Moore vs IL Attorney General

[lockman]

Yes, towns may pass LTC legislation, but most will be invalid under scrutiny. The following are questions that will be answered:

 

1) Prior restraint on the exercise of a fundamental right?

2) Violation of the equal protection clause?

 

Even in states where preemption is clear cut, local municipalities pass illegal ordinances all the time. This fight will never be over, especially in Illinois.

 

The question of can they or can't they? Is irrelevant in the knowledge some municipalities will knowingly pass unconstitutional laws. So bob can both right and wrong. It is akin to someone telling you you can't do something you just did.

[bob]

Yes, towns may pass LTC legislation, but most will be invalid under scrutiny. The following are questions that will be answered:

 

1) Prior restraint on the exercise of a fundamental right?

2) Violation of the equal protection clause?

 

Even in states where preemption is clear cut, local municipalities pass illegal ordinances all the time. This fight will never be over, especially in Illinois.

 

The question of can they or can't they? Is irrelevant in the knowledge some municipalities will knowingly pass unconstitutional laws. So bob can both right and wrong. It is akin to someone telling you you can't do something you just did.

 

I don't think you read what I actually wrote very closely. Forget about laws that are specifically pre-empted by state law. They are relatively easy to get tossed. What makes you think that the courts are ultimately going to say some kind of unlicensed carry is a requirement? That would have to be what happens for what you wrote to be so. While on the face of it, I think that is logical, I have no idea if that is what will end up happening. In the end, to get five on board SCOTUS may have to accept the idea that LTC for any kind of carry is acceptable.

 

Do you really think the courts are going to step in and say that a home rule unit cannot have its own LTC on top of a state LTC that is not pre-empted. Is that even remotely realistic?

 

In the unlikely event that a court says the state cannot regulate carry at all, except in some very narrow circumstances, than I would agree that local units of government would be bound by that as well. But that seems highly unlikely.

 

In the end, we will almost certainly need state pre-empted LTC to have meaningful carry at all, at least in most of our lifetimes.

[NakPPI]

We will not get any sort of "preemption" from any court decision in the pending cases. The court only has jurisdiction over the State, not the various municipalities with bogus gun laws. The municipalities are not parties to the case and their codes are not being directly challenged. The best we can hope for is that the different municipalities "take notice" as many of the northern suburbs did after the Heller decision. A lot of the northern suburbs for example voluntarily repealed their handgun bans or their gun codes entirely to avoid costly litigation.

 

Everyone needs to remember that not every municipality has the seemingly endless pockets of the City of Chicago to fund pointless litigation. Highland Park, the uppity suburb where Karen May resides, has many other "more important" things to do other than litigate whether their municipal code which parrots AgUUW/UUW is constitutional.

[Drylok]

We will not get any sort of "preemption" from any court decision in the pending cases. The court only has jurisdiction over the State, not the various municipalities with bogus gun laws. The municipalities are not parties to the case and their codes are not being directly challenged. The best we can hope for is that the different municipalities "take notice" as many of the northern suburbs did after the Heller decision. A lot of the northern suburbs for example voluntarily repealed their handgun bans or their gun codes entirely to avoid costly litigation.

 

Everyone needs to remember that not every municipality has the seemingly endless pockets of the City of Chicago to fund pointless litigation. Highland Park, the uppity suburb where Karen May resides, has many other "more important" things to do other than litigate whether their municipal code which parrots AgUUW/UUW is constitutional. Also, Highland Park has a mandatory gun registry, which would not apply to anyone with a CCW permit under HB 148.

 

But I thought McDonald said 2A applies to municapities and states not just the feds.

[NakPPI]

We will not get any sort of "preemption" from any court decision in the pending cases. The court only has jurisdiction over the State, not the various municipalities with bogus gun laws. The municipalities are not parties to the case and their codes are not being directly challenged. The best we can hope for is that the different municipalities "take notice" as many of the northern suburbs did after the Heller decision. A lot of the northern suburbs for example voluntarily repealed their handgun bans or their gun codes entirely to avoid costly litigation.

 

Everyone needs to remember that not every municipality has the seemingly endless pockets of the City of Chicago to fund pointless litigation. Highland Park, the uppity suburb where Karen May resides, has many other "more important" things to do other than litigate whether their municipal code which parrots AgUUW/UUW is constitutional.

 

But I thought McDonald said 2A applies to municapities and states not just the feds.

 

Correct and the city of chicago was the defendant in the case.

[Drylok]

The reason I asked is because you said The court only has jurisdiction over the State

[NakPPI]

The reason I asked is because you said The court only has jurisdiction over the State

 

I see your confusion. The court only has jurisdiction over the State of Illinois as an entity. Now the municipalities with similar laws as the State should be unconstitutional as well, however, the court has no jurisdiction as to those individual municipalities and would have no way to enforce it's ruling on the non-parties.

 

Say for example we win this and the city of highland park keeps in UUW code. This judge wouldn't be able to do anything about it.

[abolt243]

The reason I asked is because you said The court only has jurisdiction over the State

 

I see your confusion. The court only has jurisdiction over the State of Illinois as an entity. Now the municipalities with similar laws as the State should be unconstitutional as well, however, the court has no jurisdiction as to those individual municipalities and would have no way to enforce it's ruling on the non-parties.

 

Say for example we win this and the city of highland park keeps in UUW code. This judge wouldn't be able to do anything about it.

 

Until someone brought a lawsuit specifically challenging the Highland Park ordinance. Then, HP would be a party to the lawsuit and a judge would rule on it.

 

Also, remember, IIUC, only state statutes can carry penalties of felonies. County or municipal ordinances can only levy misdemeanor sentences. Am I right about that??

 

Only the people and and laws specifically named in Moore and Shepard are being looked at and any judgement will apply only, specifically to them.

 

IN still has municipalities that think they can outlaw open carry. They are slowly but surely being proven wrong. Sometimes it takes a court case. Sometimes just a well written letter to the city fathers explaining the state statutes.

 

AB

[bob]

Also, remember, IIUC, only state statutes can carry penalties of felonies. County or municipal ordinances can only levy misdemeanor sentences. Am I right about that??

Yep. It is in the state constitution.

 

SECTION 6. POWERS OF HOME RULE UNITS

***

(d) A home rule unit does not have the power (1) to

incur debt payable from ad valorem property tax receipts

maturing more than 40 years from the time it is incurred or

(2) to define and provide for the punishment of a felony.

(e) A home rule unit shall have only the power that the

General Assembly may provide by law (1) to punish by

imprisonment for more than six months or (2) to license for

revenue or impose taxes upon or measured by income or

earnings or upon occupations.

Chicago has suggested having an income tax to deal with its $1.2 billion a year deficit. But I don't know if the state ever gave them the power to do that.

[stm]

This is not correct. The IL FOID law gives the authority to regulate guns to the locality. This is a challenge to state law which is the underlying basis of that authority. If the state cannot, the city cannot either.

FOID gives no authority at all to localities to regulate guns. The state constitution gives all home rules units near carte blanche to regulate just about anything and everything that is not specifically preempted.

 

Given that Heller strongly suggested that LTC was not an unconstitutional infringement, there is no reason to believe that Chicago could not enact a LTC statute that applied within Chicago even if at the state level it is not needed because the UUW clauses were struck down.

I think you're wrong again Bob about a Chicago specific statute. Note the use of the phrase exclusive in HB148 and the Illinois Constitution.

Jmho here but when HB148 passes Chicago will have nothing to say about the issue and a favorable ruling at the District level in either of the Federal cases will only expedite the passage.

 

As introduced HB148 said "The General Assembly finds, in keeping with the Heller decision, that as a matter of public policy it is necessary to provide statewide uniform standards for issuing permits to carry concealed firearms and that no person who does not qualify under the provisions of this Act receives a permit to carry concealed firearms. The General Assembly recognizes that it already regulates the use and possession of concealed firearms under Sections 24-1 and 24-1.6 of the Criminal Code of 1961 and that the regulation of concealed firearms is an exclusive Statewide function.

 

IIRC Article VII Section 6. POWERS OF HOME RULE UNITS includes the following language The General Assembly may provide specifically by law for the exclusive exercise by the State of any power or function of a home rule unit other than a taxing power or function specified in subsection (1) of this Section.

I think Bob's right here. You're citing HB148, which is not law yet. If we get a favorable ruling from the courts, and the UUW/AUUW laws are ruled unconstitutional, any home rule unit could pass a local ordinance regulating (but not prohibiting) carrying firearms. Those ordinances could be challenged later, as has happened with Chicago's handgun ordinance after Heller.

 

If HB148 is passed, it would specifically preempt any home rule ordinance regulating the carrying of firearms. Until that happens, we could end up with a patchwork of carry laws regulating when, where, and how we could carry. And those regulations could be as restrictive as Chicago's CFP. Or worse. And we would have to challenge each one in court.

 

Without some sort of state-level preemption, a court ruling may not give us everything we thought it would. But if HB148 or something similar passes, then there is nothing a home rule unit can do to regulate carry.

I wasn't quite sure how to interpret the Chicago permit comment but if Bob indeed meant what you just explained in your comment I agree with you both.

 

Unfortunately for me sometimes what's obvious to others isn't so obvious to me.

We all have our moments. I can be pretty dense sometimes. Glad we're all in agreement. Now if we can get the courts and ILGA to agree with us, too!

 

I don't think a home rule unit can pass an ordinance that directly conflicts with a court order against the State and expect it to withstand a legal challenge. However, some HR units have passed ordinances that mirror state laws, and those would have to he challenged and/or repealed.

[05FLHT]

Also, remember, IIUC, only state statutes can carry penalties of felonies. County or municipal ordinances can only levy misdemeanor sentences. Am I right about that??

 

Yep. It is in the state constitution.

 

SECTION 6. POWERS OF HOME RULE UNITS

***

(d) A home rule unit does not have the power (1) to

incur debt payable from ad valorem property tax receipts

maturing more than 40 years from the time it is incurred or

(2) to define and provide for the punishment of a felony.

(e) A home rule unit shall have only the power that the

General Assembly may provide by law (1) to punish by

imprisonment for more than six months or (2) to license for

revenue or impose taxes upon or measured by income or

earnings or upon occupations.

 

Maybe I misunderstand this quote, but I take 'define and provide for the punishment of a felony' to mean they cannot create 'new' felonies. I always thought that local governments, including those without Home Rule powers, could have local statutes that mirrored State law, but that most, if not all, choose not to create felony ordinances due to the substantial cost of the prosecutions.

[bob]

Also, remember, IIUC, only state statutes can carry penalties of felonies. County or municipal ordinances can only levy misdemeanor sentences. Am I right about that??

 

Yep. It is in the state constitution.

 

SECTION 6. POWERS OF HOME RULE UNITS

***

(d) A home rule unit does not have the power (1) to

incur debt payable from ad valorem property tax receipts

maturing more than 40 years from the time it is incurred or

(2) to define and provide for the punishment of a felony.

(e) A home rule unit shall have only the power that the

General Assembly may provide by law (1) to punish by

imprisonment for more than six months or (2) to license for

revenue or impose taxes upon or measured by income or

earnings or upon occupations.

 

Maybe I misunderstand this quote, but I take 'define and provide for the punishment of a felony' to mean they cannot create 'new' felonies. I always thought that local governments, including those without Home Rule powers, could have local statutes that mirrored State law, but that most, if not all, choose not to create felony ordinances due to the substantial cost of the prosecutions.

 

You are correct in your understanding of this state constitutional provision. Only the state can provide for a felony. But 6 months in county lockup is no fun.

[TomKoz]

One thing I think we can ALL agree on is that this state SUCKS, and that we will have to wait on the ruling and take if from there.

[mauserme]

... we will have to wait on the ruling and take if from there.

Lot's of wisdom in that.

[stm]

... we will have to wait on the ruling and take if from there.

Lot's of wisdom in that.

Where's the fun in that? I think we would all rather continue our wild speculations!

 

Seriously, sharing our thoughts while we wait has been therapeutic for me.

[w00dc4ip]

Good thing this isn't a life and death decision, seeing as it's essentially a clear cut case about fundamental, constitutionally protected rights. I mean, if it takes a few months for a judge to rule on the "preliminary" injunction, imagine how long will take her to rule on the actual suit once it's been presented...

[pyre400]

Id just seen how SCOTUS denied the Williams V Maryland case - looks like the fact that Maryland offers some sort of permit process leaves Williams with no standing...

 

Perhaps one of these cases will take its place?

[blackhalo]

From SCOTUSBlog:

 

"The first of three new cases, testing whether the Second Amendment right to have a gun for personal use applies outside the home, was turned aside. That case was Williams v. Maryland (10-1207), involving a man who was carrying a gun at a bus stop, on his way home from picking up the weapon at his girlfriend’s house. The Court had asked for a response in that case, and it has also done so in two other cases raising similar issues on the scope of gun rights. Neither one of those cases is yet ready for the Court to act. They are Masciandaro v. U.S. (10-11212) and Chein v. California (10-1474)."

 

http://www.scotusblog.com/2011/10/no-grants-five-cvsgs/

[Drylok]

Turned aside? Does that mean they said they won't hear the case I take it?

[bob]

Id just seen how SCOTUS denied the Williams V Maryland case - looks like the fact that Maryland offers some sort of permit process leaves Williams with no standing...

 

Perhaps one of these cases will take its place?

 

I would not be inferring much of anything from them not taking the case. There is only so much time in the day and the sheer volume of potential cases means they can only take on relatively few.

 

It may mean they are just unwilling to look at it right now. Sometimes they seem to like to let things percolate in the lower courts for awhile.

[NakPPI]

Id just seen how SCOTUS denied the Williams V Maryland case - looks like the fact that Maryland offers some sort of permit process leaves Williams with no standing...

 

Perhaps one of these cases will take its place?

 

I would not be inferring much of anything from them not taking the case. There is only so much time in the day and the sheer volume of potential cases means they can only take on relatively few.

 

It may mean they are just unwilling to look at it right now. Sometimes they seem to like to let things percolate in the lower courts for awhile.

 

Williams was a bad case anyway, the bozo never even attempted to get a permit. There are much better cases from Maryland, like Woollard.

[Ocellairs]

Turned aside? Does that mean they said they won't hear the case I take it?

 

 

At least this one particular case they aren't interested in hearing it. Accordingly by the sounds of it, the two other cases aren't ready to come out of the chute yet.

[soundguy]

I've been absent here. And I haven't read everything... But I'd like to agree with Bob.

 

The IL constitution gives home rule powers to Chicago and other localities, Cook County included.

 

The FOID Act part of the constitution grants firearm regs to "Police Power" and yet that is intended to be the power of the legislators... Not any local cop shop or municipality.

 

I keep thinking that in it's purest form, Home Rule should be relegated to matters of taxation and similar local stuff. Allowing home rule to extend to matters of the state seems... Inappropriate.

[bob]

I keep thinking that in it's purest form, Home Rule should be relegated to matters of taxation and similar local stuff. Allowing home rule to extend to matters of the state seems... Inappropriate.

 

The IL state constitution is pretty clear about what home rule entails. It is pretty expansive.

 

Except as limited by this Section, a home rule unit

may exercise any power and perform any function pertaining to

its government and affairs including, but not limited to, the

power to regulate for the protection of the public health,

safety, morals and welfare; to license; to tax; and to incur

debt.

 

 

If you do not like it, perhaps you could get an amendment to the state constitution passed that would suit you better. Home rule is very popular with localities and any amendment to restrict home rule would see very tough going in the GA.

[stm]

Only two weeks until the ILGA convenes for the Fall Veto Session.

 

Keeping my fingers crossed!

[w00dc4ip]

Only two weeks until the ILGA convenes for the Fall Veto Session.

 

Keeping my fingers crossed!

I love deadlines. I especially like the whooshing sound they make as they go flying by...

[abolt243]

Only two weeks until the ILGA convenes for the Fall Veto Session.

 

Keeping my fingers crossed!

I love deadlines. I especially like the whooshing sound they make as they go flying by...

 

Oh, it's OK. The legislature is too busy considering things like how to arrest you for speeding without actually seeing you in your car and whether you should be able to bet your last nickle on a slot machine after losing the rest of your money on the ponies!!

 

They have no time even consider restoring a fundamental, individual, constitutional right!!

 

Don't you love Illinois??

 

AB

[TyGuy]

Is there any thing that requires the judge to rule within X number of days?

[Davey]

There might not be anything set in stone but I imagine there will come a point in time that any further delays would be excessive, unprofessional, and perhaps unethical. Aren't there ethics boards or ethical oversight committees for those in law?

[mrmagloo]

I think the right to a speedy trial only extends to criminal cases. However, a good point and it's definitely something to look towards. However, perhaps we should pester as anti's?