bender up and the absence of any historical support for the denial of a constitutional right especially the right to keep and bear arms in relation to the failure to pay a tax or making false statements on a tax return the district court's decision granting the government's motion to dismiss must be overturned in fact there's a certain irony in the government's position in this case that miss for which a car should be prohibited in perp from being able to keep and bear arms including the core of that right the right to even have a firearm in her home and that irony is the fact that our founding fathers were fused to pay a tax they did not believe that the refusal to pay that tax prohibited them and in fact they actually took up arms against the king so when we look to the historical analogy that could affect are you saying that you would extend prog and then the secondary factors if some form of scrutiny is to apply what level of scrutiny by night supreme court as you know did so just scoot in and however there are certain things can be excluded including among others felonies they mention that but they said that we don't have at this juncture a case before us to discuss those d presumptions and news we're only presumptions the court was clear about that in fact this court dealt with those said well your your argument here seems to be that this is limited to people who do something that's dangerous but there are lots of crimes that maybe they're not themselves violent crimes you take burglary you take arson you take drug trafficking or possessing drugs with intent to distribute statistically there's a real connection between a willingness to violate the law and it leads these ways and violence might be now might be later does the government have to wait until someone shoot somebody i don't know that the government has to wait until someone shoots someone but your honor used a key word there is evidence and here there is no evidence the government hasn't explosives previously granted relief the individuals in the identical situation as miss forward to tar finding that there is no likelihood congress found that that in korea was on workable and decided to close it off and not aware and  evidence that that kind of inquiry was done historically and at the founding we experimented for a while in truth to be difficult to do and then are they bound to do it forever because they tried it out and failed actually congress didn't ban it and the congress defunded it they did what's interesting is that they've had pretty much does it well but what's interesting is the two reports that the government relies on for that contention there are just bald assertions without any support and the one report actually said we believe the states should be conducting these analyses but that was in relation to state law prohibitions or federal probation is triggered from state law conviction because it has cost the extraordinary resources that w being spent in the number of man hours that we're beings and i'm trying to do that individualized determinations and so why should we look to the legislature itself making the determination and the cut off by distinguishing something is a felony as opposed to a misdemeanor because there's there's no actual blanket's of work for that and again if we are looking at the bigger up decision as controlling or mas or all o that came before been dropped that interrupt that reaffirmed and gave a little bit more flesh to the rela there's simply no support just for a blanket prohibition without looking to the underlying context there of time of the founding felonies were nominally capital now capital punishment wasn't always carried out but could you could execute somebody right forgery so if you can execute someone does the government of the lesser power to say you can live we just don't want to trust you with your guns anymore well and if we look at what the common law felonies actually were and we dressed this in our briefing no where within there do we find making false statements on a tax return or failing to pay a tax to the king or to the government the so worries make changes to what constitutes a very serious crime in society but isn't that determination one belongs with the that in relation mr bender up that had a more severe possible penalty he could sufficiently establish that challenge we also saw that mr bin grew up actually received the exact same sentence that misfolded tar did in relation process question though is the legislature chose the state legislature chose to call those misdemeanors federal law was overriding a state determination a seriousness with an overall blanket rule here the federal government has chosen to call this a felony and by the way it also looks as if most states tree equivalent state tax fraud is a felony in their state so does that does that make it a consensus that this is a serious crime i don't believe so and actually the district court didn't even  the analysis of the cross jurisdictional analysis they didn't even consider it we had submitted it the court said because it's a federal offense we're just going to look to federal law and that we can affirm on any ground of the record i understand that your honor and we believe that there is other context that needs to be considered in a case like this especially the fact that it's nonviolent yes it is a felony but you have to look beyond just simply the title we have to look to what was the offense what was the sentence imposed if any  the maximum penalties that were permitted by the law and again look to whether this is really truly a valid basis for stripping someone of a constitutional right where it's merely making a false statement whe prohibition on felons detention of firearms and the court said right there after that there will be time enough for this court to consider those exact types of challenges that those decisions themselves did not all the sudden invalidate the gun control act national firearms act and those laws that exist but that challenges in the future may come and then the court will have to address those and that's why there are only presumptions but the court didn't say that absolutely they were  prohibition on felons and possession the presumption language or taking a footnote where it was talking about other kinds of cases that might come up in the future and so since it's not pronouncing on them of course the court battles going to be presumptive because that's not the case before them but how do we elevated an adverb in a footnote to go so far beyond what the plain text because they again believe that the court wasn't addressing those and it wasn't stating either way it wasn't saying that it's an absolute that these cannot be challenge and in fact this court struggled with that exact question in been corrupted so you know and so i think you're getting at the problem here which is judge kraus has articulated a very clean line and you said will there be time and offered examples pick your metaphor this is a pandora's box a slippery slope a can of worms whatever it is the government has a clean law and do you have a line here that's not going to mean we're litigating every single one of these cases every time some is convicted of something and says hey i'm not i'm not dangerous or or this was really that serious i believe it's looking to the historical analysis that  individual was prohibited from being able to keep and bear arms and was that a bio an offense i believe that as amethi had submitted in their brief they did an extensive review of the understanding not just here in the united states but also has no element therefore drug traffickers have the right to have guns if you haven't been convicted of an offense there would be no prohibition specific just being a drug trafficker you have to have been convicted of something before the gun control i would say based on the understanding of our founding fathers at the time our country was founded those individuals would not be prohibited in that to the extent there is a desire to prohibit those individuals there is an amendment process by which we do people can amend the constitution and change it to support whatever the desires or the will of the people is as i see him out of time i will be happy to answer any further questions on rebuttal if and that's the court has questions now for me which  seriousness test applies violence was an important factor in that seriousness test so all your friend on the other side's position is my crime was not violent no one scared of someone doesn't collect that she's not dangerous which at least weighs greatly in the seriousness calculus so there's a lot of your question on and if i can add to that i mean the st thing you asses from now on with regards a lot of the opinion there is controlling and i would say not with here are crimes that are available and that said the other factors here also show that this crime is serious and i think most importantly is the consensus of this is criminal conduct so not only is this a federal felony and the individuals crimes conduct would not have been criminal in many states and both individuals conducted in vision conduct that would not have been deemed alamy by the majority of states so there's a really a strong contrast here a hundred dollars fine here the individual was sentenced to three months home confinement she hated one thousand dollars fine and in connection with her same conduct she paid over two hundred and fifty thousand dollars to die or us so i don't think it could be considered minor by any originalist a historical evidence is there that before one thousand nine hundred and sixty one that non dangerous or nonviolent crimes are not exactly the same thing we're not involved some kind of deprivation of of the right to  foment rebellion were dangerous ok so all catholics bands of slaves some of the things ugly parts of our history were arguably tied to dangerousness the one thing you pointed me to that isn't at least arguably tied to dangerous this is the minority permissible and then if you think about what is the category of people that have been subject to a lot of certain rights i mean founds is your prototypical example were you know the last of the but right to vote the r political right the right to serve in some organized militia and treated as an individual right to defend one's home so i don't think that analogy is open to you any more i think that's reading her a little too far your honor of course this is the court  concluded are not going to be covered by a one dollar so is that exclusively the province of of of congress to do and if if congress can make those kinds of decisions report connecting sixty six if you're interested so i don't think you know it's not relevant to this st step the question of whether it's a serious crime but just if you're at the court interested now one more generally i think what the experience of a t f in trying to make those evaluations but is there really evidence not even in the wake of interact that the courts have been overwhelmed in trying to address those applicants coming forward with prior before but essentially the restitution part right for the to pay with a lot of a one million dollars is that right yes so does that make it so serious that one should not that individual should not have a right to have a firearm for  self protection is what i meant by the thought there are but here we have a crime that's a felony that's considered criminal across the nation have long been considered criminal and then you also have that actor and i would say you know in bigger up case had been made against them so why didn't she she get the right here just to make her case well i think that's a serious that she should have her gun rights taken away the kids the c s make your honor she of course bears the burden of  whatever states called it punishable by i mean within two years that we can handle and as applied challenge that that's the proper way to proceed why should that be the case with a  we're saying is that the fact of the crime is labeled a felony this court said it is a very important occasion of seriousness and given that this is the federal the court doesn't need to go through all the other packer's certainly up a level of detail but it didn't grow up but regardless put great weight on the back of the seats categorized as crimes as misdemeanor but it also comes more generally from a history that individuals convicted of crimes labeled felonies have patroclus been subject to you know forfeiting certain rights like the right to vote  felony that is an important indication of except that what i take in drop dead is galv will we give a lot of weight to that but there are some case specific factors that can overcome that and in that case th particular facts did look very serious particular sentences were very serious and told the judge and the prosecutor are closer to the specific defendant than the legislature painting with a broad brush or a criminal code is one of the issues with the categorical approach that my colleague is espousing is that that would permit any legislature to enact any law of a felony nature that would automatically strip someone of the right to keep and bear arms a state could pass a felony statute for parking tickets where on a single isolated parking ticket that one receives they now based on a categoric or approach become prohibited from life and that were you were there category which is too broad but they're saying you know you you're going to freeze this in place at the time of the founding you just told d me that absent a constitutional amendment drug trafficking could be covered isn't there somewhere in between someone which legislature can say ok we decide drug trafficking is this serious you know but not enough parking tickets or fraud or something like that and i'll concede i think that's what the congress was originally intending in and acting the gun control act because going over all of that and to the extent that the court is looking for a middle ground i would suggest that that be the real litmus test that we look to see whether the person actually committed an offense of violence or if there's evidence always be exceptions i could conceive of some possible crime where may be generally on its face it would seem to be a prohibited across the bar under that analysis yet in one unique circumstance someone might as applied to them be able to show that a different result would be warranted for that individual how would you define violent crime in that circumstance i believe it would obviously have to be one criteria would be if a firearm was utilized in the use of back crime that was actually part of the debate when they enacted the gun control act also i think it would be looking to how violent the offense i know that it's kind of using the term to define itself but if you have something like aggravated assault i don't think many people would come forth and say aggravated assault isn't a serious offense doesn't have a substantial a high level of violence associated with it concerns not just that it becomes self or rational but but that we're stepping into the land of a void for vagueness and the courts have wrestled with applied challenge the question which is that and i understand that i think there are certain types of crimes that i would hope we could all agree to don't involve any form of violence such as making a false statement to a government official there's no violence in that type of offense there are other offenses that clearly involve violence murder you know also as we i said before aggravated assault there are those types of offenses that i think everyone can agree that they have violence elements or they don't and then there are those the kind of fall in the middle ground where unfortunately i'm not sure if we can have a blanket approach it may require the courts to have to look on a case by case basis for those unique offenses but i believe the supermajority of offenses we're able to determine whether they involve violence or not on the face of the statute how that fight fair notice to people about the consequences we don't provide your notice in my opinion to anyone in relation to the loss of a constitutional right currently as specially the right to keep and bear arms the individuals are informed that as a result of pleading guilty or being found guilty of this offense you'll lose your right to keep  certainly didn't do we do specifically who would notice as we've been we're not dealing with deliveries that's correct and i realize i'm i'm out of time obviously if the court has any additional questions if permitted i would like just to make one last statement to the court i think it's bearing on this case it comes actually from a law review article that cited to our brief why martha stewart d can't have a gun by kevin marshall and the only change i'm making to the quote d is simply going to be to place misfolded d whores name in the quote instead of m wertz rationally there does not seem to be even a legitimate state interest in disarming someone like this foliage of her apart from increasing her punishment yet simple vindictiveness is hard to accept as sufficient grounds for stripping