may please the court my name is peter wolf i represent mr con say but we have in this case isn't as applied challenge to the constitutionality of regulating under the commerce clause of your possession of a firearm by convicted felon and i think it's important to note that and in fact this court has noted that in the field of criminal law enforcement where the state power is preeminent national authority needs to be it's mentioned in the footnote that it does not alter our analysis meaning the ninth circuit's analysis and yet the question that that suggests as well why not because and somebody should have argued that constitutional duty act it's a decision interpreted in the meaning of the statute as it had a vote on those that are not that i don't respect your argument but as you know as a three judge panel we can't just go back and re argue our existing prece we're to do something that grant grants you relief then it has to be something that's within our jurisdiction all power to do right and what is within our jurisdictional powers your own let's within your jurisdictional power to do is to acknowledge that the reasoning of hand in the case of the law after it has been undermined by the subsequent precedents of morris and rake even though  i think the rate case makes clear in resolving the question of how you deal with the third category of lopez analysis that there's a distinction between a closed regulatory scheme and one that isn't and so i think you could take this court's precedent which in the coal oil which dealt with pornography and you could take what happened post rake in terms of search grants and vacations of decisions and you could say look in the child pornography area the supreme court has an open question that's why they granted certain vacated these various judgments around the nation about whether the child pornography regulation is a close regulatory scheme and i appears to me that it is and the reason is because there isn't any kind of child pornography that you can legally sell in terms of the machine gun case that was this court case the homemade machine gun the court vacated the judgment there granting cert and remanded for further consideration although the panel hasn't yet issued its opinion and i think you could take the view that with respect to machine guns you have a close regulatory scheme over this back to firearms in general that's not true the scheme that  the statute twenty two g or even the entire chapter deals with does not proportionate to in a closed regulatory scheme regulate every aspect of the manufacture distribution or possession of a firearm and so when you come down to that i think that's right but on the other hand i think that part of the problem with the analysis has been both the government's insistence in fact i think to a certain extent this court's view mistaken in my view that so and therefore i think that situations change and then when we have the rate case we see that perhaps the distinguishing factor is the existence or not of a close regulatory scheme and i think here it's clear that the firearm statute that we're dealing with does not involve a close regulatory scheme and i think that makes a sufficient difference to make it actually a distinction that this court could rely upon to grant relief morning they please accord him larry tung assistant united states attorney from hawaii i would respectfully suggest that my my friend mr wolf is in fact asking this court to do what it should not do a three panel overrule other decisions of other panels of this court i don't believe there's a way to reconcile the existing precedent with the position that he is advocating without flatly overruling that he characterizes his challenge as one being to the statutes constitutionality as applied and granted that is done on a factual basis case by case but that very challenge has been rejected at least twice by this court both in the hannah case and also in the case of united states last year in the worst case another and all of this court also reaffirmed the lidia of the prior cases finding that nine twenty two g was constitutionally valid because i think if we talk about north state or talk about what we're talking about which is the third category of regulation it's permissible under the commerce clause according to the lopez morrison  the mere possession by a person who fits in a certain status in this case mr concept case that of having a prior felony there's no suggestion that his possession or anything was economic activity there's no suggestion that  that they were regulating the channels of commerce or anything like that and so we have some cases and this one i think the scheme that's invision by the constitution and fi states certain law enforcement prerogatives and in fact it's the states which just goes to be criminate it actually has the police power not the federal government and yet this statute and the way it's applied here and in other cases really turns that whole scheme on its head so that the federal government becomes preeminent in regulating the possession of firearms by felons or illegal aliens or or others substance abusers and in the scheme of the constitution of the federal government is a government of limited powers turns out to be a scheme where the federal government in this area according to the united states turkey has essentially unlimited powers that can't be the proper result of commerce well