driving under the influence at the highest reading about the whole isn't the issue in this case whether it qualifies as the kind of serious offense that are awkward in your op described that's correct and under the factors of this court considered in been driving at the highest rate of alcohol does qualify as a serious offense been or up left no doubt that some misdemeanor crimes are serious offenses and in that section of the opinion been  type of drunk driving in france here the pennsylvania legislature sought to and pose more heightened penalties precisely because it found that the lion's share of alcohol related driving fatalities are cause under the influence of the highest rate of alcohol which the pennsylvania legislature focuses just the statute itself but the focus is to the offense the plaintiffs committed but for instance in the bender out opinion of the court look to whether or not the offense reason to displace that judgment that burden of course is on the challenger and here in this there's no dispute by the district court to acknowledge that for example a nd dui offense regardless of blood alcohol level a certainly demonstrate necessary to consider another factor i think in looking at whether or not the crime is a violent one all these considerations are that the list pennsylvania legislature looked to our are but then the supreme court already hold that the allies are not violent when it was either offense is a violent one speaks of the seriousness of the offense and we have that nexus here and the district court recognize all of that in the way that it recognizes the pennsylvania legislature went out of its that and other right to serve on a jury some of these as drunk driving laws to specifically grade drunk driving as it's committed with higher blood alcohol levels to punish more severely those offenses as an individual gets behind the wheel having consumed more alcoholic drinks and said this is the worst offense in his class a misdemeanor punishable by five years imprisonment i don't think there's any doubt as to how serious the pennsylvania legislature considered this offense and to go back firm on that basis the supreme court has recognized in a different context that because of the state's role here in this scheme that there it is inevitable to some extent that some sentences are going to  different but on your been your up we look to the seriousness of the offense we look to whether or not the particular crime a conviction here is being considered serious by the state legislature and that's and that is what we have here and we also have  states to do that so so how why should we imposed consider it a serious offense here when other states even perhaps in her circuit do well it's a several points there your honor i do think the clearest indication is the maximum out that underlying conduct is not even outlawed in many states and is and that's a very different case from what we have here and not only do we have crusher sectional consensus but we have here congress also in one thousand nine hundred and eight in passing its federal highway funding law to encourage states to assign heightened penalties where individuals have been to legian drunk driving with excessively high but alcohol levels we also several statements from the supreme court the supreme court has often repeatedly lamented the tragedy of the quote carnage caused by drunk drivers we have consensus between the supreme court congress pennsylvania legislature going to course the district court  for our analysis of this case maybe you can help us did our been interrupted penya or opinions did they did we had doctor a test it decision to be a very important factor so st you have to say no that the five a five year sentence although labeled in pennsylvania as a misdemeanor under federal law would be a felony and under most other states would be labeled a felony so we're talking about a sentence should be considered by the sentencing judge and if that were the case mr bender up would have failed in his challenge because he too was convicted of a misdemeanor of the st degree statutory sexual assault or corruption of a minor he was charged without a short period which the court found was improper for mr holloway actually granted him work release but couldn't alleviate him of the mandatory ninety days also a significant factor that i think the court needs to be aware of is the co the incident that actually triggered his bro d addition was none serious and was not something that would prohibit him from being able to successfully bring the nd amendment as applied challenge to his carrying of a firearm without a license in maryland he had a different his his offense was different he was not at the highest alcohol he did face a mandatory minimum i don't know that you can and knowledge as to criminal conviction of one against the other when it was a different different exposure different statute and again i go back to judge finds his question to you is how do we discount the pennsylvania legislature's decision and its language can we not why if i may i would suggest looking in pennsylvania law in pennsylvania law as we've addressed in our brief in section eighteen p eight c s section sixty want to five c three it specifies that in order for an individual to lose their right only to purchase new firearms but still keep the problems they own they must be convicted of three duis in a five year period and individual could have and five c three it does have its own section in our brief where we address it and in fact chief judge connor also addressed it in his decision which might have a lower but that that hypothetical person who doesn't hit the b whole level of the serious the higher one that person could have three and be disqualified so he's stunned by lesser offense and loses fire that doesn't that undercut your argument i don't believe so because we said we are going to look to see how the state treats if we're going to look at how the state treats dui not look to the federal prohibition script leave the state prohibition state law says you need to get three duis in a five year period to lose your right to purchase new firearms yeah but you can if you ality is judge that's i think it does cut against it well and that's fair enough but again the only thing we do have been relation that we know where the general assembly of pennsylvania addressed in relation to dui firearms prohibitions is section sixty one of five c three there the general assembly said whatever the grading of the deal waters if you get three in five you're prohibited they could have said if you get to the highest blood alcohol content in five years we're going to prohibit big did not do that and that's why if we look to state law i do not believe that there is any support for pennsylvania and general somebody within pennsylvania treating it as a serious dui does have some harmful effect to society and by no means my condoning it but at the same time it's not so serious it's not treated so serious to strip individuals of prostitution of rights and in fact this is the only right if we stri a and so if that is the analysis that is directly contrary to this court's on bank decision in been up where this court held that a misdemeanor of the st degree was not of such a character that misdemeanor is a significant factor in determining that a state did not believe it to be serious and then our it is no question here you have a miss year that mr holmes convicted of a misdemeanor st degree misdemeanor where do we go from there well i truly is our next step was that violent is the next issue under the st prong of been corrupt and then and again every court to look at it has acknowledged what it by why is nonviolent all right then we move on to the cross state jurisdictional on now assists and which is that show so we spent a substantial amount of time in our brief we did provide a fifty state survey to district court that the district court relied on this court has before and depending on whether you categorize mr holloway's the y as a st or nd d y will change the analysis but even taking the government's position that it is a nd dui offense only seven states even looking at the highest  categories that could be imposed for different blood alcohol content would trigger a prohibition under federal law in this situation so for example if mr holloway had found himself in arizona he would not and had committed demonstrate across jurisdictional in message that this is a serious offense that it's criminal all nd amendment as applied challenges are going to relate to criminal conduct in generally speaking if we're not that all nd amendment as applied challenges under nine hundred and twenty two g one are going to relate to criminal conduct and all that i understand that because otherwise you have a condition precedent that would cause you to be disqualified from carrying a firearm understand that my point is your adversary just made a point and i hear what you're saying that the states do differ and terms of the nature of the punishment and hence why that would trigger ny twenty two g probation and i understand you right there my question to you is it goes to the it valerie is and what the maximum sentence that could be imposed is what different obligations an offender may have in ignition interlock something such as that but one of the other issues that we addressed in our briefing is the fact that in no state do they in essence permanently deprive someone of the privilege of having a driver's license whereby there is no recourse for them to get it reinstated there were likely five states where it suggests it's permanent but yet there are there were mechanisms in place for someone to still petition what we do see is that in order for any of the states to strip someone of that privilege they any prohibition under federal law my experience has been something attorneys look to state law they see the sixty one of five c three prohibition and advise a client oh no you didn't get three duis in a five year period this isn't a felony that specified in sixty one of five being you're good to go and we represent judges just one has asked about deterrence but should there be some consideration as to whether there should be serious consequences from this type of conduct including it's serious enough such that you fall into the vendor upcat considerations for being precluded if i understood judge by his question so your comments didn't sound like they were answer his question at the turns i don't think it can be a deterrent i g one straight up on application because it's a well labeled a misdemeanor the offense expose someone to a penalty of greater than two years under twenty two dollars g won by application your client would have been prohibited it was only with the be necessarily accurate given the martha rela decision that this court issued in two thousand and ten long before been grew up where it did acknowledge that nd amendment as applied challenges could in essence be brought but i never hear you're saying you  suggesting a person convicted of all of an offense under the same document as your client would not have noticed that they would be losing their firearms but not twenty two dollars g one was clear as day and said yup again i don't believe individuals are aware of  agrees with you that your client survives the analysis underbid or up step one and the nd amendment that he can meet maintains his nd amendment rights if we get to we get to bender up step two what kind of scrutiny obviously well your honor i'm acutely aware that your honor was part of a concurring opinion that suggested that to the extent we would even get to that point there really shouldn't be any scrutiny applied that it should be the fact that you've met the traditional factors that they don't apply to then the government has not provided this court or part of the record with any support that these are considered to be within the confines of these preventing our main ham or public safety concerns because if that was the government's position then it should be denying any individual convicted of being a st or nd dui depending on how you take the governments position across the united states regardless of what the penalty they could have been imposed was and yet we don't see them taking that position in fact when the government was asked earlier as to what position it was taking it specifically stated that it was soley based on the amount of time that the crime could have been punished for not even what it was punished for but could have been punished for it to represent that was your claim position right here and of the three of us that was my understanding of her response  that position and i think the difficulty in terms of this what position should be taken elsewhere in the united states very few i don't know anybody else and yet the court as a been rocked by analysis that that's you know binding precedent so i respond declared if a regulation fails to cover a substantial amount of conduct implicating the asserted compelling interest it's under inclusiveness can be evidence that the interest is not significant enough to justify the regulation we also have caseload from the u s supreme court in greater new orleans the broad band association there are a number of cases addressing under inclusive body in fact judge twenty six your honor issued a decision along with now justice alit in black hawk versus pennsylvania striking down a permit ing application here in pennsylvania for so many cases so it is a st amendment doctrine we even acknowledge that we are going to look to certain st amendment precedent in relation to determining nd amendment that's consistent with all constitutional rights we look to how we treat other constitutional rights to determine where there isn't already case law in that regard of how to address it i know i'm out of time and if anyone has any additional questions i am more thank you just a few quick points on rebuttal to follow up on something that my friend on the other side said it is not a position that we look solely to the maximum punishment imposed and i believe what i said was at the clearest indication of how his state legislature considers a crime to be serious is the maximum punishment imposed and of course we discussed at length that the pennsylvania general and general assembly has considers this offense to be so serious that it punishes   are beyond the traditional the traditional felony and i wanted to also address the argument i was just made essentially that the government should be outlawing more conduct and i think that that argument that is very much at odds with what plaintive has argued all along to this recording here that one hundred and twenty two do you want is actually over blog in that it outlaws nonviolent in addition to violent conduct and of course that argument cannot be trusted to responsibly handle firearms and that's exactly what the when to me just study shows here and of course the district court in no way question b liability or the method methodological soundness of that study