reserved thirty minutes time to hear this case if we can be a little flexible because there's no the case of today the pelican these are five minutes for rebuttal if you'd like and with that you can receive in rea well good morning your honors and may it please the court the issue in this case is very narrow can the state criminalize the possession of a firearm if the bearer also possesses a misdemeanor or the courts both ruled that a ban on a possession of a firearm outside of the home should be struck down as an unconstitutional by aleisha of the air second amendment rights were completely and cases where because mr kelly was charged with six counts of possession of a firearm three just for straight out possession the type of at w and three that involve the possession of a firearm like ed will are with the added element of a misdemeanor amount of cannabis now in the trial court the three non cannabis related offenses the one that we're pretty much exactly like at will are were dismissed marijuana well not just that but also with the time breaking marijuana law well ed but it even at the time it was according to the state it was only a class b misdemeanor amount to simultaneously have marijuana particularly the time when in order to get the marijuana is not legal and you have to give them illegal source so we have led by definition a mob breaker w the state can say that but it is not reasonable the because a second amendment right is affected in this case the right to bear arms outside the home that is wh more versus madigan and people versus apple are how even heller would restrict the right to bear on that correct they provide us non exhaustive with reasonably legal i think that individual can all such as restrictions on felons and possession but what has happened in the ten years since then is that a number of individual cases involving felon in possession taking a civil amount the civil violation amount of cannabis and sang that's enough to label you a felon for the rest of your life for other what otherwise would be exercising a constitutional right mr kelly is not raising that mr calley's firearm rights were affected by other things that went on in the case and so we are not asking this court to restore any firearm rights what we are asking this court do is to overturn the felony conviction that this act of that the act of something of a that was constitutionally protected just because it's combined with something that is a civil violation or even a very low level misdemeanor should not combine to turn into a permanent felony conviction v your honor asked whether or not it violent misdemeanor offense enough to label someone as a life time to make someone stripped of their right to have a firearm such that they should be labeled a ad for doing so is your argument that not that the state can't prohibit possession of a weapon and marijuana at the same time in violation of marijuana act is that the price for that fel is that what your argument is i suppose that's a portion of what i'm arguing but no i'm i'm arguing that in this very narrow circumstance that that bothered says that the something that would be the right a car exercise a constitutional right just by adding the slow level amount of cannabis should not be a criminal offense but these state often have laws because and certainly i'm not here arguing about anything about restraining orders or mental illness or anything like that but i don't think that they're comparable to what we've to the narrow set of circumstances that we have in this case this case is not about drug use it's not about drug trafficking it's not about possession with intent to sell it's not that there was no evidence there wasn't even evidence in the case that it's that mr kelly was under the influence of of cannabis at the time that this happened he was convicted of a dui correct can we  draw an inference based on some of the circumstantial evidence that was in the record well now unfortunately your honor i go a tiny bit outside the record and i was counsel i was mr kelly's third down solved when i came into the case i said i'm looking through i said what about this to you i said what are you talking about i suspect that at the time the first plea was entered for the first the a u w charge before the motion  that it got wrapped up in that and so that it was ok we'll give you know x amount of months probation for that we'll give you x amount of months probation for the the firearm let's go home and then and then no should consider more the fact that there was an actual trial with four police officers and mr kelly and that by the end of it even the trial judge had no clue whether or not mr kelly had used  time or was under the influence because he said there was no evidence to that at all and in fact that that dui didn't get to my recollection did not come up during the trial as any kind of know if the if mr kelly had been under the influence of cannabis at the time of the offense what was also in the an avid ends was that mr kelly had a medical condition that caused severe headaches and nausea they vomited at the scene and was taken to the hospital for those not up for that medical condition and there's no evidence of any other influence what have caused that and so i certainly certainly the conviction for dui can be considered by the court but i would posture that it's outweighed by all the facts that were non facts as it were that were reduced at the trial the court should in considering whether or not something is reasonable should look at the appropriate level of scrutiny if the court is not going to follow the how or approach and say was this band or no and low level misdemeanor offenses at the time of our we're not but if the court is going to apply say in the sal approach because we know the first step we know that the second amendment is affected in this case the state claimed that and this goes to your point judge alice this is that the state claimed to prevent accidental reckless or irresponsible firearm just charge well except to say in self defense for example reasonable self defense and of course there's clear justifications for making that rule in this case there are plenty of rules regarding the unlawful use a firearm that involved actually using a firearm as well as the unlawful use or other activities involving cannabis the state claims that it would be fine if he had a cannabis and a firearm in his home the there's nothing stopping someone except the law from someone getting getting high in their home and then taking the firearm out and that doesn't even boke this statute so we have to look at whether or not the means and the ends actually serve each other your honor on the narrow facts of this case i don't believe it does i believe that virtually every other specific aspect where harm might actually in sue is already criminalized so really what this becomes a question of are you not allowed to transport them in the same vehicle i mean that's all mr cali was doing at the time and what we have now now is a situation i don't mean to say that at the time it wasn't it was to a low misdemeanor level and now to a civil violation ticket of all level which is only at best i suppose all and a year from now i mean it might not be criminal at all and in other places it's not criminal at all either i mention this because not to try and split hairs but because to really stress the narrow aspect of this case what this really is about is that he had a misdemeanor mr kelly had a misdemeanor slash civil violation now amounts in a vehicle and was transporting at on with a firearm which the illinois supreme court and the seventh circuit court of appeals sat at the right do  someone from carrying outside the home is not one of those parameters the us however sad that possession by felons or of the mentally ill are presumptively lawful restrictions but in the ten year sense plenty of courts such as gender up and suarez and i believe the third circuit the hatfield case in the southern district of illinois but the gallagher licensing where someone had a felony conviction and they went to court because they were denied their second amendment right or allegedly and they said that this allen in possession statute nine twenty two g want that for him it's me from having a firearm it is unconstitutional as applied to me because the offense that app and so long ago it was nonviolent and not a danger to anyone i should and the courts agreed with that and what i'm asking of the court what i'm it what i'm arguing to the court the smore ning is that the presumption of reasonable ness that the court might apply to what the state wants to do is overcome in the narrow set of circumstances that exists here if this was a case of mr kelly had no large amounts of of cannabis and was charged with possession intent to stahl i'd say well then you know probably get over it and move on with the rest your life if this was a case of mr kelly pointed a firearm at the officer or shot it in the air because the polls won or lost then say you know why i don't do that again and move on with the rest of your life but here in this case the circumstances that have come together where you have a constitutional right plus eight very minor misdemeanor at bass now have labelled him permanently a felon and it's that that i'm asking the court to overturn in this particular case whether or not the court finds that all circumstances the possession of a firearm a very small amount of can a best is unconstitutional is an unconstitutional charge to anybody that does it or whether or not the court wants to limit the case to mr in constitutional that to me is kind of like ending outcome of the test of constitutionality and i've never seen that but if there is a case that addresses it in that believe the reason that i'm phrasing it as sides is that if say mr kelly was charged with the un lawful use of a weapons statute but the trial court had sat but given at will are and given the fact that the amount of cannabis was only by itself of the misdemeanor were so or if it happened a couple of years later to get a ticket for it so we're going to charge mr cowley as such that it's going to be a ticket of all charge or it's a misdemeanor charge then it doesn't have the it's not outcome i'm not going outcome but i am asking the court to take the outcome into a fact  in into consideration as to whether or not the means are ends justification as matt here this is in a fact trying to kill a fly with the side chamar is what the what the state is done here again other parts of the other parts of the statute not being challenge if this was about firing a gun if this was about selling marijuana if this was about the statue also talks about control other controlled substances or not them fadam means and you know if it was about that we would be making this argument by and because the the why here the law here takes something that is constitutional adds it to something that is very very minor and then says that it's being charged as as a felony that rises to the level of unconstitutionality it's a good question your honor whether or not would have if it was only charged as a misdemeanor and he was and it didn't affect the rest of his life whether or not he would say ok fine or the next person hypothetical person well go whether or not that is even unconstitutional i suppose is another court for another day i agree with your on earth of that you'd be looking only really at the nature of the charge you're criminalizing something that was not criminalizing the exercise of second amendment rights that either flat out was not excluded in the time of the framers as our would say   or call analysis nor does it meet the means and scrutiny as the state stated purpose says of each sal where it's not about reasonable ness it's about your strict scrutiny sal because this is very close to the core right this is the right to carry outside the home and more versus madigan was held to be just as important as inside the home of these gore which involve firing range is sad that when was that close to the core of the right near strict scrutiny applies and it's not about reasonableness at that point it's not about it's not about the reasonableness of intermediate scrutiny that sometimes gets gets labeled it's not about it's not about important interests and substantially related it's about compelling and tress and it's about least restrictive means second amendment belongs to responsible law abiding citizens the other part of the defendant's argument is that he assumes he was prevented from exercising his second amendment right and he's wrong he had a choice the prevent the preditions gave them the choice his choice a choice he could have left his cannabis at home if you wanted to be armed in public for his protection and it's right this is not a flat ban and that's what makes it different from  opportunities to exercise the second amendment right the provisions at issue are extremely limited so any burden on the second moment if there is any is minimal countries to country to defendants position it in strip they don't strip a person of his second amendment right to possess a firearm in public they don't actually impact the second or second amendment right to self defense they only operate when a person is engaged in a misdemeanor violation of the can but here we're not talking about the mere mr mean or once there was a gun we're talking about a felony the legislature who who's in charge of defining offenses determined that the possession of cannabis in mind altering drug and and a gun was serious enough courage to be a felony and violating the kind of control act it's also limited in location it doesn't apply in a person's home to rally land or if the person is invited into the drawing or the land of another faith it's very trying to say it's a narrow regulation  in public and again the impact to the second amendment is minimal because people are left with a simple and feasible option of leaving the army marijuana at home if they want to possess a gun in public for their protection in light of the limited scope of the late legislature's decision to criminalize the simultaneous possession of a firearm in cannabis constituted a close to the  were most interested in protecting the public from incidents of violent crime as well as reckless accidental and irresponsible discharge of fire fire fire fire arms in the primary goal in an actor's provisions is gun safety in public has made evident by the laws criminalizing driving flying under the influence the legislature is fully aware that the consumption of cannabis can immediately impair motor skills coordination and reaction time and it also causes paranoia or intensifies paranoia and the already paranoid and these  increase the possibility that there will be accidental reckless and irresponsible discharge of guns and by making it a class four felony the legislature established a strong deterrence and it was also contrary defend its  continuous possession of a gun and cannabis it's not minor it's a serious felony that the legislature was within his praga to to enact and define define it as an offense and given  severe penalty or a stiffer penalty you  that he was a little out of it he had a revolver and in the front seat under a blue bag that was loaded he had a rifle in the back with any mission there was and mission scattered throughout the car seventy one to seventy three the judge express disappointment that no evidence of that was introduce indicating that defendant's behavior may have shown paranoia so it was that day he didn't find that there was no evidence introduced he was disappointed that no evidence was introduced and of course would have been a prior bad act and the people did need to show that to prove him guilty and if a person who has a medical card write a driver let's say in a car if he has if he possesses cannabis and it's not see all and that cannabis control container and i tampered with that's a class a misdemeanor so dependence transportation possession you know of illegal or a feeling of cannabis is certainly not minor and it's certainly not not innocent and with coupled with the fact that he had a gun conviction here we're dealing with it disqualifying conviction contemporaneously and no time has passed and especially no time has passed to show that mr crowley has under the second amendment those questions of those that's those arguments are better addressed by the legislature who is responsible or defining offenses and establishing the sentencing and here would the question is  any other potential crimes than a there maybe with cannabis and guns the fact that it's under inclusive doesn't make it unconstitutional and specially you know not under the second amendment so if any has failed to show that suarez and other cases along those lines might be licensing cases but they involve people that got convicted of felonies and the question becomes do they forever who second amendment rights the question in this case is a little bit different because mr kelly is not here before this court asking to restore firearm rights he's not be enough to in those cases keep someone in the felony category in this case put someone in the fall any category and so while procedurally of course those the cases are different the analysis regarding what was protected what persons were protected what apps were protected under the second amendment should have to rely on the legislature to fix this the law isn't under inclusive the laws over inclusive the law criminalizes something that quite frankly shouldn't be criminal is you rewrite it as it chooses and that i or some other attorney some other but again will deal with that situation if and when it ever happens but i mean asking the court to address the law but really not as it applies now but as it applies mr kelly back in two thousand and twelve of course the law was changed with regard to the oath to canvass law and with regard to the concealed carry act which affects the unconstitutional how the but again how the legislature chooses or not doesn't choose to address that is really beyond the scope of what i'm asking this court b by mr kelly is unconstitutionally affected by it now and that's what we're asking this court to redress v state of the state again reiterate will be my final point again unless the court has any questions the core of the state reiterates that their concern is about gun safety and public was that mr kelly was convicted on or did not serve the means of gun safety in public when analyzed under the constitution analysis there were plenty of other aspects of this law that almost a decade because mr pelly wasn't charged with down by that probably do meet those standards do meet constitutional scrutiny i've talked about some of on the use of a firearm in public while under the influence and i mentioned in my one of my briefs it's the difference between using a gun while and toxic ated and using a firearm holding a closed bottle of beer in the possession with intent to sell of larger quantities of can math or any other drug under the controlled substances act that the legislature of illinois and plenty of other places has seen fit to either minimalize the criminal all impact of cannabis or eliminated all gather when we're talking about legislative purposes i think we have to look at why and while between the briefs of the parties the impact of crime and marijuana use is something that will probably be continue to be debated it's almost irrelevant because mr colley there's no al again there's no evidence there's and you endo really is applied and what anyone there is plenty of there's plenty of other statutes that we would not be here today but this particular one is unconstitutionally unfair to mr