expressly states that they possess that the items that are being banned and object to the ban on the ground so there is clear of standing in the sense that these all these individuals have been if the claim was dismissed without prejudice barring some exceptions claim would not be appealable because it would not be a final order the question i think the judge back here was getting is why why should we believe that this dismissal by the district corps was with prejudice and i think there are a couple possible answers but i'm curious what you think why do you believe it was done with prejudice either there either has to be a clear showing that no and management could cure that defect or we don't have jurisdiction the passage you want to just read was today that you could not a man and on the vagueness claim in order to solve as a factual matter you lack the facts to a man to solve the district court's vagueness standing but then that that seems to suggest to me that maybe we don't have jurisdiction because if you're claiming it is your claim that you could assert facts based on the district court standard that would way could you a mynd him a size understand you could not amend for the individuals but in what way could you a minute your factual allegations with respect m s i such that it would give an m s i standing under the district additional state issue with the injuries so we could elaborate how in the size has had to divert resources ok if so then do you understand that if you can do that then it's not a final appealable order if you if there's something you can do to him in the complaint to cure the defect the district court found then it's it's not a final order you're out of the point of this we can't amend the complaint to meet the legal standard that the district court set because that's physically possible for us to emphasize the other individual that's that's what i'm asking you so you just seems like now you're taking the different position i want to be very clear because this is really important for you i think i think really important for us but even more so than the merits of your claims this matter you agree that there are you lack the facts to assert standing under the district court's test for the individual plaintiffs correct that's correct under the dish of course test same same question that i've gotten a little bit of a different answer but with respect to m s i using the district cour test could you do you have the facts do they exist that would permit you to a man and to give him a standing under the district court's analysis under the district st test no we do not we don't have the facts that we can and we didn't seek to and for that reason you appealed because the district st test is something we can't meet ever and can also add as well make sure i'm right about this with my recollection is that th the state moved to dismiss with prejudice yes nobody argued that it should be without prejudice maybe they should have and the district court in dismissing granted the motion without modifying the with or without prejudice and then after doing so in order in order to close the case that is completely correct right and so those those facts also suggest to ice that the district court and the parties believed it to be a dismissal with prejudice absolutely correct in theirs and there's nothing you could do under the court's standard to cure i took it that your your argument is yes maybe we can talk about police power in the regulatory contacts that that's up at least to a possible argument is there but in the per se context post horn the context because there's no police power that would ever just use it per se take but but you do agree in the regulatory contacts in a regulatory taking that the police power may be part of that under penn is completely imaginary that's the test and it's not a nutjob and with respect whether respect to the non i mean i get i get you got a legitimate fear to the numerated items right i mean the claim on the vagueness though is not on the enumerated items it has to be on the non enumerated items the items that you claim fall within the sort of residual clause if we would the that is so big that even guy i think the court does have effectively a fight in which you can deal with this case the state moved to dismiss with prejudice there's no indication in the judge's order that he intended to dismiss without prejudice i n the understanding of both parties that it was a dismissal without prejudice and i would agree w we don't need any more can do you just got to judge it and i also agree with counsel that i don't think there's a way that they can amend their complete to establish standing on the vagueness claim because it all is based on this hypothetical speculative possibility that a road prosecutor someplace somewhere might interpret this rate of fire provision in the very broad way that they believe that it can be interpreted which by the way is an interpretation the later in the brief they characterize as nonsense so this is a this is a concocted theory of vacant house that they really can't allege any facts that would they're not there gripe is with specific applications of it the holes that you know and a lot of their argument do you do you agree that it just in the sort of hypothetical world that they were correct that this this rate of fire principle is void for vagueness that the most the court could do in that scenario is limited the statute separate only to the numerated i don't and leave off the sort of residual piece that exist would that be the rim if enough and i accept the hypothetical if they were right in the void for vagueness it would not affect the enumerated i don't know the ban on the numerate items i think that i think that's right it wouldn't effect powers is not an exception to the per se taking context it only applies in the regulatory context you know i don't agree with you ok what is the case that you would have me read to sort of support that idea because you know when i regulatory takings and that might be important here but that if it's a person a taking that it doesn't apply i think an answer has to start with the notion leads our police power is a term that attorneys in my position representing the state are forever coming before courts and saying that this is justified by the police so the court has to scrutinize that and see well what is this what powers of the state  exercising environmental regulations are always justified on the basis of these but here we have an exercise of core police powers to protect public safety and that type of police particularly after horn and lucas but even before them and that say a person a taking is subject to that same type of a limitation well after lucas book before morning i think you would just start with your th that i respect that right i mean that that is only a regulatory this i don't think this resolves your case by the way i'm just trying to understand the framework and holiday museum and is plainly regulatory caking i mean he sa again to get to judge richardson because i think it responds to your questions well hearty amusement relies on these long line of supreme court says but subsequent cases after holiday use taking i don't understand how they're consistent with horn and lucas and and so what i'm trying to i just want to understand from you what are the best cases that i can look at to support the notion that the police power or the nuisance background property principles apply to defeat per se taking  and modern sportsman to very recent federal claims cases that have come out in the notice of supplemental authority of the council provided wolf rely on this notion that when the state is banning will monopolize in your time and i don't want to do that but after kilo that argument doesn't work i mean because we now have an extraordinarily broad definition of what public use is i didn't have to be as just as thomas would have suggested like actually used by the government it can be to some amorphous benefit of economic development same thing then amorphous benefit of public safety here and only the public use gets you there and i get that those cases apply in these regulatory takings context where they talk about police powers like holiday amusement and mumbler in the regulatory context and try to import them into the per se contacts but post horn the court is very clear that you cannot use regulatory taking that line of cases prohibiting them from doing so but what i'm having trouble doing and i'm sympathetic to the idea is why why in a if it was a maybe it's not a per se but if it's per se have to ignore the police powers exception if the government and and i guess i'm taking issue with your your description of the public use requirement in all of those cases like  what have you there is a public use here the property isn't isn't being destroyed it's been it's been converted to a different use it's being read developed it's being left as a sand dune lucas there's always a  that the government is furthering through its action in this case when the state makes it illegal search that certain types of items or conduct it is not taking those items for a public use it is protecting public safety it's just you don't even get to the takings it has and that's what you see in these lower court cases you see even the rd circuit's case and the association of new jersey rifle  and pistol clubs where the court held that the ban on large capacity magazines that new jersey and it doesn't constitute a taking because it's an exercise of police power again it's this false premise that just because the government does something that affects people that it used immediately jump to the takings analysis when the government is prohibiting something altogether no one gets to use it you don't even get to t report makes clear justice scalia makes clear in that case that whenever property is required to be left idle there is a heightened concern that is being pressed into public service in some way and in that case it was because south carolina was concerned about the development of sand dunes and the loss of that natural hurricane protection that a provides other properties so lucas mr lucas was being forced to leave his property idle so that it would further this public purpose of protecting other properties and justice scalia draws that out in this decision so you don't have that cases like this where the government bans a piece of personal property because it's on really reasonably dangerous and that's where the historical context up here is important that this is not just you know another example of government overreach trying to regulate people too stringently this is a response to a grave public safety risk that became clear to the country in october two thousand and seventeen when the las vegas gunman took so many lives so quickly through the use of one of these devices this is government doing what it is supposed to do it's not regulatory overreach it's protecting citizens by prohibiting unreasonably dangerous items so this case is not like horn it all off for a variety of reasons for big government physically takes the raisins takes title to the raisins decides what to do with them sells some of them gives some of them and then pays itself with the proceeds of that transaction to cover its administrati costs it's not banning unreasonably dangerous items it's not protecting public safety it's using someone else's property for its own purposes that's not this case it's not even close to plaintiffs who had federal claims would have to st go to state court before they could raise their federal claim to the federal this case went to federal court beginning no one's argued rightness no one's tried to get it remember to have a state court so  nick none of the recent supreme court cases get this issue doesn't talk about public safety or you know core police powers in any way it's just not even an issue so  a roundabout way i think you have to yes horn is important for establishing that when the government physically seizes someone's personal property and takes it for its own clarifying that point it is an important case but it doesn't silently overrule all of the cases that came before it that rely on this principle that the state does not exercise eminent domain power when it prohibits and reasonably dangerous items for public safety purposes and look at a case like michigan versus bennett's that was a case where an automobile had been used to commit a federal crime it was seized by the government and one half owner of the vehicle brought a claim brought it taking sqlite saying that you have to you have to give me compensation because you took my one have interest of that automobile and the supreme court said no the government's not acting under exam and then into main power here it's acting under its power to seize items that are engaged in criminal activity it's a completely different thing judge wilkinson in a holiday amusement also makes this point that they have to stage an is without a difference whether the government is acting under a forfeiture statute or acting just to prohibit i don't is that our own reasonably you know that in that case it was dangerous to the public morals but this case is stronger i submit than holiday music because it's got this core public safety but that when the government is doing that it's not exercising its eminent domain powers it's exercising these core police powers that have never been questioned in all of the supreme court's taking brutes i only have a few minutes left i do want to switch over to vagueness a little bit  i do think that there's nothing they can do to change their allegations to to solve the standing problems but even if you get to the merits it is a concocted interpretation and you have to be these statutes as a whole starting with the plain language looking within the larger context of the statute only then if it's ambiguous you go to the legislative history but every interpretive touchstone that you use in that al analysis goes to show that installing a byproduct or a pistol grip on your weapon does not make the rate of fire increase it might make it more comfortable for you to use the weapon it might make it easier for you to reacquire the target more accurately and more quickly but it doesn't change the rate of fire of that weapon so whether you look at it on the standing or on the merits there vagueness the term but i when you when you interpret statutes under the big stick you don't take this kind of hyper technical i'm a firearms manufacturer and technically there's no such thing as a rate of fire when you're talking about semiautomatic weapon you take a commonsense view the view of the an ordinary person who would be subject to this standard and it has a commonsense meaning that if you're installing something on your weapon that makes it shoot faster that's that's increasing the rate of fire so i get i think this is taking this you know the perspective of the firearms manufacturer it's easy to take because they're forever you know invent to give you a better mousetrap a different way of improving the to make a rifle shoot more like a machine gun whether it's through corals or spray or harnessing the the recoil of the weapon they're they're good at getting right up to the line of what is  prohibited machine gun and so they have that kind of really granular perspective on the issue but it's not the perspective that courts apply in determining whether statutes and constitution and i note that  richardson i thought you might thank you're dead right now i want to pull if i leave here today if there's anything i want this court to focus on is this passage from luke and it says taking government action short of acquisition of title or occupancy has been the don't if it's effects are so complete as to deprive the owner of all or most of us interest in the subject matter to amount to a take it so i get i get that but that doesn't that actually respond to his point i don't think i think his point is slightly different which is there are two separate inquiries and one of the inquiries which was the we're going to interpret public very broadly but what it doesn't interpret is use and what his argument is is where there is no use at all so in other words it's just pure destruction that that cannot be a taking and  do so by reference to independent source that's a good source as are the words of the supreme court independent source finding a counterpart of the common law property and uses and the supreme court said that wasn't present there but there was a use of it in contrast to just a destruction where he says that's not a use and it doesn't fall into that that the meat you are after kilo public use means public purpose is a rational basis public pleas power it doesn't have to have then used it presumably for public purpose that's what the supreme court held so that simply doesn't matter whether they put it in their own pocket or not it is as the supreme court said in general motors is from the perspective of the user and in fact lucas says the same your brain for an opportunity to man and if you don't think there's anything you can do to cure the defect i think that has to be referenced by an opportunity to men under the proper legal standard and that problem what does this mean in your brief counsel proffers that additional facts related to the specific devices and by the plaintiffs and the risk presented to them by the statute can be pleaded if necessary but it would all be linked to whether or not