we'll call the next case agenda number six case number one twelve zero two six matthew d wilson vs the county of cook counsel for the fel good morning mr chief justice and may it please the court i'm stephen holbrook representing the appellant's i'll be handling the issue of whether the ordinance violates the second amendment to the united states constitution and my colleague will argue regarding due of constitutional law that if you can decide a case based on the statutory ground and avoid the constitutional issue then then that would be judicially indicated the argument has to do with the game code provision that allows or authorizes the use of what it what are called large capacity rifles to hunt certain kind of game as for example k o a t and so if the court were to go there we don't have that it's  arguing that there is preemption here because the cook county bans firearms based on in part on capacity magazine holding more than ten rounds as is banned as well as rifles that use those magazines so that is authorized as part of the of the d n r regulations if you look at the game all digest the authorization to use those types of rifles where the the court upheld the so called assault weapon ban in that case and the court remanded however to further proceedings regarding difficulty of the registration system according to cade there was not sufficient petition a rehearing bonte but we do have the option of going back frankly whoever loses on the registration issue will go back to the court of appeals and at that point it will be up our option if we wish to do so to follow cert the titian to the u s supreme court on that part of the case now that i'm glad you brought it up at that point this point actually because that was a summary judgment case both sides had an opportunity to set forth what they believe was true and also very strict rules about what you just don't notice can be taken and i think this decision of the court below stretches the out of balance of those procedural rules we say in the complaint that because  struggling with what if her pronounces here are courts across the country but certainly we're here in the pleading stage so we should be looking at leads and so i'm my question specifically is can you show me where in your complaint you either allege that these weapons are not unusual and that they are not dangerous or as you put it that they are common where you plug that what use the word actually the first main complaint was filed well before the either the heller or the markdown opinion so you don't have the magic words there but it's the it's the county's burden to show indicate some held that these farms crossed a line that was drawn in heller and heller the court held that handguns and long guns are constitutionally protected and that you know i'm sixteen machine guns another dangerous and unusual weapons are just a very narrow is holding in heller and mcdonald they said handguns are protected and most hang guns today are seeming automatic they're no different functionally than the farms that are banned here in fact many of them are banned under this ordinance county ordinance and so yes my answer is that it would be susceptible to a facial challenge but i think even if a court disagreed with that if you look at the cases where like like chester a good one where the appellate court put a lot of emphasis that was intermediate scrutiny and had to do with persons who are not law abiding persons in those cases under immediate scrutiny do allow for as applied challenges and so  i think we would say both of the above as far as the answer to that question and frankly the county makes a lot of arguments about you know these guns are for killing a lot of people quickly and all these this is all political rhetoric you can go to any shooting range in this very state or anywhere in the country and you'll see these kinds of firearms law abiding people don't keep them for that purpose guns in the hands of criminals are a danger to society at the court in this case to this political rhetoric that the guns they banned are twenty times more likely to be used in crimes than any other kind of we have an allegation that there are military guns and no military force in the world uses these guns there civilian guns that's another supreme court case i think that's relevant here staples which really makes shows that there's some cosmetic features here that are similar with with with for example they are fifteen rifle that's a burden of the county to show that the these are not usual or dangerous firearms and that they are susceptible to the kind of reasoning that is set forth in heller macdonald for actually banning them it please the court my name is edward run koski our chief counsel because he can't be here as a medical condition he asked me to explain that before we go on to covering equal protection in vegas let me specifically answer justices question concerning the pleadings count one paragraph thirty two talks about almost any long armed rifle has a firearm component at least partially in circles the barrel five paragraph twenty it states specifically are allegations in the first minute complaint but the ordinance quote bans ordinary rifles and shotguns that are the type of firearms that have been in use for almost one hundred fifty now long before the second amendment cases of mcdonnell and heller the courts across the united states have struck down firearms bans based on equal protection in vegas many weapons as possible they were successful they have captured a whole lot of weapons and in their gleed to capture as many weapons as possible they listed a whole bunch sixty five names of firearms that are banned as part of the ordinance under the equal protection clause any time you have a list like that if that list does not ban identical nearly identical or firearms that are indistinguishable in terms of essential operation it violates the equal protection clause in our pleadings we specifically categorize five sets of firearms giving model numbers saying these five sets you have a firearm here this unbanned under the ordinance and it is identical to this firearm here that is banned we have specific pleading s where the ordinance fails to provide the noticed ordinary people of what is banned start with that list the sixty five firearms there's one minute factor in there the se that makes both shotguns and rifles are all banned one brand and then sixty three models in all the copies of duplicate so that now these models change and you could go no further than the common law record in this case listing the ninety three ordinance to two thousand and six the see how fast those models change in one thousand nine hundred three when the first ordinance was passed it was sixty banned firearms thirteen years later in two thousand and six they kept town they struck fifty and they added fifty five these models change from time to time if you as an ordinary citizen get a copy of the latest ordinance and go down and try to buy a firearm that's not banned on the this cook county ordinance how would you know how would the salesman know how would anyone know that rifle that you're looking at is not a copy that comes with it only carries four shots you look at your that's well perhaps it's sufficient you check with his salesman do they make a large capacity magazine that will fit this he checks no you buy that rifle you take it home to cook county the very next day if somebody in china makes a large capacity magazine that fits that you're now a criminal you're being criminalized for conduct that occurred halfway around the world that you had no responsibility for and didn't know anything about because the ordinance bans not what you have only if it right the semiautomatic rifle has the capacity to  a magazine you don't have to have that magazine under that provision you could get around some of these protections and violations by just cutting off the list of firearms from the ordinance you could cure is a second amendment violation because when you add up all the different categories of firearms that are banned the shotguns that are banned because the smaller shells will increase the capacity beyond five the semiautomatic rifles that are banned because it could be held by two hands there's a provision that says if you have a shroud over the barrel to keep your hand from being burned that makes that an illegal salt weapon all semiautomatic rifles have a forearm did allow you to do it it's a very comprehensive ban the ordinance also bans high capacity clips the most common firearm a handgun to sold as a glock and they have more  than clip magazines that have more than ten pounds and making the illegal when you start categorizing up all those things you find out that the cook county ordinance bans more firearms than the firearm ban magazine capacities they have more than ten rounds more than tend to go up to i think fifteen or seventeen and is that the type of weapon gun whatever the right phrase is to use here the heller found to be within the scope of protect the second amendment yes fundamental right by the fan that that you could ban firearms based upon capacity because if you could do that why not make it capacity of ninety five for why not pass an ordinance under that will then you could only have  a firearm that only fires one bullet before we have to reload same thing with teachers but they have an ordinance that defines firearms with that are evil and ban based on features you could have it like this ordinance that bans semiautomatic rifles if you could hold it with two hands and that has a detachment clip if somewhere in the world they make a large capacity magazine for that based on that we're asking this court to declare the constitutional not the important say the county ordinance does not regulate the taking of wildlife and it doesn't prohibit hunters from using particular weapons in terms of hunting wildlife so i might be the home a large amount is is a red herring in this preemption issue well the ordinance isn't talk about taking my life at all against the subjects of the state wildlife code so it doesn't even touch the right doesn't regulate the same subject as the state's action and therefore does not is not preempted by that s at the county or does not deal with funding at all these deals of possession of certain something automatic weapons within the county of cook what about someone who possesses the kind of weapon that they would be out hunting with with case here you have cook county which is the third largest city in the nation chicago within it many parks many open spaces many areas where a semiautomatic weapon could cause much mayhem this is the remedy the cook county dotted basically balancing the rights of recognizing how are of a person to be able to protect a hearth and home with a handgun but the same time protecting the public at large from these other weapons which are dangerous unusual and pose great threat to the public county ordinance are similarly situated so the traditional handgun ban however in terms of two two things capacity and rapidity of fire in the county and you look at the plaintiff's complaint the count for their men to complain simply does not do that and li recognized back as far almost a century ago more than a century ago but a copy a duplicate is a reasonable facsimile thereof so i think that gives a person reasonable intelligence notice as to what weapons would be banned i'd like  discussions of heller macdonald the law with respect to due process equal protection vagueness aren't the constitutional issue issues squarely reforest today i think they are your honor i think they are because really the question here is where where can a line be drawn in terms of banning certain weapons and has a county drawn it in a in a place that's proper or in a place that violates the second amendment now we know from however that they cannot ban handguns they would be used for protection in the home that's as far as to challenge the findings of the county board right now didn't make findings whatever it is ninety four and there sam those were shoddy findings and so therefore there should be some kind of hearing so there could be some kind of debate about whether or not these are dangerous and unusual so how do we do then it's fifteen c i don't think you can a state court can do it at all and i think that's one of the problems with plaintiffs argument this is state courts not sit in administrative review and the findings or determinations of a legislative body the only very very narrow way that she could come up with there was some sort of issue over the beauty of the language of the statute ordinance that might be possible but i don't think a court is a way to be able to voice  opposing views on a policy matter the fact they think the county board was wrong and that there are factual find that their findings were one sided or perhaps didn't take into account the views of gun owners i think the solution of a constitution does it not it doesn't really matter what findings a made so i guess my answer is i don't think they have a right to come in and use a court as a way to try to try to prove provide a contra rocker's as to when a what a better law might have  the popularity can't turn determine what the constitutional earmarks are old marse i should say are there what can be regulated there were lawful uses that i think our three also recognize that if you took those semiautomatic weapons out of play people still could have firearms to protect their homes which was after all the holding of the original heller case to begin with and  from regulating firearms outside the home the second minute protections are only extended to two weapons typically possess for self defense i think the key point is here is there is not a fundamental right to with a weapon of one's choice use all of these these weapons may be popular it doesn't mean the government can't in the larger interests beyond the rights of the public at large and gun owners and say well society maybe benefit if we do a balancing here yes you can have not weapons are not automatic weapons such weaponry and i think importantly neither hired heller nor mcdonald stripped states or local governments of the right to address the public health and security problems resulting from these weapons california as a finger case that mr hubbard recognized and of course the court below in wilson if we believe that the these weapons do not come within the scope review because it provides government with the flexibility necessary to balance the rights of gun owners and enthuses with the rights of the public to be protected from dangerous or unusual weapons under in the media scrutiny all the government has to show that was helpful but in the media scrutiny to help i think it gives a court some some flexibility and it gives government some flexibility to try to balance out the rights of competing rights with i think strict scrutiny is more problematic and i think you'd have to show a nearly tailor solution a you know i'm important i am important government objective and i think you know the media scrutiny is helpful because again the the solutions are not always easy and it's a question of  self protection and of the person home and place a protection of the public at large and they get a media scrutiny gives both the court and the and the government a way to be able to see to drug to drive a difficult balance enough and these solutions are difficult enough that i think it is scrutiny helps but both the government again come up with a solution and courts evaluate it councils also argued that  court below had it right is long because there is no fundamental right to own a particular weapon laws in order to sustain us would you process the law has to meet some measure of rationality i think this one does the it's i don't think i think under that rationale be tough to regulate anything so no i disagree with that i think the law is pretty clear i mean in terms of capacity it's it's got to be it's got a deal to accept a large capacity magazine it's got to have one of the five characteristics set forth  change over time if if his every his point is that a gun could be conceived somewhere in the future that we don't have right now that might violate that might make the gun i have now violate the orders i don't that's true i mean i t his point was the gun would be in all respects legal under the current ordinance because of the capacity and everything else but the manufacturer makes the magazine that it's insane gun that has a larger capacity for the gun becomes illegal i think that was the argument is that should i give us any i don't think so because i mean i think at that point then that gun too would be illegal under the ordinance and i think i think it would a large capacity magazine and you might buy the gun with a five well magazine you don't know what might be on the market or watch what might come on the market at some later date and so you're stuck with it what became what you thought was legal at one point became so i mean the vagueness is clear not to mention also you have to know the design history to know whether it's a copy or duplicate of something else which sums maybe only the design or maybe an engineer would know something like that but an ordinary person would not  i'd like to return to the argument about common use it was held in macdonald that set forth the test of whether a firearm type is in common use by law abiding people for lawful purposes we do handguns and long guns are protected constitutionally and that's where they drew the line machine guns destructive devices and other things like that are not constitutionally protected we know the category that these farms fit in at this point and so it would be appropriate if this court itself it to do so to rule the law all unconstitutional at this stage of the litigation but if the court does not think that there's a fish an evidence or it's not known sufficiently whether these are commonly possessed by law abiding people for lawful purposes then the appropriate thing to do would would be to remain the case we think we can show that there's been mains of these farms that are produced many of them right here in the state of illinois that they all possess throughout the whole country by law abiding people for a lawful purposes namely for hunting and for sport for  side whether or not these arms fall within the second amendment and then secondly if you do what level of scrutiny we're going to look at in both of those steps it seems that there are facts that have to be determined so you have you want to challenge the fine is the more i'm not familiar with other cases what we do that we look at what was the board was thinking about the time what was their intention how do you get to a factual determination going beyond the findings that they ma bad raises the possible three levels of scrutiny if we take the heller macdonald approach it's a categorical approach which doesn't even do that they just said that case got to the supreme court and they said him guns are constitutionally protected this case is over but if we were to apply a stricter intermediate scrutiny or even rational basis there's got to be a factual determination judicial adjudication of facts presented by both sides even in rational basis  only products case that we cite that the heller decision reaffirmed that was a rational basis case from the one nine hundred thirty s and the court said even under that test you have a opportunity to challenge findings made by the legislative body so if the legislative body made a finding and it's so blatantly incorrect you're even on the rational basis test you're allowed to challenge that and if you look at the if we go up a notch to the intermediate scrutiny cases that the defendants here want to rely on chester williams these are cases that mostly apply to persons convicted of criminal offenses and even those cases they say there's got to be not only the important government objective and not we all agree that this isn't one government objective to reduce violence but whether there's a substantial relation between that objective and the means that are chosen is another question altogether and that's where the factual issues can come into flights and polemic spy different lobby groups and they say these are the facts and when those are not things that obviously you can take judicial notice you can take judicial notice of statistics that the census bureau gives us and certain other things but not certainly not technical things about firearms or the use of firearms in society anymore than a lot of other criminal logical or social logical things that people may assert in various academic publications or elsewhere so we believe that the court should eat or the court is inclined to take the categorical approach that heller macdonald took and if you see that if you agree that handguns and long guns are protected as set forth in those decisions th commonality and then we get into the standard set forth and have our mcdonald about calmly possessed by law abiding people for lawful purposes and if the county is to try to say that only criminals possess these guns i think they're going to have a rude awakening if we get a chance to litigate this as a factual matter because they're they're just possessed by people all over this state and throughout the united states for the various purposes that we've discussed one more point about the the preemption issue my colleague said that the law would not be inconsistent with the game code in any way because it doesn't regulate hunting but what it does do is to ban certain  firearms that are the game code says that you can use by the same token if they were to say in cook county we're going to build and use of any farm for hunting and only allow archery hunting for example that i think would be clear to everyone would be  d by the state game code and here we have them banning certain kinds of firearms rifles specifically that are that the game code says you can use so i'm just not clear how that would not be preempted it seems like it would be in that sense if the court has no further questions will rely on our arguments thus far and yes well if we were to go down that p n the game code would address all the problems that you're complaining about in the ordinance on the other types of guns would it it would address that issue about a firearm that has the capacity to accept a magazine that will hold more than ten rounds but i think probably there would be other things left in the case because again the guns that are listed that are banned by name it's not clear whether they meet that generic definition or not to start with i mean the ten rounds yes the capacity to except for example they ban guns that who knows what they even or s l or for something like that so i guess if it has that model name engraved on and it's banned but i don't think the general public even knows what that is but if you have one and if we don't know whether it would be a large capacity firearm based just on that model name on it so probably there would be things left to the case if the court were to found preemption one other question i think i know the answer but  be played more properly if we have that decision that's typical isn't it that a court dismiss is a complaint given leave to amend based on whatever the court says it's wrong to complain and so we certainly would seek to do that if we were told that the complaint did not suffice urt i'm trying to understand are you departing from your colleague's technical decision to not employ the game code i mean his position that this can be change there still are sixty five guns banned by model name without regard we don't know whether they're have the capacity to accept this or that or something else so i think there would be plenty of case left even if the court were to find preemption