inherent right of self defense i think inherent there means some sort of a natural right to self defense and we respect we submit that the millions of undocumented immigrants like mr prez have the inherent right to self defense just like the rest of us and that the l two things that this issue is sort of at play in the supreme court in the pending case the appeal from the circuit the challenge in new york city's regulation about transporting foreigners into firing ranges and stuff like that and so if the court is you know inclined to just use intermediate scrutiny i would ask the court at least hold off on that because the court may decide because at issue there is that one of the plaintiff's complaints there is that court should use the rather than intermediate squares that that case may be mooted sure  the the argument about the people for a minute to focus on what concerns be which is the justification assuming that he has the right and what is the government's justification which you don't we have people who are in the country illegally so they have they have shown disregard some disregard for our laws secondly that they are subject to deportation and and it's  not and for law enforcement purposes it's not terribly advisable to know that you're it's not good to know that when when when you're going after person to deport them they may be armed and and that they have a right  a st is that when we think it's true strict scrutiny that applies and therefore why that is and at least restrictive means of achieving a compelling and i think even the laws defenders would agree that it's sort of over inclusive and also under inclusive in some way so under strict scrutiny i think it's still fail but under intermediate scrutiny if i may address each of those up as to meet the reason so the st st is this notion that well you know these people have they're not law abiding they've already violated the law every speckly that sort of is just rehashing the point that we've already there your honor has said we should skip passes whether they're part of the people and i think that if we agree that through historical protection or analysis that aliens or immigrants are part of the people then the question is what is is this sort of some they are they still somehow non law abiding enough force to deprive them of this right let me just let me just interject if i could you know in jimenez we acknowledge that special category right and that's kind of that for the reasons that judge us knowing offers pointed to so we've kind of acknowledged and validated that notion without great scrutiny without great analysis and certainly without level conduct is really just a felon and you know just the fact that his family came through that in a court martial rather than a court should make any difference and hell itself says that whatever we say about the nd amendment right we're not questioning a law banning felons and the mentally ill but you've argued that the ban of gun possession for undocumented immigrants is over broad and over inclusive and similarly you can make arguments about that with regard to felons and people as a subject dishonorable discharges but we were willing to accept those product categories given the importance of regulating guns to the state yes your honor but i think i respect i think that's because he's essentially a to make about law abiding this is that it's not a self defining term like you know it is someone who has a lot of speeding tickets or someone who you know doesn't pay child support or you know regularly doesn't file taxes is that person law abiding well you know part it depends how you define it and we wouldn't tied in with the whole notion of the fact that as a general matter the undocumented alien doesn't want to be found out wants to keep things secret knows that they're here illegally and therefore if they know they're here illegally are living with that why isn't that a sufficient basis on rear media scrutiny for the government to say you shouldn't you shouldn't carry   almost begs the question or circular in that it's saying that well you know just the fact of undocumented status means that you are someone who sort of shouldn't be trusted with guns because well after all you're undocumented live in this sort of secret world idea that you know immigrants are subject to removal and so are you about that well that's both grossly over inclusive and under inclusive over inclusive in the sense that i mean even lawful immigrants are subject to removal and even i'm a naturalized citizen i could be you know the never face removal proceedings and so it's a justification is over and under inclusive do you think the government should be put to producing additional evidence data evidence regarding the use of guns by undocumented immigrants before we see just under in their intermediate screw need a government can't just again just get away with what this court call shoddy data or reasoning there is no data here in fact about the data it is is it helps us which is that undocumented immigrants are no more act of possession is necessary and sufficient for a conviction under the statute and so the fact of how he used the gun is irrelevant legally under the statute and so if you look at his allocution his guilty plea elocution he simply says that he possessed a gun and so and this is how this court's cases in other courts have treated an as applied challenge in this context i think the th circuit case the defendant pointed a gun at somebody and there's a maybe the th circuit case the defendant had a gun in a trunk with a bunch of silencers and burglary equipment and then jimenez itself to defend it wasn't in the process was helping someone illegally sell a gun and heller said that again the nd moment doesn't affect those kind of laws laws  regulations sales guns but then it but the courts in all these cases did not take into account the specific conduct in evaluating the constitutionally law very good ok when you have two minutes of rebuttal and we'll hear from the government please  thank you our may please the court kevin trial for the united states as my colleague and friend describes his clients as applied challenge it is in effect a facial challenge and i think that's the question that's the issue that the government is trying to address in the st portion of its brief this case in the government's view is not in fact about whether mr perez has the right to possess a handgun in his home for purposes of self defense because that is simply not what happened here and heller itself proceeds from the premise that the right under the nd amendment is not a right to keep in carry any weapon whatsoever in any manner whatsoever for whatever purpose the reason that we are here in the  place is because heller says there is a limited nd amendment right to possess a firearm for specific purposes and it's for that reason that this court in bryant for example found that you are not entitled to possess a firearm in your home in connection with a drug crime because the drug crime is not a lawful purpose that fits within the scheme set forth in heller so i think at the threshold what we're talking about here is an absolute dearth of facts as he describes his clients as applied challenge he's describing every person convicted under this statute that is not as applied you know i have to say that there's an absent are the facts also with regard to this legislation written one thousand and twenty two g in the categories we've acknowledge past decisions that it is can past and russian response to certain public events terrible events and that there was very little discussion in the committee reports or wanting and usually on an intermediate scrutiny we look for data we require preproduction of data and pass to support gun legislation just promise did so in this state case i think with regard to certain elements of the legislation that have been passed what do we look to here other than just our speculation about why congress might have chosen to make possession by these categories in this particular category individual illegals into it is so broad or i think  the st answer to that is you don't need to reach that question for some of the reasons we just discussed i don't think there is even a factual record here for the court to addressed mr president challenge but if the court were to reach the question of scrutiny actually them if they were more worried about that in you men as the reason the court didn't address conduct in characteristics is because in that case it raised a potentially raise difficult questions concerning the scope of the right he was a citizen he possessed a bullet in his pocket it would have require an analysis of how far hellers right extends beyond the home the government's immense on this case either there are no facts in the record because what we have is a bare bones allocution or at most we have a sworn complaint and the video that you're on a reference showing  discharge in broad daylight on a city street clearly not protected by heller however if the court reaches the question of scrutiny i think the judge to brownnose decision your honor just referenced there certainly the evidence a deuced was sufficient it's not necessarily clear that it's necessary and although in general the court has required an intermediate scrutiny that the rationale matched the purpose we have sixty six circuit courts that have addressed this question three have rested on scrutiny your man has rests on scrutiny and those cases no dad i mean there's no we'll let you detail study people are looking to common sense and speculation in some of the factors that we've been discussing about whether violence would be more likely or not with this category the individual right or no i don't think that's the russian i don't think it's whether violence is more or less likely among unlawful ends i think as judge walker pointed out and as we point out in our brief there at the compelling there's no question there's a compelling interest in law enforcement gun safety so on so the brought in a broad sense firearm regulation is a compelling interest from there you move to the fact that these are people who are not traceable there is a separate prohibition on selling firearms to them it's illegal under new york state law to possess an unregistered firearm the challenges attendant to that are doubled when the person who's attacked whose possessing it is also untraceable so all of those things together the government can't dispute that there is not data in the record of these acts in the one thousand nine hundred and sixty s linking gun possession or violence to unlawful immigrants but in the government's view there's no case that requires that under this these circumstances and here is a matter of common sense to permit a class of people who are themselves untraceable to possess firearms which the government has a compelling interest in tracing would just simply defeat that overarching purpose you see there's no case firearm that he reminded on and looking and looking for support for the regulation what i'm what i'm taking issue with is not that we need a rationale of course the government has a rationale that needs to be linked but but you were asked about data yeah so he's really i take it that wh you're saying is that when a gun is used in a crime and it's found and it has a registration stamp on it we know we know what the with the make of the gun was and from that we we can figure out who the manufactur was that is not enough we need to find out go to the manufacturer and find out who they sold and eventually you're saying it ends up in the hands of somebody who can't be traced and therefore and then it may have gone through that person to this person so we're not sure you know whether how the person got the gun is that what you're saying well i think this case the facts of this case are an illustration of the problem here you have in july a shooting and you have a video turned over to police four days after the shooting in july there's an individual firing a gun in broad daylight on a brooklyn street only through happenstance did the government end up recovering that firearm months later in a separate shooting and then only then could they work backwards to the person there are host of problems attendant to crimes committed by an awful allianz and i'm not suggesting i don't think this is in any way intended to know i'm just talking about the treason regime here but i think those two issues are linked because the traceability of the person and the traceability of the firearm it compounds the problem so i agree with you that yes the problem that you've identified walker is the one the government's identifying that issue is compounded by the un traceability of the person and i think it sort of doubles the problem  amplifies it frankly in a case like this where you have possession by an untraceable person potentially it's being passed around more specific it seems to me than just the fact that there is sort of underground that that in fact there is a regime here that depends upon the ability for a t f to trace firearms they see a firearm it's on the ground they want to know who used it and they have to go back t manufactured it and then they've they work down to to find the find the perpetrate the last person who added them and maybe in some cases they trace it back to the person from whom it was stolen that that happens as well but in all of those cases that's a useful process for law enforcement and a necessary one and obviously a compelling interest that nobody questions in this case no one's doubting the government's ability to to regulate firearms in that way but i just want to also point out because these are obviously these are what makes these questions difficult is that they're sort of unbounded i mean the question of scrutiny is is a tough question in any case when you're applying it to the government's view of this particular case i think there are issues that the court can and should reach before you reach that question of scrutiny that are in the government's view far simpler this is the defense the defendant is the master of his challenge here and he surely could have a deuce a factual record that wo let's for example say the government was arresting an unlawful end in his home and found a firearm that was in a case under the couch or lock we would be in a vastly different situation here and arguably there th would be talking about law abiding we might be talking more about the people there are no facts here and so at most there is either nothing or there are facts harmful for him and his position is that the guy is that the court should ignore those facts because he chose to plead and so i think the government's point here is if the court either surpass either passes that issue or agrees with him on it it is in effect permitting a facial challenge where he acknowledges one is not permissible so i think the court can reach those questions and it's not that if after me again a facial challenge is not permissible because because no as far as i'm aware no court has permitted a facial challenge to us on a nd amendment grounds particularly where even where courts have hinted that one might be available it's only where the conviction of the defense that particular defendant itself eyelets the nd amendment and then the court sort of expands that analysis outward so and we cite some cases in our brief on that point the th circuit in carpio leone also talks about and you meant as talks about this as well the law abiding this of the defendant as being separate from the question of his or her membership in the people the membership in the people is arguably the trickiest question here it is one of that relates to historical facts that are simply not in the record mr president raise them so i believe it was the th circuit who when faced with that issue said how do you expect us to decide this when you haven't given us the historical record you want us to decided on but the th circuit and you men as look at law abiding this actually as a as a threshold question about the application of the nd amendment and so where as  menace and here and incorporeal leone the defendant is not a law abiding citizen and i i think we're mincing words if we suggest that an unlawful allien is at the same time loft law abiding if the person is not law abiding they're not within the scope from the outset and so i think at that at that threshold level we thought one could take different approaches to that given the dimensions of the undocumented community in the united states and i a general in that i think there as well we have no dad i think there are a couple of things there i mean that may be true and the government's not necessarily taking a position a global position but here i mean and i think this goes back to another threshold question and we have to look at this particular defendant iraq and had we been i mean i think the proper way to raise this crime claim would have been for mr president a trial for him to raise a post trial motion arguing that this was in violation of his nd amendment right and for that to have come to the court we haven't suggested that he waived this in sort of a k'naan is true waiver sense what we've argued is that by failing to address his conduct he has all but acknowledged that the conduct is not within the scope so it's a slightly different thing point that he's making but  the point here is that all of the facts on which he's relying even in his reply brief the length of time in the u s his employment status are utterly unknown and even when you look at the p s r assuming we can in this context it says he may have come to the country he can't tell you where he worked he can't point to any job sites any employer he claims he was a day laborer he claims he was here consistently how do we know that there is no way to know that and those are facts that are within his control and that are not part of the record very good thank you thousand criminalizes soley defacto possession and so any fact beyond that is not relevant to the to the legal challenge here on the case bryant the that the government relies on the guy who had a gun in connection with drug trafficking well that was  is a different situation than the one we have here i understand but argument is simply that the law that we're challenging is about possession and nothing else and also that the cases simply don't talk about as the cases when they evaluate this again there's a guy who pointed a gun at somebody and they didn't say well obviously that's not within the hell are right it's it's we're just looking at what the law criminalizes and walk in the license mere possession and that's it do you agree that official challenge is somewhat problematic in the nd amendment yes i do so we don't you know certainly in shock us i think a law that said that undocumented immigrants did not have the right to free association or the law that authorize the police to enter the home and to search and rummage through the home of an undocumented immigrant without a search warrant is that we would find