like to reserve two minutes for rebuttal very well the issues your honors in this case can best be summed up with a quote from justice clarence thomas in the u s vs voicing case where you stated can you give me another area where mr violation suspends a constitutional right that's what we're dealing with here today mr stener one thousand nine hundred seven was convicted of a misdemeanor crime domestic violence since then his constitutional right to keep and bear arms has been suspended with no relief available to him this court there  has analyzed second minute challenges through two step process before you move on can you cite to me any court anywhere that has held ninety nine twenty two contrary that it is not cuts i don't know the exact number but there is many chords i will tell you for instance i mean it isn't that significant that no one's adopted your argument i do believe it is significant your honor i do believe it's significant however we also have an as applied challenge and  the first step is a historical analysis and i think i would be remiss if i didn't focus on this because this is where the district court really erred they entered into zero historical analysis that's binding on the district court to enter into that analysis they mention it in passing but they enter into zero historical analysis it is clear from other jurisdictions that the second amendment does meet the first prong of the green no analysis for instance in united states versus chester the court held that the activity regulated under a liberty found in the bill of rights and that's that's that was the misdemeanor or felony distinction anything like it is today in other words were people really thinking in the kind of terms the we have in our statutes i would argue yes your honor  if the state of ohio believed mr stillwell convicted of serious crime as the founding father saw it they would have charged him with a felony they didn't do that the government would argue that a misdemeanor equates to the same level as a misdemeanor with regards a firearms restriction but it just does not it's a misdemeanor for a reason if mr stone had had attacked his wife to such a serious manner that it should render a firearm disability he would've been charged something more serious is it frequently much or which way this cuts but a lot of times that distinction is just a matter of of pleading down of prosecutorial discretion of matters of proof we see in the papers the cases of people pleading down crime so people will be deported do we have that same kind of distinction or is that the distinction is there and we ought to stand by it that does occur your honor a few things one and the inverse we have people like my client who would take a either a they can't afford counsel or b they're just under the stress of a divorce and it leads to a fight where they don't want to fight a domestic domestic violence conviction in up in ohio what is the distinction between felonies and misdemeanors limited to jail time in the county jail of one year or less or what what what what distinguishes misdemeanors from felonies in ohio yes your honor thank you a few things one as the as your honor indicated you can do a blur used to be different rights if you were charged with a misdemeanor as two felony but most of those have been a limited as well so i mean the distinction all right six months in a county jail yes your honor and  right issue actually is still existing in ohio what well mr stern will never lost his right to hold office serve a jury or vote ok which actually ties into the ability to actually have his rights restored because he never loses the three  united states versus care and at this jurisdiction he can't have them are stored he has to lose those three core rights and he never has felons lose those rights now in the state of ohio those are automatically restored to you for felons most states it's not the  case but getting back to your original question your honor one is there's a maximum amount of jail time six months and that's in jail not prison two the elements are different for instance domestic violence can elevate to a felony if if the woman is pregnant it is does become a felony of the fifth degree what's interesting about this under the law it's got to be defined as a misdemeanor and if you look at the g one disability you have to be punishable by more than a year in prison if i were to commit domestic violence against a pregnant woman and they convict  honor under under federal law eighteen u s c one twenty one a twenty a felony is defined as any crime that is punishable by more than one year or more than five years for a misdemeanor so michigan's two year would not fly either as a special extra ok thank you but in ohio because it's an f five it doesn't exceed one year so we have a felony domestic violence conviction where people in the state of ohio could actually in do actually retain their federal gun rights and that seems to be an absurdity in the law to me we have a gentleman here the core of this case is very simple mr is a vietnam veteran he was convicted in one thousand nine hundred seventy a top secret security clearance when he served in the military he got into a scuffle with his wife they are now divorced but they they maintain a cordial relationship and he c never get out from underneath that that disability ever he can apply for an expansion because it doesn't exist in the state of ohio for him he cannot get a restoration of rights because he has not lost his three core rights and there is no manifest injustice so we cannot get a set aside the only avenue he really has is a theoretical avenue and that's a part of it's a theoretical opportunity to get his rights back but it's a practical impossibility when he also have the the ability under the federal programs that are not funded in other words the there are parts of the gun law that allow the attorney general or states to restore rights under certain characteristics but they either are not funded federally or not enacted state and i write about them yes your honor so so the way restoration works is the federal government has a process in place under eighteen u nine twenty five c but it's not funded i believe there's a u s supreme court case on this that whole oppose the constitutionality u s c being at that but so then the state will look to the jurisdiction of the proceedings of a rose the federal government well and that's how high oh so high oh has to restore those rights but because the rights were never lost the right to hold office or in a jury and vote they cannot be restored it also says that you can get an expungement we have sealing the record in the state of ohio not expungement expungement only exists in very rare circumstances for victims of sex  offense or sex trafficking that can committed a crime during the sex trafficking for juveniles neither of which apply to my client and pardon although a theoretical potential is not a practical potential in two thousand and fifteen governor cases granted to at two hundred forty four that's less than one percent and to say that we have a fundamental individual right of mr stengel that can be put in the hands of a politically a little left official who doesn't have to grant any of these to me just reeks of unconstitutionality going back to the as applied nature of the challenge did the did the district court to rule on that individually or did he just say that since it's constitutional you don't get an as applied challenge yes your honor so the district court mentioned the green no analysis and then went right into a scrutiny discussion apply an intermediate scrutiny but never actually applying the historical analysis if but for any other reason this court remands this case has going to have to i mean your client can prevail on the historical analysis but you still go to the second step and green oh yes your honor if it's substantially related to a compelling state interest you lose right or your honor we would argue that strictly actually applies ok i mean what i'm saying is even if you win the first step of great it doesn't mean you necessarily win the analysis right is correct your honor we could so and so the fact that the the district judge did not  thoroughly apply the historical analysis why would that be harmless error so you don't necessarily win anyway well this this court has made it very clear in the jurisprudence under us that it has to be applied and this district court has never two step process that exists for a reason we would also work we if we take if we take your side of the two step process protected by the second amendment generally but then we are court has said intermediate scrutiny so then we say narrowly tailored you can we say generically it's narrowly tailored but as applied to this gentleman he would be outside of that narrow tailoring did the court rule on that kind of argument i don't believe they did your hon r i would first argue that on its face it's unconstitutional but if the court finds otherwise i do believe one hundred percent that as applied to mr stillman given the facts of mr simmons life and career it is absolutely unconstitutional as applied to him as what's so unusual about his case that he hasn't had another convictions as nineteen ninety seven years and another conviction is a law abiding citizen all the time and that's what you expect people to do i mean that's not extraordinary that's that's the norm isn't it absolutely your honor we don't know what's so unusual about it but we don't well that's that's a good point it's not unusual that's why it's overly broad and we would argue that it feels the scrutiny analysis is is congress free to make an assessment that domestic violence is a different type of misdemeanor that it is most analogous to a felony in that there are circumstances surrounding such charges that  put pressure to have a misdemeanor conviction i believe that's the army the government would make but what they are trying and tempting to do is fit everybody that has ever been convicted of that crime and under that same  believe it's overly broad and therefore it feels a scrutiny analysis either under strict or intermediate amount of time your honors before you reserve how many minutes two minutes you're on all right you'll have your two minutes any further questions at this time to box to thank you i thank  is consistent with the second amendment which has historically been understood as being limited in the case of conviction domestic assault is a violent crime and that's one that is closely connected with guns there are hundreds of thousands of incidents thousands of domestic homicides and the majority of those domestic homicides involve the use of a firearm you let us use of the compelling state interest or to the store i think the nature of domestic violence is relevant to both inquiries so at the first step of the green outhouse the court of course lots to the historical understanding of the second amendment and the right has historically been understood as being subject to forfeiture for a conviction of a serious crime and domestic violence certainly qualifies congress so so if that's the basis can congress take any other serious crime misdemeanor violence bank fraud drug crimes i mean if we focus on responsible law abiding citizen which is a phrase the supreme court has used does that not mean that congress could take away gun rights for any conviction of any crime i don't think so it's not that sort of an argument i mean i think the question of course would be whether it's a serious crime now in one twenty two g one we have the limitation based on felonies and just not that it's relevant to this case but just to correct one minor misstatement of my present counsel that such it encompasses misdemeanor subject to more than two years in prison just to be clear on that but not that it's relevant now when congress and not the nine twenty two g nine it's because it recognizes that there is a dangerous loophole and one twenty two you want because domestic assault while very serious is often often result in a conviction for a misdemeanor for reasons unique to domestic violence from a constitutional point of view aren't there  many serious crimes that are misdemeanors i mean you can beat up people and as long as you're only charged with a misdemeanor you can bribe jurors you can bring in kilos of cocaine and for whatever reason you're only charged with a misdemeanor that is how much of your argument is factually based that for some reason domestic violence is differently worse than any other sort and you would have to go charge by charge by charge of congress extended well first of all there certainly are misdemeanors that are extremely serious and the supreme court capture some misdemeanors now in arguing that domestic violence results would result in you know historic loss of second amendment rights that's not the same as arguing that congress can identify any crime and attach  disarmament without any crime i mean all crimes are either felonies or misdemeanors aren't thing but the the label of misdemeanor or felony is not the only relevant distinction here we have a violent crime we have one that is close that's right but a couple points first of all in voice seeing of course there was a constitutional question constitutional avoidance argument made that the supreme court rejected well or thanking me it was made by justice thomas they really didn't focus on it did well it was the petition physical force right well a couple points first of all the reason congress identified domestic violence for this prohibition is because the difficulties incumbent in prosecuting this crime often result in it being convicted as a misdemeanor rather than a felony and that's because you know victims of domestic violence so often refused to cooperate and the prosecution now given that i think it's appropriately treated as seriously as felonies and the statistic to bac that up is that you know ninety percent of victims in domestic violence cases are injured the supreme court has recognized that domestic violence often ask away it's over time especially if there's a firearm involved so all that any of those as i read all of those data they seem to say this is bad stuff i didn't see on the face of them for example that recidivism was greater than for ordinary violence misdemeanors people who beat up people in bar fights tend to beat up other people in bar fights if you if you have a gun afterwards you're likely to shoot somebody in other words i didn't see any data that said on any of those measures this is worse than a non domestic violence is there a particular when you point to that would disabuse me of that i don't have a study to point to you for general misdemeanors but i think that the studies indicating that the recidivism rate is somewhere between thirty five from crime i usually think of it as thirty forty fifty percent and the reason i'm pressing that is there are two ways of looking at this one is supreme court says law abiding people these are crimes they're not law abiding the other is to try to protect this by saying well some way domestic violence is different or worse than other kinds of crimes and that's why you know i thought you just said i don't have a study that compares  to other kinds of recidivism i'm if if the court would like something operation on well no i mean i'm just i did not find it in that and so i'm trying to make a well there's a stink ssion between the two there's a reason of course it's not dispositive but i that there is a reason that congress targeted domestic violence and i'm twenty two g nine and that is because it's a crime that i think in congress is judgment often should be treated as a felony should it is equivalent in seriousness to a felony but because of the difficulties in common and prosecuting that results in a misdemeanor convictions so out in a holding if the court is to hold that an individual convicted of domestic violence permanently loses their second the rights of the first step guess i find it hard to fit this into historical context of the most of the scholarship is that you know it's been bad that we haven't treated domestic violence seriously so at the time of the founding it's unlikely that they thought the domestic misdemeanors were somehow similar to felonies well this cordon greeno squarely or chucked at the sort of analysis that looks at whether the underlying conduct was criminal at the time of the founding there the statute issue was firearm in the course of a drug violation and the core recognise that drug laws were not present not around at the time of the founding of the first federal drug law was in one nine hundred seventy s and yet it held that that law was consistent with the historical understanding of the second amendment right as not extending to the possession of firearms in the course of illegal conduct similarly the historical understanding here is that the second woman right has been subject to forfeiture on conviction of a serious crime i'm not we're not arguing that all misdemeanors can be deemed serious what we're arguing is that domestic violence is a particularly serious crime that congress identified it because while it's equivalent in seriousness to felonies is often not prosecuted and often does not result in felony convictions now if the court is not we're not persuaded that the first step the law certainly satisfies intermediate scrutiny which is what this court adopted in tyler for all the reasons that we discussed and for all the reasons that numerous course of appeals have found and i did want to address one discussion that occurred turn my opposing counsel argument which was whether there would then be sort of a third stop involving the individual point of characteristics and just to be clear this court in tyler squarely rejected any idea that the second amendment entitles planets to that sort of individual as determination of dangerousness i mean you're  an as applied challenge in this circumstance just doesn't exist right i mean how could there if it's not individual how could you make an as applied challenge why i think what the court held in tyler is that if you're bringing and as applied challenges still subject to intermediate skirt and the question is whether the law is a reasonable fit to the important objective being served now if if what you do it's a reasonable fit generally then there can't be an individual challenge if that's what you mean by as by chance and i grew there are that's what the court held that's and i understand that's just saying that it's not it's not that he doesn't fit into some actual category of as applied what we normally think of as well there's a certain group of domestic violence offenders who will repeat predictably there's another very substantial group who or one time offenders who have known more relationship with the person and who are in almost never repeat that sort of evidence i think would be relevant under this court's intermediate screen analysis but there the plaintiff has not come forward with anything remotely resembling that sort of evidence here and indeed the statistics overwhelmingly suggest that there is a high recidivis situation where because of the individual states lawyers there's there's no way to get out from under it where in other places you would be able to variability amongst the states but that variability doesn't undermine the law and here congress you know the ninth circuit also address that and said congress permissibly can and i have to prophylactic measure given the risk that's imposed on you know individuals may have varying degrees of ability to get the right back but that doesn't undermine the law and just to be clear i think it's useful to point out that what congress did was  defined what it means to be domestic violence to mean and what it means is to have been convicted of the crime and for that crime not to have been pardoned or expunged or or to have your civil rights restored and that's consistent with i think a lot of the analysis in tyler where you know judge sun for example talks about the difference between once you're convicted of a crime you are convicted of that crime until it's been pardoned and that's different the court found from mental illness an involuntary commitment so congress has definition trackside understanding of what it means to be convicted of a crime and it's reasonable in that sense let me take you back for one minute with i think your adversary started out with something about justice thomas and if you listen to the the oral argument for  justice thomas actually asked the question and he says can you can you give me other examples of where a a for a constitutional right is taken away because of a  misdemeanor conviction and i think if you listen to it you'll see there's not a not a good answer given how broad is the principle if i'm convicted of perjury can congress then prevent me from testifying in my own behalf or if i'm convicted of bribing witnesses can i be prevented from calling witnesses in my defense at the next trial well i'm not i mean if we're talking of the first step of the analysis here we're talk we're looking at the historical understanding of the second amendment and this is this argument is pretty much at the second step i think that is when congress you know let's see if we passed the first test and each of you were giving hypotheticals you passed the first test and congress says ok how good is the fit the question when is that fit to take away a right ok i mean if you have pick your example of someone who's a great con man and is a misdemeanor perjury at some point can he be prevented from testifying in his own behalf you know what is a constitutional right a couple of points first of all just on the first one where i was going on even though i think it's relevant to the second step of analysis also which is firearms rides like the right to vote the right to serve on a jury have historically been subject to forfeiture upon conviction now that's different from some of the other rights that you're was raising your hypothetical so i do think the second amendment is different in that respect now if you're talking specifically about the second step for that very reason while the analysis here as this court adopted empowers under intermediate scrutiny it very well may not be intermediate scrutiny for some of those other rights that your honor says gus and then finally this because that hasn't come up yet in the supreme court has and will because it was and for many of those ri man be the historical understanding of the right that it was subject to forfeiture and so i think that's relevant for why this court adopted intermediate scrutiny at the second step of the analysis and then finally you know here we're dealing with an interest in avoiding domestic which is clearly a compelling extremely important interest and there's a lot of statistics to show that this prohibition is tailored to serve that interest and a lot of the examples here are with this reason i'm not sure that you would have either of those either the interest or the fit that we have here i counsel before you finish you set your time talking about the green no two step analysis but in your brief you also argue that this is an exception to the second amendment by the language of heller which says that longstanding regulations certain certain ones that they list that are not exhaustive are not subject to second amendment and  notice that our colleague jeanne seiler wrote the opinion in states versus white for the love of the circuit and also the first circuit and i think of the tenth followed him while the ninth in the fourth i guess have gone the other way but tell me is it still your position that we should say that this is the heller exception or the misdemeanor of domestic violence is that still your position even though we didn't argue today yes i mean i think when i guess i think of the horrocks option as being contiguous with the first step of the green no analysis and how are the court i done a lot i don't know you know historical and long standing doesn't say what longstanding is actually the examples the site don't go back to the founding of the constitution the bill of rights so i mean and i'm thinking long standing may not may only be fifty twenty two gene nine is properly understood as an excess and extension of nonce wanted to do you want because what congress was saying is that these crimes are just as serious as the felony subject that she won but for all the reasons we've already discussed they end up with m convictions and that's why the eleventh circuit said that it falls within that same language of how my client was serious committed an offense that was serious enough they would charge him with a felony if the state can't prove that they they charge him with a misdemeanor it's not considered a serious offense least not as serious as a felony today and at the time of the second mem ratification it was never even a crime so with regards to his statements that it should be an extension i don't believe that's the case we have the distinction between the two for very good reason and the reason is is that the state cannot prove the elements of a more greta's crime which is traditionally what we consider a serious offense such as felonies with regard to the statistics i think i'd be remiss in not mentioning that there's a lot of statistics out there but we have to remember this is a civil liberty that was granted to each and every one of us as citizens of this great country and we should look these studies yet the government would have us and have this court rely on these studies stripping a man from his fundamental individual liberties incorporated to him through the fourteenth amendment as a turn by heller macdonald at this time your honor i believe