Wilson v. Cook County (Semi-Auto Gun Ban)

[Tvandermyde]

I hope so, Todd.

 

Fed, the fact that you would still have to register (and permit) is the problem (unless Chicago tries to claim home rule on continuing the ban). That likely is not going away without a few more wins outside of the state.

 

If we win, Chicago's home rule will be meaningless. cook has home rule and that is how they enacted the ban. A win on 2A grounds or WC preemption runs over the top of their,and any other home rule ban.

 

then we will get to see how far and wide the preemption goes. and beleive me, other things will be looked at and challenged.

 

this is VERY big. under a WC preemption, there is not a gun you can name, that I can not find a season where it is legal for hunting.

 

From a derrenger to a Barrett M82, I can find a season to use it in. My suggestion might be to go buy a hunting license.

[Federal Farmer]

Todd thanks for the detailed answer.

Off topic--F.F. is the "forever unregisterable" b.s. being addressed in any of the lawsuits.

 

IIRC it was knocked out by McDonald. After McDonald I was allowed to register my M1-Garand and our two pistols as well as a K31 where the registration had expired (I missed the Dick Mell amnesty window).

[Sigma]

I agree, listening to the orals makes me feel a little better about a ruling in our favor. I like when the judge made reference to the fact that a manufacturer in China could make a modification to a firearm and render the firearm someone already purchased illegal under this ordinance.

I do hope they write a good opinion that wont leave room for Cook to pass a AWB that will surprise Helmke

[Sigma]

 

Wilson V/s Cook County

 

I think Bozo did a horrible job representing the county

[JackTripper]

I don't agree. This lawyer was actually better than the others the city/county/state have had defending it (where I have had access to the orals)

He is rather limited by the nature of the argument he is asked to make. Some of the other lawyers clearly had no clue.

[bob]

It has occurred to me that the WC argument does give them an interesting out. They could rule correctly while claiming there is no need to delve into the 2A issue because it is already covered by the WC issue. OTOH, IL courts tend to consider home rule to be pretty much sacred. I wonder if they are willing to make that kind of a decision given the ambiguity involved.

 

Just think how much money the state could make selling hunting licenses if it goes this way though.

[GarandFan]

What's an "assault weapons ban?"

 

http://i39.photobucket.com/albums/e185/GarandFan/IMG_4136.jpg

[GarandFan]

No seriously, Todd ... thanks for the analysis. Makes a lot of sense to me. I think the decision will be favorable ... at least mildly if not substantially. In light of McDonald (which applies Heller to Illinois) think it very unlikely that they could uphold the flat-out ban on common-use semiauto firearms.

 

And thanks to Mr. Wilson for hanging in there through this!

[Federal Farmer]

Given that states like KY, that allow deer hunting with AK-47s (any center-fire rifle) limit you to 10 round mags (though I hear you can carry 30 rd mags if you don't hunt with them) for hunting, IL limits shotgun hunting to 3 rds, I think, is it possible they overturn the gun ban but retain the mag capacity limits if they overrule it on a WC basis?

[GarandFan]

I'd certainly think that's within the realm of possibility ...

 

The mag capacity thing is another issue entirely. And mag capacity limitations are necessarily arbitrary.

[Pinto]

It has occurred to me that the WC argument does give them an interesting out. They could rule correctly while claiming there is no need to delve into the 2A issue because it is already covered by the WC issue. OTOH, IL courts tend to consider home rule to be pretty much sacred. I wonder if they are willing to make that kind of a decision given the ambiguity involved.

 

The Ill. S. Ct. is really big on keeping to the issues raised. If an issue is not raised in the petition for leave to appeal, or if authority is not cited for a proposition, then the Court refuses to consider it. Period.

 

I've read most of what's been said in this thread about home rule and simply don't know where to begin to explain why the suggestion that Cook has been "preempted," by of all things the Wildlife Code, is so misguided. What a total waste of time and money! The Court won't look for an "out"; it will address the issues of whether the ordinance violates the US Constitution, not whether its enactment was beyond the home rule authority granted by the Ill. Constitution of 1970. Overrule Kalodimos? The Court just cited Kalodimos as good law not 6 months ago in an actual home rule decision (one I haven't seen even acknowledged here). And this isn't even a home rule case, regardless of how some may want it to be one. So use this case to overrule Kalodimos? The logic escapes me.

 

The court may or may not say dismissal under section 2-615 was improper as a procedural matter. But the ordinance was preempted by a code that doesn't expressly preempt municipal ordinances? David Baum would roll in this grave.

 

Frankly, this case is all about how badly Heller was written. Most gun owners WANT to see Heller as a victory, so they're blinded as to its inherent weaknesses and as to how SCOTUS stabbed us in the back with that decision. And most don't even know it yet. Pity is, they will.

[Tvandermyde]

Pinto --

 

Justice Thomas specifically asked about doign a whole sale 2A review since the appeallate court dove into it -- twice. the second time on remand in light of McDonald.

 

Justice Freeman took up the issue and so did Justice Karmier in questioning that was raised in the amici of the conservation police about the Wildlife Code preemption.

 

the Code says:

 

"(520 ILCS 5/2.1) (from Ch. 61, par. 2.1)

Sec. 2.1. The ownership of and title to all wild birds and wild mammals within the jurisdiction of the State are hereby declared to be in the State, and no wild birds or wild mammals shall be taken or killed, in any manner or at any time, unless the person or persons so taking or killing the same shall consent that the title thereto shall be and remain in the State for the purpose of regulating the taking, killing, possession, use, sale and transportation thereof, after such taking or killing, as hereinafter set forth. The taking or killing of wild birds or wild mammals at any time, in any manner, and by any person, shall be deemed a consent on the part of such person that the title to such wild birds or wild mammals shall remain in the State for the purpose of regulating the possession, use, sale and transportation thereof.

The regulation and licensing of the taking of wildlife in Illinois are exclusive powers and functions of the State. A home rule unit may not regulate or license the taking of wildlife. This Section is a denial and limitation of home rule powers and functions under subsection (h) of Section 6 of Article VII of the Illinois Constitution"

 

The code does preempt municipal ordinances. And if they can not regulate the taking of game, by bag limit, season dates, hours, they can't regulate the type of firearm used inthe taking of game. The arguement got the attnetion of at least 2 justices on the Court. Just listen to the first minute of the orals and it is clear.

 

In a hot button issue like 2A, and this being the first real in dpeth issue before the Court, I could see them punting and not going the distance. I can see them looking for an out. and often times if courts are given an out, they will take it.

[Bud]

From the Illinois Supreme Court:

 

 

APRIL 2, 2012

TO ATTORNEYS OF RECORD AND PARTIES:

The Supreme Court anticipates that an opinion will be filed in

the case listed below at 9:00 A.M. on Thursday, April 5, 2012.

Very limited information about the opinion can be obtained by

telephone after 9:00 A.M. that day. Your copy of the opinion will

be mailed to you, or it will be available in the Clerk's Office in

Springfield or on the 20th Floor, 160 N. LaSalle St. in Chicago

shortly after 9:00 A.M. Opinions also are posted on the Court's

website the day of filing:

http://www.state.il.us/court.

Carolyn Taft Grosboll

Clerk of the Supreme Court of Illinois

No. 112026 - Matthew D. Wilson et al., appellants, v. Cook

County, etc., et al., appellees. Appeal,

Appellate Court, First District.

 

[Davey]

What comes after a state supreme court?

[wilessiuc]

What comes after a state supreme court?

 

The United States Supreme Court.

[BigJim]

I sure as heck hope we win. I'm afraid if we loose the Chicago/Cook machine will try to make the Cook ban a state wide ban.

[Bud]

I sure as heck hope we win. I'm afraid if we loose the Chicago/Cook machine will try to make the Cook ban a state wide ban.

 

 

They already are:

 

HB 1294

[JR1987]

They certainly are. Hopefully every other state rep knows what BS the ban is. I've written me rep's two or three times already.

[Jason4567]

Is this an instance where no matter what side wins the other will appeal and we will have more waiting to do? Or am I possibly going to be able to order that AR Friday?

[GarandFan]

I would be greatly surprised if the county appealed a loss to the US Supreme Court ...

 

I would not be surprised if Wilson appealed a loss to the US Supreme Court.

[Yas]

Ah don't we have to go thru the 7th district court of appeals then SCOTUS?

[NakPPI]

Ah don't we have to go thru the 7th district court of appeals then SCOTUS?

 

No, this is a state court case.

 

Sent from my tactical multicam SCH-I500.

[Tvandermyde]

Since this is a state court case coming from the State Supreme Court, the next stop is SCOTUS if appealed.

 

I will be downtown tommorow and will be there to pick up a copy of the decision as released. After calls to HQ and ISRA leadership, I will be posting on IL-Gunlobby on facebook as it has a twitter feed and here at IC. I will try to multi-task.

 

Once the basic ruling is out, I will sitdown a read it for the nuts and bolts and disect what the Court says. then it might be time for a drink, either to celebrate, or drown sorrows. But I have a good feeling about tommorow.

 

i will probable start a new thread on Wilson Decision -- with a XXXXXX one or two word explination, which will be:

 

We WON!!!!!

 

We Lost.

 

Remanded

 

As those are the three options.

[GarandFan]

Waiting ... breath abated!

[willxjcherokee]

Waiting ... breath abated!

I agree! I hope they rule in our favor!

[GarandFan]

http://www.suntimes.com/news/metro/11720264-418/illinois-supreme-court-ruling-on-assault-weapons-ban-expected-thursday.html

 

Illinois Supreme Court ruling on assault weapons ban expected Thursday

 

by andrew maloney Sun-Times Springfield bureau

April 4, 2012 6:26PM

 

SPRINGFIELD — The state’s top court is poised to rule on Cook County’s assault weapons ban Thursday in a case that will determine the fate of one of Illinois’ signature gun-control laws.

 

Attorneys challenging the ban argued that the county’s ordinance — enacted in 1993 and extended in 2006 — is too vague, based on faulty information and should be reconsidered in light of the 2010 U.S. Supreme Court case that overturned Chicago’s ban on handguns.

 

The county ordinance specifically outlaws the sale or possession of “any assault weapon or large capacity magazine.” It describes several traits of prohibited weapons — such as a protruding grip or a shroud attached to the barrel — and specifies several types of guns that are in violation of the ordinance.

 

“It bans the most popular hunting rifles … that there are in the country,” Richard Pearson, executive director of the Illinois State Rifle Association, told the Chicago Sun-Times Wednesday.

 

The ban extends to the AR-15, a weapon Pearson called the most popular hunting rifle in the United States, as well as guns used for duck hunting and shooting clay pigeons. “And there’s no reason to do it. There’s no justification for it at all,” he said.

 

Additionally, the plaintiffs in the case argued that the scope of the ban is too large, and could cause issues if new technology makes previously legal firearms capable of accepting large capacity magazines.

 

A group of state lawmakers, including suburban representatives Kent Gaffney (R-Lake Barrington) and Linda Chapa LaVia (D-Aurora), also filed a brief with the court, claiming that a ban on entire categories of firearms is unconstitutional.

 

However, gun control advocates said there is no reason to nullify the ban when there are “many, many” conventional handguns and long guns still legal and available.

 

“You don’t have a constitutional right to pack an AK-47,” said Jonathan Lowy, director of the Legal Action Project at the Washington, D.C.-based Brady Center to Prevent Gun Violence. “It would be a vast, unwarranted, unjustified expansion of the Second Amendment right that’s recognized by the U.S. Supreme Court” if the ban is struck down.

 

In their appeal, the plaintiffs said factual errors made by the Cook County Board had not been appropriately considered by lower courts. One statistic in the 1993 version of the ordinance claimed assault weapons were 20 times more likely to be used in crimes than other weapons, although the U.S. Department of Justice later found that assault weapons were used in between 2 and 8 percent of gun crimes.

 

But Paul Castiglione, an assistant state’s attorney arguing for Cook County, told the court that should not apply to this case.

 

“I think the solution to that is a political remedy,” he said during oral arguments in January. “It doesn’t really matter what findings they made.”

 

The plaintiffs in the case are Mathew Wilson, Troy Edhlund and Joseph Messineo, who originally challenged the ban in 2007.

[bob]

I would be greatly surprised if the county appealed a loss to the US Supreme Court ...

 

I would not be surprised if Wilson appealed a loss to the US Supreme Court.

 

 

That would seem to be the obvious answers. But one never knows.

 

I wonder if SCOTUS would even be interested. I can't see them taking an AW case just now. It does not seem like the next logical step for them. I think they will take an "outside the home" case before they delve into what arms are covered.

[NakPPI]

Anyone want to take me up on a bet that this gets sent back to the trial court because the Cook County judge misapplied the 2-615 standards? :Crying. =-(:

[abolt243]

Anyone want to take me up on a bet that this gets sent back to the trial court because the Cook County judge misapplied the 2-615 standards?

 

Could you give us the "Cliff Notes/Laymen's terms" of 2-615 standards?? In 500 words or less??

 

Thanks,

Tim

[Tvandermyde]

sure, I got a 6 pack of Heines and a box of .223 ammo says we win.

 

like I said there are 4 ways to go, remand on 615, rule against us on 2A, rule for us on 2A rule for us punt WC preemption.

 

so it's 25% chance of a loss, 25% chance of remand, 50% chance of a win in my book. They way we loose is if Garmin goes south.

 

by my count we Got Karmier, I think we got Thomas. We should have Garmin and I say we got the Chief Kilbride. We probably have Freeman on preemption as a way of dumping the case.

 

My bet is Thies write a dissent on 2-165 joined by Burke