Mance v. Holder :federal interstate handgun transfer ban found unconstitutional

[Mike]

I believe Illinois state police & Illinois DNR have been empowered to act as the gate keeper to

our 2A . due to our mis-guided Illinois constitution (section-22 right to arms

SUBJECT ONLY TO THE POLICE POWER

this should be amended. !!!!!!!

 

Interesting point. After the recent supreme court 2nd amendment cases would "subject only to police power" make this portion of the Illinois constitution unconstitutional at the federal level?

[soundguy]

 

I believe Illinois state police & Illinois DNR have been empowered to act as the gate keeper to

our 2A . due to our mis-guided Illinois constitution (section-22 right to arms

SUBJECT ONLY TO THE POLICE POWER

this should be amended. !!!!!!!

 

Interesting point. After the recent supreme court 2nd amendment cases would "subject only to police power" make this portion of the Illinois constitution unconstitutional at the federal level?

 

 

"Police power" does not refer to law enforcement

ISP and DNR are not the gatekeepers of our 2A rights

 

 

"In United States constitutional law, police power is the capacity of the states to regulate behavior and enforce order within their territory for the betterment of the health, safety, morals, and general welfare of their inhabitants.^[1] Under the Tenth Amendment to the United States Constitution, the powers not specifically delegated to the Federal Government are reserved to the states or to the people. This implies that the Federal Government does not possess all possible powers, because some of these are reserved to the State governments, and others are reserved to the people.

 

Police power is exercised by the legislative and executive branches of the various states through the enactment and enforcement of laws..."

[s0beit]

If one uses the reasoning that the transfer provision burdens those who wish to exercise their right to keep (and bear) arms under the Second Amendment, one could use that same reasoning to attack the FOID Card Act since the requirement that one must possess a FOID Card or be charged with misdemeanor UUW for possessing one single round of ammunition is beyond an undue burden and steps into the land of total deprivation of the individual right itself. It is not just an inconvenience, as one may apply for, and receive a FOID Card. Until then, it's a total deprivation of a right since, until the State decides to impart that right upon a FOID Card applicant (after paying $10, waiting....30 days, more, who knows), one may not legally exercise a protected right. Not one single Illinois resident has the right to own a firearm until the ISP sends you a card saying that you can possess a firearm and/or ammunition. There is no "long-standing tradition" as the Act was passed to keep minorities, specifically African-Americans from owning firearms. Slavery was a long-standing tradition, we don't enslave people. Corporal punishment in schools, long-standing tradition...also illegal.

Interesting point, I hadn't really thought of it like that.

 

The FOID system imposes it's own check on top of FFL, and it is an inherent part of the system.

 

Not sure about the ammo thing, it hasn't really been stated that ammo is protected by anything yet, has it? I mean if some state got carried away and banned all ammunition, I'm sure there would be a ruling against them, but I'm not aware of any precedent that states you must be able to acquire ammo as easily as a firearm (although we know that it follows sound logic and courts will most likely agree), might be wrong about precedent I'm just not aware of it.

 

So technically the FOID background check requirement for... Well I guess all firearms would be thrown out, at the least.

 

I would say FOID could stay still, if the registration check applied to all firearms purchases (so you don't need an FFL check) but IL doesn't have that sort of power, plus it would actually make gun ownership somewhat easier (besides the registration), and it would have to be optional even if they did have that sort of power. So with all those points taken into consideration, it's pretty dumb to keep FOID around even assuming it was legal to do, which this theoretical example isn't.

 

Well this case got a lot more exciting for me I guess, so many fun ideas.

 

BTW what do you think about the mail thing I brought up? Seems far fetched that it is possible, just due to how convenient it would be to purchase a firearm, but I can't really find any holes in the logic at least.

 

[Helpdesk9]

Having a valid FOID should be voluntary and mean no NICS check and no waiting period since it makes the NICS redundant and it takes weeks at best to get a FOID.

 

They should revise FOID act to make the FOID card optional rather than mandatory with benefits such as exempting the card holder from all waiting periods as long as they pass the background check or 3 day if no response is received in regards to the background check.

Ya don't say, Donald?

[Federal Farmer]

I believe Illinois state police & Illinois DNR have been empowered to act as the gate keeper to

our 2A . due to our mis-guided Illinois constitution (section-22 right to arms

SUBJECT ONLY TO THE POLICE POWER

this should be amended. !!!!!!!

 

Nope. That preamble is irrelevant as it is a given. All rights are subject to the police power, even our right to life. The issue is to what degree.

[skinnyb82]

The FTIP system (when it isn't busted) is an extra layer of crap on top of NICS, IL is "special" when it comes to backgrounds, we take pride in regulating firearm ownership to the point where the FOID is the destruction of a right. They spend an obscene amount of money on the framework, the databases, they lose $2 per FOID Card issued, and employ God knows how many just to keep up with all of that. Those employees receive a handsome compensation, at our expense of course so taxpayers pay for the ISP to "give" us a privilege since it is no longer a right when subject to nearly unlimited government regulation.

[Frank]

...

[RoadyRunner]

Governments request for a stay: DENIED!

 

http://www.ccrkba.org/?p=4779

[tkroenlein]

This is so awesome.

[kwc]

Will this just mean the government will file an appeal sooner rather than later?

[skinnyb82]

I can't believe that they haven't filed a Notice of Appeal yet. I updated the docket on archive (link is inline). The district judge denied the government's motion to stay because there is no appeal pending, thus the stay is not proper in this case.

 

"While an appeal is pending from a final judgment that grants an injunction, the Court may

suspend that injunction. See Fed. R. Civ. P. 62©. Here, there is no appeal pending. See Defs.’ Mot.
Stay, ECF No. 42. Instead, Defendants ask the Court to issue a stay “pursuant to the Court’s inherent
authority to manage its docket, which includes the authority to issue a stay of proceedings.” Defs.’
Reply Mot. Stay 2, ECF No. 46. The burden of proof for a motion to stay is on the movant to
demonstrate that the issuance of a stay is warranted. Bray v. Fort Dearborn Life Ins. Co., No. 3:06-
cv-560-B, 2008 WL 1820594 at *3 (N.D. Tex. Apr. 23, 2009) (Boyle, J.). Although Defendants’
Motion does not trigger Federal Rule of Civil Procedure 62©, the Court finds that the factors for
consideration under Rule 62© are instructive. Those factors are: (1) whether the stay applicant has
made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be
irreparably injured absent a stay; (3) whether the issuance of the stay will substantially injure the
other parties interested in the proceeding; and (4) where the public interest lies. Id. at *2.

Here, Defendants argue that the grant of a stay will not unduly prejudice Plaintiffs because
Plaintiffs never sought preliminary injunctive relief in this case. Defs.’ Mot. Stay 1, ECF No. 42.
Defendants offer no other reasons for the Court to grant their motion. A stay is an extraordinary
remedy which should be issued sparingly. See Bray, 2008 WL 1820594 at *3. Accordingly, the Court
finds that a stay is not warranted in the instant action. Should Defendants decide to appeal, they may
move this Court to stay its Order pursuant to Rule 62© of the Federal Rules of Civil Procedure.

Based on the foregoing, it is ORDERED that Defendants’ Motion for Sixty-Day Stay (ECF
No. 42) is DENIED.

SO ORDERED on this 26th day of February, 2015."

[bmyers]

So for us dummies, what does this mean? Anything change for us, or just another hurdle was overcome and we are still waiting?

[Mr. Fife]

I can't believe that they haven't filed a Notice of Appeal yet. I updated the docket on archive (link is inline). The district judge denied the government's motion to stay because there is no appeal pending, thus the stay is not proper in this case.

 

"While an appeal is pending from a final judgment that grants an injunction, the Court may

suspend that injunction. See Fed. R. Civ. P. 62©. Here, there is no appeal pending. See Defs.’ Mot.

Stay, ECF No. 42. Instead, Defendants ask the Court to issue a stay “pursuant to the Court’s inherent

authority to manage its docket, which includes the authority to issue a stay of proceedings.” Defs.’

Reply Mot. Stay 2, ECF No. 46. The burden of proof for a motion to stay is on the movant to

demonstrate that the issuance of a stay is warranted. Bray v. Fort Dearborn Life Ins. Co., No. 3:06-

cv-560-B, 2008 WL 1820594 at *3 (N.D. Tex. Apr. 23, 2009) (Boyle, J.). Although Defendants’

Motion does not trigger Federal Rule of Civil Procedure 62©, the Court finds that the factors for

consideration under Rule 62© are instructive. Those factors are: (1) whether the stay applicant has

made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be

irreparably injured absent a stay; (3) whether the issuance of the stay will substantially injure the

other parties interested in the proceeding; and (4) where the public interest lies. Id. at *2.

 

Here, Defendants argue that the grant of a stay will not unduly prejudice Plaintiffs because

Plaintiffs never sought preliminary injunctive relief in this case. Defs.’ Mot. Stay 1, ECF No. 42.

Defendants offer no other reasons for the Court to grant their motion. A stay is an extraordinary

remedy which should be issued sparingly. See Bray, 2008 WL 1820594 at *3. Accordingly, the Court

finds that a stay is not warranted in the instant action. Should Defendants decide to appeal, they may

move this Court to stay its Order pursuant to Rule 62© of the Federal Rules of Civil Procedure.

 

Based on the foregoing, it is ORDERED that Defendants’ Motion for Sixty-Day Stay (ECF

No. 42) is DENIED.

 

SO ORDERED on this 26th day of February, 2015."

 

[skinnyb82]

Plain English, unless the government files an appeal (by right) with the appropriate Circuit Court of Appeals (Fifth Circuit in this case) then a stay is improper. The judgment is final, no appeal, therefore no stay because it is impossible to meet the burden for a stay of the district court's order based on arguments offered by the government FRCP Rule 62© places the burden on the movant to justify a stay, four factors which the court is obligated to consider when deciding whether to grant or deny a stay. The government argued that it is entitled to a stay, pending review of the case for possible appeal by the Solicitor General. See 28 U.S.C. § 2107© (allows government 60 days to file appeal when it is party to civil action).

 

"The burden of proof for a motion to stay is on the movant to
demonstrate that the issuance of a stay is warranted. Bray v. Fort Dearborn Life Ins. Co., No. 3:06-
cv-560-B, 2008 WL 1820594 at *3 (N.D. Tex. Apr. 23, 2009) (Boyle, J.)."

"While an appeal is pending from a final judgment that grants an injunction, the Court may

suspend that injunction. See Fed. R. Civ. P. 62©."

There is no pending appeal. Stay is not warranted under 28 U.S.C. § 2107©.

"Those factors are: (1) whether the stay applicant has
made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be
irreparably injured absent a stay; (3) whether the issuance of the stay will substantially injure the
other parties interested in the proceeding; and (4) where the public interest lies."

"Here, Defendants argue that the grant of a stay will not unduly prejudice Plaintiffs because
Plaintiffs never sought preliminary injunctive relief in this case. . . . Defendants offer no other

reasons for the Court to grant their motion."

Judge O'Connor points out that the government has not even bothered to file a notice of appeal, so factor one is a non-starter. Addressing the second factor, the government has made no argument that it will suffer irreparable harm, absent a stay, so toss that out the window. The government did argue that Plaintiffs will not be harmed by a stay, but that's flimsy at best seeing as how it argued that, since Plaintiffs did not file a motion for a preliminary injunction at the onset of this case, that Plaintiffs implicitly stated they will not be harmed by a stay of the final order. The fourth factor...no argument addressing public interest was made by the government, so chuck that too. That leaves the district judge with no choice but to deny the government's motion to stay the order.

He proceeded to invite the government to file a motion to stay pending appeal. stated he would strongly consider staying his order under FRCP Rule 62© if an appeal is filed. Otherwise, no.

 

"Should Defendants decide to appeal, they may move this Court to stay its Order pursuant to Rule 62© of the Federal Rules of Civil Procedure."

[Tvandermyde]

The bottom line is the government wants it their way, because they are the government and the judge said no.

 

If they appeal, they have a leg to,stand on. Butnlike most government lawyers they are lazy and think the court should work on their schedule at their pace.

 

The judge refused, butnif they do it right,,he will reconsider. And you can bet they will ask for more time from the court to file their appeal. Just look at the carry case madigan is arguing against. And the request for extensiontions. If i were a judge, they would get one andthat it. Defualt for plaintiff due to the states lack of showing. Tuff beans, you dont get to run up the other sides legal bills cuase your lazy