decision of the panel it cited the preliminary injunction appeal and on that point you know it's great to talk about it but i want to ask he's the difficultly to address to do that now that it seems pretty clear that the court in the p i can appeal went beyond applying the preliminary injunction factors and just asking whether or not they were the likely to fix that and address of yes it was apparent from the face of the bank some opinion that they went on to address the merits however that case rose in a different that's the way of saying you think they got it wrong i'm trying to get you to address the pit news statement from judge alito which is absent extraordinary circumstances  a position to say well the fact that there are four other circuits could say it might weigh against and and address why why was it that that they're all wrong and on the merits and you big knowledge that taking that it's a given that it did address it on the merits what if what if anything can you point to that would say that the actual foundation could give that a couple times that the state didn't carry its burden of proof what are there something in particular in the earlier opinion that you can point to where you can say look that's where that's the panel stepped someplace where it should not have it that the procedural posture actually makes the difference in terms of factual record is what i am absolutely and we have at least two instances where certainly not the case then we wouldn't be here right because then everybody would agree on it but so it it clearly open to disappear because we're disputing can't wait now now having taken it that it's open to dispute it it i straightforward prior panels presidential decision that reached the merits of the complaint received deference by subsequent panel considering the same issues the answer to that question which is provided by this court's time decisions as well as its internal operating itself is bound by the prior panel's decision and i would just want to mention your honor at that news particularly on point because in that case you have a situation where a st amendment challenge was phrased  it looks like on that point was out there making up or find its own facts is that are they allowed to do that can they just say yeah who cares what with this record found we think this is going to be important in limit well sort of clarify the record on it when you tell me we're because when i look at the good samaritan statement and i'm not a characterization by the other side he said the expert testimony was hard right in your honor issue you know if you know if you look at for example and footnote twenty four of the panel's decision that discusses the fact one of the arguments that's been raised is the the level of of of information or evidence that needs to be connected you know that they said it needed to be a possible connection as opposed to the reasonable to fit there's some discussion there some of the testimony that was provided in the district court and then also on foot no nine an observation by the district court with regard to the matter things in addition your honor obviously the the the  panel had the entire record before it and so it was within its rights to examine the entire record and as we noted down in our brief as well it was wholly are you are you need that that  say you know what you know rejected that this record judge but we're we're looking at it and we can do what we want with that and we can accept that it's fact you think that that that ban and flag public or and this is a significant issue i think if if the court that did something which the district court rejected that's more than just looking at the record that's that feet to be right and wrong are again i forgive me because i'm just here talking and i'm and i'm taking your question i'm just i was trying to find in the opinion and i'm and i'm being unsuccessful because i'm trying to do a couple things at the same time where there is some discussion as to how the evidence before the sisters forth i'm going to was accepted and what wasn't accepted but again i think what the prior panel elucidated in its opinion was the fact that it had the full record before it and as the district horseshit and the idea that that that there's that there was something other than just the couple of references the court stated that although it found kleck in alan turing two of the the expert credible their testimony relied upon questionable data in conflicting studies suggesting that both of the experts missed methodology and conclusions this record however considered other evidence in the record to reach its conclusions and then insights to several passages i'm within the district court's decision and ultimately determining that the law was constitutional i just have wanted to get that out there because again i think looking for it with remarks party can you know as we've noted no court at the circuit court of appeals level has ever looked at a large capacity magazine restriction under strict scrutiny as the prior panel that took an entirely different sort of analytical framework for the purposes of looking at large capacity magazines i mean we have certainly argued that for example marketing magazines have been subject to longstanding regulations that argument was rejected by the prior panel although the colby court in the th circuit did recognize that for the purposes of why we are here today i think if you assume for the purposes of the of this that you step analysis under marshal rela that magazines are protected and there is a burden that is placed on them i'm one boss of this nature past  determine whether or not you can pose more burden than necessary i'm on the nd amendment right clearly indicates that the that the panel went there so to speak they went to the merits of  whether or not this law is constitutional or not and the answer to that was in the affirmative been clear why i think again you know drake is well aware where you know there's a question as to whether or not longstanding regulation but it didn't do that it actually went and and we went through the two step process in march and role of m q to uphold neuters is justifiable need long separately under that analysis so i don't want to say it's that i don't want to be glib and saying it's a distinction without a difference but i think what what the panel's decision here clearly indicates is that it it was it intended to reach the merits case which i would just you know sort of the same as inside that case in the philadelphia litigation case which are basically the only two cases that the opponents relied on ultimately conformed with the rd circuit practices bound by the case actually cut against the appellant and in the philadelphia litigation matter you had a court that found that there was no clear error and there would be no manifest injustice if it up held the of appeals that have ever determined that a restriction of this sort should be interpreted under strict scrutiny and you know i think it would be difficult to keep a clear error what was made by the prior panel by using intermediate scrutiny but then even if you did under the philadelphia litigation case you know that that panel also said that even in that case that is the philadelphia and so would you would then have to do is say that there is a manifest injustice by the prior panel applying the same level of scrutiny that every other circuit court of appeals that is looked at in l c m law has utilized and and had before in the law of the state of new jersey which defines a large capacity magazine as well as more and more than ten rounds obviously that is not the standard in all fifty states  but one of the things that we discussed in our brief and that we have tried to underscores the fact that on the nd amendment realm in particular allows for experimentation  in the nd amendment realm and time in the friedman case there's a discussion about how the central role of representative democracy is no less a part of the constitution and nd amendment where there is no definitive constitutional role matters of up to the legislative process some legislatures have determined that that sixteen rounds are permissible some have said ten others don't have restrictions at all but the question before the panel was whether or not new jersey's law which which restricts the magazine size to ten rounds conforms with the nd amendment and it ultimately how that it did i appreciate  restrictions that have been passed by other states and now and i'm trying to think about the now a gift if you ration where regulation could be that fluid and still do looked at as as  but weaving leaving that aside for for just a moment the the the response to that we got from  did that even if they step over the line in a place or here they're there they're entitled to look at the whole record if they're there he agree or disagree with that and if you if you don't agree with it saying is hey we're in a different posture now so you can ignore what the earlier panel that even though they decided on the merits but that is what good news has hit new says like in exactly the circumstances  panel dealing with a different standard of review and then a marriage panel looking at the piano canales case and our precedent binding precedent that news says that panel opinion that came earlier you've got to pay attention to it and you're bound by it absolutely clear and manifest justice so i might be losing the thread or your argument what if i apologize but i'm not sure help falling back on the summary judgment standard helps you in the circumstances that we're much i regret that we're not in court with you appreciate councils briefing and the and the presentations here today they're helpful to us we've got the matter under advice