firearm outside the home without having been issued a valid firearm owners identification card is constitutional under the proportion of penalties clause of the only way constitution it simply has different and additional elements when outside the home with food cart it's the state merely has to prove that a defendant acquired or possess a firearm without having in his or her possession at that time a valid weed card in the specific words and this is a very short statured with cardiac as it is of simple it says quote no person may acquire possess any firearm stun gun or tazer within the state without  because those elements are simply not the same if one element if one crime has that additional element making it the greater it is by definition under hostile or clemens not identical they simply are not identical crimes here with a u w again even if those other elements were the same and as we explain our briefs there are other differences but that outside the home element is in addition to possessing that firearm without for that reason alone this differently so the question becomes whether these statutes contain identical elements when you look at the statutes that actually apply to the charged conduct in this case you reach the same conclusion as the lower court that the answer is yes the flaw in the state's argument is that it equates identical elements with identical language and that is not now the same  attempted similar arguments in people versus christie people versus lewis and people versus amends all three cases involve the comparison of q statutes to determine if they contain that a nickel elements and in each case this court determined that they did and that there was a violation of the proportionate penalties clause all three cases involved a comparison of the armed violence statute in other words the commission of any felony while armed with a weapon to another offense in christie aggravated kidnapping and in lewiston clemmons armed robbery each case is instructive to the present case because each apply the identical aliments toss just to the statute in light of the specific facts of the charge conduct and volved in those cases the armed violence statute does not contain any specifics regarding the type of felony or the exact rep and used it is only when the facts of each case are inserted that the identical elements court did talk about this being a racial unconstitutionality by what i believe the court was getting at with that as it applies to the facts in this case the u w statute is unconstitutional  because the way that juan williams was charge it is equivalent and the elements are equivalent to that in the foid card act so your are you conceding that there are could be a set of facts in which it would be constitutional  in fact this court in commons observed that identical elements house has never required that the two statutes be equally specific these cases therefore inform this court that the dismissal of the charges in this case must be affirmed the state's own brief on page eleven outlines the charges against one williams and essentially boils down to carrying or possessing a firearm and having not been issued a for a guard as charged by the state charge reveals that it only supports the fact that the elements are identical the state has made reference to an outside the home element and that is in the first row of their charge they talk about a location l m m believe in that case that would be a separate element that the state would have to prove but that is slightly different from the he's that we have here which is that the baseline conduct is but that's in the firearm and the  be the same i i'm trying to i'm trying to understand why that is not a separate album your honor it's not a separate element because as applied in this case and you have that section of the firearm you have  included offense to you but if you look at the state's own brief and the coltan case that they've cited on page one whether particular francis lesser included is a decision which must be made on a case by case basis using the factual issue and so i don't believe that mostly does impact this i think that's a question that the legislature would have to try to answer that kind of oversteps and goes goes to the super legislature type of arguments that they don't apply elements has to actually i believe that the it's not an issue of whether the punishment is more severe in terms of inside or outside the home because again it's the compass by both in the foid card act and that is the act that punish sentence that's exactly the issue that was trying to be avoided by the previous cases outlined here that was the charge that the state  offense which clearly violates the portion of penalties clause or no other charges remain an appropriate remedy as its middle of all the charges that impose a harsher penalty therefore we asked this that this court affirm the may please the court in a proportionate penalties analysis it is never as a plot it is always a show it is always a statutory comparison it is beginning and the end of every proportionate penalties analysis under the identical elements just is this court is explain the benefit of the identical elements test is that it is completely objective here defendant argues that act the people don't have to prove where the firearm possession occurred well that's certainly true and that is true of any time an offense is a lesser included offense of another for instance defendants mark even applies equally to the offens robbery an armed robbery robbery in the people never have to prove what type of weapon use you don't have to prove that there was armed with a firearm or armed with any weapon whereas with armed robbery there is that additional element of proving th felon actually was armed with a weapon so under the penance analysis here in robbery you never have to prove there's a weapon or not a weapon so it must be the same in identical as armed robbery that's simply not  determination not this court the legislature has made the determination that the unlicensed possession of a gun outside the home is more dangerous than the unlicensed possession of a gun inside so that's why with this additional element it is clearly  talks about christie lewis hostile or clemens those are all cases involving comparisons to the arm violence statute that is not the issue here this is simply looking at a u w statute and the card act and we know from this court's decision mostly in february of this year that that outside the home element remains part