so we'll go to united states versus israel my name is daniel kaplan i represent the balance israel torahs and i am going to be watching the clock in attempting to save about three minutes from my rebuttal ok i want to start by just mentioning the court the panel issued a focus letter the trial attorney susan anderson and i had a telephone conversation together with mr torres and the upshot of it was he does not wish to raise any rahane issue in this case he does not wish to unwind his plea agreement and he not he's not inserting that issue into the case so perhaps it would have been a better course for me to have formally withdrawn that letter but the status of it is we do not think we hafe pertains to our nd amendment issue and we're sticking with the plea agreement which preserves only that issue for  eel you eliminate a series of questions that's going to thank you your honor because the turning to the nd amendment issue which is the one on appeal here the government takes the position that  as applied challenge like the one mr torres is raising is completely precluded by this court's precedent however there is no case the government has cited or i have found that precludes that was used well i saw your concurrence that show of and i would note that your concurrence doesn't firmly take a position it says that it's possible that's the case i would hope to be able to convince your honor that that that should be something which the court would entertain and i would direct the court to the major case in the circuit courts right now it's not the only case there are cases within the rd circuit but the major circuit case that does find merit and grant relief on as a flight nd amendment challenge is of has a protected right under the nd amendment the language of the footnote at the end of philip's does say that it is at least an open issue whether someone who is felony that creates the disqualification was not a felony it's a founding maybe that person can raise an as applied challenge how do we get around long city the same way your honor involving say that appellant that that individual did not raise any argument that the problem with his felony was that it wasn't a felony  founding the argument raised there were twenty two points made involuntarily about the nature of the chase felonies that they were nonviolent and that they were only felonies in some states there was no claim that his felonies were not felonies at the founding and i would note that there couldn't really shape because he had a burglary conviction one of the felonies that created the one hundred and twenty two g one disqualification was burglary that is a felony as identified by blackstone certainly under the influence was not known i see no indication that there was a a directly analogous felony at the founding era to a dui in the founding or were there any laws that say reckless conduct that may endanger other people's lives may be a felony it's possible your honor i don't know what the extent of those were and whether they were actually felonies i would be highly dubious that that type of crime if it existed would have been deemed a felony because as i laid out in the brief and much scholarship also lays out felonies at the time of the founding were a very select group of very serious offenses  typically they were violent offenses not always of course because phillips notes that misprision of felony was a felony at the founding but generally speaking the category of felony was a great deal narrower and more concentrated on serious violent crimes and  largely the type of crimes that might involve the use of a weapon than they are now nowadays we have filing a false proper court returning recyclable cans from a different state and michigan and things like that are also within a category felony and that's one of the reasons why i would urge judge and the rest of you to take with a grain of salt this statement and heller to the effect that felons are simply thrust out of the entire school but we've got a long say which involves nonviolence known as we go phillips bank with respect to the idea that nonviolence is not the key factor in terms of whether there is or isn't a nd amendment right i have to concede to you under the current law that's the case but what i am distinguishing our case from the and philip's on is not that it is on the not being a felony at the founding i can't dispute that misprision of a felony is a nonviolent offense and that was deemed time were felonies is the time of well i would focus on the word longstanding it does use the phrase longstanding prohibitions and that's the something that has been scrutinized quite a bit in the case of this court and others and i would also point to the footnote in good morning may it please the court rachel hernandez on behalf of the united states this court squarely rejected as applied challenges involved because felons are categorically different from people who have a fundamental right to bear arms that decision has been viewed as settled law in several cases including philip's on which the defendant realized the footnote there is dicta and does not alter the conclusion that this defendant nd amendment rights are not in permissibly burdened and sometimes sometimes the death penalty not here as to defendants argument there was a good deal of discussion about crimes at the founding i would know that this cour precedent st of all michael's which is an unpublished decision but there this court found that his as applied challenge was properly dismissed because of fox and phillips and there the crimes that issue were securities and tax fraud i would also point to up which on which defendant relies and there is language in that case that the question of being a crime occurring for at the founding is not relevant that the relevant issue is proper reliance on the legislature and its decisions and so i would urge you to not consider that as a determining factor here  as the court noted if it were to do that that would eliminate a whole class of crimes that occurred with cars because there were no cars at the founding would eliminate crimes committed with computers there were no computers it would eliminate  crimes committed with automatic weapons i don't think those existed at the founding and so that certainly should not to the extent the court feels that there is any opening with the i think looking at some of the unpublished decisions from this circuit would give an indication that other three judge panel is have viewed that as banding as applied challenges to the  pa if a state says if someone steals a lot of pop from a kid that's a felony because only really bad people will steal candy from a kid what that be enough to strip someone of their constitutional right to bear arms well i think and this is discussed inventor up in the rd circuit case that the court relies on legislative judgment unless there's a strong reason not to and so it to the extent that anything is left open by that phillips footnote i would say it would be in the realm of absurd results in a legislature that categorizes the theft of a lollipop as a felon here you have somebody who is not in that round this case is not anywhere close to that he had an aggravated dui which was aggravated because he was driving on a suspended license itself a violation of the law he was on probation three times the legal limit driving the wrong way on a one way street so to the extent phillips has left something open it's not this case i would say that this court i don't think much is left open again looking at banks a fellow vandar he'll michael's ducats all of those cases rejected as applied challenge and and even earlier this year an unrelated torahs looking at the st step in the two step in corrie says a lot has not burden nd amendment rights if it falls within one of the presumptively lawful regulatory measures identified blues just fyi things are honors the supreme court has been very clear in heller and also in mcdonald which came shortly after that the fundamental right protected by the nd amendment is a fundamental right like the others in the constitution it is not to be treated as a nd class right and if we have the government saying the only time they would ever have this court express or exercise any concern about an absolute bar on exercising is fundamental right would be when the results client had about ten different firearms and was exhibiting them on social media it wasn't really a hearth and home right i'd dispute that your honor the government agents came into his home and took weapons out of a safe in his home that were there available to protect himself his children and his wife to protect his family that it was that that is of course the core of the nd amendment right now as far as the government saying if you if you require the felony to have been a felony at the founding you quote eliminate cars computers and automatic weapons all that means is you will apply scrutiny to those situations you will determine whether they pass as in  jovan and similar cases and bindra they pass intermediate doesn't mean people can rent can can go about willy nilly with automatic weapons as long as they commit computer fraud instead of burglary it means you will apply some actual scrutiny to the dispossession applied to those people with those crimes and as far as the government relying on the circuit law including many unpublished cases of course you know they're not precedential but beyond that the fact is even if they were presidential this argument was not raised in a single of those cases and one of those defendants argued i am able i am permitted to make an as applied challenge because i my felony my disqualifying felony was not a felony at the time of the founding that is expressly held open in the footnote in philips and not one of those cases since the issue wasn't raised none of those cases have a holding presidential or not on whether that is a valid way to be able to raise an as applied challenge in this circuit thank you very much