this rd circuit in beers has looked at this issue and held that this is part of the historic exception to the nd amendment as recognized by the supreme court what's wrong with it analysis where do i begin the beares decision is inconsistent with the other jurors to nd amendment jurisdiction from the other courts including this court this circuit it's internally inconsistent  be and i will address that so let me ask it more directly the supreme court has recognized that there are historic exceptions to the nd amendment and one of them is in the vernacular of the time insanity and why isn't it permissible for congress to use as a essential in a practical synonym for that that the past involuntary commitment for mental health treatment because the past involuntary commitment from of the whole treatment does not is not and they could have a current a mental illness and the supreme court so you think the court should be in the business of figuring that out for every single person as to whether they are or are not in a perfect world who would have some sort of goes through a body doing that but we don't we don't live in the perfect world and this is a constitutional challenge so  what i mean one of the ways the rd circuit analyze this was to say at the at the time of the involuntary commitment this person had no nd amendment right and it was nonexistent because  the condition of the person at the time but i guess i'm troubled by the idea that congress can't use practical proxies for these historic exception s and it even if it is not a historic exception i don't understand why it wouldn't be permissible in terms of just the opportunity for public safety and i say that because involuntary commitment requires both a finding a mental illness and a finding of dangerousness well i can't say that for certain because every state has its own standard well washington i can tell you but  wishes to regulate this field when congress passed a law in two thousand and seven specifically allowing for individuals with involuntary commitments to have their firearm rights restored that's the nics improvements amendments act of two thousand and seven and by the way that was passed right after the virginia tech massacre and in fact it was passed because of the virginia tech massacre and the virginia tech massacre was very clearly an individual who had been had all sorts of mental health issues so which of a massive shooting congress eased restrictions on firearms for individuals who had been involuntarily committed but had it came with strings the strings were that the elements of point where you are asking why can't congress regulate this well we this isn't a facial challenge congress can certainly regulate the possession of a firearm bar individual who was currently mentally ill but it's incredulous to say that it's incredulous for the government to argue or that congress has some sort of interest here when congress has already decided that it is ok with having individuals who have been involuntarily committed possess firearms but only if it meets that certain criteria and so that's what we're dealing with here because mr my had has had his fireman's restored by a washington state board and i washington state court found that he and his the conditions not judge the judge agree with your point about the heller of course that's what we're dealing with here and heller's decision or the language in heller regarding the longstanding perhaps bishan regarding the felons and the mentally ill again a couple of points t one is it's clearly using the term mentally ill as in the present sense the supreme court didn't say didn't mention longstanding a british ins regarding those who have ever been involuntarily committed that's a different concept and then also this court it's different concept but it kept getting kluges i understand the difference you're drawing between past mental illness and present mental house but involuntary involuntary commitment requires i think lucian of mental illness at the time of the right and correct ok yes but in the for example in this court such a such a scheme so while the conclusion was against the poland i think that there is some support based on the language from the scored to that and there was there was further language in the opinion regarding the fact that while maybe these perhaps sions weren't quite as longstanding and that language is based on simple studies or larvae articles etc that were issued after heller where some of the picked but essentially my point here is that i don't think heller for closes the argument that we're making nor does th circuit precedent for close argument or making because as you've pointed out your honor there is no published before opinion in the circuit there is an unpublished one which i think was a pro se filer who presumably probably didn't argue the points properly and so it was a summary disposition of the case that was the pitcher moll case so we'll look at other circuits you more learned judges consider the issue than the panel decision from beares it was more comprehensive it was better researched and the standard that is ploy by the six circuit is identical to the th circuit  we find that the tyler case found that they rejected the government's position because essentially agreeing to it would be a rubber stamp of the concept once mentally ill always so approach and so it and lack of conclusive historical support for such an approach it recognizes that prior involuntary commitments are not the do not indicate a current mental illness and they also that is i think i don't i don't remember what the order of commitment stated specifically in this matter but that would probably be the case yes ok so if that's the case is that me that in every g four i don't think there's anything wrong with that because this is a constitutional right we're talking about and there is no other way for some not everyone is in this boat because the federal government does recognize state restorations from certain states just not washington so not  determine not only that that somehow well we would have to determine among other things that the congressional procedure for ensuring that the state is following appropriate rules was wrong in other words there are as you say have strings attached or restrictions and we would have to determine that those are unreasonable because had washington state followed the rules then the answer would already be different are you asking if you if the court of have to imply earlier explicitly find that congress the appropriately by creating a scheme that requires yes yes because what they've done is to say well if you want to fall into this category we have a process for you to get there and if that permissible thing for them to do to have a process to get there it's not an absolute prohibition i mean you're almost arguing against yourself you're saying it's an absolute prohibition but it really isn't if the state has gone through has jumped through the hoops but this is a sense even as applied it would say it would have to just input at least implicitly say this restriction on how you get to this place that congress has placed on it is insufficient because otherwise we would never get there i don't think you have to get there the tyler case didn't get there in the beers doesn't mean that it's not the right place to go just because they didn't go there congress says here's how you can get around you for here's here's a way to do that and we say well we can ignore that states have it doesn't make any difference it basically reads that piece of legislation out of existence does not  no i think that if you follow the framework for as applied challenges of any sort not necessarily just before then we can still come to a favorable outcome for mr my without  comes good morning abby right on the half the united states i want to start judge gould with your question regarding the commitment at issue in this case the record does reveal that mr my committed for making threats to himself threats against others and rights to himself so there was a finding of dangerousness in this case we had a hearing before a state court judge in fact there are multiple hearings mr my was committed hospitalized released that was revoked there's one recovery and has led a commendable life he's got his ged a bachelor's degree believe a masters degree in his dean fully employed and has a family and certainly would appear to be a person of high character at least from the record i think the record that that's often system with a record your honor i don't think that's the issue before this court plaintiff's position i think finds no support in this court's precedent this lawful that that decision was not casting any doubt on those on those provisions heller then sort of walks through the federal firearms version starting with felons the mentally ill talks about prohibitions on sensitive places and commercial transactions and this court has as i said repeatedly recognized that those prohibitions are constitutional they're permissible i think plaintiff acknowledges today that his position would require federal district courts to provide a hearing on mental sort of mental health of the individual counsel he's looking he's played it is looking for an individual approach to this saying that it's unconstitutional to do anything other than that and your position as i understand it at least from your papers is that this is pretty easy case it's just basically a lawful statute he falls within the ambit of the statute and therefore we're bound to prove that's correct your honor that's our that's our position that's the position that the rd circuit circuit took in the beares case i would not to even the tiler decision that's a fractured decision but when you put together the controlling opinion and it didn't just dream and for an individualized determination it also remained it for the government to attempt to prove its case under intermediate scrutiny as well and of course there were six dissenting judges in the tyler case who we think reached would have reached the correct decision in that case as well well i think we look at how presumptively lawful was used in the heller decision so in the body of the heller decision the supreme court said we're not casting doubt on any of these longstanding firearms provisions that in a footnote it notes that that presumptively lawful measures list i think all the supreme court was doing there when it said presumptively lawful was simply saying outside of the nd amendment context there could be other issues with those laws i think the supreme court was just being somewhat cautious and not sort of setting forth at that has didn't cast any doubt on and heller that this court and other courts have consistently upheld from nd amendment challenges l i that but it was one of them and that is an issue that i'm having with this case in general and in that again in a perfect world like i said we'd have a ministry of body handling this but we don't have a perfect world ultimately the nd amendment is a constitutional right and so we have no other option here than the courts have to protect the liberty of individual liberty and that includes the nd amendment and i think we've  very much we appreciate the arguments of both of you and the case just are you to submit and we will take a break for about ten or fifteen minutes we'll be back thank you