to rule on courtroom and the two thousand and thirteen amendments to the fourth card act and it would appear that they're all in unison that under the two thousand and thirteen amendments to that act a person who applies for forty card relieve under that  statute would not be entitled to that relief if he if that would be prohibited by federal law so while not abandoning her or her conceding my argument won i've got a pretty good idea as to how the court's going to come out on that particular issue some just not want to concentrate my efforts on that day and part of the reason to is that as i've stated in my issue number two in this particular case it doesn't matter it doesn't matter how this court interprets corum it doesn't matter how this interprets the two thousand and thirteen amendments because in this case granting kyle baumgartner of point guard would not be contrary to federal law his domestic battery conviction this is not prohibit him under federal law from presenting a firearm because he has had his civil rights restored so therefore his conviction is not counted as a disqualifying conviction for purposes of federal law under eighteen u s c section nine twenty one a thirty three b small roman numeral or as i like to call it section one twenty one person who has is not considered to be convicted of an offense if he has had the civil rights restored and the restoration does not expressly say that he can't possess a fire kyle baumgartner did have his civil rights restored he was sentenced to sixty five days in jail on the domestic battery charge and therefore he lost the right to vote upon his release that right was restored the water no noise clear and no one disputes that when a person is sentenced to jail he loses the right to vote all he's incarcerated and that right is automatically restored on his release and the rights of vote is one of the what we call the core civil so if a person is since the jail they lose the right to vote they've had that right restored then their civil rights have been restored for purposes of the federal statute it's service of time in jail following sentence  that results in the taking away of some all right and then the of upon release the restoration of the civil right that you're talking about as of right well unless the position of the state the state indicates that you have to be in jail after your conviction they've they've created this argument that if you only get time served then that doesn't count well first of all that argument has been waived by the state because it didn't raise the trial level but additionally on the record doesn't indicate that all he got was time served we know from looking at volume five of the record which has the complete record of the domestic battery slash possession of cannabis case that when he was sentenced to sixty five days in the green county jail on the domestic battery charge it does say that he got credit for time served now on the dios the sentence he got his or he required to be provided with that credit well my response to that your honor would be twofold number one as we know he also got a sense to deal see and which we'll have to deal with in a little bit too but under our illinois law when a person gets in the same case a sentenced to county jail deal see pursuit of section five eight four of the unified code corrections those sentences get served simultaneously you get transferred to the department of corrections those are the sentences run together so he did his time in the green county case when he was indio see now as far as the question knows doesn't he automatically get that well i think since record didn't reflect that he was given credit for that time i think that's one of those things that if you don't  right then you've essentially waited and i think that's what happened here and really the root i guess there was no sense in saying that he got credit for time served on the jail sentence because he was going to be doing that in the apartment corrections anyway he got sixty five days credit on his deal c sentence certainly but that's that's why my position is that even if he did get credit for time served that is still part of the sent these federal cases don't say anything about you have  would get is a part of the sentence because by statute as you indicated justice harris he would be entitled to assert that credit but that makes it so that that is actually part of the sentence because that he credit for time serve united states for stables case that i've cited from the seventh circuit which did interpret illinois law and that case what happened was the defendant served two hundred fifty days in jail on one case and then he has  probation revoked in another case and after he had served at two hundred fifty days in jail on the first case he was sentenced to two hundred fifty j days in jail on the second case but was given credit for time served in that case in the earlier when and what the  court said was that he was considered to have served two hundred fifty days in jail on the second case as well even though he had already served in the first case and what the court said was that credit for time served if this is the cour determination that the offender must spend some time in jail but he has already spent that time either waiting trial or on another fence so i think there is authority certainly for if we are going to say that all he got was time  served that that is part of the sentence and he was sentenced to jail and that he did lose his civil rights there's no question that he went immediately from the green county jail to the department corroded online or you lose your civil right to grow when he's not allowed if he is just franchise while he's in jail then there's this enfranchise before he was correct but i don't know that that these interpretations of this scenario have been so technical as to say well he has to spend more time after he pleads in order to lose his now so you know we're talking out of focus of the good sense but federal legislation are exactly not the same thing in my experience that is correct or issue if all he got as part of his sentence was probation and he didn't get any jail time as part of the sentence then i think it would be a week or argument that he lost the civil rights  now if he got probation plus time served in jail as part of his sentence then i think that especially under the the case that i've just cited i think that he you could say that he did lose the civil rights and again you know you were talking about your one for one issue are we discussing this is it for whether he could write you know vote when he was in jail if he's trying to assert its right to vote when he's in jail or after the fact are we looking to see whether to get he i guess retroactive lost his right to vote if all he got well let's assume that you don't as you indicated just hear us that you don't lose your right to vote just for sitting in jail before you plea if all he got was probation and the only kind of credit he got for that jail time was five dollars a day toward his fine i think i would have a harder argument fact i you know making that assumption i don't think i could correctly say that he lost the right to vote but again that's not what happened here even if you say he got sixty five days with credit for sixty five days served under the federal case that i've cited he still would have lost the right to vote because he served that time now again which we throw in the additional wrinkle here that he also served dios the sentence and i think that explains why the record indicates that he got sixty five days credit on the deal see sense but he's physically going to be locked up behind bars that's why that time served isn't backed a part of the sentence but in this case the record simply does not indicate that he got just time served on the on the domestic federal statute is the restoration of rights expressly say that he cannot possess a firearm no it doesn't there are as the united states agrees with me as they did to the issue we've just been discussing about loss and restoration civil rights there is no so that is why this exemption in section nine twenty one applies to kyle baumgartner and that is why at least because of his domestic battery vision he is not prohibited under federal law from possessing a firearm so his domestic battery  it is here why should we reward a guy who did apparently something egregious enough to get sentenced to jail time with getting his ford car back or to somebody who apparently didn't do something as bad and only got probation doesn't get silly but here's my answer apparently the legal system has a very optimistic view of the penal system and are saying that someone who goes to jail is going to come out rehabilitated and ready to possess a firearm whereas somebody who only gets probation is not and how i just said that with a straight face i have no idea but there are there is a there's an interesting case it was one that i cited in my original where's the case from the sixth circuit the actual black letter law that i cited that for is correct because it talks about under michigan law a person can get jail time for domestic violence and if a person does get jail time for domestic violence then they lose the right to vote under michigan law and then once they get out they are they have had their civil rights restored and the federal ban doesn't apply to them what they did in that case is they basically said ok we know that this guy who got a suspended sentence for domestic violence i didn't really lose his rights but because of the question that your honor just posed to me we're going to say that's not really fair to punish this guy when somebody did something worse just to get his farm rights back so they basically said well since you can get jail time even though this guy did we're going to say that he is exempt from the federal ban  under united states person or load pursue united states that particular holding as far as that particular defendant i don't think would hold up today because that guy didn't lose the civil rights well he says you have to actually lose your civil rights to begin with so that's one case i think it maybe a couple of other cases what kind of his same thing it was more policy type thing under wogan i don't think that i don't think that that holds your lawyer more however the purpose for which i cited that case again which is the black letter law domestic battery you go to jail lose your right to vote get it back after you come out then you've had civil rights restored i mean that that that argument still is still valid well now i mean to talk about the issues i'm not particularly have to be talking about but we got to anyway and that is the fact that mr bumgarner did get a felony conviction of sense for the only department corrections this was not raised by the state at the trial level this was not cited as a reason to deny his ford card again for reasons i have no idea why so my position is that it's waived but let's face it we've got to look at this and we've got to deal with it some time while we're all here we might as well take a look at it now but i have to ask for in my ultimate per relief in this case is for the court to order the illinois state police to issue  through the court and still rule that the domestic battery conviction doesn't disqualify him but the court could say well you know you have to go back and deal with the almost state police on this phone issue but i feel that the court can deal with this issue and dispose of it as well under federal law this is section nine twenty two g one of the federal code of federal criminal code a person convicted of a felony cannot possess a firearm but there's also an exemption for this like there is for the domestic battery this is section one twenty one a twenty which says that conviction is not a conviction if the civil rights have been restored and the restoration does expressively say that the person can't possess a cobham gardner do your department corrections he lost the right to vote and the right to hold office while he was there upon release that was restored i don't think anybody would dispute that the kicker in this case is does the restoration of those rights say that you can't possess a firearm well conditionally yes it does because as we know under our criminal code section twenty four dash one point one they fell on campus as a weapon but so if a defendant were to obtain relief under the fourth hard act as set out in section twenty four yes one one one the statute would no longer prevent him from possessing a gun and then he would have no disability under state or federal law i know i'm about to run out of time here but my position on this is that if this court since my client petition for relief under section ten of the fourth card act at this court agrees with me and finds that he did  that he had is no longer under a federal bar for his domestic battery conviction the court can find that he is essentially entitle themselves to relief under section ten of the forty card act and that that would remove his felony this ability as well the court vacated its original ruling only because of the legal issues and although section twenty four dash one point one does say that you have to get relief from section under section ten from the director of illinois state police on july thirty first of two thousand and seven and charged with unlawful possession of a stolen firearm unlawful possession of cannabis with intent to deliver it to domestic battery and a few other charges page thirteen of volume five of the record shows that baumgardner was sentenced on october fourth two thousand and seven which is exactly sixty five days after his july thirty first arrest he was even a sentence of one year in the department of corrections for possession cannabis separately he was given sixty five days for domestic battery and he was given credit for time served on that count page eighteen of volume five of the record which is the state's attorneys and judges official statement page four of volume five that's his arrest warrant then on page thirteen of volume five which is this document here it shows that he was given a sentence one year in the department of corrections on count four which is the possession of cannabis and then sixty five days on count six which is the domestic charge and then page nineteen of volume five of the record which is the judgment order from the department of corrections confirms that he was sentenced to one year in prison on his felony conviction so of course baumgartner doesn't dispute that he was convicted of mr minor domestic battery and under section one twenty two g nine this conviction makes him federally protected from possessing a firearm article three of section two of the illinois constitution states that a person under sentence in a correctional institution or jail shall lose the right to vote which right shall be restored not later than on completion of his sentence so the plain language of the constitution states that baumgardner had to be in jail under sentence for misdemeanor domestic battery for his rights to have been revoked and then restored but as the documents in the record demonstrate he was never under sentence while in jail for domestic battery he insists that he spent or rather that he served time for domestic battery but again the record shows that he wasn't under sentence and that's the question that we have to ask based on article three section two of the illinois constitution baumgardner was sentenced to time served or rather time spent while awaiting trial and as various courts have ruled the time spent waiting trial is not the same as being in jail or prison under sentence for conviction of an in its amicus brief department of justice was correct on the law but it didn't recognize that as a factual matter baumgardner with never in a prison or jail under sentence for misdemeanor domestic battery so for that reason the department the recent appellate court decisions that analyze the twenty thirteen amendments to the four act for example this court in walton versus illinois state police confirmed that a circuit court lacks authority to reverse the state police's revocation of district's fredrick case and the third district's decision enone l and the fifth district later reached the same conclusion in a little so illinois courts as counsel acknowledged have uniformly rejected his argument about the impact of the koran decision with respect to bomb garners constitutional argument he didn't raise it in the circuit court meaning that it's forfeited and this court shouldn't rule on it courts have recognized that as applied challenges should not be heard for the first time on appeal when there hasn't been an evidentiary hearing on the constitutional issue from which the circuit court can make findings of fact in this case gardner never raised a second amendment challenge in the circuit court so the state's attorney was not on notice of that claim and didn't have the opportunity to present any evidence to rebut it as a factual matter the record even the record that we have does cast doubt on bond gardner's claim that he's been a law abiding citizen since his two thousand and seven arrests season nineteen of the record shows that in may two thousand and nine he was arrested for driving under the influence page c twenty of the record shows that he was arrested again in september two thousand and nine for driving under the influence and going to these arrests among many other issues would have been explored at an evidentiary hearing if gardner had presented his second amendment challenge to the circuit court but his failure to do so means that this court should not intervene entertain the argument on appeal to the extent that this court does consider it's constitutional and it should be rejected on the merits we have no pardon but before this court can rule that statute is unconstitutional as applied to him he has to have taken every possible step available to him in order to obtain attain a point card he bears the burden of showing statutes and constitutionality and when he has avenues for relief that are available but he hasn't taken them he hasn't met that byrd and so unless this court has any questions for these part act didn't have any provision for going to the trial court for really so i don't think it should be read to restrict its application only to people who have gone through the only state police it would make any sense to say someone who's a teen really from the only state police can possess a gun as a felon but not someone who's obtain relief from the trial court that was not make any sense so my position on that is that if the sport finds that  cannabis charge and that is the felony and it again there are numerous documents that indicate what a sense is they all indicate sixty five days and costs on the domestic battery charge so there's no indication that all