let me just say first he was all counsel and all affected i thank you very much i mean you i believe understand that we had a technical difficulty the most severe sort that requires us to do this again and i know it might be difficult the thought might be i said that but nobody knows he said so you've got to say it again so we're going to ask you some but not that we as a panel and as a court a very aware of the time parameters that are involved and we are working with a our briefs about hour and strict scrutiny which i hope to have time to get to but i want to go right to kronk to step two of mars a rela and intermediate scrutiny and provide the court with two independent legal reasons why we when even under the defendant's preferred legal standard in the first is it relates to mcallen and bernie and those cases require a rigorous examination of the state's decision making process bernie's states quote the government must show either that substantially less restrictive alternatives were tried and failed or that the alternatives were closely examined and ruled out for good reason close quote mcmullen adds it is not enough for the government simply to say that other approaches have not worked rather the government must demonstrate that alternative measures that burden substantially less speech would fail to achieve the government's interests that you should read to say that it's a wholesale placing of all of the rational and has the first member of the second i agree with that that would be over reading that statement but it does say the principles  we look to equal protection and intermediate scrutiny we see that justice ginsburg in the b m i decision engaged in a thorough going searching dain ovo review all of the alternatives and the explanations and the rational deference and that's the sort of searching heightened scrutiny that you see across an immediate scrutiny intermediate scrutiny only comes into play as far as we can tell in three numerated rights  they are number one on the free exercise of free speech and the equal protection clause and in all three when you've got a distinction between strict scrutiny and intermediate scrutiny you  work over extended periods of time that we should disregard it i mean you know they they did what they did you say it's an inadequate how specifically is it it's inadequate in a number of respects your honor there is not a word not one word about a myriad of different alternatives that could have been considered and were were not number one a ban on assault weapons not a word about that number two why would you do that if you already have  o well because they have to look and see will there be any marginal incremental value we're restricting or right and so we know in order to push it further they need to have some rationale why the rules that are in place  are not a particularly in light of their twenty eight year history it isn't what happened legislatively in new jersey evidence that they have they looked at ten before and they stopped at fifteen based on the information that they've gathered over time their notes they're now seeking for it to go from fifteen to ten the information they gathered over time your honor with respect there is no information they've gathered over time there are only four instances in all of experience of other states and what we see in the other states is that if there is a very high circumvention rate eighty one percent of the time in the states that have banned these we see mash routers circumventing the new i met and going out and using thirty capacity magazines in you and that's in the record of this case and your from your position and because it's been in effect of that a higher and higher quantities there should be no effort to try to reduce the lethality that that a large capacity magazine permits took it under bernie and mcmullen and v m i and every manifestation of intermediate scrutiny it's their burden to show that there weren't less restrictive on herman divs that were considered and that won't work and those fall into two separate categories so category one is they need to show that what they've got that far isn't enough and what they have thus far is a ban on assault weapons a ban on carrying carrying these magazines outside of the home and a ban on more than fifteen they also need to show that there aren't less restrictive alternatives that they could have considered like background so i guess i don't take their burden to be that there be no circumvention i don't take you to be arguing that and i take the core of their logic to be you ok we have restrictions outside the home but in the home because donahue and others testify magazines are stolen you know criminals get them on lawfully even people who are law abiding turn wallace or go crazy or something so even if these why are these alternatives mutually exclusive if this would restrict if they could prove if they had studies that this would restrict shootings further wouldn't that be enough to send a second immediate even if other measures would also add some delta on top of that well i don't think so respectfully  and is done rather quickly and easily so i don't understand you know you say less restrictive i mean just in theoretical wyatt's it's an imposition but i'm trying to figure out just practically speaking why allows for mashers to discharge more weapons and more rounds and the converse i think what you're saying is that means this kind of magic allow a homeowner to have equal at equal footing yes exactly which is why detective stanton said that when he's on duty he always likes to have fifteen mounds because it's a tactical advantage and so the question is are we going to strip law abiding citizens of that tactical advantage and allow defendants to continue to circumvent that which we see they do eighty one percent of the tottenham's if the right is one to keep and bear is the keeping part of it limited to actually discharging or just  the potential to discharge simply possessing your honor is sufficient and i do want to answer your question your honor which is that professor collector i believe testified that he can't recall an instance where someone had discharged more than ten but the record  that is one thousand six hundred and sixty three per year and so we have we have more discharges in the home then than what you've characterized as the quantity of active shooting mass shooting incidents yes your   skilled on average what with their weapons so what is the you you want to make a decision because you believe and i i don't know that there's any evidence in the record of this that there's a tactical advantage to homeowner who has less six less experience and less skill with fifteen as opposed to ten when the amount of ammunition is determined by how much ammunition the homeowner wants to make because as i understand your experts your experts are saying look to put in another magazine in  i believe it's two to four seconds yes and that's true whether you're a skilled police officer or a homeowner so i'm not sure i'm getting what the distinct disadvantage is to the homeowner this this the the  three l c m fifteen's or however you want to do it and i'm not sure i'm seeing the distinct disadvantage ok so there's a lot in that question so let me try though be responsive if i man so you start your honor by saying that well law abiding citizens are at a tactical disadvantage already as compared to criminals because criminals planned the time and the place of their attack and that's true they criminals have a tactical advantage in that regard that's not a reason to give them a further tactical advantage of stripping law abiding citizens of the magazine so that they want to have for whatever reasons and in addition the criminals can come with multiple magazines even if they didn't circumvent even if they're part of the one thousand percent that don't circumvent criminals can come with multiple magazines if you're asleep in your bed and you grab your or your firearm next to your bed you know now you're have to have multiple magazines in every room of your house to defend yourself it's just it's a tactical disadvantage and for whatever reason it cannot be taken but i want to go to a second independent legal basis why under into media scrutiny we have to win that yet well so he looked at the evidence and he said well i'm going to look at this testimony and he said it does not the testimony that i've heard does not convey what the impact on mass shootings will be of this item and then he quoted their own expert saying is your argument sweeps so far that no one could ever be the first to pass a new restriction i agree that more studies could be done here and we could talk about what's in the record c n n study but in a situation where someone wants to be the first jurisdiction to try restriction and you were logic would suggest that governments can't try it because there hasn't been a study and there aren't going to be data until someone tries something new in a federalist system can't legislators experiment with new things based on plausible reasoning in inference rather than saying something's already been tried your honor that is not our position our position tracks what was supreme court excuse me what this court said in burning which says the alternatives were closely examined but were less restrictive and ruled out for good reason they can be the first if they look at less restrictive alternatives and closely examine them and bury their burden of showing that they didn't follow them for good reason but here we have the opposite because in addition to the panel play of laws in new jersey that are on the books they fail to look at how trying to tighten the mentally ill zz access to firearms but what i don't understand is first of all these other alternatives aren't so exclusive second of all they do make the point that the bulk of people who commit mass shootings they obtain the weapons lawfully they don't have criminal records a lot of them don't have mental illness diagnoses they would have passed any background check let's at least assume that there's a substantial fraction mass shooters who satisfy all those criteria so background checks are not a less restrictive mean for that i have gun for you ok which is registration requirements which have a renewal period so every period of time you have to go in and get a new registration and there's another opportunity for the state to ensure isn't the same category that the judge has to let's assume they're right that seventy one percent of mass shooters would would meet this until the at the previous registration they appeared to be law abiding if there's a substantial i don't care if it's seventy one percent of thirty one per who would have passed all these background checks and registration and watch the less restrictive alternative going to do here well your honor they they have to show it's their burden to show that they carefully consider under bruni they have to show that they carefully considered it and that they had good reasons this is not rational basis review where the court can invent for them alternatives and reasoning that never occurred to them you can search this legislative record and you will not find any consideration of these often or so you're not saying in the abstract they couldn't but they haven't yes you're certainly saying both you know but i'm saying that they haven't that there are myriad of different alternatives they could have considered and they didn't but it would have been gracious whether they would have good their reasoning would be good enough we don't know they didn't engage in what else besides background checks on the table here you said the fifteen capacity limit and background checks for mental illness her criminal is the other any other alternatives you say they should have considered that they didn't there are watch us for the mentally ill that were saying in some places that's another alternative that doesn't what's the purpose of the less restrictive target well that seems to be saying if the less restrictive the alternatives are no good then why use them and if that's true if they can show it's their burden and if they can show we carefully considered them and they won't work there's no evidence in the record that any of the people who they're trying to affect that is the mass shooters fall into any of the categories you talked assume twenty thirty percent would be caught by the watchlist that still leaves you a large population of mass shooters for whom the background checks and the watch lists etc are going to do anything there's nothing in this record it's their burden they haven't met they didn't consider it and they're now asking this court to do the work that the supreme court and that this court and burning says is their burden to do i want to do a redo we can all have back discussion at that time but on this record we have to win under bernie  you know millions of of weapons are in circulation held by millions of law abiding citizens for lawful purposes in their homes and this is connected  to the notion of a class of arms because i am going to refer to the first time the first time you said that the l c m falls into a class of arms and i'm trying to understand a little better  into the dangerous and unusual category of not falling within the ambit of the second amendment what i'm trying to understand is this horror identified handguns or i'm so focused on one hand guns obviously a class of the air fifteen in cobi in other cases is a class of organs when we think of the semiautomatic rifles and handguns in this case i should be thinking about class of arms because if those are two examples of class of arms i don't understand how an l c m could be likewise classified as a class thank you your honor so let me address classroom arms common use in colby if i meant ok so on the class of arms this court just need to look at mars around mars around give you the task it says is there a functional impact on the category is it a is it a is there any functionality to the category of arms that have been banned there was arms with obliterated serial numbers it had no impact whatsoever on the functionality and so mars or i was at for that reason  was not a class of arms here there is an impact on functionality you can only shoot ten bullets at a time that's their whole case if there is no impact on functionality they lose all right off the bat because their whole thesis is that this is going to make a difference improper to regulate no your honor not at all it would be a class of arms but remember that's only part of the test the other is that it's commonly possessed by law abiding citizens for a lawful purposes that's why  a machine gun is a class of arms but this court was absolutely right in one pow meadow to say but it's not protected because it's not commonly possessed by law abiding citizens for purposes the class of arms is only one part of the burden that we fifteenth protect your honor that issue is not before this court but in terms of functionality it would depend on which features some of those  features do improve the accuracy of the firearm so that is a but that's not sort of the devil's in the details because they're defined in different states in different ways but let me go to the second question your honor about common use that that concepts are relevant because the test is whether it's commonly process and how other says quote for whatever reason for whatever reason as long as it's lawful purpose is commonly possessed by law abiding citizens for a lawful purposes and so how it's used you know whether it's target whether it's hunting which is one of the first to school i thought excise military use so let's go to coping because i think that's sort of a flavor of that he said m sixteen the like those that are most useful for military purposes and what colby in the fourth circuit is treated that is like a separate text saying oh well the speaks of dangerous and unusual it has to be dangerous and unusual and what we said is that these are two sides of the same coin that the reason that m sixteen s and the like the machine guns are not protected is states supreme court in staples is quote the civilian for of the m sixteen the civilian person it is a a r fifteen you get one bullet and only one bullet every time you pull the trigger with an m sixteen it's a machine gun and that's a big difference and that's right of the state but the state of least the conversation in the circuits at the moment is fifteen years military what i'm trying to get to or or weapons similarly situated if you will should we exercise those on the theory that they are dangerous or unusual from from consideration here you're honor that is a separate issue that is not before this court but to the extent this court were to find that to be persuasive then that would be a reason to strike down this magazine ban because this state new jersey already has a ban on assault weapons on the by any one of them and there's nothing again going back to macau and there's no consideration of what's the incremental marginal value in one of the questions your honor was about well that the universe of people that they're catching up they're catching up for there are four in all of american history who have used one of the banned magazines eleven through fifteen for a mass shooting so that's something to take cognizance of i want to talk about why strict scrutiny should apply for a moment if i may which is that whenever you're talking about targeting of cool or feature of an enumerated right strict scrutiny apologize and more importantly the concept of burden there been a lot of questions about what's the burden on the homeowner and the concept of burden under strict scrutiny is utterly and completely irrelevant if there is an invidious racial discrimination against someone nobody looks at well what's the birth and how  on that victim of that invidious racial discrimination and a key case is read versus the town of gilbert from twenty fifteen there it was a first amendment case where a town had two different regimes or you could have a directional sign  for non profits like churches and then directional signs for everybody else and there was a distinction and they said that's a content based restriction strict justice buyer and his concurrence lamented that the majority was not looking at the program saying look we just look to see what the burden is of this law and the majority said this law quote might seem entirely reasonable and they struck it down so the heller was focused on the handgun and the opinion explains why a ban of those was going at the heart of the quintessential self defense because of its size its its we it's easy to handle a less likely  hundred and thirty three million of these that are of awfully possessed by law abiding citizens in the united states and what helen teaches is that the people the people have been empowered to make the choice as to what arms as long as it's an arm that's protected and as long as they're owning it for lawful purposes of what they want and the american people when they under them thirty three million of these are speaking loud and clear that for whatever reason and maps the words from however for whatever reasons this is these are the arms they have chosen to defend themselves with their home and the point they were lawful lets assume there was a point a particular item that was unlawful hence unavailable presumably you are commonly possessed firearms owned by law abiding citizens for a lawful purpose as if it's not commonly possessed there may be some other problem with it but it doesn't violate that particular aspect of heller  takings i just want to make one or two quick points number one it is not the takings cause does not permit them to require someone to surrender or modify their property and here's an analogy i'd like to give which is if the state of new jersey told people you have a choice you can get rid of your car or you can take out the back seat of your car that would plainly be a taking it would be a physical alteration  you could continue to drive around with the passenger in yourself but the capacity the capacity of the vehicle would have been changed it would have been physically altered and that would be a taking the more apt  let's give a little more maybe we're going to are strict your speed to seventy miles an hour right which it does affect functionality but you're really not supposed to be going faster than seventy miles an hour anyway classic is a restriction you know the difference between to use restriction and a physical alteration innovation really the best analogy is you have a van that carries fifteen people and now you're told your van can only carry ten and the state says in both my way most people don't have twelve kids so it's really not that big a burden anyway could have an interesting discussion on whether that's have to go ahead thank you your honor the final thing i just want to say is there was some discussion when we were last together about the registration option and i just want to be crystal clear on this you know what our position is if there were registration available that would be a taking we would still be able to possess them and use it but this is a null sat they have never been able to point to any magazine that would be available for registration and if there's any doubt about that the court could just enter its order saying they're enjoying from taking any magazine thing we've been searching you know for the unicorn we haven't found it mate maybe there is one there hundred thirty three million ok so maybe there is one but they haven't been able to identify one we haven't been able to identify one our clients don't own them and so we certainly for with respect to that universe of magazines which seems to be all of them but perhaps it's only ninety nine percent of them that can be modified and are required to be modified then it the legislature on questions of public you know if it happens what evidence is left after the district court to its great credit found that the experts and i read that passage to be all the experts who testified were on helpful on the specific issue before so this is left now there's four kinds of evidence in the striker even taking apart the allen clack i'll turn to professor donahue last understanding that you read that arguing indifferently ok so separate from professor donahue there are three other kinds of evidence first there is other record expert evidence such as page ten eighty seven of the record which is the study commissioned by c n n that does the test of state by state analysis of states that report of a study of an expert commissioned by c n n i'm not brought into court i believe not provided to poems not subject from examination we don't have a list of the variables you could have brought that ian to support knowledge on i don't believe that there was and your honor i would just disagree a bit with some of the report was characterized it does mention some of the variables in the c n n article that were locked up population and prevalence of gun ownership was mentioned there it's not peer reviewed and you didn't provide underlying data that the kind of ordinary either scholarly or or court member serial process wasn't followed here there's no evidence that the only evidence that there's no doctrine that says the on the evidence the legislature can rely on engaging with it ts work which is sort of one of the questions and then we can separately tease out ten versus fifteen but it does note that capacity limits are effective in that you'll see a sixty three percent lower rate of mass shootings in the states that have capacity limits compared to the states that you're not so that was obviously evidence state could rely on to believe that capacity limits were themselves effective and will be more evidence we can turn to about the ten vs fifteen question in particular now beyond that there's other evidence in this record from experts at page thirty of our brief we know a new york times survey of experts they were asked to rate a range of firearm safety laws and they rated capacity limits as the most effective way to tackle mass shootings in this country and the other kind of evidence which builds on the expert evidence that we're talking about is law enforcement evidence so in this record you can find declarations and testimony from the baltimore county police department chief the baltimore city police department chief the clark county nevada sheriff a colorado us attorney this is sixty five of the record nineteen of the record ten twenty seven of the record all confirming their views that in their experience both capacity limits will not impossibly burdened self defense and that they will help mitigate the lethality of mass shootings in this country so that sort of law enforcement evidence that the state is certainly free to rely on based on their expertise in this area and then the third bucket of evidence that i would note before again turning to professor donahue is that every circuit to consider the question and address these facts canvassing the same studies the same law enforcement declarations and testimony have all found that a legislature like new jersey is free to find that capacity limits will be affected ok lots of marriage we have a sex classification all right that only males have the capacity to be firefighters but if women pass a special physical test they can become firefighters because then they can show they have the upper body strength so it's not an absolute ban on them but just a limitation when becoming my read of cases like is you might get police fire chiefs who testified in my experience men make better firefighters i found a few exceptional women who do you might get a survey that said that the best way to make sure that people get carried out of burning building is to have male firefighters carry them you might have several of the courts that upheld them at the time they did the intermediate scrutiny case law says that's not enough it's a statistically predictive generalisation but it's still not enough to show that you have to pursue this as the means of ensuring that firefighters are strong enough to carry people outside of buildings so the kind of evidence you see it's not nothing but historically it hasn't been enough to satisfy an immediate scrutiny  this court has been very clear that the way you handle second amendment intermediate scrutiny is not necessarily a one to one with sex discrimination only during case you are then seeing the intermediate scrutiny here can't mean the same thing it means first or second amendment i'm not saying that can mean the same things if you look at  intermediate scrutiny cases in the sex classification contexts whose cases are very clear that a lot of the analyses that have been done were infused with sex stereotyping there's no evidence here that sort of analysis was done with infused stereotyping about the second amendment right and so there was a different danger that cases like funky arrow were combating in this case this court's precedents are clear on the way to handle these sorts of questions in the second amendment context and every circuit is agreed so if you look at the drake case the great case is explicit that the legislature is the one that's supposed to address conflicting questions of empirical evidence which is exactly the sorts of things that opponents suggest are in this record and you also see cases like five or the second circuit case and why s are p a a that are saying there is proper deference to the legislature for making predictive questions on public safety and the truth is your honor you can't expect controlled experiments in a context like firearm safety and so in certain context where you might imagine that there would be controlled experiments you simply can't have one under institutional review board norms but you can have natural experiments some states have adopted these some haven't we had a federal firearms for ten years large mostly magazine b m for ten years so you don't have to do controlled experiments but you have natural experiments and you don't have the evidence in the record that you could have from that i can agree with that and i started because professor donahue in this record lays out that the federal ban was significantly more effective than a college suggest so he knows that from hundred ninety four to two thousand and four of the ten year period of the federal law there were twelve mash routings and eighty nine deaths yet from two thousand and four to two thousand and fourteen ten years after the lapse of the federal ban there were thirty four mass shootings and three hundred in two deaths and that's at  ninety nine eleven when i read his cross examination that's about twenty thirty pages in the record after that i read them to concede yeah this is not actually based on the specifics i have been able to control proposal but things i can't say with confidence that the federal ban itself was the cause of that your honor you're right that he can't control for the other things because he was comparing ten year periods but that's the natural experiment you were asking about different from a controlled study and so if you look at other natural experiments that have been done book rampage nation that we mentioned in our brief at page thirty two that refers to the same analysis and says he found staggering results of the time period between the federal ban and the lack of a federal law so during the federal law the number of mass shootings went down thirty seven percent shootings went down forty three percent after that law lapsed mass shootings went up one hundred eighty three percent and deaths went up two hundred thirty nine percent so that's additional evidence by experts reviewing this sort of natural experiment that you're referring to that again suitings because the l c m ban was quote the most important part of that federal law and that because of a grandfather clause in the federal law he would expect to see some of its results happening more slowly and so that's why some of the subsequent evidence like the twenty sixteen book rampage nation that i'm referring to that sort of subsequent analysis that he teased what happened and so if you look at page ten eighty seven that sort of c n n article we've been talking about there is a quote from cooper again suggesting that l c m laws are likely to be effective and that's what the state by state analysis shows how do you  adversary's challenge that there was no consideration of alternatives as he suggests is required by barry so i think that's simply not right your honor and the district court found as a matter of fact that that wasn't right because the district court la out exactly what we suggest so the district court made a specific factual finding based on professor donahue's analysis that the majority of shootings that have taken place in america were perpetuated by previously law abiding citizens and so when you walk through each of the various analyses that we're talking about a background check even a background check with a renewal period i test about whether the restriction is inside the home or outside the home none of those speak remotely to the problem of the previously law abiding citizens because there's no way to guarantee that someone who previously wasn't a felon or previously wasn't discovered to have an episode of mental illness won't in the future engage in a mass shooting and that's unfortunately what experience has taught us let's as specifically new jersey has a law that we bless kidnapping victim didn't satisfy that set up so i take it that the main issue satisfies your concern outside the home and then your case boils down to that in the whole there's a danger of people all extension of may issue to the whole more than satisfied that there's a small number of people who are going to have a major issue or sensed by me you shoe and yet the people who satisfy me issue are the ones who have a powerful rationale for having someone  being pursued by a group of four people after she abused woman escapes from the clutches of a drug gang or something so they're obviously incredibly compelling stories for individuals who have gotten the may issue licenses that you're referring to but there isn't the evidence that that's going to be a more effective way of preventing the problem of mass shootings in this country because it doesn't guarantee that that individual is not going to lose their l c m or that it's going to get stolen going forward to that individual who at that original screening appeared like a completely new law abiding citizen while not one day and engaging in a mass shooting there's no you were ticklish no sounds like it flipped the burden of proof it doesn't guarantee they haven't shown that but i thought the obligation was on contested that we just simply think we're able to meet that including based on the sort of logical reasons to understand that another alternative would not simply solve the problem and that's explicit in the florida bar vs went for it case that logic and common sense is a part of the legislature legislative arsenal here and so when you look at the sort of reasoning behind the proposal that you simply extend the may issue regime to in the home when it comes to oil cm's you will readily see that because the problems that end up with and that's why every court to consider the question has upheld these laws and to me it's no let me let me back up for a minute you know what the what we have suggested in cases like mars around is that we first look at where there are there's a substantial were severe burden on the core of the right and then we decide what the level of scrutiny is in new goals was suggested we well we have to figure out how important this is and then we decide which group you were across and your coloring within the lines what we suggest in these cases but there's a circularity in our cases it seems odd to not first decide that strict scrutiny is applies or intermediates cooking pot and then apply a level of scrutiny here and i don't take you to be more than ten shots with this is that this is not like more zarella where there is no functional effect on the bill defending the home there is some effect you can you can non zero said here this isn't like simply not having a serial number are we not in strict scrutiny land at least in the whole because to ask whether there's a severe burden on the right is to then find out what scrutiny is applied to whether or not this will actually achieve its desired goals so you can do the analysis about the burden on the right to self defense in the home before you decide how strict your scrutiny needs to be to whether this will work to achieve its ends at all so there are actually two different questions that you're asking each of the steps i would get dominion is trivial no effect mars a roll of it doesn't seem to matter what you do there it doesn't affect defending the home when you start important words like severe it  does sound circular to me so i think this gets to my other explanation which is what heller to the d c circuits opinion on point made clear in this case which is they did an analogy to the first amendment on this particular point and said that when you have a sort of time place manner a modest burden on speech where you're free to exercise your speech in a variety of ways not only a modest burden you're going to apply intermediate scrutiny as the district court found in this case of page twenty seven of the record an individual wishing to engage in self defense in the home can own as many guns as many magazines and as many bullets as that individual chooses it's simply that that individual cannot fire more than ten bullets at a single time without taking the time to reload that weapon right so that that though i mean the problem is you want to say there's you know the effect  both but that's also going to impair the ability of mass shooters of the whole mass shooter case comes down to the magazine changing time because the mass shooter can buy a bunch of weapons in these mass shootings typically there are a bunch of weapons and there is requires is inferences about how wall for the mass shooters going to get tackled during the changing of the magazine so i agree to be good whether or not there's a sort of inconsistency in that position but i do not think there is for us and it's a question obviously that could be asked of either side but the reason there's no inconsistency for us is that we are saying that there is a pause to reload your weapon but we're saying that when you take a look at the record there are almost no instances of anyone ever having to fire more than ten bullets in self defense and instead as heller to found relying on the d c chief of police it's actually dangerous to keep firing so many bullets in self defense because of the respect that would pose to bystanders so our position is a mass shooter we know he's trying to get off as many shots as they might as they might be able to do and as limited a time as they have here is that simply not the case for  defined there and that actually ties directly to why i'm reducing the limit to ten from fifteen it will be particularly effective in this case which is as professor donoghue explained and as law enforcement like the baltimore police department chief have agreed increasing the number of pauses that you will see during a mass shooting episode increases the number of opportunities for an individual to get away or for law enforcement or a bystander to try to intervene to end the mass shooting and so i understand the columns of pointed out that the record contains evidence of four episodes of a mass shooting with someone using a fifteen round l c m but in this case if someone's using a thirty round l c m it's about the number of pauses that you would see in the interim deal so it's not just the number of times someone has used a fifteen round l c m it's about what the difference would be between a fifteen and attack and so when you reduce someone to only having a ten round l c m they're able to get off your shots during their attack what's your response to the circumvention issue you know the slogan good law abiding citizens are going to be bound by this the criminals if there are millions of years in circulation are going to get them anyway so do we why do we think that there's going to actually going to be a meaningful effect  ability to pass new regulations individuals who are able to own firearms or of the kinds of firearms up those individuals could own so be the same reason why you would say that a ban on certain kinds of felons in possession wouldn't work because they'd simply circumvent it with every  consistently up elbows so the argument proves far too much but second there's also empirical evidence that you survive point out that a lot of individuals are accessing their firearms legally entering gaging and their crimes locally and so that's why you see things like this study we refer to it ten eighty seven of the that class of arms should we be thinking about from that universe there should be certain weapons that should be excised from our consideration here or is that just not a question think of a r fifteen as dangerous and unusual so it's not protected and so it goes and in that direction if you will and guns according to your  however they are protected i understand your argument those years would not be i totally get that i'm just trying to figure out should we be thinking about the universe of  way to tease out the step on analysis given the other grounds that are available to this panel here but i do think that if you're teasing it out it is important to note that there are going to be certain kinds of weapons that categorically should not get second amendment protection based on their extreme dangerousness and their analogy to military weapons which is exactly what the code required in the fourth circuit explained that there are certain weapons that are particularly lethal particularly inappropriate for self defense use in the home those particular dangerous for law enforcement so a perfectly good example might be the plastic weapons that the state of new jersey recently passed a law to regulate or weapons that don't have any metal components meaning that they could get through airport security they could get to court and security government buildings security and the like if you take appellants arguments to the logical conclusion you would say ok well there is a class of arms that does not have a metal component that is if it becomes popular elsewhere let's just say other states not regulate it it becomes popular elsewhere because popular elsewhere it's now a popular commonly known class of arms the state of new jersey can do nothing about it and in fact what would be especially weird about that logic would be that even if new jersey could regulate it right now if these plastic weapons gained in popularity in other states in fifteen or twenty years it appears that i would then become invalid because they're now a commonly on weapon feature that i've never seen before and second amendment analysis but is the sort of logical consequence of opponents argument so i do think it's important to play some having limits on appellants common use fast which is just used up pointed out is also pretty circular i take the difference to be it's not at all obvious to me what the defensive property is of a plastic weapon where you're an expert conceded there's a defensive property to having a larger capacity magazine but your point is well taken that the way that we craft our class of arms well to take into account features like that that might or might be reasons to regulate yes i certainly think it would look that palin's also put forward a test like maybe it's an integral feature now relevant to defensive gun use it would put the court in the position repeatedly of deciding which features of a gun are integral or optimal or ultimately support stronger offensive gun use and i think those are some tricky and growing questions this court may not want to engage with and simply does not need to engage with within the confines of this this a categorical ban on a class of weapons in new jersey so if magazines of the cost of weapons we certainly don't think this is a categorical ban on them it's a safety limit on the number of ammunition or the amount of number of bullets or amount of ammunition that the magazine that you can have a magazine lawfully holding so it's a limit that goes down from fifteen to ten and it's much more of a safety limit on weapons than a ban on an entirely new kind of weapons and that's how we explain it and everyone they get not necessary to get into and be interested in usual you've bypassed it but you c shock ons is that they're dangerous and unusual and that their conceal ability fosters their use in illicit activity and that it is also dangerous and unusual because of its heightened capability to cause damage we don't ask any questions and about the number of shark barrel shotguns that were owned in the country and asking that sort of question as judge used to point out is inherently circular because the number of weapons that our own in the country has everything to do with where truck ins are lawful and which ones are not well judge minyon pointed out i mean in the fourth amendment reasonable expectation of privacy we do that all the time right people's expectations are shaped by how long the iphone has been out there taking pictures and doing other things so that this would not be the only place law were we do that all the time for there's really nothing in the text of the second i mean we don't think the phrase dangerous unusual is nearly clear enough to sort of impose a subjective reasonable mass requirement into the second amendment and i just go back to the magazine classed conversation magazines it's general proposition class your view is this law doesn't categor magazines because it allows for people have a capacity limited magazine our large capacity magazines class of weapons so we don't think they are policy just sort of l c m's are themselves a class of arms specifically because we have defined them as such but that's simply the mechanism by which the legislature is regulating the capacity limit in the state so they have a definition that says you can't have a large capacity magazine and then in the definition section they say that's ones that used to say fifteen rounds now they say be this was asking about it goes back to the strict scrutiny point this will regulate what a lot of biker can have his house her house my first question is would you and now gys large capacity magazines to the handguns that  called the quintessential self defense weapon and if not not why thank you on this tease out something that you mentioned to a college which is that we believe that the differences between the l c m s in this case and the hang on that issue in however are myriad so if you read page six twenty nine of the supreme court's opinion and heller it lays out exactly why handguns were different and why a ban on handguns in the home was particularly onerous for self defense handguns not only were they the number one weapon used for self defense in the united states but they were actually better for it there is here the store and readily accessible locations they can not as easily be redirected or wrestled away by the attacker they are easier to lift for a person of small stature and they are easier to lift even with one hand so an individual can use their other hand to call the cops now large capacity magazines are none of those things so as the record shows over a four year period under the n r a his own self report database there were seven hundred thirty six defensive gun uses and only two of them involve firing more than ten where the average was between two and three maybe two point one or two point six depending on where you look now appellants of suggested it argument but the actual number is four thousand six hundred and sixty three defensive gun uses a year in the home with over ten bullets fire but they do that by taking overall analysis of defensive gun uses and then take the two out of seven hundred thirty sec six number that allan identified in her study and as professor deming david hemenway each other last found is it ten ten and ten thirteen of the record collector numbers the denominator has never been validated and multiple external efforts to validate dr quites numbers have fallen short and so when question was asked can you identify any instances of both of the two that we see allen pointed to for self defense in the home with more than ten he was not able to identify any and if they're right about their numbers it would be about eight hundred thousand in four years and would be reasonably shocking that appellant's and their own expert in this case and in other cases is unable to identify any others and the last thing i would just note on that point in the way that handguns are different for self defense and l c m's are is that law enforcement agrees on this so the baltimore police department chief at ten twenty four the record says that there's no need for more than ten rounds to be fired in self defense and has identified zero instances in which he has seen that and also that the baltimore police chief a ten twenty five of the record agrees with the d c circuit that actually using l c s in self defense would be dangerous because of the risks posed to bystanders so it was a fairly long winded answer there but there are significant differences between handguns and i'll be honest i did say was that your basis well let me ask it without telling you what i thought you said but you tell me why is this law if it regulates something in the home not subject to strict scrutiny is it because it's not the kind of handgun that heller was trying to protect it's not the kind of thing on how i was trying to protect but at a higher level of generality because as mars or i look at it you're looking for more significant burdens on the core right in order to trigger strict scrutiny based on the analogy to the first amendment at the d c circuit trail and you simply don't have that here whereas you would have had it for handguns and how our counselor we've already talked about the circularity i will i will believe you that point but so the ability to possess the potential to fight off larger attackers i mean maybe it satisfies strict scrutiny or maybe it says it has media scrutiny but that itself is protected in your analysis has been going straight to whether in fact that many bullets need to be that's because in the way this analysis works we're trying to find out how far the burden go so we don't contest that heightened scrutiny is appropriate and we've applied intermediate scrutiny in our brief specifically because it involves use in the home and so we don't quibble with that at circuit cases have pointed out and i understand your view that mars around the had a circular point here but as third circuit cases of pointed out in figuring out whether using strict scrutiny or intermediate scrutiny within the heightened scrutiny framework you're looking for how severe the burden is and in this case there's simply if it affects you right in the hole it goes straight to scrape it's got to be what's the bird we asked what the burden is on self defense in the home so they're linked together as part of one question and you have to be the first up and then you would go into o intermediate scrutiny have you done enough the state between september and here to show that this is reasonably likely to advance public safety and based on the evidence by the legislature based on the evidence in this record based on the evidence and the records across for the other circuits to consider the question we think there is enough let's assume very briefly to equal protection because i know it came up briefly last argument and i just want to clear up one thing about the distinction between retired law enforcement officers and veterans i mean veterans and active military so we one of the potential questions that a judge could ask in this case would be about the veterans and why there is no exception for veterans in this case where there is one for retired law enforcement officers and our view is that that distinction is supported by the difference in your regular training over a period of time and it's not a training session that everyone can take but it's whatever monthly or quarterly you said it better than i was about to say that's exactly right and the reason now i understand was some question about veterans versus active military which weren't distinguished on training in the same way so i just wanted to explain how the exception for active military works which is not that there is a special fifteen  m exception for active military active military are exempted from the whole gamut of new jersey firearms whether it's assault weapons or trigger activators or what have you they're broadly exempted from state firearm laws specifically for their service weapons so in the language of the statute weapons authorized under the relevant military or law enforcement orders and only if actually on duty or go into a from an authorized place of duty now it's perfectly fine not to extend that to veterans because they don't have service weapons and they're not traveling to or from duty there was no reason to be concerned about the veterans versus active military distinction and the other distinctions are supported based on training and the supreme court said it would have failed any level of scrutiny including intermediate scrutiny there was no deference in mcallen they had to there was a rigorous examination of the state's considerations and envy in mind there was no deference there was discussion about the c n n study that study cuts our way it treats ten and fifteen round kept the same for purposes of that study and likewise the new york times survey draws no distinction between ten and fifteen round magazine packs again law enforcement we were told about these affidavits none of them address ten out versus fifteen round magazine capacities we were told that the other circuits have gone the other way well and heller nine circuits got it wrong and respectfully we would say then judge kavanagh's dissent in heller too is the most faithful reading of how were we were told that intermediate scrutiny in v m i could be distinguished because of stereotypes what big state is advocating for is watered down intermediate scrutiny as i said if you very cross intermediate scrutiny and the other context in which  plods it is rigorous and there is no basis for treating the second amendment as a second class right we were told that there were natural experiments even if there weren't empirical studies there were natural experiments on new jersey's had a natural experience that for twenty eight years they've had a fifteen round cap and zero mass shootings we were told that that trend that the district where the hunting cabin fall into the category it doesn't actually meet their definition it meets ours but here's the point thirty round magazine circumvention j one hundred nine two one one two three eighty one percent of the time we were told time place and manner there is no time there's no place there's no manner where these can be purchased they invoke the pause there's no limiting principle to this pause argument and it looks at it from the long perspective the perspective of the criminal not the law the district of columbia's entire pitch and how are was to say over and over again criminals prefer hand guns and the supreme court said it does not matter what matters is that the people want them in their home and circumvention we were told it proves too much but here we've got highly motivated individuals and one hundred thirty three million of these magazines it is not it argument does not prove too much and here's the last point they say that the core there was a suggestion that the core only a pious to possession of handguns in the home through what binder up on barack which already said quote at the core of the second amendment is the right of law abiding responsible citizens to use arm arms not hand guns arms in defense of hearth and home and they have they did it they have never contested that these magazines are not arms they contest that it's a class of arms but they've never said that they're not arms and find it up makes clear that this strikes at the core and must be treated under heller or strict scrutiny thank you very much