this if what twelve twenty one c did was say that anyone who's been convicted of a past misdemeanor simple assault if convicted of a another offense in the future that that is criminal conduct that was criminal conduct as it was defined at the time that the original offense was committed or breaks a law then then there is going to be an enhanced penalty the illegal it's perfectly legal to do that it's rinder illegal only by virtue of the past conduct it would be as if we said that anyone who's been convicted of two prior felonies is no longer permitted to purchase a house sample i don't know if that works there are so many of us who are prohibited from possessing firearms even though we've been perfectly law abiding citizens in so many circumstances for example when we take a plane or in many jurisdictions if it's concealed and we don't have a special so it's a little hard for me to see why picking out a quiet to people based on their prior crimes and saying where you know gun s should be treated as punishing them for the past crime rather than a mere regulatory scheme in the future i agree with you your honor that is the that's the d it's completely around national given the crimes that they have excluded from the prohibition for them to have included misdemeanor simple assault which as just pointed out in the brief an unjust hodge's dissent below is a lesser included offense of some to suddenly include in this class of offenses that they consider to be sufficiently predictive the crime that is the lowest on the totem pole of the salt offenses and if i may that the bill that that that was an acted that that brought about the amendment that where there were challenging here was a b forty two and the legislative councils digest that described what california decision was clearly contrary to or not a reasonable application of a supreme court decision that's correct the twenty fifty four clearly applies here this is a post at the case  the test is whether or not controlling us supreme court precedent was it whether the state court's decision was objectively objectively and reasonable because it failed to apply control in supreme court law but i would  that the supreme court decision that there has to be a violation of right that's correct your honor and but i would submit that doesn't matter california's wrong it has to be totally out in right field it has to be that that's correct as well but what this court has to do is determine whether or not in order to determine whether or not the state court's decision was unreasonable i would submit that this court needs to look to controlling u s supreme court precedent that there was not specify elation x was fact a violation then you look to the state court decision in the term and whether they got to the wrong answer but they at least were applying the correct precedent and the way that they got there is an objectively and reasonable and we would submit that they they clearly did not all they did was reasoning was in a different order that you never do decide whether there's a double jeopardy violation and whether to cut that and then subsequently decide whether to cut the state court some slack instead you read the supreme court opinion and you say regardless of whether it's the right answer or the wrong answer could a court reasonably think that there's no double jeopardy violation and the only way that this court can can do that is the term and whether or not there was an act i think there was an expose my ex was fastow violation i understand that and i'm drafty the u s supreme court overruled this court's that brings me back to my first question and i'm not sure that you really answered what they did that you're saying it's funny sprint is they said you can't carry a gun anymore why is that punishment is not putting them in jail it's not finding him it's just regulating him and his caring of of a gun they say you can't carry a gun anymore but they also tell me i can't carry a gun in most circumstances and i tell you you can't carry a gun in most circumstances why isn't that just regulation not punishment because there's not a sufficient nexus in in your view the statutory scheme as a whole and you recognize that in that i'm not even getting to the nex statute was a close call here we've got a felony or rather oregon was a felony here we've got misdemeanors in haas the court pointed out this court pointed out that oregon has specifically included offenses that were misdemeanors at the time that they were offenders even though it only regulated what they did after the statute was faced with strike me as an additional punishment i think that my thinking so it seems to me your argument doesn't really do enough there well it i offense he had the same right to carry a gun as anyone else so and the only reason the put the restriction on carrying the gun is impose just like the nighttime curfew in my hypothetical is the original offense so it seems to specifically says that but the question is whether it's punishment for the original i mean there's no question that section one two and two one really is punishment it's a criminal statute but that's punishing the current activity that in the gun which is based on your status of being previously convect convicted i mean it just like any other expelled with a gun statute so when we look to see whether this constitutes some additional punishment for that original offense that's what would make it a post facto and the defendant's argument seems to be that it is punishment for the original fence because misdemeanor mean or assault and not really very serious it's not it's trivial my question i'm sorry i don't think you understood my question perhaps not the difference between regulation and punishment is because of the status well no i don't but i did attempt answer your question or are but my answer was that the question is not so much geared toward whether it's regulation or not but whether it constitutes punishment for the original offense i think that's what the case is that analyzed these these types of statutes are looking for looking at the weather at all persons with the status of prior misdemeanor must go to jail for thirty days that are being exposed facto or right even though it's future oriented i'm not sure but to take that the  discussed as an example that was a case where the man was convicted of burglary and new law was passed saying that you couldn't be in possession of rifles and shotguns afterwards and the court said that was fine the burglary was his previous status then the future conduct was possession of the guns but he didn't constitute punishment additional punishment for the original burglary they were just saying what you couldn't do in the future and to the extent that i think there were some questions about the nexus requirement i'm not entirely sure that there is supreme court authority clearly establishing that kind of a nexus requirement  none of them focused on there being enough this requirement and of course if there's an established laurie supreme court law requiring that then that doesn't have to apply on hideous but but even if there is a nexus requirement i think they're clearly is here this is a person who was convicted of a crime of violence which is misdemeanor assault and it's simply whether there is some reasonable connection that would mean that was predictive of their future behavior rationality who wrote the distance he got off on this tangent about the rational basis test which it applies to some other argument it's not an ex post facto claim argument i mean he was imposing some kind of whatever it was free speech or something but it's not really doesn't speak to the particular legal question that we have the force which is simply what is it reasonable to say that assault is predictive of future violent behavior such that we don't this statute only applies to those convicted of misdemeanor assault who cannot show that they carry they think they can carry a gun in safe and market manner so given that and also given there's a time limitation on it given all that i think it's entirely discretionary that a judge even presented with more than a preponderance of the evidence that a person was not likely to use firearms in a dangerous manner is not required to grant the exemption and number two and i think it's really goes to the heart of the perfectly legal for him to have in his closet the night before it's only become a felony for him to possess and he has no way of knowing that no way of knowing that he needs to go and petition for extraordinary relief so i believe that that that clause is not enough to say the statute if the court has nothing more than that the man like you