or possession of firearms by individuals convicted of domestic violence was constitutional as applied to him individually the court as has the government and their briefs pres relied on top just on cases as to whether or not the statute was constitutional and there were a number of cases that were brought after the supreme court decision however that challenge bans on possession of firearms and they were the challenges were d applying the band to the nd amendment in light of howard and that context they were as applied this case however it is different it's not that kind of a as applied case this is a case that is more like ensley and what this court did in the hospital case because this case focuses on the as applied to the individual specifically under their own personal circumstances and it's not an as applied case focusing on a conviction and a criminal case like almost all the cases cited by the government except for maybe let me understand where you would you just said essentially us saying every case of this sort an individual would be entitle to a constitutional analysis as to whether it i'm asking is that what you're saying about this case that every individual who faces this situation here dealing with domestic violence and i don't know if there's a time element when  that would be specific to them only and would mean a thing in the world to the next case and so we're just going to have well you see what is going i see where your question is going but i don't think that's a practical consequence not that that is correct so far as you want but there is an if you if you don't mind there's another part of it it was challenging when you read the cases the whole category massive violence distract us who are convicted not himself who is going after the category of people that fit that description within the coat he was not and i don't see anywhere in that decision where he brief as a ground for it being unconstitutional in that he said because mr stan himself had three different convictions he was still on probation he said this isn't about me this is about the group of people circumstances it looked at the category of people who have this type of conviction and what we're saying is that we're entitled to have the four circuit has recognized and slayer hosford which is less not least that and i want to make sure we play on it because i don't want you to lose me because i'm getting your point but staten wasn't as blockades you are making a distinction that we ought to be treating individual  asking us to apply a good behavior a qualification to the statute just isn't there i mean as such it's pretty clear that congress is intending to cast a very wide net to prevent domestic violence in the future and here there is no language in the statute and if we were to adopt your rationale that there you look at the individual to see if they had been of good behavior  then why wouldn't have applied to numerous other statutes and statutes wouldn't mean what they say anymore we would be reading in good behavior exceptions to every stacks with their with their criminal or civil was convicted of a crime ok so what in the statutory language permits us to conduct a review of his good behavior i mean and if i can follow up if then out of one hundred people who are convicted of this seventy five of them are of good behavior later each one of them under your rationale would have a right to attack the statues a do not do an individualized consideration but the court goes to pains to say that where something is not a serious felony for example something this categorized as a state law misdemeanor but meets the federal definition of a felony that is punishable by imprisonment for more than two years that in that scenario we could well do individualized analysis that looked at because it's a non serious offense we might well look at things like rehabilitation and time and the nature of the offense to determine whether the nd amendment prohibits the application of the statute in that very case in that i mean hamilton to me seems relations with a minor he didn't know was a minor he was convicted of a misdemeanor except in maryland it was a three year mr manager fine under federal law as a star on the other and in the intro was intoxicated driving a car in pennsylvania and he had fine no good behavior no trow basin no nothing they seventy five dollars and get out of here that's it which is unusual for fairfax j n t are quite and a domestic violence case unless it's absolutely nothing so what we have in one and and for maybe of g s you've got a more specific situation want which is alice you want to say you can you can see why g one would be that s up broad category of folks that could be all kinds of people all over the place not is very specific in tell you right there this is what is get about looking at fact as you're not going to make that a non serious appearance by looking at factors well if you can't make it and i'm serious offense by looking at factors and looking at census and looking at the individuals than what you're saying  ok thank you mister thank you and may please the court silent prayer for the government and i just want to begin with the staten case which was an as applied challenge and as i think my friend on the other side is fundamentally a mistake and i fell right in as applied challenge nd amendment challenge looks like and i think it's very clear from this court's precedent as well as the courts of they describe the as applied challenges a two step process are sometimes referred to the chester two step process and then we say and in addition there's this there's a different way you can do that in that if you can show quote they give back some circumstances remove this challenge from the realm of ordinary challenges and that this is the same basis this is what hamilton is quoting when it says yes we can just i'm not as familiar with the facts of this case but i think what your honour's question is getting to and this is a misunderstanding by my opposing counsel and when it comes to the vendor our case as well in many of these cases  court employees a two step analysis and in many of these cases at the st step the courts look to whether or not an individual can distinguish himself or herself from the class of persons historically bar in particular it may be the case that it might slightly burden more conduct than is necessary but not more than is reasonably necessary but the court expresses the court emphasize is that in that intermediate scrutiny i'm does not but we didn't do this we didn't call this an offense that that cannot be non non serious types of events congress did and as you say congress in acted this to close this so called zero and it didn't put a time o anything on it and it it just fundamentally i agree doesn't sound like it's right to me from the perspective of the of the of the plane if you have but but that's the law and one is totally different and when you look at smoke more and i don't like this that is dealing with this kind of issue in this mess so i completely agree with your judgment and i think that goes back to judge tina's earlier point that there is no good behavior exceptions legislated into nine  convicted on can be committed with reckless intent right it doesn't require any intentional conduct it can require reckless intent i believe your honor is referring to the lysine case  yes and and and this statute in particular the very statutes that mr harley was convicted under at least under trent versus commonwealth in a number there for junior cases you can be convicted of that based o merely reckless conduct you don't need to confirm that and let me just tell you except that is the hypothesis is true but i'm not asking you to know the case law and then and then this is the point i want to add to it if i look at paragraph of the complaint at least this is alleged mr harley seems to allege that he reached in to grab the car and in doing so grab his wife's arm now you suggest that's not the whole story and i understand that but this is that summary judgment and at some level he has an affidavit on it and maybe there needs to be a factual finding but if we accept that it can be a conviction based on reckless conduct and if we accept the conduct here was an attempt to grab the frame of the door to keep from pawling and instead he grabs his wife's arm if that's true as alleged and supported by affidavits could a court not find that that's not a super serious offense as supported by the fact that it's a seventy five dollar fine and he continues now to have the support of his wife who was the alleged victim at the time that at least plausibly on a summary judgment standard that that may be jean nine is not quite as specific as it might appear on its face because we can have merely reckless conduct that result in a touching of a spouse even when there was literally no intent to to to not proceed by looking on an individual basis into the manner in which d one particular crime was committed and i know we were discussing earlier d the g line felon in possession cases i'm not aware of any case in that context either where the particular circumstances of how the crime was committed or how the plaintiff challenger has gone on to live in his or her life  indirect court and i would add several important things there the rd circuit in drought rejected the relevance of the passage of time clear evidence of rehabilitation a majority of judges even though i'm as much as circuit in bitter up under exceptional circumstances there that is the only court of appeals decision to heard of one of the federal probation is unconstitutional but the court didn't do so on the basis that it thought that daniel bender up and before the district course was not at issue but the court found simply that the government had not carried its burdens i into inducing relevant empirical studies tending to show the links between his statement that i didn't commit a crime domestic violence rebuke might be different procedurally but i agree and i he hasn't done that so  would and i believe we go ahead i'm sorry i didn't mean to interrupt i believe we just started down this route in response to the hypothetical that shows richardson's pose but i completely agree with your honor the circumstances surrounding policy choice by congress you can talk about hamilton for days but as a g one case if you look at g one that's a whole different ball game that congress did not put that in there to kill it yeah it did this i saw that it texas or some other way but i don't think we are in a position to do that unless we and this is not a facial challenge to it is the challenge as applied but what we already know but let me go in terms of the individual as assessment when you look at the just the helpful and nowadays in here when an individuals d is convicted of a felony the fact of that conviction necessarily removes that individual from the class of persons who strictly have ever enjoyed it right that's  templeton and of course all the other circuit courts who have confronted the issue and as a traditional historical matter the legislature has always been able to permissible disarm individuals who are not law abiding or responsible and that certainly applies to pla that doesn't mean by that fact alone debt is holy and untouchable and it is something that can be considered by the course because of course how the allegations to determine whether or not whatever he  was did they do a good and decent job and the question in this case is whether or not an individual is entitled not to and has applied to the category but she is entitled to it as applied to themselves really and that's what this case is about it's not a category it's not congress's findings because if congress is findings were bad the category was bad then we'd be in a situation where here be a facial challenge so we're but we're not there other cases dealing with those kinds of things there has not been added mr miller if you could help focus since then what are the characteristics of mr harley that  that the statute should not be applied to him i mean you've got to point to his kid i want the characteristics existing in all of you've talked about it seems to me is the fact st that he didn't really do that  much judge ellis found that this was a conviction for domestic violence and the nd you suggest he's been a model citizen which is certainly to his credit but don't there have to be characteristics that  even if he was a nobel laureate it wouldn't make any difference so that means he doesn't care about our characteristics but the characteristics are he started fairfax department of public works in the war area as a he retired twenty some years later as a highly skilled electrician having current on the job and put himself through courses where he received a higher degree and not just merely somebody to change wires but he was  scoundrel to electrician went on and opened his own business after he retired and is doing well and that he was a volunteer fireman and personal orton down in dale city the dale city volunteer fire department made him their ch which is not just that he's doing something nice but that's an endorsement by the community and by the community of firefighters to make him the chief we're going to apartment he was later elevated to be on the board of directors of that department which is a community and those anyway he received an award i think was called and the way to community looks at him as an individual choice not merely passage of time is how do do people where he lives think about him and he wouldn't have those possessions if they didn't think about it that way well i don't understand  because it seemed to indicate to choosing someone who is a model citizen right now who's also has a domestic balance conviction that that that person is outside of man twenty two dollars g not but it seems to me really what you're talking about here is passage of time because there's nothing to do with being a model citizen it's about you have a conviction it is right there and here you've got a passive the time now you get two cases one from the was that he was not right he was looking at it as himself as an individual and fisher i decided to stand it was not looking at himself as an individual eyes and fisher relying on showground which is another always going to be a t f and they're trying to say well i've got my summarize restored so i should be allowed to do it and they said no the issue you have you need to consider if you would please and this is this is here whether we go back and look at the underlying facts and try to go back and unravel what he actually did is one thing but but it is clear as judge keenan has pointed out and as the record shows you even concede it is below that this is nine this is a deed