morning mate please the court daniel had be federal defenders of new york on behalf of mr jimenez the district court erred in denying mr jimenez his motion to dismiss the indictment because section nine twenty two g six which prohibits any dishonorably discharged veteran from possessing ammunition violates the second amendment applying this court's two step test at step one the statute places a severe burden on core protected conduct section nine twenty two g six imposes a categorical status based restriction on the possession of all ammunition in all places for all purposes and for all time it admits of no alternative or exceptions the statute encroaches on the amendments very core the right to possess and use arms for the purpose of self defense in the home of longstanding prohibitions on the possession of firearms by felons and this statute is three times removed from heller it applies to dishonorably discharged veterans not felons it applies to ammunition not firearms and it is not longstanding but to your honor's point the only basis in the record in this case for so concluding is a small and arbitrary subset of dishonorable discharge is issued during a limited period of time not relevant in this case that is between two thousand and thirteen and two thousand and sixteen into smaller branches of the armed forces the government and it's the government's burden to rebut the presumption of second amendment protection has not shown what the practice was in one thousand nine hundred sixty eight when this legislation was first and acted not shown what the practice was in one nine hundred eighty six when the legislation was amended to encompass the possession of ammunition and more to the point dishonorable discharge although it removes the service member from the armed forces has never been understood to impose any legal disability military or civil there is simply no historical evidence that prior to  felony in this civil civilian criminal justice not not necessarily or no i'm asking you this on an as applied to your client basis not whether it could happen whether in his case the conduct for which he was dishonorably discharged would support a criminal felony the conduct for which he was dishonorably discharged could have been prosecuted as a civilian elements of the use offenses for which he was court martialed and this is laid out in our opening brief do not necessarily establish any of the elements of the felony statutes that the government sites moreover in light of the heightened procedural protections adjudicated in a court martial proceeding brings him within the scope of the heller dictum he was not convicted of any felonies and though he might have been the possible existence of an alternative basis for disarming him does not bear on the facial validity of the provision he was convicted of violating in this case that is to say when we undertake facial constitutional analysis we look at the text of the statute issue and we ask whether the text of every dishonorable discharge is a bell because the supreme court has said when undertaking facial constitutional announced this and this is washington state grange the analysis is limited to the statutes face and the supreme court in this court of said that a facial challenger's personal situation is irrelevant to any other circuit court or district or country that has ruled on this particular section nine twenty two relating to dishonorable discharge no as far as the parties research has revealed this is a question of pure first impression and i think it's because the statute is really unlike any that this court has considered in its post jurisprudence unlike any of the other provisions of held in this court this statute reaches into the home for all purposes for all time and to all arms but great if  into the category of people lost that kept it then it doesn't matter that it reaches into the home if there were a statute that with a civilian felony conviction prevented possession in the home heller would say that was permissible yes your honor i agree that at step one of the first step question is whether your client given his just charge from the military is dishonorable discharge step one there are numerous other circuits all collected in our brief considering other provisions of nine twenty two g that if either held or assumed at step one that the right is intact a dishonorable discharge does not fit with and this one what's the difference the ammunition it's a it's a combination of i wouldn't say that the fact that it's ammunition alone takes it outside the heller dictum it's the combination that it's one of the three removals from the heller dict moreover if we proceed to scrutiny analysis the government has a stronger interest in regulating firearms than bear i mean ition because firearms even unloaded firearms are more dangerous and bear ammunition for any cases that make that distinction in the context of nine twenty two she was not because all of the circuit cases considering nine twenty two g one has simply relied on the heller dictum and said laws regulating the possession of firearms by  no historical evidence that the armed forces ever stripped dishonorably discharged service members of the right to bear arms indeed given the importance of bearing arms at the time of the founding that would have been inconceivable the only historical anymore either i'm saying i'm saying that in the posture of this case it's the government's burden to show to rebut the presumption of second amendment protection and the government has a juice no historical evidence to support that claim however sensible it may seem as we said here today it's simply the government's burden and that the burden has not been met let me also say this the procedure in this case that is the at step one resulted in excusing congress and the government of its burden to show an empirical justification for the entrenchment on an enumerated right when congress prohibited ammunition in hundred six it repealed prior legislative findings and thus congress a juiced no empirical evidence to support this restriction below the judge schofield invited the government to submit empirical evidence assumes that as has been done in many cases scrutiny analysis compels a decision and humanises favor there is simply no empirical basis yes your honor and yes your honor in this court's two thousand and fifteen decision in new york state rifle and pistol association provisions of both new york and connecticut law were invalidated under intermediate scrutiny for want of substantial felony i agree if this court were to conclude that a dishonorable discharge is equivalent to a felony and let me pause there and say the only basis for that conclusion would be a small arbitrary data set compiled a years after the relevant points in time but i agree if this court were to conclude that those things work with you and then there would be no need to proceed to  tree court martials for purposes of double jeopardy i don't know why they wouldn't say well is that is that the time in court martial that would prevent you from being prosecuted for that conduct in a felony  or in a felony civilian prosecution so again if mr jimenez had been proceeded against in a civilian prosecution and had been convicted which he might not have been he notwithstanding the fact  unlawful sale of these firearms that he sold this is civill as a as a member of the military no i agree with you know he would invoke couple jeopardy because he had been already punished for that conduct that's right and the but the equivalent c is a felony prosecution so again the double jeopardy rule i think flows from the concept that both offenses would be contends was an attempted sale he's not prosecuted for the gun that was the subject of the transaction instead it's the bullet that's in his pocket but we're not talking about anybody trying to possess firearms or ammunition in their home for self defense how how is how is that second amendment right even relevant here clients conduct so as a factual matter i think it's it was accepted by the pre sentence report and judge schofield that mr jimenez was the driver  to what he expected to be a sham gun sale and came into the possession of the bullet when the individual who had arranged to fraudulently offer for sale the firearms to china not an exercise of recognize so again relying on the supreme court's admonition that in facial constitutional challenges we limit ourselves to the text of the statute and the challenger's personal situation is immaterial to the  other cases that have talked about how to do that are outside the first amendment there's you analyze this in terms of whether it's being constitutionally applied to the defendant let me let me address salerno in particular in light of how quickly the time has long since expired yes your honor i'm happy to reserve or i'll i'll say this if salerno were the operative rule in this context there could never be a successful facial challenge to firearms restriction because every firearms restriction could constitutionally be applied to at a minimum felons and the mentally ill the fact that heller itself invalidated a d c law on a facial basis without inquiring into good morning your honor i says and united states attorney samuel raymond for the united states may please the court the appellant's facial challenge to section one twenty two g six must be rejected first because the  himself as an individual convicted by a court martial for felonious conduct has any second amendment rights that can be vindicated and did not in this case raise a challenge to the statute as applied to himself he cannot challenge the statu well your honor i would point the court to the supreme court's decision in county court of ulster versus allen for forty two us one forty which states that a party has legal standing to challenge the constitutionality of the statute only in so far as it has an adverse impact on his own rights in this case mr jimenez did not have any second amendment rights that could be vindicated and so he cannot raise with respect to some facial challenge another individual's rights  as already been adjudged to be within a scope that it does not have protected second amendment rights so for example in heller that individual that was a civil case in which the individual appeared in court filing a civil complaint and stating that as a matter that the court needed to credit under rule twelve that he was a law abiding citizen and therefore could vindicate the rights of other law abiding citizens on its face the statute and could challenge the statute underlying the heller decision on its face  diminishes some of the severity of those military offenses including desertion which your honor mentioned before the military can punish desertion during a time of war with death that is a particularly severe military offense and as do many of the and its successor was later held unconstitutional by the supreme court in tropi dulles but there is a long standing historical evidence that congress can impose civil disability and disability on civil rights for individuals who have been again given the fact that many dishonorable discharge is at the least artwork and victim of felonious conduct the similar studies that demonstrate that such individuals are more likely to misuse firearms would would have similar w being applied over broadly now the appellant has now disclaimed any evidence of this sort through and it was just and boring about should we believe that a person who has been dishonorably discharged is more likely to commit crimes or any other crimes than the average person who honorably leaves the services your honor first of all i don't believe there is a requirement that the government submit empirical evidence in all cases especially under intermediate of the burden of persuasion if it's if would if were dealing with intermediate scrutiny and how did you meet that burden yes your honor the supreme court in a case applying strict scrutiny reference d that some of the evidence used to justify restrictions can be based on history consensus and common sense in this case the government has submitted historical evidence regarding how dishonorable discharge is at historical and modern practice and not how dishonorable discharge especially for felony equivalence and i have civil rights stripped the government cited to for example the right to vote inclusion on the sex offender registry notification list and as a initial matter this individual the appellant he does not have second amendment rights that could be vindicated that's that's a for initial matter once one were to address his facial challenge i think th the fact that many individuals as a matter of historical record longstanding historical practice of imposing dishonorable discharges upon individuals who committed felonious conduct necessarily means that this statute has a constitutional applications under the maybe they've told us that they want it with respect to felons which which means in the civilian system because the bill and terry doesn't markets basis for discharges felonies or non felonies so were the language congress is used comes from the civilian criminal justice system if they want to apply it to charges dishonorable discharges across the with respect to which category you're saying within well i don't believe that there is a first the government does not concede that as to those individuals who had committed serious military offenses though perhaps without civilian a civilian equivalents and those individuals themselves have constitutional rights second amendment rights that can be vindicated in this context as discussed before these are very serious military offenses that the congress and that the military imposes very serious punishment on some congress did have the power to dispossess those individuals as well and that's what congress did here and now thank you ana thank you your honor military law has always permitted dishonorable discharges for conduct that has no civilian felony analog that's not to say that that conduct isn't properly punished or that punishing it isn't important to military discipline of course it is but the precise question conduct in a civilian proceeding but more to the point the government's statistical showing dishonorable discharge felony equivalent is quite limited in time it does not encompass the time of ratification the time of the the statute and moreover this cannot be how facial constitutional adjudication proceeds if the military's practice is changed tomorrow it cannot be that the statutes facial constitutionality would also change and that's the supreme court's decision in moolah vs alan cited in our opening brief that the facial constitutionality of a statute does not depend on a particular practices in particular years let me also say that the reversal here does not mean that mr jimenez is free to arm and self new york state law prohibits the possession of firearms without a license and the licensing officer is empowered to deny a license for want of good moral character and denying mr jimenez a license on that basi would be well within the licensing officers discretion let me finally say that taking heller seriously and taking the second amendment seriously is justice thomas has recently reminded us mattern the second amendment is not a second class right and there was no demand in heller itself that the challenger make a showing of qualification to possess firearms before the supreme court adjudicated his facial constitutional challenge at the end of the opinion the court says we assume that the district of columbia will issue heller a license if he's not disqualified it was error for judge scofield to require more of him and as then was required of how or himself