morning everyone the first case is united states versus mars or ella stat was not a felon at the time he possessed the weapon he's never been found to be insane or ever mentally committed so he was not a person who was prohibited from possessing a firearm the firearm that he possess a twenty five caliber handgun is a small arms of the type that is covered by the second amendment so i guess the first question that we have is is this protected her and protected that is this fall within that that those class that class of circumstances that supreme court in heller said is protected by the second amendment or is it outside  and then we obviously we have different levels of review on all of that well why isn't this like the shotgun that was mentioned in our tell tell us why why it differs in your view sure your honor the shotgun exemption was actually grew out of the miller case where they were the national firearms act that been challenged and then heller the way heller acts explain miller was that in that case the the defendants had not proven that sawed off shotgun was the type of armed type of firearm that at the time the second amendment was adopted citizens would possess to bring with them to militia service and i understand your argument but i mean taken to its logical perhaps ridiculous extreme i mean there we didn't have bazookas back then the comic bombs that all i mean any they make clear that they're not saying that any weapon that could be used for military purposes is covered by the second amendment the way they limited the scope of the second amendment was to looking at what type of arms a citizen would be expected to possess and you bear bring with them to militia service in the court said that the type of arms that a person a citizen would be expected to bring to militia service is the typical small arms handguns or a rifle but certainly not a fully automatic machine gun you know i would think obviously the time second amendment was ratified they didn't have machine guns or  way i would categorize it they would say at the time segment was ratified a private citizen could have a can but they could have small arms in were expected to have small arms that they could bring with them to militia service and so that's th could be it could be used for military purposes and it is used for military purposes but the point that the supreme court made in heller referring to miller because they had miller that was there that they had to talk about was that it was not proven in miller the supreme court found in miller that that was a type of weapon that would have been useful for the military and the court in miller said they were did not feel that they were in a position that they could take judicial notice of the fact that it is a type of weapon that c used for the military here we're talking about a handgun the most typical form of small arms that there that there is in that in the heller opinion they were dealing with firearms in the majority in heller clearly found that small arms like handguns were exactly the type of firearms that were expected to be possessed by citizens and that they were expected to bring with them for militia service so i don't think that there can really be any question here that this is an firearm that falls within the scope of the second amendment and indeed the government admits as much in their brief to government dictate where and when a person can carry that weapon absolutely they can dictate when and where the person carries it but not with they can possess it in their home and i think that's a crucial distinction the distinction between if you look at the heller the statement in heller about how that the second amendment's not absolute in that their ruling doesn't should be taken to mean that all gun regulations would be found to be unconstitutional one of the examples they gave was carrying a firearm in sensitive places such as schools in public buildings i don't i think there's a meaningful difference between trying to criminalize the possession of the firearm in the person's home which the supreme court in heller said is the core protection of the second amendment if you start carrying that firearm outside of the home then you're getting away from the core protection in the farther you're getting away from the core protection the more the government has the right to place limits on you rights i believe and that was the point the seventh circuit was making and i'm don't know if i pronounce them right the scone case i don't know how to pronounce it but you know that was the point they were making there that you were talking about a rifle that was in his truck that he  was possessing for hunting purposes in the seventh circuit said we don't have any trouble finding that that conduct is protected by the second amendment but it's a couple steps removed from the core protection of possessing it in the home and therefore that's why in that case the seventh circuit found that intermediate scrutiny would be available you think the government has a legitimate right to regulate through the requirements  if the government were to in act a comprehensive regulation framework i believe that that could pass even strict scrutiny if but because if there were requiring registration of guns possessed in a person's home so that you're covering core activity then it has to be narrowly tailored to promote that compelling government interest but to do that they would actually have to establish a real registration requirement and that's not what the law does currently in fact the law prevents the government from using the serial numbers to create a registry all the serial number allows the government to do at this point is to find out who the first retail purchaser of the firearms that's it that's all they can find out in the reason that's all they can find out is because once you have that sale that first retail sale which the government clearly can regulate because it's a commercial sale of a firearm but once you have that there is no registration requirement there's no requirement to fill out any paperwork if you sell that firearm to someone else but as it does that mean that you're conceding it has some legitimate law enforcement use then at least and being able to identify the first purchaser and i would have if it has some legitimate purposes and not perhaps as you say the to the extent that you've indicated why isn't that sufficient because get to the standard in a few moments well i think the standard plays a part in answering that question your honor because the standard makes a big difference because i don't dispute that the government can require manufacturers to place serial numbers on firearms and require federally license firearm dealers to record based on the serial number the the sales to the first retail purchaser now it is a very limited use for practically speaking in this case the firearms trace show that the sold in bethlehem pennsylvania in one thousand nine hundred seventy two it showed who the first retail purchaser was and then it was twelve thousand four hundred seventy six days until the firearm was purchased by the undercover officer from mr mars or out can  e scrutiny if we were to use that level of scrutiny does this pass absolutely not ok you know what yes number one intermediate scrutiny starts with the presumption that the statute is unconstitutional it's a very meaningful starting position and then the government has to establish that the that the goal is in proportion in the the burden that the law places on the right is in proportion with their goal and here you still can't get that because the government won't pass the laws to do what they say it is they want to do they say they want to be able to trace the handguns through the serial number but they are unwilling to pass the laws that would actually allow them to do it when you think about it we do it with cars every day through vin numbers and when people even private citizens sell a car to another private citizen you have to go you have to fill out the paperwork system here does it make it any less of an important government objective for purposes of this intermediate scrutiny well first of all i think you have to be careful with putting too much weight on the government's saying that the government's need to enforce the laws is enough of a compelling interest because obviously that's a compelling interest but if you take it too far then you can use that to invalidate any constitutional right now but you have to severely burden the right using the intermediate standard if in fact it doesn't even restrict the ability to have a legal weapon in your home which seems to be the core of the heller case well your honor if it is a burden  submit more than a negligible or negligible burden and it goes back to saying that the scope of the second amendment is supposed to be the scope that the time that it was ratified because it was simply protecting a common law right that already existed i see my my time w is issue here wasn't passed until one hundred ninety nine years after the second amendment was ratified and if you allow the government if you do your interest balancing by first letting the government say we don't like these kinds of guns in there for only because we say so only criminals possess them therefore this is no real burden because only criminals are going to possess them when they get the ring the game they always win that balancing test because they get to say what guns are ok in what guns are not ok and the whole point of the second amendment was to restrict the government's ability to do that please the court more when from the u s attorney's office on behalf of the government it's the government's position in this case that the district court correctly held that nine twenty two k is constitutional the district court looked at it in terms of being presumptively constitutional constitutional why isn't there the core protection here it's not a core protection your honor because several reasons one there is not a broad class of individuals like there was an heller that are prevented from owning up in possessing a firearm hell prevented all responsible law abiding citizens from possessing or owning a firearm for purposes such as self defense in the home nine twenty two case simply says it's illegal to possess a firearm knowing that it bears and obliterated removed altered serial number doesn't speak to a class of individuals second nine twenty two cases not bar an entire group or tired characteristic or type of weapon as was the case in heller that it prevented any law abiding citizen from owning a handgun within the home for purposes of self protection and that's just not there likewise the the only burden which is minimal in nine twenty two k is that it must bear a serial number that is not altered obliterated or removed and that's very minimal because it doesn't change us mr patten about the character of the weapon the type of weapon to it to the government it's relevant whether or not at the time the second man was passed whether or not firearms were serial number because it was still a handgun handgun as a handgun does not change the the user's ability to defend themselves that's the core right identified in heller it's also the government's position that in this case the court should look at this statute under the rational basis standard say before you before you get to that it's undeniable that it is it is the weapon of choice to defend one and in the homes i correct according to the supreme court yes and h yes and this is all about interpreting heller that's right figuring out what it's there and i and i guess according to heller this is the kind of gun that people would have taken to their militias at the time the amendment was adopted he would agree with that as well that's correct ok so the only change and also there were no serial numbers on guns back in those days that's correct it's your basic position is that it is not part of the core protection because it simply implicates a class of handguns a type of and gun the use of the handgun is still the same but it it let me make clear what our position is on an all type of handgun but when the supreme court spoke to the type of handgun it was speaking in broader terms than what mr patten would have you have you follow it was speaking in terms of a handgun a handgun is no different if it bears a serial number in terms of its performance in the way it's used if it does or doesn't bear serial number so our position is you look at the character of the firearm i think that it's very dangerous as judge of ours pointed out to talk about specific features on a firearm in terms of whether or not that was around at the time the second man was passed and whether or not it's still going to be permitted today i mean if you look at just the technological changes of firearms i  think it's very dangerous if you don't look at it in terms of its overall character but this is a shotgun analogy help you in this the reference to the supreme court to be perfectly honest i hadn't really thought about it in those terms i was focused more on the fact that it's a handgun  doesn't change by its it all by virtue of the placement of a serial number on it or good you're about to talk about the the level of scrutiny right if we get beyond any discussion of the level of scrutiny  that's a political to this type of statute obviously has to begin with but no twenty seven of the supreme court's decision in heller and the government reads that footnote in its surrounding tax to say that when there is a statute that under the pretense of regulating destroys a right it cannot be evaluated under a rational basis level of of review and this statute by comparison is many steps removed from the statute examined by the supreme court in heller as i said it doesn't bar group of any sort of individuals from the sas your own a firearm within the home and it doesn't bar any type of firearm from being possessed or used in the home for self defense but so for those reasons we believe that rational basis is still available to review a statute such as nine twenty two k that imposes such a minimal burden on the right identified in heller and twenty two simply as i said prevents possession of a firearm knowing that it bears altered obliterated or remove serial number and the rational basis test as mat is not not only be for the reasons i mentioned scope and the nature of the weapon but congress found that firearms without serial numbers are untraceable they're more flexible for use by a criminal because the only other case that i found that discusses nine twenty two case lou it's the virgin islands decision cited in our brief it's really a very cryptic analysis and i think the reason why we haven't seen a rational basis in these other cases is because perhaps those statutes don't fall within the same type of category as nine twenty two k if they do provide for example felony possession that's a class of individuals that might require a little bit more scrutiny than a statute that is like nine twenty two k it simply requires a step a serial number that doesn't affect the use of performance of a firearm could you apply the rational basis test here if we did what will your position be it would be that it doesn't it barred entire class from ownership it doesn't barnet's a type of firearm it doesn't affect the performance for self defense and the congress had a good reason for passing on twenty two k as that's pretty much set forth in our brief i'd like to point out to the court that is mr patten mentioned this is an as applied challenge important it does your honor and that's my second point is mr morris rather would like the courts remember that he possessed it in his home but he deems irrelevant the fact that what he was using it for he was using it for a commercial purpose he was transferring it away he sold it away to the undercover trooper so under an as applied analysis the court needs to look at all those facts there's absolutely no evidence in this case mr mars or possess the firearm within his home for purposes of self defense so when mr patten talks about within the home that's a valid point but it has to go one step further the supreme court did not identify a blanket right possess firearms within the home they said firearms within the home for purposes such as self defense so i think it's important to remember those limitations would that apply how would that are you talking that's going yes assuming i'm pronouncing it correctly yeah i think the statute would also there's a i don't want to use the wrong words reasonable fit those two tests are so close their words but there certainly is a reasonable fit between the government's interest in keeping track of firearms and as indicated in our brief there's complete disagreement between the parties as to the usefulness of firearms tracing and to take up a point made by judge shikaris just because the tracing system is not completely robust doesn't mean it's not useful it doesn't mean there's not a reasonable fit the tracing program achieves its goal of taking the firearm back to its retail original retail purchase beyond that there's other tools that  enforcement uses that often lead to where that firearm went before it ended up with our defend it it also can continue to provide information on a broader scale in terms of straw purchasing trafficking those types of things it's multipurpose it's not just getting to this individual defendant which can be done with a combination other techniques in addition to serial number tracing is are you aware of other cases and the country where the government is is proposing the rational basis test cases that may be in litigation i personally i'm not aware of any it's my understanding from the you that the analysis that takes place of the department about heller and the standard to review is is circumspect it's it's detail that's multilayered it is putting the rational basis test out there is not something that's taken lightly it's not a decision that can be made by an individual a usa one final point i would like to make is that heller talked about the rights of a law abiding citizen a responsible law abiding citizen for the disaster use a firearm within the home for purposes such as self defense mr marrs or rather would like you to believe that those phrases law abiding responsible somehow equate to mean something having to do with a primitive person i'm not sure what the relationship is between those phrases but i was that wasn't before the supreme court in heller but i would urge the court to look askance at the notion that mr mouser relit is responsible law abiding purposes the person at the age of twenty three which is when this offense was committed he had a criminal history score of five and that included a simple assault during which he tried to strangle a woman he pushed around and you better on the shoulder so i don't know that mr mars or elles efforts to make himself on all fours with the defendant and taking that last point first the simple assault conviction occurred after mr mars a relative was it was before he was charged with possessing the gun but is after chronologically was after he possess the firearm that's why he was not a prohibited person and as far as the law abiding citizen the the heller court in doing its historical analysis of trying to determine  scope of the second amendment was focus on the fact that felons had been prohibited from possessing firearms and therefore that's why the felons they're not they don't even come within the scope of the second amendment because at the time that the amendment was ratified common law right to possess firearms just didn't apply to felons but they did make a sharp distinction between felons and misdemeanors and you will notice that mr marrs or all of was not charged in any way with being a prohibited person in possession of  firearm the sole charge was possessing the firearm and that is important also to sermons comments about the as applied challenge it isn't as applied challenge because i'm not saying that section one thousand two k would be unconstitutional in every possible situation but the only conduct charged in this case was mr marrs a relative possession of that firearm in the only evidence about his possession was his possession of the firearm in his home and that's never been disputed by the government now the fact that he ultimately sold the firearm to an undercover agent can't logically mean that he did not still have a core right to possess that firearm if you accept that that proposition then someone can own a handgun have it in their home for self protection but then decide some day that they want to sell it advertise it in the paper the erie paper in the personals there's guns for sale listed regularly under the government's version as soon as those in the district courts for that matter the second that they put those guns notice them for for sale somehow they lose their right to register if it's in the nature of registration requirement and they disclose the ownership of the gun as a way of determining or perhaps legitimizing that weapon couldn't the question as to whether or not  the regulation overburden that there is a discussion that perhaps this type of regulation is presumptively constitutional if you follow the litany of permitted uses that heller gives and one of those happens to be registration and the question then would be if they permit registration is this a legitimate form of registration that could be enforced by the government your honor i would respectfully disagree that gun place well they said that the statutes that govern the commercial sale of firearms were presumptively lawful but i think there has to be a reason why they put commercial sale of arms because even currently under the uniform firearms act there's a sharp distinction drawn between commercial sales of firearms that have to be done through federally licensed firearms dealers in the private sale of firearms under current federal law a private citizen can sell a firearm to another private citizen who is a resident of the same state without doing any paperwork whatsoever there's no requirement that any very well briefed and very well argued take the case under advisement