you what exactly you think the nd amendment has to say about that so let me give you two hypotheticals which i seems to me are at opposite ends of the spectrum hypothetical number one i call you a dirty rotten scoundrel and you a lawful gun owner pull out your gun and shoot me because you're very salty hypothetical number two i come up to you and i pull a gun on you and i'm getting ready to fire it and you pull your gun out and act in self defense so in one of those cases i think we would say a self defense claim is frivolous and the other case we would say a self defense claim is very well grounded but the content of the scope of the right of self defense it seems to me comes from sources of law not the nd amendment comes from state law primarily or potentially there might be some instances on a indian reservation or something that comes from from federal law maybe there's a constitutional floor somewhere so if the state said you just don't have the right to use a gun in self defense in this state could be a due process issue but i just don't see where the nd amendment infuses any content into the idea of self defense under the hypothetical number you would it because state law recognizes i mean i'm assuming every state would recognize self defense and hypothetical number two i'm trying to make it easy but why does the nd in many you  know i could defend myself in hypothetical two if i had a switch blade knife i could defend myself if i was really fast with my fists shouting about a gun that makes it self defense your  two hypotheticals more doesn't say you get to use the gun every time you subjectively think you'd like to use it or every time you subjectively think that you are you know kind of a florida stand your ground or whatever that you think you're in some danger there are legal criteria for when self defense is a justification for the use of deadly force and those  didn't have a right to carry a gun it was the decision to use the gun in certain situation which of course goes through a process in the state courts and now here we are you know looking at it situation where state law would recognize a right to self to vent there is a place for a firearm just as there's a place for other types of weapons that you might use  no means the only weapon one could use in self defense so if a city as in the pretty heller days were to pass a law saying you know you can't carry firearms around in this city that law is no good anymore because we now have an individual right we have hell or we have mcdonald we have you know plenty of law that says that is not an option the city has to allow you to train with a gun but it doesn't define the circumstances under which any use of deadly force whether a gun or again a switch blade or some other kind of weapon can or cannot be used i don't know what guns are different from switch well because you're on weapons other have been done or for example semiautomatic right where it where do you get the idea that the right to self defense is more capacious if you're using a gun than if you're using a switchblade well this w to self assess when deadly force can be used we have seen so many cases that raise this issue as spring the underlying law about when you may whether the conduct that miss caller engaged in is actually protected by the nd amendment whether her specific use of a firearm under these circumstances is protected by the nd amendment and whether the city's decision to terminate her based on of the conduct that she exhibited as displayed in the video whether that was reasonable under the circumstances so moore did not address either of those questions and we do not dispute that more allows the use of a but you're arguing that the nd amendment protects the right to keep and bear arms it doesn't say anything about using and use is appropriate of course some of the time it would be a meaningless right if you were just supposed to carry it around and never use it and use is not appropriate some of the time because the underlying law doesn't allow disproportionate use of force  granted there are definitely statements in heller that we think fairly can be read to recognize the right to use a weapon in case of confrontation and indeed heller does not expressly define how that right to use a firearm in self at the right as it was understood at the time at common law when the nd amendment was adopted and how the supreme court also said heller that blackstone's writings are the preeminent authority  the and english found in and english law at the time of the founding generation and if we look to blackstone's commentaries at that time he explained that the right to self defense that was widely understood in the th century was limited to two narrow categories of self defense and as we explained in our brief that would be justified self defense and excused self defense and this call their own does not allege that she engaged in either of the protected forms of self defense recognized widely recognized at that time as blackstone has explained in his commentaries she does not allege that she was preventing any capital felony or that she was left any fault in the incident as required for justified self defense or she alleged that she attempted to retreat from the world before using lethal force or that it would have been impossible for her to do so as required for excused self defense so her actions in this case are clearly outside the scope of the protected nd amendment right so i'm listening or do you think then that heller and the supreme court's decisions thereafter sketch out the  limits on the way one can use of a firearm seven because of course the nd amendment right would be meaningless if all you could do you know was put a gun on the on the wall or carry around with a padded every now and then use is understood to be part of what one is doing correct your honor and heller and mcdonald in subsequent cases from this court have well if they have not the expressly defined how that right to use a firearm you know the scope of the right to use a firearm in self defense they have consistently relied on the historical tradition of how the rights of self defense for why they understood i'm at the time the nd minute was adopted which is why i look into the common law rather than at the buried state level rights of self defense as there is sort of understood today it's looking at that common law at the time the nd when it was adopted that is the relevant time period period for assessing the scope of that right it's important in this case your honor to understand that this court does not need to even decide the scope of that right to decide this case in the city's favor i mean because the city's germination of ms calderon was reasonable regardless  and as the supreme court has explained the government has a significantly greater leeway dealing with its employees in the context of employment than it does when it brings its sovereign power to bear on the citizens i'm at large and that the citizens council and government employees constitutional rights must be balanced against the realities of the employment context as well as the government's interest in maintaining affective been in mission operations so let me ask you this question i want to back up a little bit the city said good it was discharging is called wrong because she discharged a firearm and shot garcia suppose the city had said it was it was firing her because she was carrying a firearm outside the home could it do that didn't just charlie brown i hypothetical didn't discharge it just was carrying it outside the home well your honor in light of the   that might be the case depending on the circumstances surrounding her carrying a firearm that might not be the case where the public's image would be damaged it would call into question her ability to perform her job duties or in any way undermine the public's confidence in the city to carry out its public safety operations which is why i'm sorry your driver did your question no area that you're just kind of out so that's why we look at the video in this case it was not a very clear case of self defense and there were these myriad circumstances leading up to the use of force the shooting of ms garcia miss calderon demonstrated outrageously poor judgment in taking matters into her own hands and confronting garcia was garcia she provoked and d very poorly or is very reasonable for the city to believe would reflect very poorly on its public image and create the appearance of impropriety i'm in particular in the context of ms call the rooms employment in this case where she herself works as a police dispatcher answer isn't as a dispatcher in the office of emergency management communications and is required to respond to calls from the public is required to provide assistance and even deescalate emergency situations in these that the conduct that she exhibited in this case was directly contrary to the qualities that one would expect in sort of holding that position and would certainly call into question the public's confidence would be undermined the city's ability to carry out that very public safety service but at minimum in this case the individual defendants are entitled to qualified immunity because miss quote calderon has not identified any case clearly establishing that its decision to terminate her for shooting is garcia was violated the nd amendment or that its decision exceeded the city's authority to terminate employees for unprofessional and dangerous conduct are you essentially arguing here that the city's despite the acquittal in the in the criminal proceeding that the city is entitled to assess the act of just charging a firearm is being outside the scope of legitimate self defense and moving you know probably on a preponderance basis or something like that moving to end her employment even though from a criminal point of view  determination that miss calder am sorry that the state was a failed to prove beyond a reasonable doubt that ms calderon was not exercising the right to self defense and that decision does not bear on the city's decision here  partly because the city was not a party to that case the allocations at the standard of proof is different and allocations of burden are different in that case as well that allocation of burden on that case fell on the state and in this case it falls on this calderon but furthermore this was not well though the trial court did find that it was that it believes it was self defense or found that it was self defense from the city's perspective in viewing this video and the and in fact had been the city was aware that she had been arrested for attempted murder arrested and charged with attempted murder in addition it had this video showing what was not a clear case of self defense and what was  contained a lot of kind of leading up to and resulting in that act of using her firearm against miss garcia and then this incident that this that that the state court finding her not guilty the nd man was adopted it does not require any duty to retreat and that was true american law through at least the late th century so that the question of what nd amendment activity is actually protected is different in this case than it was it as far as the middle and what importantly they put all this not provide that's not any clearly established law for the purposes of qualified immunity to show that the to to show that the defendants were unreasonable in their determination to this charges call their own for this conduct and furthermore just briefly i would like to explain that the city is well is this to the claim also fails because she is not alleged a constitutional injury as we have explained but also because she is not alleged that the personnel policies are basically invalid that they resulted in a seri that they resulted in a series of unconstitutional acts or that the individual defendants had any policy making authority nor did she allege that she would not have been fired but for the specific personnel policies or that her terminations was