a couple minutes for rebuttal certainly counsel and they face a court there are three issues before the court this morning the first issue is whether the amended version of the aggravated unlawful use of the weapon statute applies to this case and that's the first issue in the supplemental briefing this court ordered last month the second issue is the constitutionality of illinois aggravated unlawful use of a weapon statute that's the first issue in the original briefs and the final issue is the constitutionality the events that gave rise to these convictions occurred on june twelfth of two thousand and eight and mr aguilar was convicted in part for possessing a firearm and when he was not on his land or boat or place of business best not proof beyond a reasonable doubt of one of the elements of the offense because this exception to the statute it's not an affirmative defense it's much like the it's the same as the other exceptions within the statute that require the state to negate that element beyond a reasonable doubt and here the testimony i didn't see mr aguilar with a gun and any right is not proof beyond a reasonable doubt that there wasn't that element of the statute and those situations for example even if the defendant were to say i didn't have the gun i've never touched a gun in my life that would relieve the state from their burden of introducing evidence issue wasn't raised and i have you know i sent a grateful dead where allowed to brief this this issue of the but i agree that this this issue is now before the trial court however the record of the record is silent on the permission and the permission aspect so i would say that when we've since in a sense this would be that element would be a sufficiency of the evidence argument i would ask this quarter of you to review the record as it is and i would assert that because the record doesn't prove beyond a reasonable doubt that these two friends who had been friends since grammar school because the record is silent as to whether there was permission given i would assert that the state had not with hundred out met their burden off of this record to prove the statute on statutes i have my argument is that this is not a situation where this court needs to go down that procedural substantive dichotomy because this is a clarification of the law and not not a substan amendment can be further indicative of the legislative intent and i think in this case i think the two compelling reasons why these amendments are clarifications not substantive changes in the law the language and the riginal intent of the bill and these amendments past two days later unanimously so i think there's a clear indication from the legislature in terms of the legislative debates and the second compelling reason is that these amendments were passed on the heels of a faulty judicial construction of the statute and in people versus price and people versus price the defendant was convicted for possessing a firearm doctrine of statutory construction regarding clarifications it's held that if an amendment contradicts a recent interpretation of a judicial construction it's a indication of clarification of the of what legislatures original intent so i would say here that eighteen months after the price court decision the legislature moved to to clarify that this sort of possession is actually not criminal effect and when it was passed so if you look at the cases in econd which actually the statute inec and was written a wage was i suggest to assist defendants by saying burglary is a lesser included offense of residential the other and if you look at listen if the state legislature decriminalized it least repealed an act which held that a possession with intent meth or ingredients for massive is criminal berkeley was not a lesser included of residential very late so there wasn't a controversy as to that aspect and this controversy arose a believe over whether garage would be part of a dryland so there was a controversy there  needed clarification i think in that sense if the legislature had been moved to say oh wait a second a garage is part of a of an attached to well and then in that sense i think that then perhaps it would have been  what the second amendment protects and and the distinguishing distinctly that between how it is applied to the facts of heller and mcdonald because the very first sentence of the mcdonald decision is two years ago in heller we held that the second amendment protects the right to keep and bear arms for the purpose of self defense and we struck down to d c law that banned possession of handguns in the home and i think there's a a wealth of discussion in both of those cases that indicate that the second amendment doesn't terminate when somebody leaves their front door and in fact i would say that the both the minority and majority opinions and heller macdonald i think except that there's a role here for lower courts to be applying the second amendment so these sort of situations  in mcdonalds would not have incorporated the second amendment at all but justice stevens does go on to say that if it is to be a quote but it should have been only incorporated as to the facts as to the facts of heller as true only applied within the home and case well i would say that the numerous times of the say we find that the second amendment guarantees an individual right to possess and carry weapons in case of conversation in case of self defense i don't think that the state would argue analysis of the second amendment they cited to not versus state where the georgia supreme court struck down a bet on the open carry of pistols that her decision described that opinion as perfectly capturing the purposes of the operative and preparatory clauses of the second amendment and also the language that when they describe that the the rights are most notable within the home or the right of the segment is most acute within the home and it and i think that for that for those phrases to make sense that they would have to exist outside the home for some sort of dick we have a cutie here and so i think the next question for this court should be if the government is going to burden this right how much can the burden and is it justified and so far that the state has has taken the stance that they don't have any burden at all to justify why law abiding illness citizens can't carry particular statute doesn't satisfy any of these models and i mean by that that the state has an argue that there's any sort of historical prohibition and carrying firearms outside the  home because there's not that the state hasn't argued that the entire state of illinois is such a sensitive place that they could prohibit firearm possession outside the home and the state hasn't argued that this is sufficiently tailored under any form of heightened scrutiny and i would submit that the this particular statute is not tailored outside the home or one's place of business it is an outright prohibition opening up some world of mayhem where where the state would not be able to regulate firearm possession and that the reason i would say that this statute this specific statute is not tailored it is that there is no registration requirements there's no background checks there's no waiting periods there's no open versus concealed carry there's no no prohibition on certain places schools government buildings that sort of language that came from both heller and mcdonald  those concerns are legitimate and i think the mcdonnell decision when it when it held this rights to be fundamental it said that because it's fundamental in the the silly will limit but it will no way country the vast majority allow some sort of carry outside the home and that sort of care is highly regulated so the fact that this very specific statute is unconstitutional would only move illinois so lately closer statute the the long this is very simple if the legislature wanted the statute to be retroactive it would have sets out he knew that otherwise the statute on statutes would kick in and then there would be a question of whether it was substantive or procedural if it was substantive as it is here it would not be retroactive defendant's arguments tries to basically bay that issue by claiming that is that there's a different rule that comes in because it was a clarification that that if i think that's based on actually i know it's based on a representative bradley's pitch when he amended the statute to add the invitee language not the permission language when he made that catch several legislators most of whom i believe are from cook county  vehemently disagree with him that it was in any way shape or form a clarification i think that the reason that he wanted to make a clarification if you read price is that he was the person who set what in the vote was and in price the court he pointed out that that was made at the request of the bill's primary senate a proponent senator hagan the national rifle association this version not the one that representative bradley tried to characterize as a quote clarification was the one the house accept fact when he got back to the house at one point during that discussion and representative bradley was advocating in its favor he court he characterized it as a significant change over his initial  version in fact the legislators who criticized him at the initial hearing when he brought in the invitee thing were concerned with the lack of the permission element when it was approved on august twenty fifth two thousand and nine it became effective on that date with the substantive change it has no bearing on this particular case because defendants conduct occurred well before that i would instances even in those instances the actual law the new law will not apply retroactively and cannot be applied retroactively unless the legislature says so explicitly and they didn't recognized as momentous is how it was it was equally limited and was limited in there to it's sad it out with a simple case where somebody said i want to have a gun in my house and the d c regulation said you can't have one you  inject about the right because the right wasn't the issue before it the right being the right to you know what is there a second amendment right to individuals that wasn't what what macdonald was focused on dallas focused on was the incorporation issue is that  at the outset they said at the end along the way they dealt with various complaints about the possibility that that that that could be construed in a way that might offend criminal and i think that sort of exclusion has never been an attack on second amendment grounds the only cases that i've found that are dressed it said that it is still proper to regulate guns and to prohibit minors half individual right to bear arms it was addressed to the on i constitution's clause talking about the right to bear arms and they pointed out that the statute had a number of it was it was not a total ban as the be and invitee who had to be the invite to work invitee and what but proof was required and basically the legislature said that that would be up to the courts but in this case which is an invitee there is a huge there's a well i side was up for the courts was my reading of the legislative history but if you believe that they're aware of the existence of statute and stitches which i don't believe for one second then you could believe that they'll leave it to the courts and somehow will impose a law that they haven't written and i so far has not touched on the circumstances present and a lot of courts have interpreters in fact a lot of it no i mean most of the litigation in fact litigation that this was such on the defendant's supplemental brief actually involves holmes i just want to point out one more thing you said we did cite a number of cases the talked about your rationale for having this assuming there is a constitutional issue here and those cases are all the ones that and just just a couple of very brief points the state is attempting to parse the language of legislative debates but it seems that several instances when it says this is a clarification but even if you were to  parse that language had to be not a clarification i don't i don't think that would get your around the fact that this came on the heels of people versus price and it is in terms of the constitutional issue here just as in the bill when you be a sensitive place and i just want to sort of back up for just one second i did want to mention this court is aware that in terms of the statutory construction issue that if there is an ambiguity in this statute which i think there is because this this court review that review the statute under strict scrutiny but i think that might be an academic point and that i am are i am arguing that this is not tailored in any manner so granted courts have been using intermediate scrutiny to examine these laws and  certainly they're under intermediate scrutiny you might need less tailoring but i'm asserting this is not outside of the home or the business and this is not tailored in any manner so so i'm arguing that this is when pass any sort of constitutional  muster i would ask this court to reverse aguilar's first conviction on statutory grounds and in terms of the constitutional questions i would ask this court find that the state has a burden to justify these laws and it has not met that burden