrator to press forward with the timeline for our recommendations in order to best position himself for success no matter the policy decision regarding additional resources. >> mr. rosekind you have taken some unprecedented steps with regarding nhtsa handling of the preservation order to announcing efforts to facilitate a coordinated remedy program how does the agency planned to implement this program? very finicky for acknowledging that every you helped us to focus this issue. that changed may 19th to

denying the defect your knowledge band-aid national recall and a consent order as well as a remedy program. right now we have been in touch with all 11 manufacturers and suppliers and have sent them a letter that outlines all the information we need to determine how this happened. the first meeting is scheduled july 1st there will be individual and group meetings throughout july to put the information together in august with a public hearing in september to lay out the program which is very complicated. >> mr. scovel discussed the difficulties nhtsa has handled with consumer complaints how would clear guidelines benefit the public?

american receiving complaints we would highlight a couple of things. the way the nhtsa collects data, data quality with its effort to identify defects because it is none of the highest quality bin defects will be invested resources squandered. so to complete with the timeliness is the central and then comes from a number of different sources the early morning reporting data the process needs to be improved as we have shown and nhtsa has acknowledged to categorize problem source defects means the data quality that the best and the west cannot reach the proper solution based on the data that is not supportable.

we also note and i commend the administrator for his remarks there will follow-up with manufacturers more often. with our interview every single employee of the office of defects were each contractor we learned from the highest sources that they employ the honor system to determine whether manufacturers are meeting requirements to submit the data. to take that approach rethink is not keeping the best interest for safety of the public in mind. consumer complaints which historically were their primary source to identify safety concerns are also watered down because of a

lack of guidance from the agency for those who would report the defects to the agency but find themselves at a loss on the web site with 18 different category codes of a vehicle that has 50,000 components. certainly some will get a wrong but many others of the most well-meaning have been impacted will read the guidance and tried to follow as best they are able the agency performance will improve as a result. >> there is a pattern among their regulatory agencies that are supposed to be looking out for the consumer. resaw this 10 years ago with

the cpsc with the chinese drywall problems, said the defective chinese toys andy card table was a research department. so now we hear stuff about the agency that you try to do straighten out, mr. rosekind. you can up with 33.8 million vehicles to be recalled on the takata matter. how did you come up with that number? >> our estimate there's 34 billion in flitters that our defective. they are in 32 million vehicles. that is the acknowledgement some have both driver and passenger airbags that need their place and some need to come back again that is why

34 million in freighters in 32 million vehicles. >> the vehicle identification number has been provided as of this morning. >> you heard what the inspector general said of the defect investigations. what do you thank you need to do to ensure that odi does not miss the next gm ignition defect or the next takata airbag crisis? garett we have concurred with all recommendations why we will submit that action setter going on that debt to all processes that we are discussing but it is the ongoing a violation so i will give you 44 different

areas from cry rather give you the west but the ongoing evaluation that on a continual basis to improve the process faster and better. >> i will suggest one area. as the inspector general just talked about with 80,000 complaints each year year, yet there is one person who conducts the first review of these complaints and this particular person has other duties so spending 50 percent of that person's time doing other things if you do the math that person who spends four hours a day on this house to review m process to flag over a

complaints per hour is less than one complaint per minute so how in the world you get it done? >> you can't that is with the ig report that called up those reports to be inadequate and you pointed out a resource issue. that is us point but it is overwhelming. >> i will yield the rest of my time. >> faq for your incredible focus on this issue so we had a lot around the failures of nhtsa by honda

confirmed the eighth death this was a rental car that never made the repairs after the recall. i along with senator schumer has legislation pending to prohibit a rental car at an agency that they are remedied. the consumer and safety advocates general motors but unfortunately many are blacking - - blocking to oppose this legislation to say they should only be grounded if there is a do not drive recall.

has any of the manufacturers issued they do not drive recall? >> not that i am aware of and that number is very small. >> du supported the efforts to ground rental cars? >> absolutely. >> the consumer for auto safety statements for the record? my colleagues are patient with three because i used to be an auditor for somebody who considers these one of the worst i have never seen the reason it is so bad it

isn't about resources but blatant is competent mismanagement. went to open an investigation? if nhtsa is not clear then we might as well shut it down. the inspector general found there are three factors to be considered rate of complaints and severity of issues and root cause. based on interviews there is disagreement within the agency if it can even be open. the general counsel said to be established with frequency and root causes

said odi chief says all three should the vat -- the director does not think the root causes necessary. and they agree the root cause is not necessary. you have key personnel with debtor agency that are not even in the same page when the investigation in show curve. i assume you're getting busy as us a baby step with all the other problems in the audit. >> they are now in the same room with that threshold. >> you believe everyone that works there knows what they're authorities are?

is there a clear understanding about the investigative authorities are? >> the people that have specific authorities assigned to them are aware of those pages highlighted where those lines have been blurred. >> on average delay the past three years has even requested documentation for death and injury report. and with the records to tell the ig we have never used this authority. never used the authority for manufacturers' records with compliance providing you are doing your best to a understand the severity of

this situation before hero but i was shocked how bad it was i knew was bad and the acting director did die even know you had subpoena power we discover that in a previous hearing. we will be watching very carefully that kind of worked you do provide disagree i'm not about to give you more of money until i see meaningful progress on reforming the internal process for you cannot throw money to say you have this system that will function like it is supposed to. thank you for working so hard it is not fair to blame you for all of this bill we have a long way to go we need a follow-up every four or six months.

>> 8q for holding this hearing after something major happens like last november after the takata airbags were susceptible to rapture in high humidity areas i called on them to expanded national they know they have expanded the recall nationwide for driver and passenger side airbags. one of the individuals affected was from minnesota and is now permanently blind she was a passenger in a car with of minor fender bender and is now permanently blind. what tools does nhtsa need to act sooner?

>> resources related to personnel so others safety issues that a faster rise identified we could take ed takata airbags off the streets much sooner. >> that congress has to provide to the agency's remic and does that failed to fully respond to get them to act? and that was a maximum to grow america is another one. the maximum penalty is 35 million. >> filing an attempt for defective inflator is to consider whether and how it would exercise its authority

to prioritize the recall of the programs how is this approaching for those that our most at risk? >> that is why we sent letters out to all manufacturers and suppliers so we can put a plan to gather talk about the accelerated remedy it is coordinating in prioritizing to do with age or certain geography. as soon as possible. >> switching to the gm issue. and albert the riding with her friends and the chevrolet called faults without warning the electrical power went out and hit at 71 m.p.h. and they were killed when iran

in to retrieve. the report found the state trooper conducted an investigation they made the link between the ignition switch and the failure of the airbag it cracked the code that evaded gm and nhtsa for years. the two airbags did not deploy the ignition switch some hall had been turned to the run position and we know this is troubling and in december i ask what concrete changes you would implement so what system is plugged in place if the office of defects investigation like the report to show that they are now acting.

>> so to talk about putting a face with the tragedy is so critical so specifically we did talk about this in my confirmation hearing was systems already in place that allows investigators and screeners and the panel to look at this information from multiple sources to connect the dots so they have all available information. >> there was 260 complaints over 11 years that the gm vehicle turned off while driving and somehow those thoughts were not connected. it will change but how does that change now? >> now they have access to

all the information previously there could be updates the person responsible did not even get the alert there was a net days and now every time there is new data that individual gets all the information in one place. >> very good. . .