We will have the audio of the orals, when the court clerk decides to make them available. Unlike the 9th Circuit, they are not made public for immediate download. Once the clerk makes them available, you must pay in advance to receive the file.
OK then, we have the cast of "characters" at the orals, in order of appearance:
The panel:
Judge Lucero
Judge Hartz
Judge Baldock
Peterson Attorney: John Monroe
SAF Attorney: Alan Gura, amici for Peterson.
NRA Attorney: Matthew Bower, amici for Peterson.
Defendant/Intervenor State: Matt Grove
Brady Center Attorney: Jonathan Lowry, amici for defendant.
John Monroe started off by quoting from
Heller and predicating what the State might do, as regards regulating the bearing of arms.
He was then asked by a Judge as to whether or not he was arguing the Denver ordinances, because he doesn't find any arguments in the briefs.
Mr. Monroe says that the arguments were briefed,
The Judge says that he can find nothing in the briefs that directly address (complain about) the Denver codes.
Mr. Monroe says that PP 8 of the amended Complaint is where they start the discussion of the Denver codes.
Judge says that nowhere in the claims for relief does it address the Denver codes. That in lieu of a specific claim for relief, the court was not going to "reach out" to give such relief.
Mr. Monroe then argues that it is the totality of the regulations that require relief.
Judge esquires as to whether or not the plaintiff is stating that he is entitled to a right to carry concealed. That's what the complaint is about, yes?
Judges then begin to focus upon C.C. vs. O.C. as the proper manner of the right. That the Complaint only addresses C.C.
Monroe then tries to distinguish the two, in light of the restrictions. Monroe argues that Plaintiff simply desires to carry, in whatever manner the State permits but is constrained by the restrictions of the State and by the restrictions of Denver.
Judges are having none of it. The Complaint is about C.C. and that is not a right. Judges refuse to loose focus on the C.C. question. The Complaint does not specify O.C. as a relief.
Monroe reserves 3 minutes for rebuttal.
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Alan Gura is next and "Hammers" on
Heller's "right to carry/bear arms."
Judges dismiss Gura's arguments as dicta.
Gura responds with
Seminole to explain that the right to carry is not dicta, as it goes to the immediate prayer for relief - to be able to carry a functional firearm in the home, which was prohibited in D.C. without a license that wasn't being issued.
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Mr. Bower is up next. He argues the various licensing schemes used by the State and by Denver in particular. How Denver, as a "Home Rule" city and County, have exercised their discretion to violate the rights of their citizens.
Judge argues back that no right is violated. You can carry in your home, as being in accord with
Heller. Further, that the Complaint does not ask for the Denver codes to be stricken. Only State Statutes are being attacked and only those that deal with C.C.
Judge asks where in the complaint are the claims for relief for general carry?
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Matt Grove, for the State, begins arguments dealing with how the State cannot track non-resident permits.
Judge interrupts to ask why Denver isn't there, defending their own codes.
Grove answers that they are not at court because they believe they cannot issue the permits. The State says that they can. That reciprocity is up to the individual Sheriffs.
Judge responds that didn't the District Court find that the State codes prevented the County from issuing?
Grove then begins to argue what Denver should be there to argue.
Judges stop him. Judge then asks if it is rational to disarm visitors to the State.
Grove responds that since they cannot track visitors, yes, it is rational.
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Mr Lowry for the Brady Campaign spends his 10 minutes dispensing what we have come to see as the traditional Brady rhetoric.
Lowry agrees with the State that if the State cannot track/check visitors like they can residents, then they cannot be trusted to bring in weapons.
As a possible parting shot, one of the Judges points out that taken at face value, the State cannot track/check those visitors that actually have reciprocity, how then can a visitor (without reciprocity, but having a resident permit or non-resident permit, be any different? How is this scheme even rational? The Judge then thanks Mr. Lowry for his thoughts.
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At Mr. Monroe's rebuttal, the panel basically hammers the Plaintiff on the carry issue. Where in the claims or the prayers for relief are the references to to carry openly or concealed? All the prayers are for issuance of the C.C. permit. Nowhere does a prayer for relief claim that the Denver ordinances are unconstitutional. In fact, there are no prayers for relief against Denver at all.
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At the end of this report, I have included what I believe the Judges are worried about. I reviewed all the available documents, but it seems to all come down to what was written in the actual Complaint.
While a lot of inference can be made about Denver, it is not specifically spelled out. This is going to be a problem for Peterson, should the panel actually rule.
It is my sense of the oral arguments that the panel will remand with instructions to file a Second Amended Complaint and to brief the Denver codes in full.
From the Factual Background of the Amended Complaint:
8. When he visits Denver, Peterson wishes to exercise his right to keep and bear arms by carrying a functional handgun for self defense.
10. Denver Ord. § 38-117(a) prohibits the carrying of a concealed firearm outside one’s dwelling or place of business without a CHL.
11. Denver Ord. § 38-117(b) prohibits the carrying of a firearm outside one’s dwelling or place of business without a CHL.
12. C.R.S. § 18-12-203(1)(a) prohibits issuing a CHL to a non-resident of Colorado.
13. C.R.S. § 18-12-203 vests the sheriffs of the several counties with authority to issue CHLs.
15. Denver Ord. § 38-117.5 vests Defendant LaCabe or his designee with authority to issue CHLs.
Amended Complaint, Prayers for Relief:
61. A declaration that C.R.S. § 18-12-203(1)(a) is unconstitutional to the extent it does not allow nonresidents of Colorado to apply for and obtain a CHL, because it violates the Privileges and Immunities Clause, the Equal Protection Clause, the Second Amendment right to bear arms, and the Fourteenth Amendment right to bear arms, of the Constitution of the United States.
62. An injunction prohibiting Defendants from denying nonresidents of Colorado the right to apply for and obtain a CHL, solely on account of their nonresident status.
