under the second amendment united states constitution and relieve him of the conviction in the state of wisconsin for curing concealed weapons mr brown found himself unwittingly in the middle of a crime scene in october two thousand  nine he attempted to get some children out of the streets and eventually moved over about them gathered around a gun took possession of the gun unloaded it put it in his waistband and waited watching the shooter to identify them for him for the police when he did that he told police he had a gun he was arrested and tried and given four months in the county jail this was addressed by the did not find that heller applied to brown's case at all they distinguished heller saying that that case covered of much broader restriction than the concealed weapons restriction in wisconsin and  instead turned to ham down in coal to two thousand and three wisconsin cases from wisconsin supreme court that they said were binding they also found in their decision that for not appreciating the us but have got it how can he establish that what they wished us in court did was contrary to clearly established federal law this was scott's court overlooks the central nature of the self defense right it merely looks that the scope of the law do you remember what heller said about concealed carry firearms heller interesting lee did not list concealed carry in the list of things he specifically didn't want to prohibit it listed concealed carry and recitation of things that had previously passed muster right yes so it's only mentioned was that concealed carry laws had been upheld under the second amendment they had so how could it be clearly established federal law that a concealed carry states concealed carry gun concealed carry law would violate the second amendment well it's clearly established federal law under heller that a second that a i'm sorry a self defense right is the central component of the second amendment a look that's an interesting interpretation of heller but  it's it's not where the supreme court went in heller itself can i ask you about your the procedural obstacle you face here which is whether the federal as applied challenge that you're raising here was ever presented to the state courts the the appellate brief makes it frankly it looks pretty clear to me that it's a purely state constitutional claim how are the wisconsin courts supposed to figure out that he was bringing a federal second amendment challenge to the statute as applied to the facts of his case well first of all enjoying a waiver from vs saying when this sentence in fact brown in the reply brief goes through a litany of federal cases from different circuits including seven seven and talks about the nature of each quality the law abiding as the defend in the state court as i said before first of all i find heller doesn't apply and secondly they find brown has no interest he was never arrested him let me try again if i'm sitting on the wisconsin court of appeals reading this brief hard to say heading wisconsin statute nine forty one point two three is unconstitutional as applied to the facts of this case under wisconsin constitution article one section twenty five  strictly on state cases because this court found for questions to ask were relevant federal cases mentioned in the brief to the nature of the state case elsewhere in the brief there are is an extensive analysis of the well first of all i'd say that the second eminent federal cases were brought up and in the brief as a whole when they were alerted to the fact that heller exists and for whatever that's worth a d in the brief and finally this court and the united states supreme court have found that as applied relief versus a facial challenge a really a matter of remedy for the court they don't necessarily have to control pleadings and i guess the argument so it was raised so we can't rely on briefs we have to treat any brief that makes a facial challenge as if it's also making  applied challenge and vice versa and it sounds like we have to treat any brief that raises a state constitutional claim and is also implicitly asserting any parallel federal claim and that the state courts wish to that as well federal constitutional climb i don't see how you can fault them for not having done so just because you have some federal cases and saw that you have to constitution by the federal constitution that is just say wisconsin constitution they're not going to bother to look at the federal clyde challenge under his version of the facts his version of the facts was i saw gun line there i picked that up because i did not want the kids to be and his safety to be injured by the gun and whether that implicates the second amendment his right to self defense i think it's questionable because when there is usually a self defense argument you're defending against some unknown third party he's not claiming that he was trying to protect himself from the shooter the shooter who got away with george hamilton was racially different issue and that's the exercise  apparently what happened here the police suspect but cannot prove that he was involved or you know she begins some sort but they clearly prove that he had it that he had this guy under his waistband there's something so this side to prosecute him for something which in itself is utterly trivial because they think there's something worse going on that can prove security of himself and for the children and that's got the court of appeals said under the as apply challenge you have the burden of showing that your interest in concealing the weapon outweighs the state's interest understand he should have done what stood over the gun he did not have to pick it up i'm sorry i don't have the say he was initiated out of what he said he found the gun on the street the court of appeals one of their what if you pick it up because you're worried that the children will hurt themselves with it you don't get prosecuted if you can feel it would you not well he would not get out i say so to protect it from the person with a gun in the se would probably shoot right doesn't make sense right does you know what you're saying does not make the slightest bit of sense it would be the stupidest thing in the world for him to incident should you tell us about any differences between wisconsin and federal constitutional protections for the right to bear arms that if she wasn't brought up at the court of appeals that as the as applied mean as applied challenge which is i but as i pointed out is obviously phrased in terms of state law right but are state law was identical to federal law what harm would be done by our considering the federal c the harm that would that be done is that the court of appeals did not have an opportunity to review that issue they were not prevented by the petitioner and therefore this court would be point you to a section in the trial transcript just after brown's testimony where there's a stipulation from brown and the state that two witnesses one of the children in the street and his mother saw brown pick the gun up out of the street amongst the children those witnesses were present to testify but the judge didn't allow him to testify because she found that the only issue was did he have a concealed weapon there were no available fences this is an unusual case for a second amendment litigant mr brown doesn't come here asking for the right to go prophylactic li armed or to increase arsenal he's not going to apply for a concealed carry permit  he would just like to also be protected by the second amendment should he find himself in the second amendment world in a case where his life is in danger ok thank you and you were poignantly you know i was punched i was appoint