sacramento county, in fresno county in san bernardino county. there is no evidence in the record or the world, that when those states adopted a more permissive interpretation of the good cause standard that the sky fell or violence went up or crime went up. when you have an obvious comparative out there and the state doesn't offer the evidence, that doesn't get the job done. >> what do you do with the second, third and fourth and woolard -- i forget the other one. >> drake. >> there the court said similar statutory provisions survived inter intermediate scrutiny. >> nose decisionthose decisions aren't binding. we could look to the seventh circuit, too.

i think the real difference is all of those cases if they were taking it seriously and doing it right were based on the evidentiary records in those cases. 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. there was a much richer record in that case. that doesn't bear anything like the record in this case. part of that is this oddity that 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. 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. that's true about this california regime that's not true about any other regime. and then -- >> but i thought you said with respect to whether the evidence was available anywhere in the world, that there was no such

evidence. how can you say there's such a rich record in new york that supports what they're doing? >> i was talking about the record -- evidence in california. because i think we have here -- >> people behave differently in new york? >> what i don't think you have in other states because other states answer this at the state level. what you have in california that really distinguishes it from all these other states is the opportunity to have a direct compareter 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 -- there are obvious compareters. >> how long have those policies been in effect? meaning you can't look at something that's been goging on for six months and draw legitimate conclusions. >> i think each county is different. some of these policies had been in effect for years. so i don't think it is -- when i say the evidence isn't out

there. i mean it's because, in fact all the evidence that's been cited that i've seen in the record and the briefs and all that actually suggest that when jurisdictions adopt a policy of allowing relatively freer issuance of concealed permit carries. either the crime rate stays the same or it goes down. you know but i'm here to tell you if you apply intermediate scrutiny and i'm wrong about this imperical 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 for all and we're done forever. the cases could be decided differently bases on the particular case and particular jurisdiction. i would invite you to take a look at the declaration. i think that you will see that that -- 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 intermediate scrutiny. >> thank you. >> chief judge thomas may it please the court. if i may reserve three minutes of time for rebuttal. nobody argues in this case and there's no evidence anywhere that would suggest that people with a heightened need for self-defense are somehow by that virtue safer with firearms than our 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 defendants is because kairying guns is dangerous they should be able to reduce the danger. the policies are nothing more or less than a rationing scheme for

a fundamental right that the government believes is too dangerous to allow. >> i'm sorry. go ahead. i think the government's going to argue because there are certain exceptions of people that can have concealed weapons that that somehow -- it isn't as harsh as it appears. what would be your response to that? i mean, there are certain military people, retired police officers how does that factor how would you respond to their argument? >> if we have to defer to that balancing, to that judgment that the sheriff has made that some people with a certain background are okay to carry because of danger is somehow lessened. then the court would also have to defer in at least three other areas, the court would have to defer to the sheriff's judgment that nobody can acceptably exercise this right. if the sheriff says today i've

decided it's so dangerous no one can have it, that same deference would sustain that. the second problem would be why only apply it to the bare part of the second amendment. we heard the same arguments in the heller case that keeping handguns at home is dangerous. and for absolute needs of public safety the district of columbia should have been able to prohibit the possession of guns in the home. could washington, d.c. enact a statute that said we're going to only allow people with an exceptionally strong fear of burglary or some extra heightened need that can show that somebody wants to burgle their house. only they can have a handgun. there is nothing in the second amendment that would suggest this type of heightened self-defense interest can apply to one side of the second amendment and not the other. the third problem is if we're going to have this sort of deference why stop at the second amendment. we can imagine 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. why not respect the fourth amendment rights if people have a heightened need for privacy -- >> that is an area in which danger plays a role. because the doctrine of circumstances comes into play when danger is apparent and immediately immediate. your argument seems to suggest that safety concerns are irrelevant and now sort of restriction is okay. is there any form of restriction that you would find in your view constitutionally permissible? >> yes, your honor. 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 entitlement as it were to

exercise the fundamental right. there is no challenge in this case to any restriction that the sheriff might place on time place, or manner. if you can -- want to enact that. there are no sensitive place restrictions here at all. there's no challenge to the training requirement. we accept that. and we could probably manage other types of regulations that would pass some level of means and scrutiny precisely because they are addressed to an 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 a circumstance and the sheriff can say we have a fleeing felon, the evidence being destroyed a kidnapping. we can imagine all these circumstances. wouldn't it be 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's simply has too high a burden on public safety. i'll only be concerned with the right of people who i believe have a special need for the rights. that would not fly in this courtroom. it doesn't fly in speech cases. we know it doesn't work in abortion cases because this court decided isaacson v. horn. the state of arizona decided in its police power, it has the power to regulate medical decisions, it determined that a fetus can feel pain at 20 weeks therefore, it balanced the audibility ability to access services on a need of medical necessity. this court said no. regardless of what might thing about abortion the fact is the right is recognized within this time frame. therefore, it's the woman's right to choose whether to have the procedure not the doctor's right to determine that it's

medically necessary. >> since this case has started, there's been a change in circumstances as 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 conceal permit? >> the law may have changed but our theory has not. >> just a minute. it seems to me if if i am to apply the law as existed as to the carry. open carry that existed at the time when your client was not given this conceal permit at that point, your client could have opened 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 does not. if anything our case has become stronger. at the time -- >> why is it stronger? it didn't change for your client. i'm 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 the theory and apply the change in the law? if so, why not go ask the district court again whether you're really right or not? i'm just trying to test you. >> sure. the court's opinion didn't turn on that availability. >> i think it did. because there were -- 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 mr. peruta's

opinion and page 10 of your opinion of the richards opinion seemed to be based on what the basis of the law was on carry. >> the basis of the second amendment at the time we filed the complaint is unchanged. that is that people have the right to be armed and ready for -- in case of confrontation. >> 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 whatever you want, unloaded and with ammunition, doesn't it seem that that's a pretty big basis to suggest that on intermediate scrutiny the law survives? >> no, your honor. the fact is that first of all let's take the law as it was at the beginning. the ability to carry an unloaded gun is quite useful. it's not dangerous. >> i don't know when it's

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. >> your honor no where in america never in american history have people carried unloaded guns for self-defense. that's simply not -- >> where is that in the record? i mean that may be your great argument. but i didn't find that in the record anyplace. >> you know, the second amendment states as the supreme court has told us people have the right. >> second amendment talks about the right to self-defense. and all we're talking about now is the difference between self-defense in the loaded or unloaded with ammunition. >> your honor, 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 can't. >> what do you mean by functional. >> the gun is ready to be used. >> ready and functional are two many different things. >> loaded is a lesser included aspect of functional. we were talking about functional. functional guns. we had this issue in heller where people are 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 there was no exception as in jackson there was an exception. this was simply a violation of the second amendment because there is no way people could use their guns in self-defense. but i would also like to respond to the question that mr. clement also received earlier about the robertson v. baldwin.

we have to look at how heller defines the second amendment. he tells us the right 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. those are two separate categories of carrying. upon the person, we can imagine is open carrying, or in the clothing or in a pocket. that sounds like concealment. so heller recognized 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 my colleague argued earlier the heller opinion made clear as did or opinions that the state can regulate the manner in which guns are carried. because the state can regulate the manner in which they are carried the state can tell people you may not open or conceal carry. we don't have a claim we are entitled to carry in any particular manner.

my clients will take what they're given by the legislature. if the legislature says you can't carry in any way, shape, or form we're not going to allow open carrying and for concealed carry we're going to give you a license to which you're not entitled to because we don't recognize self-defense. generalized self-defense as a reason for the license. then the right has been effectively destroyed. i think the panel -- >> let me ask you your colleague referred to the seventh circuit opinion. it was looking at a flat ban, correct? >> correct. >> and in that opinion the court actually contrasts the flat ban which was an illinois situation, with situation for example in new york. and new york had it seems to me the good cause provision that's very similar to yolo county and to san diego county. so maybe you can inlitheenlighten

why you think the case out of the seventh circuit 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 that case. perhaps the illinois legislature recognizes that when they enacted their response and created a challenger system. the moore opinion goes on at length to discuss how it is that the chicagoens have the same rights to have a gun for self-defense on the street as much as they do in their apartments. the moore opinions go on -- >> that's a flat ban. we don't have a flat ban. you said you would oppose. we don't have that. we have a ban with a proviso hanging off of it. >> 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 moore suggested and no court really has suggested this type of good cause scheme would be applicable to the right exercises within the home. >> right. and i am excluding the home. we're talking about outside the home at this point. >> the constitutional interest that 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 the population at large is disabled from exercising a fundamental right could survive. if i may reserve my time for rebuttal. >> thank you, counsel. >> thank you, your honor. may it please the court.

edward due mont for the state of california. i'm here for san diego county and the sheriff and john whitesides for yolo county and the sheriff there. i'm authorized to confirm that the sheriff has 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. beyond that he's here to answer any questions for san diego or sheriff gore otherwise san diego has graciously ceded its argument time to the state. >> where were you when we argued this case before? the sheriff now isn't going ahead. and we questioned at that particular time, we said does the state know about this, oh, yes they know about that. we had all the discussions about

whether, you know, it implicated a statutory scheme and the state sat on its hands and lost and here you are are. so suddenly, why should we let you intervene at this point? >> well, first of all we appreciate the ability to be here today. >> we would like to have heard from you before. >> whether we're permitted to intervene or not. and we appreciate that -- indullgence from the court. we think we should be able to intervene given the way these cases have now become in a sense -- in essence a challenge to the california public hearing scheme as a whole. there are ways the court and i think should resolve the cases that would not have those implications. but, we are here because when -- two things happen. one the panel opinion addressed the issues in a way that has

very broad significance potentially for california law and its ability to regulate. number two sheriff gore decided at that time not to seek rehearing. therefore we made the decision to ask the court to take a second look. we're -- >> 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, they're supposed to defend laws that they think are constitutional. and you know, no one seems to want to weigh in on these political issues as it were. and then, you know, now -- why isn't it too late? >> wit with -- >> if it were another case there would be no way parties would be able to intervene when they've known about it and they have a clear -- it was clearly implicated. >> i agree the circumstances

here are unusual and rare. and we would not anticipate doing this on a regular basis. >> when i was a district judge, we used to get cases like this. there was some obligation on the district court to certify to the state or attorney general. did the district court make that certification to the state office? >> i don't think they were made. that said i wouldn't want to rely on that. we were aware of the case. we knew about the case. what i wanted to say was you know, both of these cases as they were presented in the complaints and the district courts presented a couple of different avenues. one of them could have been a very broad view but more particularly they seem to be focused on the individual exercise of discretion in these two counties including the decisions were being made based

on favoriteism as it turns out the case has been decided on much broader legal grounds. that is, why we are here. >> 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. as i understand from mr. clement, they're only challenging the interpretation of good cause by the sheriff. right? >> i heard him say that. >> is there a way you could interpret the statute to avoid the problem that we have here? >> i take it that my friends would be content with an interpretation that said good cause is satisfied by an assertion by any individual, any law abiding individual or need or desire to carry in self-defense. that is not the interpretation we have put on or believe that individual sheriffs may put on. it's possible mr. clement offered that there might be some

intermediate ground where a sheriff could make a decision. i wasn't clear what the ground would be that would be greater than -- >> how does the state define good cause in this context? >> the state law leaves up to the individual. >> the state of california has no view? >> the state statutory structure is to commit the discretion to define good cause and give the responsibility to find good cause to local sheriffs. because conditions may vary from place to place. and a local sheriff is locally accountable and aware of local conditions. it may be the policy that makes sense is different in yolo county or san diego county -- >> but the second amendment -- >> we don't believe there is a -- there may be a base line past what you couldn't go. there is not a one state wide definition of good cause. >> the second amendment doesn't

change county to county right? >> that's right. we're here to defend the ability, the constitutionality of a sheriff imposing the kind of standard that these sheriffs have imposed, which is also the kind of standard that new york imposed under his statute. it's been upheld in the second, third and fourth circuits. >> is it the county -- state's view that the heller opinion doesn't apply? >> i want to be careful how i answer that. it is not our view that the second amendment has no purchase anywhere outside the home. what my friends on the other side like to do is define the right recognized in heller as a right to do what they want to do which is carry concealed weapons on the streets in public places in streets and parks and public scare squares of san diego. that we do not think heller stands for. let me give you a few reasons

for that. it's history and tradition. heller leaves many things unclear. one things it makes clear is that restrictions on conceal carry of lethal weapons, especially in cities and towns, have a long and rich tradition and do not conflict with the basic second amendment right. >> pardon me i just want -- i took a note here. i want to get you right. it is the state's position that the heller right can apply outside the home? the core right of a law abiding and responsible citizen to use a firearm for self-defense can apply outside the home. yes or no? >> yes with a qualification. which is that we think there is -- the supreme court has not addressed this has not given us

guidance about outside the home. i think it is hard to read heller and come away with the thought there is no purchase for the second amendment outside the home. it is easy and necessary to read heller to say the second amendment does not confer a right to the conceal carry of handguns especially in cities and towns. >> the conceal carry prohibition is supplemented by an open carry prohibition so that it equals total prohibition? >> right. >> what's your position on that? >> my position on that is twofold. first i think there is a lot of historical evidence that in the context of public spaces in 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. would think that that history has been elaborated some in

heller and mcdonald and more in the opinion in drake. in fact, drake relies in part on this for its alternative holder. and so in part, we would say there is a very good argument that cat that categorically we are allowed to regulate open carry along with conceal carry when we are talking about the public spaces of cities and towns. it's very important -- >> justice scalia said that numbers of the state was a perfect embodiment of concept and the louisiana case was chandler, both of those were open carry situations in public spaces, were they not? >> those were -- i don't know exactly where the defendant was arrested. my recollection of the case is that the statutes applied state wide. without a distinction between --

>> the public spaces. >> and what the cold held in nunn is you can ban conceal carry which would be enough here. you can't ban it if you ban open carry. every town for gun safety brief which has been filed in this court goes through the analysis if the south was representative of the rest of the country and how much we should infer from what the rule was in the south. my job is not to establish here. i don't know if this allows us to establish categorically we could ban open and concealed carry. i do think there is a rich tradition of regulation. what california is doing is regulation. it's not a ban. 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 at your business, your place of business, even in san diego. you are allowed to take your gun there and to keep it there and to carry it there.

if find yourself in an emergency and your gun is nearby, you are allowed to load it and have it -- >> that one was curious for me. if you kill someone in dfs, self-defense the da determines it was a justifiable homicide. without that exception you would get charged with having a loaded gun in a public place? 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 were faced with a life threatening situation in public aid is not immediately available. 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 streets and in the parks and in the malls and the marking lots of downtown san diego or downtown davis does not mean that your right to carry a firearm outside the home has been destroyed. >> does this argument assume the change in law that 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? does your argument apply to both situations? or are we only dealing with the situation which befronted these plaintiffs? >> i have been arguing in terms of the current law, which i believe is harder for the state. because the law now imposes

greater restrictions on unloaded open carry. >> is that in front of us? >> given -- >> because i didn't find frankly in any of the fact situation where that was the case which befronted the plaintiffs who bring the suit. >> i agree that at the time these plaintiffs sought their permits and the permits were denied that was not the law. 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. >> mr. dumont, i asked mr. clement about intermediate scrutiny and the record in this case. how do you respond to his argument here that the declaration by the professor -- i think the county submitted the

professor's affidavit. >> that's correct. >> he said it's not worth much. >> the affidavit has in it in the voice of an expert who is a long-standing and very experienced professor a variety of 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 -- i do think you have to understand that the record here was built at a time when the law was very different as to unloaded open carry. well that's the main difference. and i don't think it would be appropriate to resolve this case, at least on any broad basis, on the basis of that record. if the court feels that the

record here is not sufficient to support the state's and county's positions, in the way that the case has developed i would suggest the right thing to do is to reverse the summary judgment in favor of the counties and remand it for the development of the greater record. that said, i don't think -- >> counsel suggested that if the evidence isn't sufficient in the affidavits we have in front of us that at that point, we should as i understood his 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 -- >> why? that's the question. >> well, for two reasons, i'm not sure it would be the right answer under any circumstances. in these circumstances where what is now, at least at issue is an issue of very broad significance. the if the court is going to issue a ruling of broad significance, do so by taking judicial notice of the same sorts of facts that have been recited in the

opinions of other courts. i will say i think most of this, about the risk that's posed by these weapons in public places is a matter of common sense and could be subject to judicial notice. if the court is going to issue a broad ruling it should be done on the basis of a good record. if the court wants to resolve the case in a very narrow way that applies for example only to the plaintiffs and gives them their permits, but perhaps leaves the sheriff free to build a different record in a different case. i suppose that case would be open to the court. >> your time has expired. thank you, counsel. >> good afternoon. chief judge thomas may it please the court. john whitesides for the county of yolo and sheriff creeto i

would like to begin by addressing judge smith's questions about the change in law. the law changes after the opening and answering briefs were filed. mr. gura referred to it in his reply brief as cementing 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 in pareta and in richards. the reason why i took that position in richards was because as i read the district court's opinion, the changes that had been made in the law, i will address those in a minute would not have changed the district

court's view. >> how do you explain, then page 8 and 9 in the pareta opinion and page 10 of the richards opinion where it seems to be that both district courts put a lot of emphasize on the present carry policy or carry law of california? and suggested then that that was maybe some reason why intermediate scrutiny would not strike down the law. because they had carry provisions which were allowed then simply you couldn't put the ammunition with the gun. >> because those exceptions still exist altbut in lesser form. they still exist. the way the scheme works that's different than the old scheme. in the old scheme and in the new scheme you could carry loaded on

private property business or residential with permission as long as it wasn't a public place. when you got to a public place, so let's say a grocery store or a restaurant as opposed to your lawyer's office or your accountant's office, under the new law, if you get permission from that property owner or the tenant party entitled to possession to carry, you can only do it unloaded. 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 locked 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 at all. >> that's only for walking up and down the public street within a city limit. >> i understand. and that's what i understand the sheriff is putting his regulations to. >> that's true. you have to remember that yolo county is 95% rural. 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 it's 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 1% of the

county. i mean if you can go to your relatives and your friends you can go to your neighbors if you can go to your lawyers to your accountants if you can go to your place of business, and do all of those things loaded and then when you get to the grocery store or the bank and we'll entertain the fiction that those places would allow you to carry a gun, regardless of what state law is. but let's 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 theoretical burden on their right to carry is only going to be impacted if the business that they're going would let them in the door with the gun in the first place. so to me, this burden that's being argued -- >> let me understand that. people walk up and down the streets for a lot of reasons.

you don't have to be going somewhere to walk up and down the street. >> you don't have to be true. >> if you're worried about self-defense you can stroll around in the late evening you can, you know, circumvent the park, you can do all kinds of things. under your theory, that's okay because if you are 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 99% of the places you want to go and carry. the fact that you can't go to 1% shouldn't be deemed constitutionally problematic. >> do you take the position then that you start with the premise that however it extends beyond the home gives you that constitutional right outside the home, but then you're only narrowing it and as you put it

1% or very small handful of circumstances? is that the construct or do you not agree with that? >> i do adding one layer. >> all right. >> the layer i would add is that extending beyond the home, and extending to carry in a public area of a city, are not the same thing. and we've got extensive scholarly expositions by several of the amikas, 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 antebellum post ratification forward. >> what's unusual about your argument, i am hearing you concede that heller does not

restrict self-defense to the home. >> correct. >> 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 real 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 rural area. 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. >> i heard you say in a rural area it isn't as dangerous. then the -- >> i didn't say that. i did not say it's not as dangerous. i didn't say anything about degree of danger one way or the other. >> you're not saying that? >> no. >> okay. >> no. 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. in 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? >> 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 is 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 moore 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 734 f 4738 the judge says we say only our mandate did not forbid the state to impose greater restrictions on carrying a gun outside the home. than illinois law imposes on possessing a gun in the home. so even moore acknowledges once you're outside the home the state can regulate more extensively and we think that's in keeping with the historical precedent that existed from the constitution's founding all the way through ratification until now. >> is it rational basis intermeaderate scrutiny or strict strut scrutiny? >> if there's no right to carry in a public place it would be rational basis because there's no burden on a fundamental

constitutional right. we think the other circuits stand for that proposition. i'd throw in the first as well. in hightower which we briefed in one of our supplemental briefings. that court said, that's at 653 f 3rd 61. the refusal to issue a conceal carry permit to a retired policemen did not burden a core 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. gura referred to the language in heller about in the pocket or clothing. that language isn't defining the word carry, it's not defining the scope of the constitutional right that's in the second amendment. that's a physical description of

what does it mean to carry. that means something more than just to possess. 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 clonallyolonially you had to keep yourself alive by eating as much as by defending yourself. is there anything more restricted in the americans cities more than the right to hunt? >> probably smoking. >> there you go. sure it is allowed occasionally. there is some cities where there's a deer problem because there's no natural predators. you can get a special license to hunt in the city limits. generally i can't do that and say that's a big fat pigeon and

shoot it. it's not allowed. that's not controversial. what california is doing here it's a spectrum. it's allowing -- putting aside local ordinances, 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. when you get to where people are congregating the shopping malls, the restaurants, the department stores, then the regulation gets tighter. it's open carry but it has to be unloaded. you get to the city streets where we get at its most restrictive. we don't feel in any way 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 than there is on hunting.

or smoking. >> in richards, which is your case, what was the evidence presented that would suggest that the law that was enacted substantially relates to the interest that the city or county determines they have? >> the only evidence was a declaration from the undersheriff that basically gave the sheriffs reasons as to why they were concerned about issuing a carry permit to anyone who just put down -- >> that's what i thought. so if in fact the declaration of the undersheriff is not sufficient to apply a substantial interest of the county then what at that point do i do? >> unless you found that there's a fundamental burden on a -- excuse me, a substantial burden

on a fundamental constitutional right it wouldn't be a problem. >> even if -- supposing i once get to the fact that i have to it wouldn't be a problem. >> even if -- supposing that i once got to the fact that i have to imply intermediate strawcrutiny and now applying intermediate scrutiny there's 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 the declaration doesn't then what should i do? >> well both sides move for summary judgment. if you found that neither side had sufficient evidence to warrant summary judgment then you would have to send it back. >> is there any forensic evidence the plaintiffs in your particular case >> no. >> was there any declaration?

>> there were declarations that described the process that they went through, but nothing about a particularized need as mr. gurra said. that wasn't their argument. their argument they had a special need. their argument is i desire self-defense and i'm not otherwise disqualified by virtue of criminal record or lack of training, et cetera. >> all right. thank you, counselor. >> thank you counsel. >> thank you. >> we'll give you three minutes. >> thank you, your honor. i have three minutes. i think i have three points. the first is the most important because if i heard the other side correctly they essentially concede that the second amendment applies outside the home and they either conceded or came perilously close a ban on open court 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. dumont gave you and accurate half story. but i want to tell the other half 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 it's prohibited in the prohibited areas of the unincorporated parts of the county. now that means that the key word is prohibited areas. and that's defined in california penal code at 17030 to basically mean anywhere you can't discharge a firearm. and the problem is that's almost every where. that's the streets. that's anywhere near a dwelling or an unoccupied dwelling or a car or an unoccupied car. so please don't decide this case on the presumption that you can carry openly in 85% 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 would ever get. if you're on the grid if you're on the streets if you're near a dwelling, if you're 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 conceal 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 responsive to why the moore case is significant. it's less significant than i thought it would be because it's most significant on the point that the other side succeeded. the judge emphatically explains why it is the second amendment extends outside of the home. the other cases say it doesn't. so i think moore's 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 they are at the second third and fourth circuit cases. there's the seventh circuit case and i grant you it's somewhat different. california isn't just like new york or new jersey. >> thankfully. >> no. 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 assemble a statewide case for why this is so important to public safety california doesn't really carry that much they will leave it up to sacramento county and perfectly constitutional. the record becomes what the record is in each case and the record here is enough to satisfy intermediate scrutiny. >> thank you, counsel. >> we'll put three minutes on

the clock, jonathan. >> thaurn. i would like to make three or four minutes in the limited time i have. first both counsel on the other side alluded to grumts there's a historical basis for this type of law. this every town law does a great job of marshalling that the right to carry guns has been regulated but there's no historical basis for this type of law that dates back earlier than the drake court found, the early part of the 20th century when new york and new jersey enacted those particular types of regulations. now what else was going on in the early part of the 20th century. those were the days from the last word of the supreme court at that time the second amendment didn't apply to states. it cannot be we look to the legislative behavior of legislatures at that time as how people understand the second amendment right exist because if those legislatures consulted the

supreme court guidance on the second amendment they would be told that they were completely exempt from having to be concerned about it. of course, there have been other cases as well. interesting counsel noted hightower case. we filed the 28j letter on november 26th that responded to their cry tafgsitation of hightower. hightower distinguished the claim the plaintiff made because the court found the plaintiff had the ability to obtain a license to carry a handgun openly a so-called class b license in massachusetts. obviously that's not on the cards today. but in response to that we note ad couple of other court decisions which perhaps merit some discussion. first of all, we have people versus rio 189. where the michigan supreme court held here the exercise right guaranteed by the constitution can't be subject made to the

will of the sure. they were talking about the right have a handgun. another one from in the end court much appeals this case, 398 northeast 2nd 1339 we have a police chief who decided he had the right to evaluate people's claims for self-defense for granting or denying a concealed handgun and the court struck down restrained the police chief from engaging in that behavior. also, of course mosby versus devine, the supreme court of rhode island said that the constitutional right to bear arms is illusory if the ability to carry a gun were to the unfettered discretion of the officer.

further, counsel states that we did not provide any evidence challenging the wisdom of this carry policy. that's not our burden. even under intermediate scrutiny it's the government's burden to prove its law actually advances some kind of important interest in a way that fits properly to that objective. >> so at that point all i do is evaluate what the defendants have suggested as 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 -- >> i only have the affidavit as you suggested. >> the affidavit didn't show that this policy was necessary to address some feature of carrying hand guns. what the affidavit basically stated the theory of the case

was carrying hand guns is dangerous and we want to reduce or eliminate that danger. even if we were to concede that they are correct for the sake of argument we'll tell them it's very dangerous to carry hand guns all kind of terrible things may happen we would still prevail because right or wrong that judgment has been made in the constitution, the people ratify that into the second amendment. that policy choice has to be respected. >> thank you counsel. thank you all for your arguments and briefing. it was very helpful to the court and we'll be recess. [ recess had ] >> all rise. this court this session stands adjourned. when congress is in session, c-span 3 brings you more of the best access to congress. with live coverage of hearings.

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