well for tomorrow morning the one place for today is numbers fifteen days nine hundred seventy five and one hundred seventy six suarez first as attorney general mr on a jury and one of the ways in which individuals can be excluded is by committing a serious crime and that's been the case historically so in order to distinguish himself from that population it would have to show that he wasn't but he was convicted of a minor crime and that's what this court applied challenge for that group will be this court left open the possibility in their mind to use someone who can you know point to a crime where only one state has subjected to such a significant penalty it's that you know an ou saying in essence there's no as applied challenge here no i don't that's our position or on our we read barn and we understand it to allow for the possibility of as applied challenge but that we must look at the individual characteristics of the person brain he has applied challenge what your body of work how old are you how do you behave do you have a government security clearance etc etc are all who's the nitty gritty details that must be examined by the trial court in order to determine whether the role as applied to that particular individual is unconstitutional i don't think so your honor and there are two reasons why that doesn't potassium shouldn't be the tough the first is that historically as we've indicated the right to bear arms has been subject to categorical exclusion just like the right to butt and it hasn't been the case but there have been these individual lies the terminations to restore that right just like in the case of the right to vote o the point of can't point to individual eyes determinations by courts said well this individual has proven based on various factors that they're sufficiently right with him was that just proves his or as applied challenge rather a right to vote no th was if you say they can be as applied challenges but facts which you conceive of that would make for a successful as applied challenge the most important factor is always going to be the crime for perfect but it has nothing to do with the person we commits the crime and everything to do with the crime well the person was individual convicted of the crime still curse the characteristics of that crime or the most pertinent outbacks to the for in this case but if you could but i'm lost you could just write a quick if you can bring and as applied challenge if you can overcome the presumption what are the types of facts that might exist here so that that presumption could be overcome theoretically i think as i indicated before this sort of back would be a few individuals convicted of a crime but only one state for example either criminal to protect the public safety did have a long tradition so this is a significant crime so let's assume that again it's presumptively all right to exclude a person who has been convicted of a misdemeanor that was nonviolent but you need to look at the amount of time that is passed since the crime was committed and don't you need to look at the person's record during that interim period of time roll well let me just first start with in terms of looking at the type of concords we certainly agree you should look at but i prefer trying not carrying well but that actually goes to one of our points which is that it's very difficult to anybody overcome the presumption of lawfulness of this right and just going to the question of the seriousness of the crime for which is some visuals convicted and whether or not it's by i don't want to we will i would say is it certainly was a crime that implicated the public safety and you know it was asked was this crime was this misdemeanor a violent crime was as i said the supreme court itself said that there really isn't a principled way but i'm one who's convicted of jaywalking and gets a two nights in jail that person is prevented from having a firearm because nonviolent crimes are are subject to this could have pulled out a card a firearms registration card that he's not guilty of the crime right when we get to you i think there's an underlying assumption here which is that i think  well my answer is that i think it is officially violent given the nature of the crime and the nature of the law this year but let me step back from it if he did produce the court if he had to really grow rice and write a registration card then he's not convicted of this particular crime correct i may be convicted with the rye but not read i'm not sure whether he would have been allowed to try the vehicle picked on i'm not familiar enough  is because it requires a wall by responsible citizens to exercise those rights and it's not just because somebody might take a gun and commit a violent crime if your response but with a gun that can have significant consequences and so co isn't just trying to stop future violent crimes or trying to stop anyone being injured by a firearm and so it's not that the law would only be constitutional if the crime but on what the prohibition was violent convicted of a serious crime they have historically been excluded from the right to bear arms of the right to vote obviously the reason they've been excluded from the right to vote isn't out of a concern for violence it's because that right as a civic right has been reserved for law abiding apple e and cross the talent who is wise the barton train has left the station a long time ago and he did so with the government and its grief and barton blessing became this court's approach which is to say that it is the prospect of people coming into court and proving that they do not qualify traditionally for disarmament in accordance with the second amendment a right as we understand it in this country now barton states that to raise a successful as applied challenge an individual must present facts about himself and his background distinguishes circumstances from those of persons historically barred from second amendment protections that's it now it's true that  the severity of the underlying crime which triggers a disability a factor in the bottom analysis but the bargain else is more holistic it's one of various factors one would suppose that the more serious of the underlying crime is the more rehabilitation a person might need to show and converse really if the crime is relatively less serious whatever it might be then perhaps the court may not be as concerned with the prospect of  traditional justifications underlying the statute support a finding of permanent disability in this case that is it's not necessarily a bright line test when we go to see well it's two years and three months temporal sentence and you know felon is convicted of a minor nonviolent crime that might show that he's no more dangerous than a typical law abiding citizen and then of course there's another example given right afterwards that talks about a felony his crimes conviction is decades old not be contrary to the public interest that's congress's language so we see congress and this court bargain and just about every circuit courts looked at this issue at least accepted the idea that we're going to have as applied challenged tonight twenty two a factor it's not necessarily the target there isn't really one determinative factor tells you yes or no this person is covered or not covered by part and i want to address one point though that counsel raised which is about the supposed hypothetical of a crime that's only triggering one twenty two in one state and not in the other forty nine we actually have that situation one week from today november twenty fourth the government owes me a response to the complaint  your state the country where it's a misdemeanor first time one time you why punctual by up to two and a half years in prison and so the government applies nine twenty two shey one to anyone who has at least one dui in massachusetts only a very fact based examination in the trial court where the trial judges around the country are going to have to make findings of fact and then tie those trials of fact to the conclusions of the law as to whether night twenty two way to do it have a five felony she says that let's look at the right to vote for example i don't understand felons to have the opportunity to go into court to say  exclusion is one that we would dispute the right to keep their arms like other rights like any right is one is defined by the constitution not by congress it simply cannot be that a sufficient number of legislatures or congress can get traditionally they retain that and it's not something that you can simply race by simply having congress the credit to be a felony or having some state have a hypothetical penalty for you know five years for a parking meter violation nobody gets it but as in the case of massachusetts he writes enough that to disarm everybody forever without a prosecutor relief that's not how constitutionally it's function the second argument that would make your honor is that as applied challenges a challenge does his behavior in the community what do we know about this individual indicate whether or not traditional grounds for disarmament by would have a constitutional fit as this person the analytical question if this court has resolved and maybe will do this to see what the result is the secular we can do well let me let me stop you there because doesn't that make some sense in so far as barton and this case involving a law that the supreme court specifically  abiding responsible person but if you use intermediate scrutiny or something in between we would matter a little scrutiny is because no matter what the government tries to do once it fails to show their has any interest in disarming the person  case in a relative court says we rejected the appearance of you that is as applied challenge required the state to show that its particular conduct in fact crashed on the interest that the regulations sought to protect we stated tha general circumstances of their own facts the state had a strong interest in adopting and forcing rules of conduct designed to protect the public this having been established the state was entitled to protect its interests by applying a prophylactic rule to those ninety i'm sorry that the crime he actually happened in one thousand ninety one could argue was not violent the person is led by at least to some extent an exemplary life i superficially as far as we know based on what you put in and maybe that's a person that individual you take each person as he or she stands but when you look to at least in the first amendment back and say well that's very nice but you know under this little scrutiny our interest overrides all essentially as applied circumcise all of the middle circumstances and then martin is a complete nobody was simply no way to reconcile that type of test with and you suggest that your client meets those exceptions in that as applied challenge if he does that then what makes it feel level maybe we don't get beyond step one but if we didn't follow up on judge roberts point i don't understand how the scrutiny analysis works when the task of the district judge as i understand it is to evaluate in great detail whether whether vision man or woman who is he or she what's their body of work what were they convicted of and how all of the behave since they first got into trouble and i don't understand how any of that maps onto an intermediate scrutiny or think you know a hell of basically told us something that we i think you know with respect all right so is there going to be laws that i mean there's more than one type of second challenge first of all some laws were simply categorically not compatible the second  thing in the fourth circuit they have what they call streamlined approach right in the fourth circuit nine twenty two g as applied challenges they say that they're streamlined approach is essentially just step one and while all the and we come back full circle to what you just said martin and my zarella are not intention if they are intention then the earlier case would prevail over the later case but one could make a very good argument they are not intention one dealt with a different set of facts laid out some tests here you suggest that the suggestion is that there is a presumption that nine twenty two g is valid the track that presumption it was didn't talk at all about obliterated serial numbers right that's right thank you as i believe we are all the same page that is we these are different cases that different tests for different types of situations here we have a barn type computers what the court said was that congress of course talked reasonably him and said in this lifetime ban the pain of their head and brought forth evidence that after a certain number of years individual convict individuals convicted of domestic group irrespective of how they behave right and that's why again so contemplative monk should be part of the group of domestic violence mr meet aunts who are not prohibited from having a fire you would agree to bring a successful as upright challenge you know you're good at best consistent with what i read in your brief because when i read your grief i thought to myself for five times oh they're paying lip service to the mention of once the court to do is to apply to churning and say that congress can't be even the slightest bit over inclusive in the way the law is written but a number of course have protected that and in heller the supreme court stated the laws t it is the man's individual sort of who is this person but you don't want you don't want the district courts to evaluate who the individual is you want them to evaluate whether the individual is a member of a group nine twenty two g is what to not have guns with those who might commit violent offenses i think the scenario you're on the purpose of nine twenty two g is to protect against injury due to firearms by keeping firearms out of individuals who want trustworthy with them so well the individual who commits a violent crime of course that's a significant risk but someone who leaves their firearm out on the coffee of his one seventy three debates that were from various states that were considered at the time that the second amendment which i guess is that point was probably the fourth amendment that was being considered also confirm for us to remember it's not being passed also confirmed that the common law the right to keep and bear arms did not extend to those who are likely to commit violent offens knows but is there anything that indicates that this is the type of person that should not be at least allowed the opportunity to present evidence that he serious at the outset of this about an hour ago are saying that it may not appear to have been violent at all in one nine hundred ninety and he hasn't done anything since then the nine hundred one may be tied to what such one maryland does but even with respect to pennsylvania pennsylvania didn't restore his right to serve on the jury and it's reasonable for congress to say but we're talking about his he had come to this quarter the district could ask them to serve on a has a right to unleash the police got the opportunity to show that the presumption of nine twenty two g should not exist with respect to him mr your honor and what we would