and we'll proceed with the next argument on appeal kenneth flick versus the attorney general department of justice alan gura is here for the appellant tyler and trey or is here for the government and congress's authority to identify crimes that warrant disarmament those limits are imposed not by congress conscience or sense of self restraint but by the constitution and taking mr flix allegations at face value as required in a motion to dismiss those limits are exceeded here accordingly to this record order dismissing case should be reversed this case turns on three principles of law the st two are well settled and hopefully require very little discussion the rd one whoever raises significant matters st impression challenges to this provision have produced very different results nd courts can and must decide on the cases that are before the courts cannot announce precedents especially constitutional precedent that extends beyond the cases  paragraph of our opinion and rosevear and we said we find section nine hundred and twenty two dollars g one is a constitutional restriction on rosie or a nd amendment right but this is the important part of the opinion as we say the honor that because mr heller wanted to have a gun at home that he should be able to have a go to and the the court was responding to that assertion the court was simply respond to the argument that that what  do with with with the arm is irrelevant because he actually falls within the the disqualified class of the court stated that statutes disqualifying films from possessing a firearm under any circumstances do not offend the nd amendment  that he somehow stood apart from that class and that the considerations that are generally valid as to fellow members of his class somehow do not apply to him he simply never raised that that type of case i would say that the the the money quote as it were counsel this judge corrigan following up on judge wilson's question i'm not sure i'm understanding that the distinction between a facial and as applied in this context isn't really any time any time a convicted felon is talon ging this law and saying that they should be allowed to carry a firearm notwithstanding their felony conviction aren't they necessarily making as applied challenge based on their own individual circumstances i mean they're not really interested in having the entire law declared unconstitutional in all its applications they're just interested in having it declared unconstitutional as applied to them in their own circumstances and so i'm not sure why the distinction between facial and as applied helps too in the situation ok you are  the home are found to want to walk around in public with some type of firearm that holding would only then apply to that particular as applied challenge there was nothing in argument and nothing in the court's decision that's it that said this section unlike all other statutes is somehow immune from as applied challenges people can always come up challenges and say well you know under our particular circumstances that congress cannot a foreseen years reasoning apply equally and and as applied challenge as it applies to a facial challenge thon that based on that part of the opinion that i quote at a national bruisers reasoning cannot anticipate other as applied challenges even if it isn't as applied challenge the fact is rosier never brought to the court's attention any sort of argument or theory that there is a constitutional wanting their thinking that there's a constitutional constraints upon the film prohibition heller itself which this court and the presumption is overcome in a constitutional case when the predicates that would allow disarmament do not exist and historically traditionally that predicate has been violence mr could not claim that he was a responsible law abiding citizen his record is quite severe and so he never made that argument but heller right there tells us that it is presumptively lawful prohibition and the presumption is one that can be overcome when the appropriate factors are present as courts throughout the country of health there's only been perhaps one circuit the th circuit that is clearly for close as applied challenges most the other courts have been perhaps all over the place in terms of how they proceed to evaluate such as applied challenges but they recognize that we must be able to have as applied challenges to this this provision otherwise you have a situation where congress can redefine the scope of a fundamental constitutional right congress could pass a law felon izing some activity we're setting fencing arrange for some activity and thereby deprive people of the fundamental rights but fundamental rights do not depend for their scope on the last election fundamental rights depend upon whatever the framers understood those interest did not for close as applied challenges but it worries that quote such an approach applied to countless variations in individual circumstances but obviously present serious problems and ministration consistency and fair warning difficult and and for certain there are going to be hard questions but those are the questions that the constitution and the judgment act required the courts to resolve nd i don't believe that you're going to have necessarily an explosion of cases we have not seen sure then then there are several ways it could be answered st of all the government can do a better job not wasting resources on going after cassette copiers and other people who don't provide any risk and if and if the situation continue to be king we'll bring to the courts in congress could majority was that section one hundred and twenty two g is not on unconstitutional as applied to persons convicted of serious crimes regardless of the passage of time since the crime of rehabilitation i'm curious with mr flix challenge claim that it's a that the act itself is what counts whether it was violence or not we actually to dangerousness there are some violence there are some nonviolent activities which are still indicative of dangerous of the quite simply on the criteria is not necessarily whether a particular felony was violent obviously if a felony was violent then the net goes a very long way towards sustaining the prohibition but the question is was whether the person before the court is as heller instructed a law abiding responsible citizen and there are many crimes out there that qualify for imprisonment of over one year which do not remotely implicate any sort of public danger public danger is the constitutional standard that's the historic scope of the nd amendment the nd amendment allows secures people's right to to keep and bear arms but it's always been understood as being limited by considerations of public safety so we can disarm people who are dangerous judgment calls and that's why we have judges we don't have a system where we say well questions are are are fairly hard and therefore we're simply not going to enforce constitutional rights and we're not going to have any kind of judgment exercised i mean it's it's  this is original sin again right now and there are over three thousand federal crimes if we if we were to accept your argument would be a difficult burden on the courts to distinguish hears what if what if the facts involved sending a wire communication across state lines that would violate the statute and the communication contains are correct in that case and the challenges would  lose because the courts say that even though the act itself was nonviolent it nevertheless is part of a violent course of conduct threatened violence and it indicates a character which poses a danger to public safety and we're not going to wait for a person who threatens violence to go ahead and actually achieve the tools by which she can actually affect violence against people and so that's the type of case that i don't think would be very difficult for the courts i don't think any look at the individual circumstances of that crime and i think that goes back to judge wilson's question about the burden on the court well courts are burdened all the time with with making determinations and sometimes the lines are not exactly clear but we have to remember what you state here we're talking about a fundamental constitutional right which is being categorically deprived of people based on the length of potential sends that they could have received and we have a disqualified had they smoked marijuana in some states where simple possession is is such that it triggers a statutory potential sentence that exceeds one hundred and twenty two dollars to one dollar parameters i can tell you that massachusetts for example there are a lot of two and a half seven year old man who's been peaceful entire life and we are disarming him because he copied to sent tapes in the one thousand nine hundred and eighty s i think of james madison where here listening to this argument we could explain to him the concept of cassette tapes because after all the constitution allows for the progress of science and useful arts but i think you'd be mystified by the notion that the federal government would spend its resources in disarming people who engaged in such conduct we may need as they've come up nonetheless the courts are charged with resolving the closer judgment actions the courts are resolved or are charged with resolving constitutional claims and here we have a constitutional court that the court should resolve even if it's hard even if it's difficult sometimes even if it is to take time if we have the resources and if we've made a decision that we're actually going to go ahead and force section one hundred and twenty two g one to the hilt then we should also take some time to make sure that that you know circumstances do not offend the nd and then inciting to that language and however the court affirmed the permissibility of categorical prohibitions on the right to bear arms and the court held that statutory equally the plaintiffs here i were as judge prior did a few minutes ago if we were to set aside we're here for the moment and just look at the plaintiff in this case as a nonviolent person who  convicted of a crime many many years ago that itself was not a dangerous crime and who apparently had lived a law abiding life and under the hell and you don't you know agree with your opponent that james madison would be mystified by all this well i i wouldn't make light of plaintiff's two felony convictions here your honor i think that they are essentially still prior as a question about the scope of the language that you quoted referring to statutes disqualifying felons from prison possessing a firearm and or any and all circumstances do not offend the nd amendment as i understand it your reading any and all circumstance stances to modify i do not offend the nd amendment in other words they do not offend the nd amendment under any and all circumstances is that right yes we read the language difficult of a task it might be to determine whether or not an individual might actually go on to commit crimes of violence or to misuse firearms it is it is a very i can't overstate the f agents going out into the field and conducting factual investigations actually interviewing people in the field that still too many mistakes were being made and firearms was being restored to individuals who went on to misuse them and  courts are generally uncomfortable with the idea of saying that whatever is declared the a felony therefore by the adverse or learn i mean this is judge wilson let me ask you a question your client was your client was convicted of the illegally copying audio audio cassettes and smuggling them into the country if you used to use the gun system and smuggling the audio cassettes into the kind into the country we don't know whether he had a gun or used a gun or not but your argument is that he's a non violent fel of a drug courier or somebody who's flying a small airplane into an airstrip somewhere sneaking across the border and we don't know anything but now we don't we don't know whether a gun was used to smuggle the audio cassettes into the country or not do felon but having used a firearm during the commission of a non violent felony can you yes and if a firearm is used to commit a felony then that is a strong indication that the person stands ready to  commit a lawful violence and therefore that person has a very tough burden to to get any sort of relief and i think would you want thankfully mr slick is not that type of person and if he were d then that is something for the government to has gone as far as the government would like to this court to go and preclude all possible theoretical challenges to night from two g one all the other courts and it's so early in the game that we've not had a whole lot of these cases heller itself is were to write an opinion in your favor obviously or as there would have to be a draft and can you kind of precisely say what the court this court would say about roe share in qualification was possessing a gun in the home however the court never had before to claim that people might distinguish themselves based upon the fact that they are currently law abiding responsible citizens of people not responsible and then we had people who were involved biding responsible citizens and it was it was simply not a case that brought those two concepts into its attention into question did not address the question and it