not very far away and called mr massey out from his hotel room he came out and they found a gun on him pistol on him and plus some of the weapons in his possession in the motel room on appeal had regained his rights to possess a weapon before the state changed the law and i see there's an ex post facto issue there which i believe would be preserved under the tenth amendment in terms of the state would be prohibited from using going back and taking away the rights after the fact but i think the issue in this particular case is the tension between the history of the restriction and heller and then the new analysis which this court set up a national case not dismissing the indictment was simply because mr massey did not fit into those categories of law abiding citizens the government  see a distinction between the first or the first amendment with the four freedoms the third fourth fifth and sixth amendment which i believe felons would have all those protections and the second amendment which is now recognized as fundamental and for some reason because we always took away a person's right in the past when we said it wasn't a fundamental right now we can go ahead and continue to do it because we have all these old presidents which were based on a totally different criteria than what helen came up with and this is the problem i have with this i don't think that there i think that the court in brownsville had to rely on the national rifle association in the case in the ruling but i think the court should have gone and said it you can't exclude on that basis soley and that it should under the second point and say that you have to have a heightened scrutiny over there and can we really take away a person's right over here soledad because you're a felon and that they co rely on anderson and saying that despite the fact that you have a fundamental right do not have the strength of heller behind them if you change emerson with it doesn't go as far as hell case which later took place i would ask you to keep in mind that national social action case is a case where a class of persons were being denied the right to own a weapon which was eighteen to twenty one year  olds and i think that would be a different situation than this situation with a cell with a ten to twenty one year olds it's not so much traditionally or whatever but the government can send a point at which restored in texas ninety three the launch in september that year and he had his full rights at that time the legislature passed a case and i believe it's the mills case i point to you know they came out and said nationally they went for the fellow who had lost his rights and said oh no you can't convict him they came back said yes you can because it's as an element of the crime you know at that and my second issue deals with that which is the state of texas under the constitution the united states would be prohibited from taking away his rights that if this is unless he's pardoned this is a right he loses for the rest of his life you know just by legislative feel and i had a real problem with the state just unilaterally doing that and this happens in a lot of contexts in texas in the criminal law and we have it in the cases sexual offender issues but those are different types of cases because you're trying to protect the  regulatory restriction of felons right i believe that this court's opinion and national association change that and this is the only circuit right now that is saying and i believe you get mr massey for a second let's take somebody who wrote a check and wound up playing guilty because they didn't have a lawyer that try to work out of some other way of dealing with this thing and they want to get him convicted for a hardship and that person will lose the die they can set up the criteria for determining who should and who should die and that's a real far extension of this tribunal process but creating classism on one of these really disturbs me as a person when it's not relevant here i'm not a gun person i don't understand but if you have a fundamental right and you should be able to exercise and i think the government has to have a much stronger basis for taking away your right much much stronger basis for taking away your rights than merely the fact that you made a mistake once time in your life and forever you're going to be classed as some kind of unworthy i don't think that that's to be relevant because he could be found guilty of one of these things i think that mr massey was induced out by the government by agents to come out and the federal agents tell you come out of your room you come out of your room and you don't argue with him whatever you have in your pocket you leave and you go and i think he was within the premises and they're enticement pulling him out shouldn't allow them to be able to use that possession in the parking lot as a way to find him guilty there  i don't know if you have any more questions on this particular issue here you say time for about mr i'm sorry your same time for about a week thank you very much good morning runners may please the court john reed on behalf of the united states you know this mr massey's conviction must be affirmed by this court because all of his arguments at least as to the constitutional claims have been considered and rejected by this court to the extent he relies on a state law claim the right to possess firearms his arguments have also been considered by by the state courts and have been rejected as far as believe the felon could always apply for a pardon from the governor but as far as how does a felon obtain the right to possess a firearm under state law itself it says that automatic process  under under state law a felon as currently as under current law a felon in texas cannot possess a firearm anywhere for the first five years following the completion of his sente afterward he is permitted under state law to possess a firearm on the premises where he lives as i pointed out in my brief the state courts have construed premises where he lives for purposes of this statute to mean one's residence or whole even if it were broader than that but as i point out in my brief it must be where one lives mr massey was not living on  sable palms nature sanctuary at the time that he was possessing the rifle that form the basis of count two he was not living in the parking lot of the motel when he was in possession of the pistol that was found on  course he didn't have to come out armed it was his choice to have a firearm on his person at that time but regardless putting putting aside whether or not he had the right to possess a firearm under state law a limited right out i think that lists the right to vote hold public office and serve on on a grand jury that's relevant for the purposes of whether or not his conviction qualifies as a predicate offense subjecting him to prosecution under one twenty two g one i would i will grant you i don't know that that automatically precludes him from making a constitutional claim as as he has done he can still argue that it violates the his second amendment rights or it violates congress's ability to regulate under the commerce clause those arguments have all been foreclosed by this court his principal reliance is this heller and national rifle association anderson national rifle association didn't change circuit law national rifle association recognized in footnote seven i believe that this court had already held nine twenty two g wanted to be constitutional it adopted granted it opted to part test for examining firearms regulations going forward but it never expressed doubt as to its prior precedent anderson derrington dollar emerson cuban rolls i mean the list goes on and on of the cases from this court that have upheld one twenty two g now that mr mousies argument is that somehow heller and the national rifle association has  gloss on that analysis that requires this court to re examine its precedents and i think it's important to remember that in emerson this court recognized a a in the individual right to bear arms long before the supreme court and i think what emerson said is completely consistent with what justice scalia later said in heller and that is although there is a fundamental right of individuals law abiding responsible adults to possess firearms for purposes of defending themselves in their home that right is not unlimited it's subject to reasonable restrictions including the prohibition against felons from possessing firearms well in heller of the court specifically said that nothing in our opinion should be taken to cast doubt on the longstanding prohibitions on the possession of firearms by fallon's and the mentally ill i don't know why that doesn't answer the question i think it does your honor i'm just i'm just pointing out that this court said the same thing maybe slightly different wording in emerson and so heller did didn't change that circuit precedent that's my o challenge as far as an ex post facto law goes mr massey is not being punished for any conduct that was illegal at the time that occurred is not being punished for his prior burglary convictions of which he actually has two on his record  this is not a hot check case mr massey has assessed as a serious two serious convictions on his record but regardless this court's precedent says felons may be prohibited from possessing firearms and nothing a national rifle association changed out again adopted the steep part test but it said longstanding prohibitions including prohibition against felons would likely fail in the step one because for him being felons from possessing firearms does not fall within the core right of the second amendment i fully agree with that you what do you do with three the quotation that i gave from heller a minute ago would you like me to repeat it you know what i don't want the courts to do and i don't mean to sound like i'm presuming lawful issue here we're just saying you got to right it's an issue for another day and then suddenly now are doing just the opposite of what justice scalia is saying we are making his dicta the route and we're applying it and we're going never circuit in the united states and since it was happening and i think it probably would be a dead issue except the national association set up a slightly different criteria looking at it and saying and i believe we made the first criteria this because you lose your right weapon you're an individual you can no longer own and you can no longer possess a weapon you lose it completely and it grafting the comment into the rule is no i don't believe is the way to do it i just don't feel very comfortable with it so i asked a question a little earlier and there was a comment i don't remember exactly the words  used about proving that a person was not entitled to possess a weapon in texas and whether that was proved in trial and on page twenty four of my brief i didn't raise that issue  be briefed or whatever but it i couldn't find anything here where somebody came up and said he's lost a right he can no longer own a weapon it's there it's just i think something was kind of presume in this trial regained them but i think that the government had a greater burden in this case than to just work on a presumption and to say he's been convicted it's a felony he loses his right and argument i made in this that he lost just rights yes but he got him back and then later on they were taken away you know and i think that issue should have been dealt with at this trial it's a bench trial but i don't think we can i don't think we should just presume that he lost his rights we did a bit in my opinion a very good job of dealing with everything possible that everything there but the kitchen sink in terms of the arguments and i was very grateful to the government for arguing things that really luis sort of did not bring up which  you know allow me to be able to make some of the arguments i have here with advice you all have any more questions i would thank you for allowing me to come here it's a great honor for me to be here and to be been here several times