Good evening, everyone. My name is Anna Gee, and
I run the Ames Moot Court Competition for the Board
of Student Advisors. [CHEERING] Welcome to the Ames
Moot Court final round. Presiding over this
year's competition are the Honorable Sonia
Sotomayor of the Supreme Court of the United States, the
Honorable Susan L. Carney of the United States Court of
Appeals for the Second Circuit, and the Honorable
Jennifer Walker Elrod of the United
States Court of Appeals for the Fifth Circuit. Tonight's case was written
by Elizabeth Barchas Prelogar and Tejinder Singh. This evening's case
poses two key questions-- first, whether a statue
prohibiting an individual from possessing
a firearm if he's been convicted of a criminal
offense punishable by more than two years of imprisonment
violates the Second Amendment, and second, whether a statute
prohibiting individuals from publishing CAD files
on the internet that can be used to program a 3D
printer to print a firearm violates the free speech
clause of the First Amendment. Representing the petitioner,
the Grace Murray Hopper Memorial Team-- Max Gottschall, oralist,
Erika Herrera, Benjamin Lewis, Catherine McCaffrey,
oralist, Eliza Mcduffie, and Jacqueline Sahlberg. Representing the respondent, the
Clarence Earl Gideon Memorial Team-- Jeff Adler, Nick Aquart,
oralist, Gabrielle Belzil, Marlan Golden, oralist, Lily
Kim, and Daniel Morales. Please silence all phone
and electronic devices. Please no photos, and
please avoid leaving the courtroom during argument. Thank you, and enjoy
the competition. [APPLAUSE] All rise, the Honorable,
the Chief Justice. And the associate justices
of the Supreme Court of the United States. Oyez! Oyez! Oyez! All persons having business
before the Honorable, the Supreme Court
of the United States are admonished to draw near
and give their attention for the court is now sitting. God save the United States
and this honorable court. Please have a seat. Petitioners, are you ready? Madam Chief Justice and
may it please the Court, my name is Max Gottschall. And on behalf of
petitioner Ian Groves, I will address the
First Amendment issue. We would like to reserve
three minutes for rebuttal. Thank you. Two years ago Mr. Groves
created a digital design for a single-shot
plastic firearm. Following instructions
provided by Groves, that design can be
used to 3D print a set of parts which can then
be assembled into the firearm. Although similar designs
have been accessible online for years,
Ames is the only state in the nation to have made
it a felony to publish such designs on the internet. That law violates the First
Amendment for three reasons. First, under this
court's precedents in Bartnicki and Free
Speech Coalition, the law impermissibly
targets Groves's speech to prevent third-parties
criminal conduct. Second, the law is
significantly over inclusive because it prevents Groves
from sharing his design with the many citizens
of Ames who will not put it to harmful uses. Third and finally, the
law is a facially content based regulation of speech
that the state has not justified as actually necessary
to solve a current problem. Counselor, why
should we be looking at our established precedent? Isn't this a new
form of technology? Your Honor-- And given that it is, shouldn't
we be thinking about it in a different way? This is the first
bit of technology that I've ever seen that
can direct another machine to create an item that could
be put to dangerous use. Your Honor, several
points on that-- first, I think with respect this
is an old kind of speech. It's a blueprint. It's a design for an object. The difference is
that on the user end a person now has access
to expensive technology that can following
the direction-- No, this technology
can be used to give a machine directions on how to
manufacture a dangerous item. This is very different
than any blueprint that we've permitted
in the past. Those blueprints require an
individual to actually follow them, assemble all
of the mechanisms necessary to put
them into effect. It's one thing to
build a building. You've got to get a lot of
things to build that building. Here all you need is a
3D printer essentially. Well, Your Honor, I think
you need the 3D printer. I think you also need the
appropriate raw materials. You also need a significant
amount of technical know-how to know how to operate it. No doubt it's easier
than building a building. But we still submit there's
quite a bit of knowledge and expertise that goes
into the downloader side before a person
can take this file and turn it into
a working firearm. In particular, Your Honor,
it's our submission as we say in our brief that the kind of
files that our client wants to upload to the internet
actually cannot direct a 3D printer to do anything at all. They need to be altered
on the downloader end as we say in our
opening brief sliced before they can actually
communicate to a 3D printer. And we think that
makes some difference. These really are nothing
more than digital versions of blueprints or of other
descriptions, visual or otherwise, of objects. And so we think
it's better to think of this as the dissemination
of those kinds of blueprints. And that we think under this
court's precedence in Sorrell and in Bartnicki
the dissemination of that kind of
truthful information is protected speech. And the fact that it can be
used on the downloader end and put to unlawful ends
if the person so chooses doesn't change that fact. Why is it that your
client made a CAD that didn't require the
use of a metal part so detectors could work on it? I know that he has a metal
slot in which a metal part can be placed. But isn't his intent
to actually facilitate the illegal transport of
a gun through security? Your Honor, I don't think
that's Mr. Grove's intent. If it wasn't his intent, why
didn't he make a metal piece a necessary part of the gun? Your Honor, the record
is not clear on that. And I'm not sure why
he didn't, but he did, I think, do
everything an uploader of this kind of
information could do to ensure that when
it was 3D printed, the firearm would
be metal detectable. Because as the record reflects
at the joint appendix 18, the design includes a hole where
a metal slug can be inputed and indeed-- But it has no functional use. That's right, Your Honor. But it's our understanding that
it would be difficult, I think, to require that to make
the metal piece be used. Would this law be legal
if it required that? Your Honor, that's one of the
less restrictive alternatives that we suggest is if-- Wouldn't that be a violation
of the First Amendment? You'd be up here
arguing that we were forcing him to speak in a
way he didn't want to speak. Your Honor, I
don't think that we would be saying that this was
some sort of compelled speech situation. And you're right that
under the principles-- Your Honor is correct. And under the principles,
we think resolve this case in Ashcroft and Bartnicki
that it would be still going after Groves's speech because
some third person quite apart from that
speech would be using it to commit a criminal act. It's important to note
here that just as it would be a third persons
independent choice to take this firearm
once it was assembled and use it to
commit a crime, it's also an independent choice
on the part of the downloader to choose not to
insert the metal slug that Groves has
instructed people who download this firearm to do. So we think either
way this is still going after speech because
the government is worried that some listeners
for that speech will put it to unlawful uses. And that gets to the
second core point I would like to make
about this law being significantly over inclusive. We think this law is really
no different than regulating all leafleting to
prevent littering. Of course, some
recipients of leaflets as this court said
in the Snyder case will put it to
the littering use. But where the state
retains the power to go after littering
primarily, it is not allowed to go
after the leafleting even though that would perhaps
be a slightly more effective way of advancing their goals. Could you speak to the import
of the statute's restriction on publication to the internet? Other modes of publication
are made available. You've made it an argument that
making the schematics available is important to artistic, and
scientific, and entertainment, serves other kind of
communicative values. But your client has available to
him other means of publication. That is offline sharing and
just less broad and perhaps unobservable ways of
serving those other purposes while mitigating the risk
that would be created by internet publication. Why isn't this just a kind
of time, place, and manner restriction that's tolerable
in these circumstances? Sure, Your Honor. Two points on that--
first and foremost, we do not submit it's properly
analyzes a time, place, manner restriction because
it's our submission that it's a facially content
based regulation of the speech. And as this court said precisely
on point in the Reno case, if it is a content-based
regulation of speech, then even regulating
various modalities of internet communication
as the court said is not permissible because
time, place, manner analysis is not
permissible for facially content-based regulations. But Your Honor, brings up an
important point about the use of the internet here. And I think the one piece of
communication that really can't be achieved by not
being able to share this with all the
citizens of Ames, who will put it to lawful
and valuable uses, is that the internet as
this court said in Reno is a more powerful
soapbox than ever before. And as this court said in
Packingham just two terms ago is probably the most
important way now that citizens share
information with each other, both to speak and to listen. Does this statute prevents
you from putting up a website that would say
that you would send this to anyone who wants
it, and then sending it in a drive to somebody? Is that prohibited? Your Honor, I think that's
probably not prohibited. Certainly, I don't
think the state thinks that would be prohibited
since that's what they argue. I don't think that
would be making the file itself available on
the internet, which I think is what the statute requires. I'm sorry. Why? You get on a website. You list that you
have this CAD program. If you want it, ask us for it. Tell us who you are. Right, and Your
Honor, our submission would be, if we understand
the statute correctly, that's not covered
by the statute. Exactly. So why isn't that an
adequate alternative? He's not being barred
from the website at all. Well, first, I think the
adequate alternatives analysis would only matter if
this law were evaluated under intermediate
scrutiny, rather than strict scrutiny, which
we submit it should not be. But, second, I
think, there is still something quite different-- Well, this is not quite speech. It's speech that acts. So why should it be
subject to strict scrutiny? Well, Your Honor, it's our
submission that it is speech, and it's protected speech
because the act criminalized by the statute is not
the use of this file or directing a 3D
printer to do anything. It's the publication, the
dissemination of this design, of this blueprint
from person to person, using the internet as a medium. And we submit just as this
court said in Bartnicki and in Sorrell-- it's
strongly suggested that when a person has
information, especially truthful information and is
prevented from disseminating it as they see fit, that's a
restriction on their right to speak. Are you saying this is a per
se prior restraint on speech? Your Honor, we don't evaluate
it under a prior restraint approach because unlike
the use of the export regulations in the
Defense Distributed case, this simply imposes quite
severe criminal penalties So it's after the fact. You're not enjoined in any way. There hasn't been an injunction. And we don't think the
statute provides for that, no. But we still think
just like the use of the ITAR law in the
Defense Distributed case, this is a content-based
regulation of speech and should thus be subject
to strict scrutiny. Well, these have been
around for a long time. And I think you
think that's a plus. But have any courts
grappled with these issues? Your Honor, the
Defense Distributed litigation in the Fifth Circuit
I think did grapple with it. But the district
court there really didn't analyze the First
Amendment issue very much at all because it
was a prior restraint and because the plaintiffs there
were seeking an injunction. The court really
focused its analysis on the preliminary
injunction factors and really ended up saying
that at least in that case the United States government's
interest in preventing the dissemination of
those files overseas really overcame
any analysis here. But really it's a quite
different case here precisely because
the rights to receive this information
of citizens in Ames are also being
violated by this law. And this court has
said consistently that the First
Amendment protects not just the rights of
speakers, but also of listeners. And this gets back to
Justice Carney's question about the use of the internet. We think preventing
the dissemination of this information
over the internet really does burden heavily
the rights of persons in Ames, who are going to
put this information to lawful and valuable uses. Let me interrupt
for just a minute. Following up then Justice
Sotomayor's question, is your position that
the fact that there is a significant functional
aspect to the CAD files that are
downloadable, albeit with additional expertise
and action by the receiver-- is it your position that has
no effect on our analysis, that this is purely a
content-based based speech regulation and we
should overlook the technological aspects
of the information that's being conveyed? Your Honor, I think
that is our submission. And for two important
reasons, I think it would be a mistake
to follow the Corley court and other courts
that considered the state addresses in their
brief and diminished the protection of
this speech, exempt it from the normal presumption
against the constitutionality of content-based restrictions. We think that would be
the case for two reasons. First, Reid made very
clear that before we get to the government's purpose
in looking at whether a law is content based or
content neutral, we first have to ask whether
it is facially content based on its face or not. And we submit this law
is facially content based on its face quite clearly. It only prescribes publication
of this information if it describes a
certain kind of firearm. So that's clearly
facially content based. But again, regardless of
its functional purpose. Yes. So if it were a recipe to
create some toxic drug, it's still a recipe,
no more than that. And we should overlook
the other aspects. And the state is misguided
then in your view in pointing out that the ready
availability of this recipe could undermine its whole gun
regulation scheme in terms of tracking guns and so on. That has no import
at all in your view. I think that's right, Your
Honor, because I think the state's interest would
be the same if it wanted to go after the publication of
gun smithing manuals and books. They would still have
a fear that persons would be able to, as
we say in our brief, order unfinished lower
receivers and all of the other necessary parts
from the internet, which they can now do
completely unregulated, and assemble those firearms. I think the interest
would be the same. Does it matter that your
client's version is not a fully functional version. That it requires the end user
to have the right software to download it properly? I think it matters
to the analysis of whether or not this is
speech that's itself integral to criminal conduct. If this was essentially
equivalent to the distribution of the firearm itself,
if there really was no difference and no
distance between the act of uploading this
file to the internet and then the downloader having
a working firearm in their hand, perhaps we would say
that it is essentially the distribution of a firearm. There is a difference
because doesn't Ames have a law that you
have to register any firearm that you possess? Your Honor, I'm not
aware if that law exists. I do not believe it does. My understanding is that in Ames
just like under federal law, if one manufactures a
firearm for home use only, then it does not need to be
registered or serialized. But indeed, Your Honor
raises an important point. That other states have
requirements just like that. As we say in our opening
brief at page 36, the state of California
has responded to the problem of potential
3D printing of firearms by requiring the
serialization and registration of any firearm, plastic or
not, manufactured at home. And it's our understanding
this just happened recently that New Jersey is
about to pass a law that would outlaw the 3D printing
of firearms altogether. It's our submission,
and our third argument, is that where other
jurisdictions have seen that less speech
restrictive alternatives are effective and work, that
raises a strong presumption as this court put it
in the McCullen case that the state has forgone-- Excuse me. How do we know that they work? Well, Your Honor, it
raises an inference that they work because
these files have been online for five years, as we say. Since Cody Wilson first put
his files on the internet, they've been easily findable. The states have really
seen no problems at least with single-shot
plastic firearms. And because other
jurisdictions have seen that they're able
to achieve their interest or at least think that they will
in the last couple of years, not by going after speech as the
state of Ames has done here-- So we have to wait until
people are murdered? And the shooter can't
be traced, and there's no way of detecting
who the perpetrator is before states can take a
prophylactic measure to protect themselves. Your Honor, we don't think the
state has to wait for people to be murdered. It's our submission that where
we've provided many reasons why bad actors are really unlikely
to use 3D printing as a way to circumvent the law, they have
other means at their disposal. The state has, especially
at strict scrutiny, a heavy burden to
overcome to show, in fact, that is not the case. Thank you. We ask this court reverse. You may proceed. Madam Chief Justice, and
may it please the Court? My name is Catherine McCaffrey. And on behalf of
petitioner Ian Groves, I will address the
Second Amendment issue. 15 years ago, Mr. Groves
committed a nonviolent crime, which was classified by the
state of Ames as a misdemeanor and for which he
received no jail time. Today, Ames seeks to enforce the
statute that would prevent him from possessing
any type of firearm for any purpose for
the rest of his life. The statute is
unconstitutional as applied to Mr. Groves for two reasons. First, it is a complete
and permanent deprivation of his fundamental
right to bear arms. And thus should be subject
to per se invalidation. Second, at the very least, the
state cannot justify the burden that this ban imposes. Can I back you up a moment? Sure. There are only two
states left, maybe just one, that banned felons
from ever voting. And we've upheld those bans as
the prerogative of the states. Why is it that the mere
conviction of an individual is not a forfeiture or
waiver of entitlement to certain
constitutional rights, including this one, the
possession of a firearm? What makes this any different
than the fundamental right to vote? We permit states to ban
that fundamental right. Why shouldn't we
permit the government to ban the right
to own a firearm? Because, Your Honor, as
this court said in Heller, the scope of the
Second Amendment is set by the original public
understanding of the right. And so we need to
look to practice at the time of the
founding to understand what the original public
understanding of the right was. Now the historical
evidence we have uncovered indicates that the
time of the founding an individual
convicted of a crime was only stripped of
their firearm rights in two instances, when
they were incarcerated or when they were sentenced to
a crime punishable by death. In both of those instances,
the individual also lost their political rights. In contrast, in cases where
the individual did not lose their political
rights upon conviction, they did not lose the
right to bear arms. So you're telling me
that all those laws we've upheld denying
convicted felons the opportunity to vote
while they're on probation-- many states have that law. All of the states that
have lifetime voting bans, those are
unconstitutional as well. No, Your Honor. We limit-- You still haven't told
me why Second Amendment is more fundamental
than those other rights. It's certainly not, Your Honor. The reason we conduct the Second
Amendment analysis in this way is because Heller has
instructed us to do so. The Second Amendment
right to bear arms was the codification
of a pre-existing right to bear arms that existed
under British common law starting in the year 1689. And so the founding
generation was not developing any new right. They were merely codifying a
right that already existed. That's part of why the
court in Heller asks us to-- Oh, I'm sorry, I
thought our Constitution was creating new rights. The right not quarter soldiers
was not a British right. It was codified in
our Constitution because our founding
fathers were upset that that was happening in Britain. My apologies, Your Honor. That's certainly right. The Second Amendment
right was not the creation of a new
right, but the codification of a pre-existing
right to bear arms. And it seems at the
time of the founding that right was
limited to members of the political community. Ian Groves, as far as we
know, remains a member of the political community. And that's why he retains his
Second Amendment right to vote. Does your argument
depend at all on the fact that this would have been
a m and this would not have been a felony at
the time of the founding under any historical
understanding of the crime that he committed? Do you make that argument, or is
that not part of your argument? So, Your Honor, that's
certainly relevant. That at the time of the
founding individuals convicted of misdemeanors were not
denied political rights nor were they denied the
right to possess a firearm. However, even if this court
chooses not to look merely at the historical
analysis, we ask this court to confine the scope of
the Second Amendment right to the original public
understanding, that's the political community. And then turn and
ask, today, who is a member of the
political community? An individual like
Ian Groves remained a member of the
political community and thus retained his
right to bear arms at the time of the founding. And he does so today. So under either
analysis, Ian Groves retains his Second
Amendment right. So does that mean that if your
historical analysis is correct that felons should be able
to recover their arms when they're released from prison? Think your brief
pointed out that it was only when incarcerated that
they surrendered that right. So, Your Honor, that's
certainly a more difficult question to answer. What we know is that at present
the vast majority of states limit the political rights
of felons at least some time. I think if we look at the
current political landscape, the best way to
describe the felons position in the political
community is contested. So that individual may regain
their right to bear arms. To say so conclusively
would require a little bit more historical analysis. Do we need to look at the
political community definition in each of the states that
Justice Sotomayor was referring to as to when felons have
rights to vote, when they don't? So, Your Honor, we've
put forth a theory that the political
community is determined on the national
scale because we're not talking about any specific
state constitution here. We're asking about the
federal Constitution. At what point in time? You're asking us to look
at the founding fathers. But should we look at it in
the time of the Wild West? Should we look at it today? Should we look at
it 50 years ago? How do we decide what moment
that national consensus was founded? So, Your Honor, there's
actually two moving parts to this analysis,
if I may explain. First is where we
set the rule for what is the scope of the
political community. Now the court in
Heller tells us that we need to look to the original
public understanding of the rule. The Heller court
limited its analysis through the end of the 1800s. And so we encourage the
court to do the same today. Once the scope of the Second
Amendment has been set, the rule has been set as
the political community, we then turn to today. Today, who is a member of
that political community? So we're asking this
court to determine the national consensus
today as to who retains political rights. Do we have to do that? Can you win just on a
straight up analysis that your as applied challenges
is good for a misdemeanor? And no one's ever made that yet. It's been heard by our
court on that point. Do we have to do this
originalist analysis in order to rule for your client? So it's true, Your Honor,
that none of the lower courts, besides the Third
Circuit in Binderup has considered a case like this
where the individual at issue was a misdemeanant. And in the Binderup
case, the court found that the law was
unconstitutional as applied to that individual. This court does need to
answer two questions. The first is whether Ian
Groves has the right, and the second is whether
the burden on that right is justified. So to determine
who has the right, we ask this court to look to the
original public understanding of the Constitution. Well, that's assuming
we believe he was convicted of a misdemeanor. Generally, the
definition of felon has always been someone who
can be jailed for over a year. And under the
crime he committed, he could have been jailed
for more than two years, far above the minimum that
most felons are announced. It's only the oddities of
this state, Ames's state, that makes this a misdemeanor. So why shouldn't we use the
normal understanding of felons? You're asking us to use the
original understanding of who's a part of the
political community, but you're not asking us
to do that with respect to who's a felon. Two things, Your Honor--
first, if this court was operating under
what was the definition of a felony or a misdemeanor
at the time of the founding, Ian Groves's crime,
forgery, was considered to be a misdemeanor at
the time of the founding. Now the reason that
it's important to note that Ian Groves
is a misdemeanant is because when it comes
to political rights, the line between felons
and misdemeanants is actually pretty clear. Now the vast majority
of states only limit political rights for felons. And in the states that do
have misdemeanors punishable by more than one year-- that includes Ames,
but it also includes states like South Carolina and
Pennsylvania-- in those states, the states only limit
political rights for individuals
classified as felons. What this tells us is that the
classification of the offense is dispositive when it
comes to political rights. If I could ask-- in your briefs, you
described Mr. Groves as a never incarcerated
nonviolent misdemeanant. Our conversation right now has
been focusing on whether he's a misdemeanant or a felon. But I wondered how
the other two aspects of his prior convictions
play into the rule that you would propose? This is an as applied challenge. And you have a
persuasive argument that he poses very little risk. We've struggled in
defining what is a violent crime or
a nonviolent crime, what might be just
looking at elements. Is purse snatching, for
example, a violent crime that would disqualify someone? And I wonder what
rule you would propose that we be adopting if we were
to take your general position with regard to Mr. Groves. Sure, Your Honor. So first just to
clarify, the reason that we discussed the
relative dangerousness of the category of
individuals never incarcerated nonviolent
misdemeanants is because we didn't want to
focus our analysis specifically on Mr. Groves because we didn't
want to convey to this court that we were asking
for perfect tailoring. That's conceitedly
not the analysis here. The state must only
show narrow tailoring. However, we put forth
that because never incarcerated nonviolent
misdemeanants as a class posed no heightened
risk of gun violence or they certainly don't pose a
heightened risk for life, that shows that this law is not
just slightly overbroad, but that it's
dramatically overbroad. What difference does
it make whether it's a violent or nonviolent in
your theory of this case? Your theory of the case is we
go back to original intent. And you tell us that
back then the only people who were deprived of a gun
were felons in jail or people who were subject
to capital death. So is your theory founded on him
being a nonviolent miscreant? I don't quite understand. What's the purpose? Where are you asking
us to draw the line-- Sure, You Honor. --and why? So this analysis involves
two separate questions. The first is whether
the individual possesses a right to bear arms. That depends on if
they're a member of the political community. And so there is where the
classification is misdemeanor or felon is dispositive. Now when we get
to the second step of the analysis, scrutiny-- So you think true
felons of any kind are not part of the
political community? They may not be, Your Honor. As I was discussing
with Justice Carney, that question is
a little bit more difficult to answer because
the vast majority of states, 48 to be exact, strip
political rights from felons. Though many do give these
political rights back. So it's a little bit more
difficult of a question to answer than in the case
of an individual classified as a misdemeanant. The vast majority of states do
not strip any political rights from these individuals. But there's two questions
before this court, and I'd like to make that clear. The first is a
historical question, which answers whether Ian gross
has a Second Amendment right. But the second is the question
of whether the burden imposed by that right is justified. Now to begin, because this
law is a permanent deprivation of the right to
bear arms, we argued that it should be held to
be per se unconstitutional. But even if this court were
to proceed through a scrutiny analysis, the law still
can't pass scrutiny because the state has failed to
put forth sufficient evidence to indicate that depriving
an individual like Ian Groves is necessary in any way
to prevent gun violence. Now the state relies
on two studies to come to its conclusion. But we urge this court not
to rely on those two studies too heavily. That's because these studies
focused their analysis mainly on prisoners
within the first few years of their convictions. But in contrast,
Ian Groves was never sentenced to incarceration. And his crime was
over 15 years ago. So those groups are
just too different. And even if in the abstract it
were reasonable for the state to come to the
conclusion that it did, in light of the
evidence that we've put forth that suggests an
individual like Ian Groves never poses an increased
risk of violence or certainly doesn't after
a term of 7 to 10 years, we argue that the state's
conclusion is just not a reasonable conclusion
drawn from sufficient evidence. So what's a
reasonable time limit to bar him under your theory? In here you make a
great deal of the fact that it was a
nonviolent conviction, and he has not been a
recidivist for 15 years. So is five enough? Is 10 enough? What's enough? So based on the consensus
of recent social science, it seems to be that after
a period of 10 years, the relative risk of
a nonviolent offender decreases to the point that
it meets the relative risk of a non-offender. And essentially the individual
poses no risk at all. Now we can also find
support for this in the practices of the US
sentencing commission, which hold that after 10
years, an individual's prior conviction should not
be considered in calculating a criminal history. So are you asking us
to use a 10-year period to bar people who
commit misdemeanors from having firearms? Is that what you're
advocating here today? At the very least, Your Honor. We also put forth evidence-- I thought you said it was
per se unconstitutional. Yes, Your Honor. So which is it? Your Honor, a lifetime permanent
and complete deprivation of the fundamental
right to bear arms is per se unconstitutional. A firearms restriction
that is limited in time or limited in scope
in some way may be constitutional if the state
can show that it is justified. Now it's our contention that
an individual like Ian Groves never posed a heightened
risk of gun violence. What level of showing does
the state have to make? So, Your Honor, that depends
on the level of scrutiny that this court chooses
to analyze this law under. If we're strict scrutiny because
we're out of per se, then what level of showing? So what the state
needs to show is that it was a
reasonable inference based on substantial evidence. The problem with
the state's evidence is that there's simply not
enough for there to be, under any definition
of the term, substantial evidence to
indicate an individual like Ian Groves poses a heightened risk. That's why the
state can't succeed under either strict or
intermediate scrutiny. Now it's not that
people who have not been recidivists for 15
years, that all of them failed to commit a crime. It's just that the
numbers are small. So why should we upset
the state's judgment that even a small number
of potential recidivists is enough to justify
a lifetime ban? Because, Your Honor, the
Second Amendment right to bear arms as this court has
said is a fundamental right. And no amount of justification
put forth by the state can justify the total stripping
of that fundamental right. That's why we ask that
this court reverse. Thank you. Respondents. Thank you, Madam Chief Justice. And may it please the Court? My name is Marlan Golden, and
I represent the state of Ames. I will show that the Ames
felon in possession law does not offend the
Second Amendment. And my co-counsel Nick Aquart
will show the 3D Printed Gun Violence
Prevention Act does not violate the First Amendment. We ask the court to
affirm on both counts. The right to bear arms
does not extend a persons our society has long thought
too dangerous to carry lethal weapons. When he committed his
crimes, petitioner forfeited the Second Amendment guarantee. And even if the Second
Amendment protects the right to bear arms the
petitioner enjoys, he has not shown that the
law is unconstitutional as applied to him. At the founding, would he
had been found too dangerous? We believe so, Justice Elrod. Under what theory? He would be considered
an unvirtuous citizen at the founding, Your Honor,
because he would have committed crimes that represent
severe maladjustment and disrespect for the law. Forgery would've stripped
him under the founding. You have some
authority for that? Justice Elrod, that's correct. We believe that the
founding level sources show that the number of felonies
even before the felonies had made their way from English
common law to the United States had already ballooned. So we have information
that shows that even Blackstone and his
commentaries on law of England, said that there were at least
160 felonies at that time. Well, I thought your adversary
said that forgery was a misdemeanor at the founding. Well, Chief Justice Sotomayor,
even if that were so, that does not resolve this case. The traditional
definition of a felony is someone who is punishable
by a year imprisonment or more. And if we look to
the traditional-- Was that the understanding
at the founding? She's arguing founding. What are you arguing? We argue that the
traditional restrictions on felons that is those who are
punishable by at least a year in prison-- Traditional since when? What we believe at
least is traditional as this court noted in Heller--
so in Heller, this court said that long standing prohibitions,
not founding era prohibition. So you're talking
about the 1930s? Is that what you're
talking about? At least dating back to the
interwar period, Justice Elrod. But we believe history is
instructive here as well. For example, the
Pennsylvania Minority Report, the dissent of the minority
at this Pennsylvania State Ratification Convention, showed
that the right to bear arms could be restricted
for crimes committed or for risk of public injury. And we believe that
understanding is what's informative here today. So it's true that the authors-- Well, that's one state. What other documents
can you point to to show us how
other states responded? Chief Justice Sotomayor,
that was one state. It was shared, however, by
the drafters in Massachusetts and New Hampshire. All of those states were
penned by Anti-Federalists who eventually won out
with the ratification of the Bill of Rights itself. So it's their understanding
of the Second Amendment that the right is not unlimited
that Heller identified. It said that the
scope of the right did not extend to those long
standing prohibitions that were understood to be outside
the scope of the right entirely. Now Heller tells us that
these are exceptions to the Second Amendment right. Well, Heller acknowledges
a presumption, but doesn't really articulate at
any great length for felonies, and for people with
mental illness, and acknowledges that the
list is not exhaustive. But it also recognizes
a fundamental right to bear arms, which hadn't been
articulated in that way before. And I wonder how the
state can justify under intermediate
scrutiny, say, a lifetime ban where the right
is seen as necessary for people to defend themselves. Why should someone who has been
convicted of such an offense as this that didn't
even merit jail time be deprived of the right
to defend his family? Well, Justice Carney,
I'll take your question about the presumptively
lawful and the scope of the right first,
which is if you read the opinion that
the court in Heller delivered in its
entirety, it showed that everything
hinged on the fact the petitioner in that
case, Dick Heller, was not disqualified from the
exercise of Second Amendment rights in the first place. The court also grouped
this discussion of the longstanding prohibitions
alongside its decision in the United States
versus Miller. And that dates back
to the 1930s where it said that sawed off
shotguns were presumptively categorically outside the
Second Amendment right. And so even if we believe
that the presumptively lawful language refers to a
rebuttable presumption, which of course the state
contests, we believe that the burden that the
petitioner in this case would have to show is that
he is in some meaningful way different from the
historically barred class. And he has failed to
carry that burden. Well, let me follow
up in just a second. You said presumptively
lawful doesn't mean that it's a rebuttable presumption. I mean, the state can
pick whatever measures it wants with regard to felons
and denying them a right. And there's no examination
that is appropriate. Justice Carney, that's correct. When a felon commits
his crimes and is punishable by a sentence of
up to five years in prison as in this case, he has
forfeited his rights to guarantee his
right to bear arms, to vote, to serve on a
jury, to seek public office. This court has noted as
much in its decisions, such as Richardson
versus Ramirez. And we do not believe that the
Second Amendment right stands in any way in contrast
to those rights, which as a matter of
legislative grace, the states do often permit as
the petitioner in this case argues. But that is not the same as
a constitutional requirement. Counsel, so what do you do with
the cases that we have that deal with sexual
predators, for example, and they're barred for a time
period from their computers, but there have been cases
discussing that they cannot be barred forever from having
access to a computer Why is that situation different? Well, Justice
Elrod, I would first note that, again, we believe
that felons categorically forfeit their right to bear arms
so long as they remain a felon. So Heller referred to
felons and the mentally ill in the present tense. And this tells us
something important, which is that so long as
someone remains a felon, the state has not violated
any constitutional right when it withholds from him the
right to possess a firearm. Now when that status
changes if a state continued to bar someone from
continuing to own a firearm, we believe that we might
have a closer case. I'm sorry. I'm a little confused. How do you not become a felon? Are you taking their
position that while you're under a criminal
sentence, you're a felon, but once you leave a federal
sentence, you no longer are? This man served his
time on probation. And he's been incident
free for 15 years. I'm not quite sure what you
mean stop being a felon. Certainly, Chief
Justice Sotomayor. What we mean is
that someone would have to have either
their rights restored, their record expunged, or
would have to receive a pardon, and the statute that Ames
has adopted, of course, represents federal law
provides that someone even with those conditions might
have as an explicit restriction imposed upon them upon
expungement or pardon that they still are not
able to possess a firearm. When you say rights restored,
civil rights restored? We believe that's probably
what that means, yes. And so are you
taking the position that the petitioner
in this case didn't have his rights restored,
his civil rights restored? The record is silent on that
Chief Justice Sotomayor. But even if we assume that
his rights have been restored in this case, the political
community argument petitioner is identified simply
does not resolve felon in possession challenges. If it did, it would mean that
states that allow currently incarcerated persons to vote,
such as Maine and Vermont, would stand in violation
of the Second Amendment when they prevented that
person from exercising a right to bear arms. Counsel, if you're wrong
about that it's a felony and that it's truly a
misdemeanor-- assume arguendo it's a misdemeanor. Can you still win? We can, Justice Elrod. OK, can you give
any example where a misdemeanor violation suspends
a constitutional right forever? Well, Justice Elrod,
we believe this is a situation analogous to
the Sixth Amendment context. So the court has said in Lewis
that certain misdemeanors are serious enough to
trigger the jury trial right. Other misdemeanors are
mere petty offenses. It is chosen an objective
indicator of seriousness in those cases. And it is looked to the
maximum punishable sentence. We ask the court to follow
a similar path here. Certain misdemeanor crimes
are so grave that they are functionally felonies. And the states have long
understood that they do not offend the Second Amendment
when they prevent people who have committed those crimes
from owning a gun because they are more likely to abuse
a firearm as a fact of their criminal record. Now this accords with
longstanding understandings of what state legislatures
and what Congress can do and analyzing the
types of people who are more likely to commit
gun violence in the future. The court said in Heller
that certain policy choices were taken off the table. It also said at the
conclusion of its opinion that this did not
leave the states powerless to combat the
problem of gun violence in this country. And so felon in possession
laws like the one that Ames has enacted is
valid policy choice exercised by the states and
all of its applications. So you're using the
status of a felon as a proxy for dangerousness,
and yet not taking into account the lapse of time,
the nonviolent nature of the offense, the fact
that no time was served, and no time was included
in the sentence? It seems like very
imperfect match. Doesn't state have an
obligation in light of the fundamental nature of the
right to do better tailoring? Well, Justice Carney, I
have two answers there. First is that the unvirtuous
citizen rationale that has long animated
gun safety laws is not limited to a showing
a future dangerousness. Now if it were so, the
statute in this case, 922(g), would not include people
like those who've renounced their citizenship, for example. So second, if we
assume, however, that the showing of
future dangerousness is what justifies Ames as felon
in possession law and nothing else, then the state
can succeed if it burdens a right
petitioner enjoys under intermediate scrutiny. But aren't you using the
status of being a felon as a proxy for dangerousness? I thought that's what I
was just hearing you argue. We do believe that there is
significant correlation there. Justice Carney. We believe that the
legislators do not err when they believe that
those who have committed crimes in the past and have a track
record for violating the law are more likely to violate
the law in the future and do so in a way that offends
public safety and community security. As applied to Mr. Groves,
who committed a misdemeanor of forging an ID 17
years ago and has been law abiding since then? I think your adversary
would say that doesn't predict violence of any type. How can you contest that? Well, we disagree
there, Your Honor. And the reason
that we disagree is because the court
would have to require a more exacting
standard in order to strike down the state's law. It does not need to
show that as applied to an individual person,
who is a state law misdemeanant, that the law
passes intermediate scrutiny. Rather, it only needs to
show that the law is valid as applied to that
class of persons that the state
reasonably believes pose a future increased
risk of harm to others. Is it only to gun
regulation of felons that we apply intermediate scrutiny? Or is it your position that
all regulation of firearms is subject to strict scrutiny? Chief Justice
Sotomayor, of course, there are only a
handful of cases dealing with the
Second Amendment explicitly at the Supreme Court. Now the courts of appeals have
applied intermediate scrutiny to any number of restrictions
on the right to bear arms. We only, however, proceed
to strict scrutiny if the right that is
restricted by the law is at the core of the
Second Amendment right. Now felons as a
class can never sit at the core of the
Second Amendment right because they've forfeited the
right to bear arms entirely. Now second, even if we assume
that presumptively lawful means that we have a rebuttable
presumption here, that language in the
court's opinion in Heller must be given some weight. And it can't be squared
with strict scrutiny. But rebuttable usually means
something can act to rebutt it. So what in your
judgment would that be? Well, Chief Justice Sotomayor,
the rebuttable presumption, if as applied
challenges are allowed, would come in those
close cases where we're unsure whether
someone can validly still be considered a felon. So for example, in
the only circuit court of appeals to ever uphold
an as applied challenge to an individual
felon, the challengers in that case had
already received relief under state law in state
court, but nevertheless, was still subject to
the federal prohibition. So we can imagine the
opposite being true as well. Now we can also
imagine cases where someone has received their civil
rights restored or received a pardon, had the record
expunged by a court, but nevertheless
under the statute is still prohibited
from owning a firearm. And while we still believe that
law likely could pass scrutiny, we believe that would
be a closer case. And that would be the kind
of as applied challenge the court would accept
because it would be answering a key question. Is this person still a felon? In this case, there's no doubt. Petitioner status
has not changed. And if and until that
changes, the state of Ames does not stand in violation
of the Second Amendment in enforcing its felon in
possession law against him. Counsel, some have
criticized this approach that you're discussing,
this intermediate approach, as treating the Second Amendment
as a second class right. Would you agree
that a publisher who was convicted of a
misdemeanor could not have his publication
rights suspended for the rest of his life? Justice Elrod, we have
two answers there. First is that we don't
advise intermediate scrutiny. I'm not the first person to
ask that question, so go ahead. Certainly. We don't believe intermediate
scrutiny is necessary here. We believe that text,
history, and tradition of the Second
Amendment definitively resolve this question. Felons categorically
lie outside the scope of the Second Amendment. Now to answer your question
about the publisher and the First
Amendment question. I would need to say
that the rights proceed from different
historical rationales. So whereas someone
who is prohibited from engaging in the
marketplace of ideas has had a disability
worked upon him to engage in the fundamental
right of freedom of expression. Someone who is violated by a
statute that prohibits someone when he belongs to a class that
is shown to be more dangerous, that is a simple exercise
of the state police power. It is justified not as a
punitive measure against him, but by a exercise of
the state's ability to protect public safety. So you're saying we are
supposed to treat the First and Second differently? Is that what you're saying? Justice Elrod, we believe
that the Second Amendment guarantee is just as
fundamental as the First. We only say that
different purposes animate a felon
in possession law as opposed to those that would-- But the hypo was a misdemeanor. Even a state law
misdemeanant that might be subject to a
traditional found in possession law because of the virtue
of the number of years can be placed in a term
of years in prison. So if we understand that
the long-standing tradition of felon in possession
laws that this court said was lawful in
Heller remains just as lawful today, the only
reason that the court could find for the petitioner is if he
was able to distinguish himself from the mind run of
cases that challenge felon in possession laws in this
country year in and year out. And that is a burden
the petitioner has failed to carry in this case. Why has he failed to carry that? I mean, this seems
like one of the best hypos you could make on that. What's he missing? Justice Elrod, what's
missing is a change in his status as a felon. Other than him not
being convicted. That's the only thing missing. And we believe that that
is the key thing that is absent from this
case, Justice Elrod. If there are no
further questions, we ask the court to affirm. Thank you. Thank you. Thank you, Madam Chief Justice. And may it please the Court? My name is Nick Aquart. And today, I will argue that
the Ames 3D Printed Gun Violence Prevention Act is
constitutional. Your Honors, today,
technology enables individuals to 3D print guns in the
comfort of their own home. Publishing these files
offers individuals a new form of gun distribution
that circumvents both state and federal gun safety. We don't permit the
banning of books that teach people how to make bombs. The books don't provide
the raw materials. They don't provide the
instruments to make the bombs. So they're not much different
in my mind than diagrams. So why is the fact
that a CAD diagram capable of being put
into effect by someone else any different than
a bomb making book? Your Honor, we would argue that
these 3D printable gun files, those are regulated by the GVPA,
the Gun Violence Prevention Act in Ames, are not
simple blueprints. They're not the blueprint
that tells an individual how to make a gun. They're the blueprint that
actually makes the gun. This is a form of
technology that this court or any court for that matter
has ever countenanced. It's a technology that
can build an object. And in that way, it's
important to understand exactly what the GVPA regulates. You see the acts plain
language limits its scope to a subset of CAD
files or computer code, those that
can automatically print an operational gun. In other words, Your
Honors, the GVPA does not regulate firearm
design files or CAD files that simply depict virtual guns. It only applies to those
that can automatically create and produce an
operational firearm, those that already have instructions. Well, that sounds nice. But as I understand it, you
just don't take a CAD script, put it into the
computer, and the gun comes out of the computer. As I understand it, you
have to adjust the program to a particular printer. You have to change the printing
mechanism to do the slices. And then you have to
provide the raw materials and all sorts of
other steps have to be taken before the gun produces. It doesn't come out
of the CAD wholesale. Your Honor, we would disagree
with that description of the technology. It is true that
individuals might have to put the puzzle
pieces of the gun together or purchase
the raw materials. But it is not true
that CAD files with ready instructions
encoded within them can be published
on the internet. Those files are available. And in fact, a
domestic abuser in Ames just two years ago downloaded
one of these files. And there is no
evidence in the record to suggest that there
was any slicing needed. Well, he only, as
I understood it, used a CAD part in
a completed gun. He didn't use the whole gun. Certainly, Your Honor. It is possible for these
CAD files to print parts. But the contention here as,
Chief Justice Sotomayor, you mentioned is that the files
require a number of steps. And we would disagree
with that contention. While they do
require some steps, there are CAD files that
unlike firearm design files, which do not have
instructions to a 3D printer-- there are files that do have
instructions to a 3D printer and would enable a young
child, or domestic abuser, or a felon to very
easily print their very own gun in the comfort
of their own home. But still, isn't this a
content-based restriction? This is saying you cannot
publish to the internet, upload files that provide
information that can be accessed, and read, and
understood by a user, albeit with a
functional aspect to it. But we don't like content-based
restrictions generally. You have to satisfy
strict scrutiny. And the record suggested that
such files and alternative CAD programs and related
programs have been available
for quite a while, that Ames is the only
jurisdiction that is banning their
uploading to the internet. And what I need you to explain
to me why the state has a compelling interest
that is narrowly tailored in restricting
the transfer of this information in the
way that the statute does. Certainly, Your Honor,
I'll address the first part of your question,
noting that this might be a content-based regulation. And we would reject
that contention. Under Reed, a
content-based regulation is content-based if
it regulates based off of the idea or the
message expressed. And that's not what
the GVPA does here. The GVPA regulates based-- Yes, it says don't upload
a diagram of a gun. How is that not an idea? Well, Your Honor, under the
plain text of the statute, the statute does not say
that an individual cannot upload a diagram of a gun. It simply indicates that an
individual cannot upload onto the internet available to the
public a diagram of a gun that can automatically
produce a firearm, a diagram that has instructions
that would enable somebody to automatically
print a firearm. That functional
component is vitally important to the narrow
tailoring of the GVPA, Justice Carney, to your point. And in that way,
it's important also to recognize that in
contradiction of petitioner's statement, Ames is not the
only state to have prohibited the publishing of these files. New Jersey recently prohibited
the publishing of these 3D printable gun files. And for that matter,
over the past five years, the publishing of these
files has actually been illegal under a
nationwide injunction presented in the Defense Distributed
cases that has only become illegal in August. Furthermore, since
those files have been allowed to be uploaded
legally after the Trump administration has allowed for
them to be uploaded, over 20 states, including California,
Washington, North Carolina, and a number of
others, who understand that the uploading of these
3D printable gun files poses a threat to both
public safety and-- I need to interrupt. Are you agreeing
though that we have a content-based
restriction on speech? No, Your Honor. And why not? We don't believe this is a
content-based restriction because it regulates based
off of the functionality of the file. But what the statute
says is you may not publish over the internet
digital instructions in the form of CAD files
or other computer code. Code is communication. Files are communication. Digital instructions
are communication, and it's a particular kind of
instruction or communication that is regulated here. I don't understand
why that isn't a content-based
restriction as to which we apply strict scrutiny. Well, Your Honor, in
the first instance, we'd argue that
this speech if it is to be categorized
as speech by this court should actually be unprotected
by the First Amendment because it is integral
to criminal conduct under this course
jurisprudence in Giboney. And thus, the
content-based [INAUDIBLE] need not even come up. I'm sorry. What's integral? Unless there is a law in
Ames that you can't possess a firearm in your home,
what's illegal about having a CAD created gun in your home? Your Honor, under section 922(d)
of the federal firearm statute, there is a restriction
on the indiscriminate distribution of guns to
individuals who cannot legally own them. There is also a restriction-- That's certain convicted
felons can't own them. Yes, Your-- But a normal,
unconvicted person, myself sitting in my home-- can I own a gun? Yes, Your Honor,
I would presume-- So if I were to take
this CAD program and create a gun
other than this law, would I be breaking
any other law? You would not, Your Honor. So why is this an
instrumentality of a crime of criminal conduct? It's the person who
uses it illegally who's committing the crime. It's not the program
committing the crime. Well, Your Honor, we
believe the internet is important to distinguish here. Because on the internet,
there are approximately by our calculations about
1 in every 4 persons are prohibited from owning
a firearm, those who have access to the internet. And under federal
firearms regulations-- We have 1 out of 4 internet
users are convicted felons. No, Your Honor, but
children are also prohibited from owning handguns. Those handguns that petitioner
wishes to put freely online. I'm sorry. What's the source
of that statement? Your Honor, according to recent
census data, there are about 75 to 80 million children in the
US who have internet access. And there are a number of
about 5 to 6 million felons, and that's not even counting
those non-citizens who are here in the United States
who cannot own a gun. So your argument is
that because there are people who are not allowed-- we'll just call them bad people
or people who are too young-- can't have this that
the lawful people should be deprived access. Why isn't that just
quintessential over-breadth? Your Honor, we don't think
that the lawful individuals who can own this gun are
deprived of access. The GVPA we'd argue
is not a total ban on 3D printable gun files. It allows for private
communications. And as, Justice
Elrod, you noted, it even allows for a
website to be posted and information to be
disseminated to let people know that if they
want these files they can distribute
them privately, but not publicly in an area
where children and felons can download these files at
a whim if they want to and possess a 3D printable gun. So why isn't it that you
didn't regulate that activity? Why a total ban
rather than one that says, if you going
to share a file, you'll have to have that
person identify themselves? Your Honor, we think in the
context of gun regulations it's important to have both
preventative and remedial measures. This court in the Federal
Firearm Regulations have recognized this,
not only banning the distribution of
guns generally and also not simply requiring
registration of firearms after they're given from
a federal firearm dealer to an individual, but they put
in place a federal background check. The GVPA acts like that federal
background check in that it is a preventative measure. But this is speech. So you can't chill
protected speech. You have to tailor. Well, Your Honor, we do
believe that this is narrowly tailored in that it does not
touch all firearm design files. It touches a specific subset. And if this court were to
grant full speech protection and thus reject the integral
to criminal conduct argument that we submit, we believe
it's important for the First Amendment doctrine that
this court has proffered in Reed that that
doctrine be adapted to deal with the intricacies
of this new technology. The problem I have is
that although you're talking to me about
various needs of the state, the law as written isn't even
satisfying one of those needs. Because is your
adversary correct that someone can put this
CAD on a website or offer it, and as long as someone
privately emails them for it, they can share it? We do believe that
would be allowed under the GVPA, Your Honor. So if it allows that, what
is the ban accomplishing? Your Honor, the ban
is accomplishing something that occurred
in Ames just two years ago and other instances
where individuals who would like to have these
files at a moment's notice can get them. All that gentleman
would have had to do was to write to the
petitioner and ask him for a copy of the CAD. And that would have
been perfectly legal. Your Honor, we think the
delay here is important. In the context of gun
laws, the narrow tailoring is sufficient here because it
doesn't burden substantially more speech than is necessary. For example, the
GVPA could have been written to cover those
files without instructions to a 3D printer. But the Ames's
legislature decided to narrowly tailor
the statute so that it wouldn't confront the issues
posed by the First Amendment doctrine. But we do argue that the
First Amendment doctrine needs to be changed in the context
of this new type of speech if this court were to grant
speech protection to 3D printable gun files. So you're saying you can delay,
what, for 48 hours, for 72? You can delay speech rights
for certain time periods. We don't allow the delay
of First Amendment rights for time periods or
other fundamental rights, except under very
limited circumstances. Certainly, Your Honor. This court made that
point clear in Bartnicki, stated that there are some
rare occasions in which a law suppressing one parties speech
may be justified by an interest in deterring criminal
conduct by another. And we think in
the context where a file like the 3D
printable gun file at issue here can automatically
produce a firearm, that is that rare scenario
that we have here. And for that reason,
we urge this court to do what it did in
Denver and in Carpenter and adjust its precedent
in the face of technology that we've never seen before. In Carpenter, this
court stated firmly that when confronting
new concerns wrought by digital
technology, this court has strayed away
from uncritically applying its prior precedent. And for that reason,
we urge this court to understand that
this speech, if it is to be categorized
as speech, is entirely different from
any type of speech that this court has seen before. But if this court were
to move on and not adapt its precedent in applying
intermediate scrutiny to 3D printable gun files
that are based on the functionality of the file
rather than the idea or message expressed, we do think that-- Let me interrupt for
just a minute, please. In assessing whether you've
shown that this law is necessary given the
First Amendment concerns that my colleagues
have raised, I was struck by the points
made by your adversary about the easy availability of
80% guns that can be assembled, that are basically sold
in a modular fashion, and that can be put together. They wouldn't escape
metal detectors. I suppose to that extent,
they would be somewhat less worrisome, but are readily
available to circumvent the state of Ames registration
system altogether. So we need to take that ready
availability into account in assessing
whether you've shown that this is a necessary
regulation in your overall gun control approach? I don't believe
so, Justice Carney. Although there might
be one loophole in Ames's regulatory
scheme, that does not permit the allowance
of another loophole. The GVPA was enacted
to close one loophole. And the Ames legislature,
much like the New Jersey legislature, can if it
wants close the 80% receiver loophole. But this loophole has First
Amendment implications where as the other one doesn't. And that's why I am
asking whether there could be a closer tailoring. There certainly
would be required if this court were to
categorize 3D printable gun files as speech a need
for closer tailoring. And we do believe
that the GVPA meets that need because it is unlike
statutes that this court has recently struck down
as unconstitutional under both intermediate
and strict scrutiny. For example, in
Packingham, this court noted that the statute
there was vague because it left sex
offenders and those subject to the statute in
purgatory not knowing whether they could access
sites like Amazon or Facebook. Here the statute is clear. It cabins its language, its
plain text, to specific files, those with instructions that can
automatically print a firearm. It also allows for alternative
methods of communication through email, private
messaging, and others that-- Do you lose if we think
this is content-based speech restriction? No, Your Honor. So assume it is content-based. How do you meet strict scrutiny? Well, Your Honor, in
the first instance, if this is facially
content-based, we believe the secondary
effects doctrine can be used in order
to send this regulation to intermediate scrutiny. We've never used that doctrine
outside of adult businesses. And I'm not quite
sure I understand how we would apply
it to this situation that there is a portion
of the population that might illegally use this gun. There's still a
portion that won't. Certainly. So in the secondary
effects content, there's the existence
of secondary effects that actually exists that
justify a state regulation. But why would that
doctrine apply here? I see my time has expired. If Your Honor
would allow, I will answer as quickly as possible. We believe the secondary effects
doctrine is applicable here. Although it's only
it's only been used to uphold a statute in
the adult business context, it has not been
cabined to that area. This court has analyzed
secondary effects under RAV and Boos v. Barry. And it is exactly necessary
here because the GVPA is aimed at secondary effects
like crime prevention. Your Honor, for
these reasons, we would urge that this court
affirm the lower court ruling. Thank you. Petitioners, you have
three minutes of rebuttal. Are you addressing both
issues or just your issue? Yes, Your Honor, I have
one point on each issue. I'd like to begin with the
Second Amendment issue. Again, before this
court, the state does not really make
an argument for why the law, the restriction on
Groves's right to bear arms, would pass strict scrutiny. And to get into
intermediate scrutiny, they rely on this
notion that Heller split the Second Amendment right
into a core and a non-core. But I would like to read a
brief bit of that part of Heller at page 635 of that opinion. It said, that the
Second Amendment is the very product of
an interest balancing by the people. And whatever else it leaves
to future evaluation, it surely elevates above
all other interests the right of law abiding
responsible citizens to use arms in defense
of hearth and home. And the state reads
this to create a sort of tier or tranche system. Anybody who's not a
law-abiding, responsible citizen doesn't have the full
Second Amendment right. But in context, it's clear
Justice Scalia was simply responding to Justice
Breyer on the question of whether the interests
of persons like Heller could be elevated
over the state's constitutional interests. So that says nothing about
whether others interests are similarly
diminished as the state says that it should be here. I think your adversary is making
a slightly different, more nuanced argument. His argument is not
that there's a tier in constitutional rights,
but that the source of the state's power comes
from a different source. And that the source
of prohibiting felons from possessing firearms
comes from the police source. The First Amendment,
on the other hand, is not a part of
the policing power. It's part of the
marketplace of ideas to which even felons participate
because they contribute. And so if you view
it that way, how does what remains of
your two-tier argument? Your Honor, I think
I would disagree that the state's argument
as to the tiering portion really looks to that felon,
non-felon distinction. But in either event, both
the state's reading of Heller and the theory you've
articulated runs afoul of the principle this court
articulated in McDonald, that the Second Amendment
is a fundamental right, and it should not be treated,
cannot be treated, indeed, as a second class right. Turning to the First Amendment
point with my remaining time, the state, again, today
as it did in its papers relies on a narrowing
construction of this statute. Indeed it does not defend the
constitutionality of the law beyond that interpretation. And we think that
interpretation presents its own constitutional concerns. Namely, it would be a
real chilling concern. The state would read
its statute to regulate just some computer-aided
design files even though its text plainly
criminalizes and imposes a five year jail sentence
on the publication of computer-aided design files. The regulated community here
as we submit in reply brief understands that phrase
to be the kind of files that do need alteration before a
3D printer can understand them. And therefore, even the
state's narrowing construction raises constitutional
concerns of its own. And for these reasons, we
ask that the court reverse. Thank you. We will retire to deliberate. All rise. [APPLAUSE] [SIDE CONVERSATION] All rise. Please have a seat. Well, before we
announce the winners, and I don't know what the normal
protocol is, the three of us want to make a few statements. So we figured after we announce
who won, the rest of you wouldn't be interested
in sticking around. [LAUGHTER] So we'll take advantage. Judge Elrod. Well, the last time
I was at Ames finals was 1991 before some of
you were born, I guess. And this was a bad night
for me because we lost. It was a good night in
many, many respects. And I learned a lot,
but we did not win. But interestingly enough, we
had three judges on our panel. We had Justice Souter. We had Judge Tacha. And we had Judge
Patrick Higginbotham from the Fifth Circuit. And the reason I tell you
this is that it was a 2 to 1 split decision. And Judge Patrick
Higginbotham wanted it to be known that he
had voted for our team. [LAUGHTER] I was happy about that. But what I was really
happy was that in 2007 I was named to succeed
Judge Patrick Higginbotham on the Fifth Circuit. [APPLAUSE] And I get to work with
him still now all the time because he's a very
active judge on our court. But I tell you that so
if you lose tonight, you could replace one
of us [INAUDIBLE].. [LAUGHTER] And I hope you do, and
I hope you do well. I want to thank you. You could all do
this for a living. You should know that
and be proud of the work that your team has done. The briefing and the
argument was superb. The problem is a
superb timely problem. It is certainly not moot in the
first sense of the definition. And I want to also
express appreciation to the members of the
BSA, who work tirelessly, and Yvonne Smith who was working
here back when I was here and who's served this
school for 40 years. So thank you. [APPLAUSE] Well, I did not argue here. But I was intimidated
by this room. [LAUGHTER] And it's nice to be sitting on
the bench as opposed to there. [LAUGHTER] This has been so much fun. The problem was really
wonderfully crafted. It had so many interesting
issues and really challenging issues for both sides. I loved reading your briefs. And hearing you tonight,
you were so poised and ready to parry with us. Whatever we threw your way,
you didn't lose a beat. You responded. You didn't lean on the
bench and roll your eyes at a dumb question. You just were patient, and you
all did really a fantastic job. And it was really
just a pleasure to be here questioning you and
hearing the fruits of your very hard work over time. Harvard Law School's
doing a good job, and you're doing
a really good job. So congratulations to you. [APPLAUSE] It's hard enough to
do these arguments when they're real when
they're not moot courts. So you might wonder,
why do we do them? And we can tell you
that we're altruistic, that we want to help our alma
maters and help students. I admit the truth. Every time I come
to one of these and I see the
extraordinary performances of the students at
these exercises, it fills me with hope
about the future. It shows me that you are being
trained to think and to respond in extraordinarily
lawyerly professional ways and that you carry in
your hands our future in a really good way. So I come here for
you to give me hope. And so it's selfish of me. [LAUGHTER] I really was
incredibly impressed with each and every one of you. You were prepared. You knew your case. You didn't let us rattle you. You had thought through your
strategy of presentation. You stuck to it. You did everything we want a
well-prepared lawyer to do. Thank you. [APPLAUSE] The hardest part of
this exercise for us is the judging because
it's always so close. It's usually a hair apart
between the two teams just like tonight. And we end up voting
on little things that most people in the
audience with really rightly call insignificant. But when you have two
such evenly matched teams, you got to break
the tie somehow. And so we found little
things to break it on. But I do want to
say that it wasn't from a lack of
superb performance by each and every one of you. Having said that, it was
interesting this exercise. And what I found so
wonderful about it is these are cases that are going
to come through the courts. They're winding their way
through the courts right now. The first issue on
these CAD designs-- as one of you pointed out,
New Jersey has a similar law, and that's already
in the courts. With respect to
the second issue, it was one that was
raised by a cert petition if not a year, two years ago. And so it's down
there percolating. Whether the facts
scenario that arises before us will be identical
to yours or not, I don't know. But each side had stronger
arguments on one question, weaker arguments on another. And it was a really
well-done done exercise. Having said all of
that, please remember that by choosing a
winner of each category it should mean nothing to
the person we haven't chosen. You performed just as well. The difference was a slice. [LAUGHTER] I couldn't help that. [LAUGHTER] Best oralist, Max Gottschall. [APPLAUSE] Best brief petitioner, the Grace
Murray Hopper Memorial Team. [APPLAUSE] And best team
overall, petitioner. [APPLAUSE] I echo my thanks to all
of the Ames teammates who worked so hard
to put this together, to all the faculty
and judges who are a part of the various
stages of the competition, to all the participants. This kind of
teamwork is something that stays with you for life. Judge Elrod told you her story,
but she's absolutely right. Those who weren't
chosen tonight will be sitting in very
important positions someday. And remember her story. Thank you all for a
wonderful evening. [APPLAUSE]
