the court i am back occurs in from the public defender's office arguing on behalf of mr adams today a panel of this court recently decided a similar second amendment issue in united states versus huli thoughts and wanted to start today by making a couple points about the analysis used in that case to determine his second amendment claim in huli the court said restrictions restricting gun possession in felons even if they are non violent felons differs meaningfully from restricting people who have not been convicted of serious offenses from having guns in their own home i read that passage and to me it's saying there's a reason to make the distinction there is a rational basis to have legislation that puts it put some gun control restrictions in place the actually rejected the idea that congressional intent is even relevant the court in heller said that the scope of the second amendment was determined at the time it was ratified and that it wasn't for future legislatures or even future course to determine whether the scope of that amendment was too broad so it rejected the idea that you do interest balancing it doesn't look to rational basis or intermediate scrutiny or strict scrutiny why is that a bad argument for you given the language at the end of the opinion that simply says nothing in this opinion is meant to effect in that list several categories so if you go to a categorical approach that isn't that terrible for you well i don't read the presumptive fully waffle language as for closing any kind of as applied constitutional challenge to the second amendment i don't think he is saying that categorically you can and any felon with a lifetime permanent ban from ever carrying or possessing a weapon again and he doesn't explain what he means when he says what just meant when he said presumptively lawful don't know if you simply referring to the constitutional principle that is assume that congress enacts constitutional laws then we analyze them to determine whether they fall within the scope of the amendment now presumption it's nothing more than that it's not saying that any challenge would lose so i think what heller wants the question to be the initial question for the analysis is what is the scope of the second amendment at the time it was ratified and why in your view does adams not fall within that category adam's prior felony conviction and the conduct underlying the nine twenty two g conviction both were for carrying a concealed weapon so i think the question now is at the time of ratification under the words to bear the court pointed out that the amendment says that you can keep and that refers to keeping weapons within the home and to bear meaning to carry weapons and the definition the court applied was to bear means to wear bear or carry upon the person or in the clothing or in a pocket for the purpose of being armed and ready for offensive or defensive action in a case of conflict with another person so their own definition and heller specifically says it could be carried on the person and it could be concealed in a pocket they don't use the term concealed though right they do not and they do not as you know the states are all over the board in its in heller and several other places about open concealed intent to carry right do you think that's what the court was really saying in hell or you think that that your argument that you're making now is what the court really intended in heller or do you think they int categorical rule longstanding prohibitions on possession of arms by felons now not covered by this opinion no i don't think they intend a categorical rule i think what heller wants it is look at the conduct that is bridget what led to the felon that made him subject to nine twenty two g and analyzed did that conduct fall within the scope of the second amendment at that time so so is your approach then literally case by case that there's no categorical rules that that you're asking us to adopt it would be case by case but i think there's going to be different categories so violent  then that legislation evolved over time you talk about federal laws here yes yes you know we think about state laws well i know so something well know what you know what i mean by that what i mean is you're referencing federal you know what the states have because they've been all over the world all the years with respect to missouri the government cited a case from eighteen hundreds or a or maybe early one nine hundred saying you can't carry concealed and now we've evolved up into a modern day where you can carry concealed except for in certain places and we've actually lowered it from a felony to a misdemeanor but this is i think is why heller said look to the scope of the amendment at the time don't go through a history of legislation where we have fluctuated over time as to these ideals that's not how we define enumerated constitutional rights they have a set meaning and so i don't think every single case once the analysis has been done in certain categories of cases for example you have a case where someone committed a murder and using firearms there been found in possession and are now being tried and are done one twenty two let's say you've already decided a case where someone had committed a rape committed a kidnapping using a weapon to further that violent offense i think you've then decided that category you don't have to keep coming back and revisiting it are we going to be in the john world only in the context of the second amendment i mean are we going to be looking at the crime that the person was convicted of or are the courts going to be looking at whether it was in fact committed and what would be termed a violent way it's interesting because that question because for people convicted of misdemeanor domestic violence that's the probation that keeps them from owning a gun that that portion of the definition section has in it that the offense must have as an element the use of force but the term felony is not defined in a similar way it's just said it needs to be an offense greater than one year it then has certain exceptions and then it has the provisions for restoration of civil rights so i think you could draw a distinction between the misdemeanor domestic violence people and the felony people to where you're not doing johnson categorical analysis for the felony people the only analysis going back would this conduct have been banned in seven hundred ninety one when the amendment was ratified counsel another day after the hugely opinion there is the taylor opinion are you familiar with all i'm sorry it's also out of your office with the u s attorney the same thing it's the same statute you know and it does the huli sort of approach on the same statute that's a separate subdivision i'll give you that  but on the same statute so why is that taylor and i think taylor was a some time on the same docket with this case this this very case adams so why doesn't taylor kind of settle this i know it's on published but why isn't it right well and i'm sorry i'm not from the i got the case so i don't know the exact holding of that ok so now proceed you did you did mention though that it's under a different subsection and i do think that that is important because i would distinguish between carrying concealed weapon and unlawful exhibiting on an angry or threatening manner that is where i think you're going to see  going back historically there was an offense common law offense from england called in a fray and that was carried over to the united states and that was an offense which prohibited carrying a gun in a manner that was second amendment those who merely carried concealed are protected by the second amendment are you proposing a two step process are you proposing an interest process i or evaluate the core what kind of test would you propose if you could just propose a test that's the difficult question if i could just propose a test i would say a one step test and i would adopt the heller analysis what is the scope but what becomes problematic in the real world i mean heller is awesome in theory but it becomes difficult and i think that the courts the cases that i cite at ten page page ten of the brief chester mars are relevant especially the ninth circuit case chavan which is what the magistra judge relied on those cases indicate what do you do when in the historical record it's not clear what if there is no conclusive proof whether this conduct fell inside or outside the scope of the second amendment each of those courts if that is the case they then go to an interest balancing approach and each of those courts as applied intermediate scrutiny i tell you ask it seems to me heller acts like the balance was struck when the constitution was written out here so how could you get to that second step i don't know and i honestly i think the analysis really has to be more of not if it's not conclusive if the historical record is not conclusive then i think the conduct falls within the second amendment scope and so justice scalia in writing heller it's kind of  or go home kind of an all or nothing if that if you're within the scope of the amendment then you get to do you get to do that conduct if you're not you're forever you don't get to do it you never were allowed to do it so you're forever prohibited now in the government's brief if you would get to a second interest balancing step the government suggested it should be rational basis analysis but heller rejected that in footnote twenty seven and they said if it was nothing more than a rational basis then the second amendment really would have no purpose it would be redundant with the general principle that constitutional the constitutional principle that laws are presumed  to be constitutional that congress acted within constitutionally do you think presumptively lawful might mean it's ok and of the second amendment listed violates something else another part of the constitution or thank you your honour's and may please record my name is jeff macarthur i was not the lead prosecutor on this case that was a us a just in david's who was tending to his newborn daughter i was however the new prop the lead prosecutor on the recent opinion mentioned prior which was united states versus huli which i think should guide the court in its determination here that was released in i believe june of this year and aside from the taylor case which i'm  not entirely familiar with i believe it's the court's most recent guidance on as applied challenges to the felony possession statute now and that per curiam opinion this court held that although the defendant's prior felonies were nonviolent he had not shown that he was no more dangerous than a typical law abiding citizen and that is why his as applied to challenge failed here the defendant alonzo adams between the year two thousand and ten and twenty fourteen had accumulated a relatively significant criminal record two thousand and ten he was convicted of sexual assault two thousand and thirteen he was convicted of resisting arrest in two thousand and thirteen he also got his felony conviction for unlawful use of a weapon that was his felony conviction in that offense the defendant alonzo adams actually ran from police and during that chase pulled the gun from his waistband and threw it on the ground to the side so our story as you're going through those facts is it your position that th approach we take that when when we look at well how about this let's flip it and say what could someone prove under your view of this case to show that they were a law abiding citizen is there a way to do that is it can you bring this kind of as applied challenge if you have a prior felony conviction i think there and certainly this court has indicated that it could fit there is a hypothetical situation a responsible law abiding citizen you have to basically to show that you've been you've been above board when it comes to the law so in regards to just having a felony conviction that alone is not dispositive of a potential as applied challenge however there has to be a record that you are a law abiding responsible citizen so my citation to mr adams criminal record is goes to show that this person has not been that law abiding responsible as it is so so will will assume for these purposes that that's the case so what what would someone have to show in order to what kind of standard are we going to apply here for the law the typical law abiding citizen how do we go about doing that your question is if you were to grant an as applied challenge what would that defendant argument have to be or his that record away what what is our how do we do this what's our standard you know not one to speak for the entire department of justice i would think it would have to be significantly better than th amount of time would have had to pass from the point of conviction to the point where this person is making the as applied challenge i'd also note that this was a situation where mr adams had a gun outside of the home it was in a car on its way to his probation officer i would think of someone  and this this court mentioned that mentions this in the hugely opinion guns for protection in the home and hearth this is not that situation is if someone were to bring in as apply challenge i would think it would have to be that situation where it's it's a home protection type of situation not to mention the fact that they wouldn't have accumulated the criminal record that mr adams had as to what specific type of person i can imagine where it has applied challenge would rule the day i don't know because i'm not sure that the person with the felony conviction from thirty years ago and has never done anything and he's found with a gun in his home i doubt my office would ever bring that case so i i just can't imagine the person where this as applied challenge could actually be successful unless it was a maybe an overzealous prosecution but with with mr adams after his felony conviction in and fourteen he was convicted of assault where he beat a woman with his fists in two thousand and fourteen also convicted of harassment where he threatened to kill a security officer do you think that his prior conviction is what we would the federal criminal code lays out the definition for what a conviction is there are very few exceptions if it's punishable by more than one year of imprisonment you have not got your civil rights restored it's not been expunged and it's not there are a couple of exceptions unfair trade practices any trust violation restraint of trade basically business types of regulations if it's not any one of those that are qualifies as a felony for purposes of nine twenty two g one and nine twenty two g one on its face has been upheld time and time again by this court by multiple circuits and by the supreme court we're in a sea of of per curiam unpublished what's our closest written opinion is was that was a rejection of the now as applied challenges well oh there was an end in laughter rejection the courts pacifically noted that the defendant did not show that he was no more dangerous than a typical law abiding citizen and i think though we are kind of swimming in a this is the difference between this case and those is this is a specifically non quote unquote nonviolent offenses i believe in ben and will see we were dealing with a lot more violent convictions i think was involved a robbery conviction and i'm not entirely familiar with what ben is prior conviction was and so we are dancing on a little bit of a different ground here but i still think the fact of the conviction the fact of the felony conviction that adams was not able to comport himself to the law and the fact that he has not shown that he's a more responsible and law abiding citizen should carry the fact that it's as applied challenge must fail and i would also note that the appellant was not able to cite to a single case one as applied challenge was actually successful in the country and i don't my my research is not found one either and certainly not out of the circuit and i don't think alonzo adams with his pretty poor criminal history and his ability to adjust on probation is the person that the  this case actually took place he's only got the one right he's only got the one felony conviction multiple misdemeanors he was on probation in that felony case as well as three other cases he was a criminal history category four in this case i think that could actually be a factor in determining what it as applied challenge if it could ever be successful a criminal history category four i had already you is dispositive of whether an as applied challenge what it what it what if that criminal history then even if it's in category four whether it's felon felt additional additional misdemeanors does it matter whether those are violent or they are the just that they're indicating indicative of being non law abiding in other words it's you can imagine a variety of things that wouldn't cause it wouldn't be violent but would clearly show that you're not someone who crosses the t s and dot the i's when it comes to the yes purpose reaches beyond felons who have proven themselves violent congress sought to keep guns out of the hands of those who have demonstrated that they may not be trusted to possess a firearm without becoming a threat to society in this case adam could not follow the law cannot follow gun regulations could not follow his terms of probation and committed various crimes involving violence but despite the fact that they were violent misdemeanors that he carried out he's not a law abiding responsible speeding that's that's a very fair point but i would think you're your run of the mill speeding ticket while not law abiding we all do it yes it's something that happens to quite a few people in our country whereas convictions for assault harassment and sexual assault do not happen to a lot of people  i'd also note that in in this offense mr adams was driving to meet his probation officer when he was found with the gun under his seat and he told the officers when they located the firearm that he didn't know anything about it that turned out to be incorrect as his d n a was found on the trigger and the magazine inside of the gun and these are not the actions of a law abiding citizen  you know has the department of justice given you any guidance about a test for this kind of it case two part task core conduct test categorical test well i cite two there is a footnote in the brief footnote to in the government is that all that is on it goes from page eleven to twelve where we assert that rational basis should be the test in determining whether an as applied challenge should go forward and that we actually did heller reject rational basis heller rejected rational basis for non fell however being a felon they are not and i'll just quote from united states get can't be good just before heller right but i want to go ahead with your argument heller didn't address what class convicted felons would fall under and so i i would argue that heller didn't actually address the basis for which we analyzed the felon in possession statu question is whether the justice department has given you any guidance and you cited a footnote to which doesn't mention anything about the department are you saying that this is the solicitor general's position i'm not saying and  that the government asserts a rational basis review remains appropriate for analyzing as applied challenges i can't say that i have spoken with the solicitor general specifically about that test however because i know we've put forward this basis and in other cases across the country i'd say i'm probably standing on pretty good footing and noting that this would that should be the test and that if there are no further questions  sort of the balance of my time to be happily if you like well she can use her own time you can just see your time back to the court thank you for your  just wanted to respond to the language from walls in from banda and the argument about the typical law abiding citizen that came at the very end of the heller opinion where basically justice scalia was speaking to justice y asked whether the statute burdens conduct in some way that is out of proportion to the offense it was not he was he was saying the court was saying that i think even under your test under any interest balancing test this would the conduct in heller calving in one's home would always meet whatever balancing test you want to impose that is the core of the right the right is at its apex but it wasn't a threshold test in the sense one must prove to be a law abiding typical  citizen it's not here we have to meet this standard before we can carry a god i don't think that was the intent of that passage let's there are further questions thank you very argument the case is submitted in the court file an opinion due course please call the next case for argument