Shepard v. Madigan

[pyre400]

 

The Statute of Northampton, one of the earliest laws regulating weapons

 

possession, provided that, unless he was on the King’s business, no man was permitted

 

to “go nor ride armed by night nor by day, in fairs, markets, nor in the presence of the

 

justices or other ministers, nor in no part elsewhere, upon pain to forfeit their armour to the

 

King, and their bodies to prison at the King’s pleasure.” Statute of Northampton, 2 Edw.

 

3, c. 3 (1328) (Eng.). English courts upheld the continuing vitality of this law, even

 

hundreds of years later. In Sir John Knight’s Case, 87 Eng. Rep. 75 (1686), for example,

 

the Chief Justice noted that carrying arms in public was not merely banned by the Statute

 

of Northampton, but was “likewise a great offence at the common law.” Id. The reason

 

was not just that carrying arms in public was dangerous, but also that it was an insult to

 

the sovereign and the social compact: “as if the King were not able or willing to protect his

 

subjects.” Id. In this way, the Statue of Northampton was “but an affirmance” of the

 

longstanding common law rule that there is no right to carry weapons in public.

 

LOL!!! "King Richard" must have put them up to this.

[Mr. Fife]

so you think the judge will be in our favor?

 

Yes

[Mr. Fife]

This was only the case where the swords were worn by "persons of quality" with "their usual number of attendants with them for their ornament and defense, in such places and upon such occasions, in which it is the common fashion to make use of them, without causing the least suspicion of an intention to commit any act of violence or disturbance of the peace." Id. at 21-22. The law tolerated noblemen and their attendants wearing swords as a means of displaying their rank, but only in a ceremonial context. Plaintiffs offer no indication that this small allowance for aristocratic fashions ever extended to public displays of firearms, which were considered particularly dangerous weapons at the time.

 

Hard to tell here if the "persons of quality with usual number of attendants" is referring only to mayors, or does that include aldermen too? Remember, Alderman Burke had his usual number of bodyguards up until recently. I think the number has been reduced, but not eliminated completely.

[Yas]

On page 16 they are quoting the VPC study "Concealed Carry Killers 2009" Hasn't some of those facts been exposed as padded numbers?

 

Why are they always accepting Brady's and Icav, VPC "Facts" without questioning the validity?

[pyre400]

Why are they always accepting Brady's and Icav, VPC "Facts" without questioning the validity?

 

They cant rely on facts, as the facts do not support their arguments. So they use "statistics" - but very misleading and inaccurate statistics.

[Tvandermyde]

Ok guys, I got notice of what looks like 5 filings. I don't have them tonight, but I'll see about getting them after I get back from ASC's shoot

 

here is one of their motions...

https___ecf.ilsd.uscourts.gov_cgi-bin_show_temp.pl_file=1809226-0--32755.pdf

[Yas]

I've always objected to Illinois and Chicago especially in pushing towards nepotism or Political monarchy's and this is a great example of why. These guys are way outclassed by Alan Gura and his associates. They (the state) are no where near his weight class.

[colt-45]

I've always objected to Illinois and Chicago especially in pushing towards nepotism or Political monarchy's and this is a great example of why. These guys are way outclassed by Alan Gura and his associates. They (the state) are no where near his weight class.

so your saying that they (state) really has no leg to stand on and Alan Gura can win this for us.

[Tvandermyde]

Yas this case has Steve Hallbrook, Chris Conte, Dave Thompson and Bill Howard. Gura's is a different one. But I'll bet they file something similar in that one.

[Yas]

I'm commenting perhaps more on the states response. Looking back Amicus briefs for Heller , McDonald, and now this. My Fear is the would be state would be getting smarter, learning from their mistakes and THEY ARE NOT. They keep falling back on the same logic that keeps failing. I hope they keep it up.

[pyre400]

learning from their mistakes and THEY ARE NOT. They keep falling back on the same logic that keeps failing. I hope they keep it up.

 

Exactly - I used to get upset when they spent our tax dollars trying to strip us of our rights. So far though, they've been the best bang for the buck.

[Chris]

Seems to me that we have a letter from the Attorney General confirming right to carry in unincorporated areas if I'm reading it correct.

 

From the end of page 12 to the beginning of 13

 

In any event, Illinois does not stop plaintiffs from bearing arms now. Nothing in

 

Illinois law prevents people from “carrying” arms in their home; on their own land; in their

 

fixed place of business; in someone else’s home (with their permission); on someone

 

else’s land (with their permission); in any land outside “the corporate limits of a city, village

 

or incorporated town”; in designated hunting areas; and during militia service. See 720

 

ILCS 5/24-1, et seq. (West 2011); 520 ILCS 5/1.1, et seq. (West 2011) (Illinois Wildlife

 

Code); 17 Ill. Adm. Code 510, et seq. (West 2011). Thus, Illinois’ current statutory scheme

 

is constitutional, for it aligns with both the text and history of the Second Amendment.

[lockman]

Seems to me that we have a letter from the Attorney General confirming right to carry in unincorporated areas if I'm reading it correct.

 

From the end of page 12 to the beginning of 13

 

In any event, Illinois does not stop plaintiffs from bearing arms now. Nothing in

 

Illinois law prevents people from "carrying" arms in their home; on their own land; in their

 

fixed place of business; in someone else's home (with their permission); on someone

 

else's land (with their permission); in any land outside "the corporate limits of a city, village

 

or incorporated town"; in designated hunting areas; and during militia service. See 720

 

ILCS 5/24-1, et seq. (West 2011); 520 ILCS 5/1.1, et seq. (West 2011) (Illinois Wildlife

 

Code); 17 Ill. Adm. Code 510, et seq. (West 2011). Thus, Illinois' current statutory scheme

 

is constitutional, for it aligns with both the text and history of the Second Amendment.

 

The addition of the 1000 ft school zone crap and the gun provision of the criminal trespass statute added in the last two decades makes the "rural open carry right", you must exercise your "right" under constant threat of arrest for crossing invisible boundaries. Some right, thanks Lisa for not trampling on it.

[junglebob]

So the state is saying that I can open carry in rural areas. So if I'm on the interstate in a rural area I can be open carrying in my car and be stopped by a state trooper and I'll have no problem, Lisa Madigan. And I can open carry in a rest area on the interstate or walking along a state highway and I won't be breaking AUUW statutes. Lisa Madigan can I get that determination in writing?

 

Maybe I'll write Lisa Madigan for it so I have something to show that state trooper.

[Mr. Fife]

Rural open carry does nothing for persons needing to defend themselves in non-rural areas. Keep dancing Lisa.

[mauserme]

In its response the State contends that Ezell addressed only possession in the home:

 

Ezell holds that the level of scrutiny a firearms law receives depends "on how close

the law comes to the core of the Second Amendment right and the severity of the law's

burden on the right." 2011 WL 2623511, at *13. Under Heller, "the core component" of

the Second Amendment is "the right to possess operable firearms — handguns included

— for self-defense, most notably in the home." Id. at *1. "What other entitlements the

Second Amendment creates, and what regulations legislatures may establish, were left

open [in Heller]." Skoien, 614 F.3d at 640. Ezell does not indicate what tests should be

used to determine whether an activity is "core." Indeed, the court in Ezell had no need to

do so, for the plaintiffs there asserted only their "core Second Amendment right to possess

firearms at home for protection.

 

Yet plaintiffs in Ezell did not raise that question at all. In addition to a First Amendment argument, a Second and Fourteenth Amendment argument was made in regard to possession and use of firearms away from one's home:

 

COUNT I

RIGHT TO KEEP AND BEAR ARMS

U.S. CONST., AMENDS. II AND XIV, 42 U.S.C. § 1983

The Second Amendment, which applies against defendant City of Chicago by

operation of the Fourteenth Amendment, secures the right to operate firearms at a range, for

purposes of learning about firearms, gaining proficiency with firearms, obtaining any training

required as a condition of firearms ownership, recreation, and competition; and the right to own

and operate a range for these purposes.

 

In spite of the fact that the Appelate Court agreed with this, defining that right as close enough to the core right to be subject to something higher than intermediate scrutiny if not quite strict scrutiny, the State then bases a large part of its logic in the Shepard response on this mischaracterization of Ezell and mistatement of the level of scrutiny defined therein.

 

It seems to me we should be attempting to define at what level of scrutiny the "right to bear arms in case of confrontation" exists in relation to "not quite strict scrutiny" in regard to to possession and use of firearms at a range not located on one's own property, and what implication that level of scrutiny has for Right to Carry.

[mauserme]

 

The reason was not just that carrying arms in public was dangerous, but also that it was an insult to

 

the sovereign and the social compact: "as if the King were not able or willing to protect his

 

subjects."

 

LOL!!! "King Richard" must have put them up to this.

 

Perhaps the State stepped into a bit of a trap with that statement since it was, afterall, the purpose of our revolution to discard the yoke of the King's oppression.

[sctman800]

I am certainly not a lawyer but it seems to be a really poor response on the part of Lisa M. When will we be able to expect action from the judge? Jim.

[NakPPI]

A good way to summarize the State response would be to say that it misrepresents binding 7th circuit precedent and history and hangs its hat on nonbinding 4th circuit precedent.

 

The "exceptions" to the uuw statute referenced aren't really exceptions, and there is no way that these exceptions create a safe harbor for anyone. The questions is whether that statute is a close fit between means and ends, a few meaningless exceptions doesn't mean the State isn't still infringing on the core right of armed self defense.

 

That all being said, the State argument would be a winner in the First District of State court, see Judge Lampkin's opinion in Mimes.

[mauserme]

Plaintiffs ask that this Court to enjoin enforcement of public safety measures

determined by the legislature of the State of Illinois to be in the public interest as a means

of protecting the safety and welfare of the people of the State of Illinois. Indeed, plaintiffs

propose a vague injunction that allows all persons "qualified to possess firearms in Illinois"

to carry firearms in public. Assuming that "qualified to possess" means possessing a FOID

card (and plaintiffs do not otherwise define the term) plaintiffs' requested injunction would

permit the carrying of any firearm by any person who possessed a FOID card without

regard to their training or intent to use the weapon for crimes of violence, without regard

to whether the person was intoxicated, and without limitation as to the nature of the public

place.

I like that the State itself introduces the fact that, if the injunction were granted, Right to Carry would still be subject to regulation. Their argument that the FOID is insufficent as a regulatory mechanism might eventually work against them but that would be a different case.

 

In any event, asking the court to condone prior restraint on the grounds that a law abiding citizen might eventully opt to become a criminal probably won't go anywhere.

[mstrat]

In Madigan's objection to the request for a summary ruling, this seems to be the heart of their argument: "While defendants assert that a core interest is not at stake, intermediate scrutiny is appropriate, and evidence is not needed to justify the statute"

 

In other words "We're not infringing anyone's rights, so we don't need to justify our UUW law"

 

Does that about sum it up?

[bob]

Lisa is being very diingenuous about this. She is likely to piss the court off for trying to mislead them.

 

In any case, the statute does not allow you to carry a loaded weapon in a vehicle at all. Open or concealed.

 

Look at what the law actually says.

 

UUW

 

(4) Carries or possesses in any vehicle or concealed on or about his person except...

 

Can't have in a vehicle or concealed on your person unless you meet the exceptions.

 

(10) Carries or possesses on or about his person, upon any public street, alley, or other public lands within the corporate limits of a city, village or incorporated town,...

 

Can't have at all on your person in the specified locations unless you meet the exceptions.

 

AUUW

 

(1) Carries on or about his or her person or in any vehicle or concealed on or about his or her person

(2) Carries or possesses on or about his or her person, upon any public street, alley, or other public lands within the corporate limits of a city, village or incorporated town (3) One of the following factors is present:

(A) the firearm possessed was uncased, loaded and immediately accessible at the time of the offense; or © the person possessing the firearm has not been issued a currently valid Firearm Owner's Identification Card;Note the way that AUUW is worded versus UUW.

 

It is not a UUW offense to OC in a rural area but it is an AUUW offense.

 

I hope our side points out to the judge how they are dancing on the head of a pin to try and deceive the court.

[/left]

[fubarud]

I'm sure the NRA lawyers are well prepared to deal with Madigans and Quinns nonsense.

 

How about we form a militia? We can print and laminate ID's so we can be considered well regulated.

[bob]

Ok guys, I got notice of what looks like 5 filings. I don't have them tonight, but I'll see about getting them after I get back from ASC's shoot

 

here is one of their motions...

 

 

I noticed that Lisa, Quinn, the SA of Unions county, and the sheriff of Union county were all sued in their official capacity, but the sheriff is not listed as objecting in this motion.

 

I wonder if that means anything or not.

 

It also seems odd to me that the motion refers to Lisa as their attorney, but some other guy signed the motion.

[05FLHT]

In Madigan's objection to the request for a summary ruling, this seems to be the heart of their argument: "While defendants assert that a core interest is not at stake, intermediate scrutiny is appropriate, and evidence is not needed to justify the statute"

 

In other words "We're not infringing anyone's rights, so we don't need to justify our UUW law"

 

Does that about sum it up?

 

The State is attempting the '2A two-step.' The two-step was coined by Patrick on MDS and involves finding the subject outside of the core of the right, then using a rational basis standard to allow infringement of the right. As far as bearing arms goes, it is going to be hard to argue it is outside of the core of the right when it is plainly stated in the 2A itself.

[05FLHT]

Plaintiffs ask that this Court to enjoin enforcement of public safety measures

determined by the legislature of the State of Illinois to be in the public interest as a means

of protecting the safety and welfare of the people of the State of Illinois. Indeed, plaintiffs

propose a vague injunction that allows all persons "qualified to possess firearms in Illinois"

to carry firearms in public. Assuming that "qualified to possess" means possessing a FOID

card (and plaintiffs do not otherwise define the term) plaintiffs' requested injunction would

permit the carrying of any firearm by any person who possessed a FOID card without

regard to their training or intent to use the weapon for crimes of violence, without regard

to whether the person was intoxicated, and without limitation as to the nature of the public

place.

I like that the State itself introduces the fact that, if the injunction were granted, Right to Carry would still be subject to regulation. Their argument that the FOID is insufficent as a regulatory mechanism might eventually work against them but that would be a different case.

 

In any event, asking the court to condone prior restraint on the grounds that a law abiding citizen might eventully opt to become a criminal probably won't go anywhere.

 

This is a time, place, and manner argument that is outside of the question presented here and in Moore. Is the State arguing that they cannot regulate this if the right is found to be core and protected by the 2A?

[05FLHT]

A good way to summarize the State response would be to say that it misrepresents binding 7th circuit precedent and history and hangs its hat on nonbinding 4th circuit precedent.

 

Don't forget the use of English law from the 1600's and quoting Blackstone out of context.

 

The "exceptions" to the uuw statute referenced aren't really exceptions, and there is no way that these exceptions create a safe harbor for anyone. The questions is whether that statute is a close fit between means and ends, a few meaningless exceptions doesn't mean the State isn't still infringing on the core right of armed self defense.

 

Bingo. This is why they needed to gloss over Ezell.

 

That all being said, the State argument would be a winner in the First District of State court, see Judge Lampkin's opinion in Mimes.

 

I don't read too much in Mimes simply because it was decided prior to the Ezell ruling. As much as the State may not want to admit it, they are bound to follow the framework laid out in the Ezell decision.

 

How sad is it that the response put together by Illinois 'best and brightest' (the term is being used loosely and with great sarcasm) can be pulled apart by some internet commando's. Halbrook and Gura are going to have a field day with this bunch of clowns.

[mauserme]

How sad is it that the response put together by Illinois 'best and brightest' (the term is being used loosely and with great sarcasm) can be pulled apart by some internet commando's.

Sort of the modern day equivalent of minutemen joining the fray.

[NakPPI]

This reminds me of the oral argument in Ezell where Judge Sykes blasted the city attorney: "THIS IS NOT REGULATION, THIS IS PROHIBITION AND HOW CAN YOU STAND THERE AND TELL ME, ETC."

 

The State is shooting itself in the foot, win or lose, they end up in front of Sykes, Kanne, and Rovner. Maybe even Easterbrook and Posner, the State is going to have to explain away Ezell in front of the very judges that just gave the opinion. That oral argument will be priceless.

[bob]

People want a good decision to fix everything instantly but it just does not work that way.

 

We got a lot more out of the gun range case than I would ever have expected. I expected that the court was going to suggest that shooting ranges are sort of protected by the 2A, and let the lower courts hash it out. While the lower courts are going to hash out the details still, the decision gave a lot of guidance to the lower courts that is a big step forward, and much of that guidance seems pointed at other cases more than the gun range case itself.

 

If there is an analogy to be made here, it is like the court said that the city cannot ban church buildings because having a place of worship available is part of the right of religious freedom. I expect the lower court may use that framework to determine just what restrictions the city can and cannot place on ranges.

 

That reminds me of a CPA I knew. He wanted to start a religion called the "Church of the Gun". He was convinced he could make a good enough argument that he could get a NFP range declared a church and thus exempt from RE taxes.