the next case in the called the docket is agenda number seven case number one one three eight six seven and re the denial of application for a fire arm owners identification card illinois department state police  to have your honors this court should reverse the circuit court's determination for three reasons first the seventh circuit in its bank decision inscribed in hell that this very same statute survived a facial constitutional attack under the second amendment second point of has not even saw a pardon therefore plaintiff has not exhausted all of the routes to remove all of the disqualifying conviction he should not be h complain of the bar imposed on him by section nine twenty two g nine until we in fact know that it is a bar until that point a constitutional decision is not appropriate and third the constitution tolerate over inclusiveness in the categorical prohibition and it does not require a case by case determination so i claim that the statute is unconstitutional simply because the petitioner himself has not been arrested of as is for now have language that specify that a circuit court may not order the state police to issue a four year card if the petitioner is barred by federal law from having a gun so the court clarified that the nine twenty two g nine bar prevents or i'm sorry that the general assembly clarified that the one twenty two g nine bar prevents the exactly the order that the circuit court entered in this case turning to my first point sure on the seventh circuit in school you know upheld nine twenty two g nine against a facial challenge this court has explained while federal court decisions and turpin federal law are not controlling their nonetheless given considerable weight that is especially true for cases in this seven circuit because it does recognize the need for uniformity in application of federal laws in the state and federal courts within illinois goal is reducing armed violence second the court found that logic and data supported the link sufficiently under heightened scrutiny between the bar and that goal and the logic in data supported run the finding that guns are uniquely dangerous in domestic violence scenarios to domestic violence or domestic battery is chronically under the charge by prosecutors because of problems with witnesses testifying getting witnesses to not drop charges getting witnesses to come to court that's a problem unique to the domestic violence situation as senator lautenberg exploited section nine twenty two g nine is often ca lautenberg amendment it in recognition of senator lautenberg efforts to close a loophole that allowed domestic batterers to still obtain guns because they're only being charged with misdemeanors when in any other context they would be charged with felonies and three domestic batterers have a high b citizen right so the court found that the statistics in peer reviewed studies supported the notion that the mystic batteries have a reasonably high restoration of civil rights under illinois and the incarceration vs non incarceration question is a function of illinois law is not a problem the federal law and the federal law is all that challenge here too it is reasonable that way is subject to certain deterrent and rehabilitative measures but somebody who never goes to jail is not the re the principle under charging logically extends to the principle of sentencing there's no doubt the evidence is is is exorbitant that these types of crimes are under a charge so prosecutors often have to charge a misdemeanor instead of a felony along those lines the reason for that is that the witnesses may not want to cooperate a lot larger because they are intimidated by the person who's inflicting the violence  not only were prosecutors made for a reason we decide to bring this down to a misdemeanor but they also may decide well even if we go to trial in a misdemeanor this witness may be uncooperative and difficult and so i'll try to get a situation is not necessarily the case that the worst offenders are the ones that go to jail and the ones who do not are the last bad offenders and certainly may be the case but the ones who are most successful in intimidating the victims are the ones who don't go to jail because those are the situations where you have the most uncooperative witnesses and the most pressure on prosecutors to charge down as well as to offer a plea with a non jail term recommendation for the sentence but it is clear speak it is clear that the person who gets the more severe penalty would be perhaps eligible to write it right we stored and could get the only right would have been the right to poke and whether that's sufficient or not we're looking at a federal law and federal cases seem to say we understand there will be some that the right retained versus the right be stories an interpretation of the federal statutory language so the question isn't a matter of illinois law the question is whether it's taken away perfect for the purposes of interpret the federal statute which has the rights restored language that we bound by that like this court but by the federal court's interpretation of that language this  definition now corrupt the federal courts are pretty unanimous at this point that a degree of heightened scrutiny that falls short of strict scrutiny applies so it's an intermediate intermediate level what's quite another seven specific we found that this statute satisfies that level of scrutiny but turning back to the disparity in the justice thomas that you raised and continue along those lines and as justice comer you pointed out the federal courts have recognize that the federal law allows certain anomalies to be created they recognise that with the rights we store of language there will be situations from state to state and within one state as was the case in logan within one state where people who are incarcerated and whose rights and then are released and get those back will have their disqualification removed whereas those who never are incarcerated don't they never have rights restored but the court  logan found no problem with that and the second circuit in scoring imported that specific line of reasoning acknowledging the anomaly before finding no problem with that in the nine twenty two g analysis these anomalies are permissible these anomalies are permissible under logan and squarely and and as they said for the reasons explained above it's reasonable to think that those who go who are incarcerated are not necessarily in this specific contest to possessing a firearm the fact that rights are we store going it automatically happens the the fact that it automatically happens you're correct shows that it's not done on a case by case determination that's true it is not provided for in illinois law and in fact illinois law for instance could amend the generous and we could amend this that statute to say when you are released your rights are resort other then your right but that's a firearm in some states do specifically provide for that but if if court that is a case by case determination again he has that option and that isn't seeking a part it under illinois law and this is under section one twenty one a thirty three b of the federal law each receiving a pardon is one of the ways to relieve yourself of the disqualifying conviction an illinois law provides for wide latitude in for review now without any statistics or any analysis corum suggests that while a pardon is not a reasonable route to restoration of my rights but again there are no there's no support there's no statistical support for that assertion instead the facts suggest the contrary as of last november governor quinn had ruled on two thousand two hundred thirty seven clemency petitions and granted par laura really believes that he is rehabilitated if he believes that he should be reviewed of the burden that this bar then the federal law and illinois law than the interplay between the two provide a nine is one of those presumptively valid provisions no federal court has found to the contrary and many federal courts have addressed the issue and these cases are cited in in the state police as brief the the case that in a situation where the fit need not be perfect and over inclusiveness is permitted that everybody who is under the umbrella bit of over inclusiveness has a constitutional constitution does not require a case by case determination in whether to extend a prohibition on gun possession to somebody as long as there's a reasonable basis for that category and there is in this case that is adequate the petitioner has a domestic violence conviction there's a high rate of recidivism for domestic battery the government has significant interest in stopping our violence specifically in the home and guns and that situation is an extremely lethal combination this is similar to a situation of of a speeder driving over fifty five miles an hour the fifty five mile an hour speed limit is for the purposes of traffic safety a person who is speeding is pulled over but hasn't caused any accident can't claim that the fifty five mile an hour speed limit is unconstitutional as applied to him simply because they haven't caused an accident similarly here poor him has been has a conviction for domestic abuse he cannot claim that since that time the bar on his possessing handguns is unconstitutional applied to him simply because he has not state please urge this courtroom reverse the decision of the circuit court and to uphold the constitution ality of section one twenty two g nine of the federal gun control act just as every federal court who have addressed the issue has done thank you very much thank you state and federal law preclude cherry crime for possessing a firearm not only for the purpose of hunting but as indicated in the record of appeal page two zero zero eight for the much more significant purpose of protecting his home court found that nine twenty two g no i was unconstitutional as applied to jury quorum and i will best begin with mr crimes as applied argument history and fortunately all courts limit the exercise of second amendment rights to law abiding and qualified individuals in the district of columbia versus heller the court stated that categorical prohibitions on firearms are presumptuously constitutional nope the court conclusively constitutional the court said presumptuously constitutional a presumption can be rebutted in order to rebut the heller presumption and prevail on his as applied challenge mr crime must show that his factual upon circumstances take him out of the class covered by nine twenty two g nine and put him into that class of law abiding individuals according to one real narrow question yes i'm reading your conclusion page raising any other kinds of arguments except second minute rights and second amendment rights correct ok he has put himself out of the class created by nine twenty two g nine to prevail and put himself into that class of law abiding citizens that the second amendment was in entitled to cover ok ok according to the fourth circuit in united states versus elkins he must show that his factual circumstances remove his challenge from the realm of ordinary challenges mr crime has succeeded in doing just that first with the exception of the twenty year old event in question mr crump has led an exemplary life mr cohen is not a speeder he's somebody who may have sped twenty years ago unlike most challengers to the second amendment limitations mr koran did not bring this action for the purpose of fighting current criminal charges which place him right back in that classification all for the purpose of ameliorating enhanced sentencing but rather he is merely trying to follow legal channels to legally obtain a free card to legally possess a firearm yes there's no question mr wagner's we're dealing with just  believe so there's no case or no statute that claims that's a prerequisite to say he can constitutional relief from ny twenty two gene i have not seen that in a case law where well if if you saw the burden and received the burden we would no we wouldn't but in light of the political climate i don't think so in the governor's office the overarching principle is who's going to win the next election and just what they must do to achieve that in a court of law the overarching principle is the constitution and justice it's quite different than the determination of a pardon here we worry about the constitution and law not public opinion you ha three or something like that were granted and there's there's years of backlog according to what i found them there's nothing there's nothing present it's all gone into trial or i don't believe so no states code section nine twenty five c provides a framework for the attorney general who really understand it hasn't been funded since by ninety two that's correct like it's not particularly because the attorney general the federal attorney general would not govern the since it was state charges that the jurisdiction that  convicts the defendant is the jurisdiction that has to issue the pardon or restoration of rights they absolutely do not another statute did state that a judge could not grant relief under four thirty i'll see a sixty five ten if it was a violation of federal law they just added that language specifically to the statute but what controls here if you read the statute it very clearly says that domestic battery mr minutes can appeal to the trial court it's in the plain language of the statute on its face and so i mean by the plain language it appears that any domestic battery mr mean it can apply to the court but when coupled with federal law the only ones that can get relief are the ones who have had this restoration of civil rights so in other words the plain language of the statute very clearly states that yes if you've been released from jail you have your civil rights restored you can you can go ahead and avail yourself of course thirty i'll say yes sixty five ten if you were not convicted you did not receive your civil rights well the federal law prevails and in spite of that language the domestic battery language in the statute the person is convicted or the person is deprived ok we're going to get back to the as applied to distinction from mr crump first with the exception of the twenty year old event unquenched question mr crump has led an exemplary life second mr crime status examination showed no psychological malady whatsoever and dr from an even stated in his report that mr crime exudes a significant sense of social responsibility and has positive relationships with others burned and initial offense a representative from the adams county state's attorney's office was present at the hearing and this was the very office that the prosecutor mr kwan's case twenty years ago the state's attorney was present participated and he had absolutely no first of all it was not dealing with an enumerated individual constitutional right also this case was decided pretty heller district of columbia versus heller was i just don't see how on that one how does the heller case fit into this other concept that comes out of logan about the fact that the congress can create categories and sometimes they work in some states and sometimes it won't work in o heller has an impact of upon this because prior to heller firearms were more or less a collective right it was the right to own arms in a militia in two thousand and eight the heller case made this an individual constitutional right ok and that's what brought it to intermediate scrutiny logan and the other cases decided under rational basis scrutiny moreover that logan dealt more with congressional intent and plain language of a sentence and hansen statute it did not would i believe the courts are still law hashing that one out most of these laws that govern firearms regulations were enacted prior to heller and i believe there's going to be a lot of sorting this all out now under intermediate scrutiny as opposed to the prior rational basis that was applied and as you know rational basis scrutiny is basically anything goes if it has a conceivable relationship to the government objective it's fine in the media scrutiny has a little bit higher standard it must have a reasonable relationship to a substantial governmental goal you're you're not to consider which entity has the best ability to determine whether mr crimes factual circumstances set him apart from others subject to nine twenty two g nine who is the better judge of west or whether mr crime presented facts place him outside the scope of nine twenty two g nine and in the class of law abiding individuals is that congress is of the state police no it's the adams county illinois trial court that adjudicated the original offense its rulings should not be taken lightly contrary to claims of appellant case law does not preclude the success of as an appropriate as applied challenge and it was these cases i was looking towards in regard to the part again no case mentioned that a pardon was a prerequisite an example of this is schrader versus holder like the shredder petitioner presented facts which made him different from others in the disqualifying class like mr  coleman he had been law abiding for years unlike mr kwan he had led an exemplary life mr schrader did not properly put before the court the issue of whether the disqualifying statute was unconstitutional as pacifically applied to him he done so state of the court the heller case might have dictated a different outcome the shrader court also stated that i would hesitate to find schrader outside the class of law abiding responsible citizens who possession of firearms is protected by the second amendment however the court could not make findings to this effect because schrader didn't present the issue united states versus sky one also left th stated that it would leave the door open to a successful as applied challenge by a misdemeanor and who had not violated the law for an extended period of time did the case bank or whoever resolve your facial  you're arguing in your brief and you disagree with that case i do because as we see in this case there's a crazy hodgepodge of laws and these are governing an individual constitutional right i mean the laws are basically the product of a polygamous marriage a federal law with no less than fifty sets of differing state laws and this is yang case how do you get around or do you have an argument where the seventh circuit was incorrect in whether or not we need to follow and this is facial ok on facial i can argue that facial challenges are disfavored and i can't argue that there's a whole body of law against islamists but i do want to bring to the court's attention but this hodgepodge of federal and state law is governing a constitutional right and moreover it's governing dangerous weapons here ok i mean in one state somebody who was licensed to carry a firearm can legally carry a fire if he tries that in the next state he might fight might find himself subject to a felony conviction which precludes firearms possessions forever in our case we see with four thirty i also yes sixty five ten the more more likelihood the defendant is going to go to jail the more likelihood he gets going go to jail the more likelihood he's going to get a civil rights restored and if he gets a civil rights restored he falls right in the middle of nine twenty one eight thirty three the two that uniform and doesn't wake lack of logic is justice twice a don't we have to follow that's correct and you're absolutely correct that's why i started with the as applied challenge so short of it not going to your hodgepodge of laws we have anomalies such as the one we see in this case and then we wonder why we have an effect of gun laws it's so different from state to state there's no rhyme or reason and then we gun yes under the federal law which prohibits it i believe it does because i believe the ruling that that law would be unconstitutional as applied to him would be controlling and i believe that the government would have specifically it would not apply to anybody else in illinois and interestingly enough if you look at the case law that's provided by appellant there have been a lot of as applied challenges brought but not a single chapman petitioner had an illicit gun to begin with that's why he was in front of the court in the first place he had tried to commit suicide with the solicit gun and moreover he saw fit to try to shoot his ex wife out the window with this illicit weapon then he tried to that the statute didn't apply to him and if you look at the cases carefully you will find fortunately all of the challengers to these limitations on firearms rights were either battling battling criminal charges or they were does because what he's alluding to is they added the language back to the circuit court could not direct the state police to issue a freud card if it was contrary to federal law that was already more or less in play because the federal law virtually precluded mr crime from having a gun anyway when they did the federal background check he would have been precluded he could have not obtained a gun the only difference is that language said that the court could issue such a ruling however we see the controlling issue here the language to mastic battery is in both versions of the statute absolutely both on its face plate and it says that a domestic battery mr mean it can bring such an action to the courts and it says that the court can issue the order to the state police if it doesn't violates if it doesn't violate federal law now if the civil rights were restored as as we have talked about previously to people who really were released from jail that domestic battery language of the statute is totally superfluous if the person cannot get a flight card cannot be in apt to consider an as applied challenge where the point is the categorical fit need not be perfect and the constitution or the constitution how the rates over inclusiveness that independently forecloses as applied as a pledge challenge furthermore in school in while the court did leave open the possibility of an as applied challenge engaged in no meaningful analysis of it and the court said whether mr mean and who is bad law abiding for an extended period of time must be allowed to carry guns again even if he cannot satisfy the nine twenty two a thirty three b two is a question that is not for this court even if you cannot satisfy eight nine twenty one a thirty three b with regard to petitioners efforts to distinguish logan petition or a century makes two arguments one that it was not dealing with enumerated constitutional rights that isn't correct that logan concerned the application of the arm career criminal it concerned mandatory minimum sentencing in other words liberty interest which certainly is an enumerated constitutional right at least as we as the second amendment statute school you know howled in that the justices held in logan that this variability does not call into question federal firearms limits based on state convictions that have been left in place under the state's widely different offenders under state law as not being a constitutional problem into this round the fact that it's individuals who are convicted for mr there's a misdemeanor domestic the court has explained the courts have explained that categorical prohibitions are presumptively constitutional is the category that is presumed to be constitutional and there is no suggestion that the category is not that that presumption has been rebut it simply because one individual stands up and says i haven't been to recidivate that is not necessary that is not meaningful under intermediates group nor is it arguments case number one one three a six seven and raid the denial an application for a firearm owners identification card in the interveners illinois department of state police vs jury corum is taken under