please be aware of our traffic lights as some yellow light comes on when you have two minutes when the red light comes on we ask you to conclude your remarks unless you're answering a question from the court also we have  briefs and record excerpts but we may not be familiar with the entire record so we certainly appreciate record citations from those are propre it the st case of the morning is number nineteen  face nd the protective order here is insufficient to support a conviction ten thousand nine hundred and twenty two g s before i move to my st point i would like to observe that the government has appropriately conceded our challenge to one portion of one of the conditions of supervised release although this court is not bound by the government's concession that's why i will focus on other aspects of the argument to that to my st point you're law regulates conduct that falls within the scope of the nd amendment if you haven't seen this court articulated that st step in two different ways and already st asking whether the law harmony harmonizes with the because it both directly infringes on the right of the people they keep and bear arms and nd does not fall with the traditional nd amendment exception heller provide some guidance on this point in and ninety four they are absent from the us less in the foot no the court could have said see nine hundred and twenty two g instead these four are listed raising the question do we then reach step two there originally proposed by justice cabin on heller to which is just a historical traditional analysis so been a didn't do the two steps the two circuits that have done those steps are the th circuit in the  that one of the things justice brier observed in his dissent was that the government's interest is always so strong why don't we look at a different way of looking at it and this court rejected it and i think so appropriate let's assume we have a basic knowledge of the cases why don't you tell us how those cases applied to nine hundred and twenty two g eight and the facts of this case yes sure i mean personally i am struck by the length of the sentence in this scrutiny now the other circuits that i've discussed particularly the th circuit in the th circuit have applied you know media scrutiny and they've done so for for really three global reasons and i'd like to address that and i believe the government will rely on those reasons to that st courts have noted the nine hundred and twenty two g eight may receive intermediate scrutiny because it only applies to a narrow classification of persons people that are concerned people that have exhibited that raises concerns in the context of domestic violence it's our position your honor that this is not arbitrary classification of people i would imagine in g eight we would not vacate the st count that's correct in so i think your question gets to the concurrent sentences doctrine well i'm aware of the doctrine but i was just wondering so as the basis for the illegal possession of the short bear over i feel the same as this one night it's not your honor the nine hundred and twenty two dollars g account because it only applies to a subset of individuals that there would be no animosity about to say a st amendment content based noncommercial street speech restriction receives intermediate scrutiny because it only applies to flag burners or only applies to draft dodgers or only applies to people with a certain political position or only applies to people with a certain religious conviction certainly if it were ponting based meaning it goes to the core it would receive the higher it only applies for the duration of the protective order of course we've seen protective orders for example in united states versus release that was fifty years long in this case it was two years long he was only three days away from the protective order being lifted correct seem to go to tailoring that's exactly right meaning if the classification of persons is now or broad if if the prohibition is temporary or permanent or link the there'll tailoring arguments i'm working in our in our protective order in their home for purposes of self defense of person family and house that is the core of the nd amendment as recognized in heller as articulated probably even more specifically  mcdonald vs city in chicago so any restriction that takes a firearm away from a person even if they choose to live alone and makes them vulnerable tracking your argument let me let me put it this way firearms are not always present in domestic violence incidents in fact they're usually not  yet without connecting that incident to a firearm we're disarming everyone who's been subjected to a protective order in because it's a fundamental by boards in congress should be very careful about doing so because it sweeps broadly to individuals who pose no harm to any united states versus machine out of the th circuit is an excellent example of what i'm talking about a person exhibited this conduct it was an assault it wasn't done with a firearm the person on or the protective order state or whether the person was a gun hobbyist decided to go to the shooting range is in a volatile relationship and they assault their the person they're cohabitate ing with then a civil court says you have to stay away from that person otherwise you're subject to class the demean neither of those two conditions that's correct your honor in the alternative of subsection c and i'm almost out of time here and i'd be happy to get into that on reply but the minimum culpable conduct here can't give the jury confidence beyond a reasonable doubt that the protective order satisfies these conditions that's the nutshell argument and i will serve the rest of my time for kline thank you approach the question by st asking is there any historical analog to ninety two g and there's really nothing in emerson that answers that question though there is some continent emmerson in the government's view that answer is some of the questions relating to intermediate scrutiny so the st question that we have to ask that i don't think unfortunately anderson definitively answers the court is whether there is a historical analogue for disarming people who are found to be dangerous and at that level of generality which i'd always spend some time talking about this kind of prohibition against firearm possession is consistent with nd amendment history and tradition as as we discussed in our brief the pennsylvania minority proposal and other founding documents suggest that it was totally understood that people who were considered to be irresponsible or dangerous could lawfully be disarmed consistent with that then prevailing understanding of what became the nd amendment and so for that reason much like in arrays discussion of eighteen to twenty year olds or there may not be eight hundred and twelve one thousand seven hundred and ninety one analogue to a precise version of a federal law we can still look back into nd amendment history in practice and conclude that there was an understanding that people found to be circuit undertook is effectively step one even though it doesn't articulate the full two step analysis it doesn't talk about levels of scrutiny but i think the historical traditional analysis and dana is persuasive and it is effectively what this court calls for in step one  time to them as well it talks about evidence of a long standing historical tradition of gun regulation you know that this is the law at issue must be consistent with it also says it also has where they not occasionally prosecute people who have been committed in the past but i agree with your honor that it's more unusual than it was when that provision was an active but returning to your honor's question that the prohibition is consistent with  this court later inferred from our it really is talking about whether something is consistent with historical practice it's step one whether something is presumptively lawful notwithstanding the nd amendment even if it is a categorical prohibition discrete group of people for a particular period of time those are all features that this law has in common with the challenge regulations and already this court observe that eighteen to twenty year olds will age out of the challenge regulation and this court observe that the law target and i think particularly when this court looks to whether there was a reasonable adaptation to an important government interest i think that's one of the quantitative questions come up and i would i would suggest that there are a number of courts particularly to some circuit in  school discussing one hundred and two genome that have done a fairly deep dive into the medical and social science research that has to do with domestic abusers and the relationship between possible use and future abuse not a lot of the relationship between their possession of  points that you just made with respect to the levels pretty good n r a also makes the point that i made earlier maybe with respect to the other side that the the prohibition in n r a is far more limited than this problem in the heller actually restrictions on commercial sales this is different i grant you it is bounded by the terms of protective order but it's different because it is it wholesale band i mean you do concede and soon that someone subject  more sweeping ban on firearms possession access use all of those things are covered not just sales but it sure is very important similarities with the regulations and it's a particular group of people that have been determined to be irresponsible and dangerous for a particular for one purpose to the park and then they found him there that's my understanding so officer jefferson from the grand jury he testified that he's forty two dollars that he was responding on foot to a call which apparently was unrelated to me guinness and and manufacture one also illegally so those are the facts we have here is there any evidence that he had violated the protective order by threatening her in any way after it was entered while on the record your order for the conclusion of the rather i would like to again please the court with a comment made by the government right at the end dealing with unconstitutional in all circumstances that will come from united states versus salerno nine hundred and seventy nine this guy she unconstitutional in all circumstances because one would never acquire is a fine then a firearm was used in a domestic violence incident in number two it's a total disarmament without exception for leaving alone for purposes of self defense the government often talks at length that it's briefing a bit here today about some abstract terms dangerous irresponsible not virtuous whatever those terms mean it's not what they say it means in the perspective of the early colonies in the spectrum of the frame we don't need to deal in abstractions what is an example where a person who was disarmed in all circumstances because of an allegation domestic violence and historical record does he can block if you had a question for the government about empirical evidence to firearms to incidents of domestic violence where is that evidence in this record when the government has the burden demonstrating tailing under either intermediate or strict scrutiny in scheme there was a lot of evidence in the record although i think there was also a lot of wisdom in judge such decisions would point the point in that the court subject to a court order that includes a fungus or by its terms explicitly here of the minimum culpable conduct described here may not have been satisfied with the protective order no government then turns around and says but it's also very narrowly titled in there isn't a fear of tension in the way the government's approaching this with a broad reading and then turning around and saying it's narrowly tailored disagree about that a radio look at a lot of it it says there's a likelihood of family violence in the future in texas family violence is defined incredibly probably in fact people in the state of texas get protective orders against other people i used to do this for a living for two years before the law school worked into domestic violence and it's incredibly easy you don't have to have threats to safety you don't have to have physical violence and you certainly don't have to have a firearm it's for these