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Madiganís office seeks dismissal of teenís suit over FOID Card Act


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#1 Molly B.

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Posted 18 June 2013 - 12:59 PM

Madigan’s office seeks dismissal of teen’s suit over FOID Card Act

June 17, 2013 5:50 PM
By Bethany Krajelis


Saying that the scope of the Second Amendment does not extend to protect those under 21, the state has asked a federal judge to dismiss an 18-year-old’s lawsuit over the denial of her Firearm Owners Identification (FOID) card application.
Illinois Attorney General Lisa Madigan’s office late last week filed a motion to dismiss in response to Tempest Horsley’s suit, which was brought in April in the U.S. District Court for the Southern District of Illinois.


Madigan’s office represents the defendant, Jessica Trame in her official capacity as chief of the Illinois State Police’s Firearms Services Bureau. Joshua D. Ratz, an assistant attorney general in Springfield, submitted the motion to dismiss.
Wood River attorney Thomas Maag filed the suit on behalf of Horsley, a Madison County teen.


Her suit seeks a court order directing Trame to accept Horsley’s FOID card application and to enjoin the state official from denying other applications on the basis that they are not signed by a parent or legal guardian, as well as an award of attorney fees and costs.

Horsley, according to the suit, mailed her application for a FOID card on March 14, along with a $10 check, and Trame returned the application as incomplete because it didn’t include a signature from a parent or guardian.
The Illinois FOID Card Act requires card applicants to be 21 or provide written consent of a parent or legal guardian. Horsley was “a few months over 18 years of age” when she submitted her application.


Her parents would not sign the application, the suit states, adding that Horsley “has no legal guardian, as she is in excess of 18 years of age, and thus, is an adult, having reached the age of majority.”

Horsley asserts she wants “a firearm for self-defense inside of her home.”

n February 2013, Vice President Joe Biden suggested that ‘f you want to protect yourself, get a double-barreled shotgun,’” her suit states. “[P]ursuant to the suggestion of Vice President Joe Biden, Plaintiff Horsley sought to acquire, and became aware of a double barrel shotgun for sale, in a price that she could reasonably afford.”

Horsley claims that Trame’s denial of her FOID card application violates the “constitutional right to possess a firearm for self-defense, pursuant to the Second and Fourteenth Amendments.”

The state, however, contends in its recently-filed motion that Horsley’s complaint should be dismissed because she “alleged no activity protected by the Second Amendment.”

In the alternative, Madigan’s office claims Horsley’s suit should be dismissed “because the FOID Card Act survives intermediate scrutiny under the Second Amendment.”

The office notes that the analysis of Second Amendment claims require a two-step inquiry.

First, Madigan’s office asserts, a court must look to the “textual and history inquiry into the original meaning” of whether the Second Amendment protects the restricted activity.

If the court determines the activity is protected, the office states that the court must then decide and apply the appropriate level of scrutiny under the Second Amendment, also known as a “means-end review.”

“Although the Seventh Circuit has not addressed the application of the Second Amendment to persons under the age of 21,” Madigan’s office claims that “it has held that categorical limits on the right to bear arms are permissible, much in the same way that certain categories of speech fall outside the protection of the First Amendment.”

Given the lack of controlling case law from the Seventh Circuit, the office urges the federal court in its motion to “look to the decisions of other federal courts of appeal for guidance.”

Madigan’s office asserts that “[t]he Fifth Circuit has held that persons under the historical age of majority, that is, under the age of 21, fall outside of the protections of the Second Amendment.

In addition to the Fifth Circuit’s 2012 ruling in National Rifle Association of America, Inc. v. Bureau of Alcohol, Tobacco, Firearms & Explosives, the office notes that the District Court of Massachusetts “reached the same conclusion” this year.

Both of these courts, according to Madigan’s office, applied an “in-depth textual and historical analysis of the scope of the Second Amendment.”

“The courts found that at the Founding and in the mid-Nineteenth Century, legislatures, courts, and commentators recognized the validity of firearms restrictions as to categories of individuals, including persons under the age of 21, noting that such individuals were considered ‘minors’ at the time,” the office states in its motion.

If the court chooses not to follow the Fifth Circuit’s analysis and determines that the Second Amendment’s scope does extend to those under 21, Madigan’s office asserts that “the law at issue passes ‘means-end scrutiny,” a finding that requires dismissal.
The office adds, “The Seventh Circuit has not addressed the level of scrutiny that should apply to a categorical limit based on age, such as the one involved here, but the Court has suggested that intermediate review is appropriate for such categorical restrictions and has directly held that intermediate review applies to categorical bans on the right to bear arms as applied to convicted felons.”
Under intermediate scrutiny, Madigan’s office states that the government has the burden of showing that the age restriction is justified because there is “a reasonable fit between the law and an important government objective.”


The objective of the FOID Card Act’s restrictions, the office asserts, “is substantially related to, and represents a reasonable, proportional means of furthering, the State’s important interest in maintaining public safety.”

In addition to the age restriction, the act prevents felons, drugs addicts, mental patients and certain other people from obtaining a FOID card.

To bolster its argument that the age restriction is linked to the state’s interest in public safety, Madigan’s office points to the 2011 First District Appellate Court ruling in People v. Alvarado.

The Alvarado court, the office notes in its motion to dismiss, determined that the legislature was justified in treating those under 21 differently in the state’s aggravated unlawful use of a weapon statute.

It found that legislative debates showed lawmakers wanted to treat those under 21 differently because they believed this age group was at risk for illegal gang-related activity, the motion states.

The Fifth Circuit also cited legislative findings in its National Rifle Association ruling that showed those between 18 and 20 were more prone to criminal behavior and tend to be more impulsive than those 21 and older.

In regards to Horsley’s suit, Madigan’s office asserts that the challenged provision of the FOID Card Act “is a reasonable, proportional fit to the goal of maintaining public safety and preventing violent crime.”

Pointing to the research cited in [i]Alvarado and [i]National Rifle Association, the office claims that the legislature included an age restriction in the FOID Card Act to address the risks of gun violence.

“This restriction is limited in time, as persons falling under its purview will quickly age out of the restriction,” according to Madigan’s office. “The restriction is also limited in scope, as exceptions are allowed for hunting and target practice, and for situations in which the under-21 individual obtains the consent of her parent or guardian.”

The office stresses that Horsley’s suit admits her parents refused to provide consent for her FOID card application, something that acknowledges her own parents don’t feel she “is, at the age of 18, sufficiently responsible to possess and bear a firearm.”

“No doubt there are individuals aged 18–20 who have reached the level of maturity necessary for responsible possession and use of firearms,” Madigan’s office contends. “Certainly there are many who have not.”

And while certain individuals under age 16 may be capable of operating motor vehicles and some under 21 may be able to handle liquor responsibly, the office asserts “the line must be drawn somewhere.”


"It does not take a majority to prevail ... but rather an irate, tireless minority, keen on setting brushfires of freedom in the minds of men." --Samuel Adams

#2 TyGuy

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Posted 18 June 2013 - 01:03 PM

Your take Skinny? Does she have a leg to stand on or is this just more smoke blown up you know where?
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#3 Trevis

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Posted 18 June 2013 - 01:07 PM

I think this holds no water at all, considering someone at 18 can be in the military and handle explosives, fully automatic weapons, weaponized drones, etc. The right to self defense honestly should not have an age limit, but I know how the legal world works...

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#4 defaultdotxbe

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Posted 18 June 2013 - 01:12 PM

Whatever appeals circuit Texas is in (9th i think?) recently ruled that not issuing carry permits to under-21s was constitutional, so this could go either way

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#5 THE KING

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Posted 18 June 2013 - 01:14 PM

The office stresses that Horsley’s suit admits her parents refused to provide consent for her FOID card application, something that acknowledges her own parents don’t feel she “is, at the age of 18, sufficiently responsible to possess and bear a firearm.”

I think this is another loser for Little Lisa.

Who cares what the parents think, she is 18. She is considered an adult except for when it comes to a constitutional right. Give me a break.

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#6 skinnyb82

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Posted 18 June 2013 - 01:27 PM

This is a load of crap. An 18-20 year old in EVERY STATE may own a long gun (and in IL too...with a FOID). The GCA states that no one under the age of 18 may own a long gun or handgun and does not forbid 18-20 year olds from even owning a handgun. Case law comes in there. I digress.

Here is the giant elephant in the room that Lisa seems to be missing. Through this asinine provision because God forbid someone check the birth date on a FOID card or print one for 18-20 yr olds and another for 21+, which is what they do for like drivers licenses, is that the FOID Act creates three classes of citizens. The first, mom, dad, or legal guardian (whomever raised the person, not sure about wards of the state like foster kids) sign off and person gets a FOID card, thus being "permitted" to exercise a right (yeah I said permitted because that's what it is). The second class, for whatever reason, mom, dad, whomever will not sign off, therefore said person CANNOT exercise their right to keep and bear arms. The third class is those who are 21+ years old and do not require endorsement to apply for a FOID card. Anyone wanna guess which Constitutional Amendment this violates? And the specific clause? If you guessed the 14th Amendment's Equal Protection Clause, you win.

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#7 Patriots & Tyrants

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Posted 18 June 2013 - 01:29 PM

This is just beyond dumb

Saying that the scope of the Second Amendment does not extend to protect those under 21, the state has asked a federal judge to dismiss an 18-year-old’s lawsuit over the denial of her Firearm Owners Identification (FOID) card application.


Is Lisa mentally disabled or does she just hate the 2A?
I swear she went in for that surgery to remove half her brain and make her polish but they ended up removing all of it and making her Italian…(bad joke)

Back when the Second Amendment was written boys 16, 17 and younger had been signing up to fight the British. Today 18 and sometimes even 17 year olds can sign up to join the armed forces and fight for our country. Yet they do not have a right to keep and bear arms?
You trust an 17 year old to drive an M1 Abrams Tank or fire off a 155mm Howitzer but not to own a long gun?



What a contemptuous little ...well I will stop right there for the sake of the Children!

Edited by Patriots & Tyrants, 18 June 2013 - 01:32 PM.


#8 TyGuy

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Posted 18 June 2013 - 01:32 PM

I did guess the 14th equal protection! Only because you have taught us.
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#9 Federal Farmer

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Posted 18 June 2013 - 01:33 PM

This is a beautiful suit. I especially liked the finger raised towards Biden.

I always felt the parental sign-off for 18+ was wrong. I think they are wrong regarding historical analysis. The original militia act (and today's) placed persons from age 17 up in the militia.

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#10 C0untZer0

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Posted 18 June 2013 - 01:39 PM

It should go to SCOTUS, it has far-reaching consequences on our rights under the other amendments !
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#11 moon

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Posted 18 June 2013 - 01:40 PM

I never knew there was an age restriction on long guns. If VP Biden tells you get a shot gun and she can't then either Biden or Madigan is wrong. After all she is an adult.
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#12 aggro_jo

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Posted 18 June 2013 - 01:44 PM

I am calling shenanigans on this. There is no way she got an response from ISP only 3 months after she applied [/purple]

My father has been waiting over 6 months since applying (3 since they cashes his check) and we can not get anyone to look into the issue.

#13 BobPistol

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Posted 18 June 2013 - 01:45 PM

Is Lisa mentally disabled or does she just hate the 2A?


Yes.
The Second Amendment of the Constitution protects the rest.

#14 spu69

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Posted 18 June 2013 - 02:02 PM

I am calling shenanigans on this. There is no way she got an response from ISP only 3 months after she applied [/purple]

My father has been waiting over 6 months since applying (3 since they cashes his check) and we can not get anyone to look into the issue.


My son's got kicked back because of this when he was 18 at about 45 days. Then I signed and returned and he got it about 60 days later. This was last fall sometime.

#15 BillCook

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Posted 18 June 2013 - 02:03 PM

I am calling shenanigans on this. There is no way she got an response from ISP only 3 months after she applied [/purple]

My father has been waiting over 6 months since applying (3 since they cashes his check) and we can not get anyone to look into the issue.


Your father should reach out. Both my wife and daughter applied and had thier new FOID cards in 35 days from the day I mailed them.

Back on topic; This is why both of my kids have FOID cards now. It puts onto public record (i.e. I signed the application) that thier parent wanted them to have a FOID cards, incase anything was to ever happen to my wife and I.


Edit: In case anyone was wondering the applications were mailed April 24, 2013 and received May 30th.

Edited by BillCook, 18 June 2013 - 02:11 PM.


#16 defaultdotxbe

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Posted 18 June 2013 - 02:04 PM

I am calling shenanigans on this. There is no way she got an response from ISP only 3 months after she applied [/purple]

My father has been waiting over 6 months since applying (3 since they cashes his check) and we can not get anyone to look into the issue.

my grandmother got hers in a little over 2 months. this was this past january when she sent it in

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#17 THE KING

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Posted 18 June 2013 - 02:05 PM

I am calling shenanigans on this. There is no way she got an response from ISP only 3 months after she applied [/purple]

My father has been waiting over 6 months since applying (3 since they cashes his check) and we can not get anyone to look into the issue.


Joe, have your dad call your state rep. They will do wonders and he should get his FOID shortly thereafter.

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#18 nulloverride

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Posted 18 June 2013 - 02:10 PM

This is a beautiful suit. I especially liked the finger raised towards Biden.

I always felt the parental sign-off for 18+ was wrong. I think they are wrong regarding historical analysis. The original militia act (and today's) placed persons from age 17 up in the militia.


Agreed! I wonder if anybody auto tuned that speech.

#19 TyGuy

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Posted 18 June 2013 - 02:25 PM

Agreed! I wonder if anybody auto tuned that speech.

You DOUBT the internet!!!?!?!??!?!?!?


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#20 RonOglesby - Now in Texas

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Posted 18 June 2013 - 04:39 PM

This really really bothers me everytime it comes up. Guns, or alcohol. Law creating 2 types of adults... You can sign forms, buy cars, enter into loans, rent apartments, be convicted of crimes as AN ADULT... yet you cant have a beer or get a FOID here...

I was 17 when I entered boot camp. by 19 I was living off base, was an E5, had 2 years in the service, was expert pistol/rifle, etc, etc.

Yet In this state, some Military at Great Lakes or any of the other bases could not get a FOID without Mommy's signature??????

WTH. And to say the second amendment doesn't protect those under 21? so you can vote? but cant buy a gun? WHAT!?!?!

That would have been the person to get in on the law suit. An enlisted active duty in the military here in Illinois that couldn't get a FOID. I would love to hear the AG defend that.
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#21 Lou

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Posted 18 June 2013 - 04:53 PM

What I find really foolish on the part of Madigan is she just filed an extension for her ability to ask for SCOTUS cert because her lawyer claims he is too busy.
Yet, her office has time to file obvious losing paper like this?

Which is it Lisa, are you busy or do you have time to fule frivolous paperwork?

Her argument:

Good cause exists for this application. The undersigned counsel, who has principal responsibility for the certiorari petition in this case, serves as the Solicitor General in the Office of the Illinois Attorney General. Counsel filed the opening brief on June 3, 2013 as counsel of record for Illinois Attorney General Lisa Madigan and other petitioners in Madigan v. Levin (U.S. 12-872). In addition, counsel's supervisory responsibilities over the Civil and Criminal Appeals Divisions of the Attorney General's Office-including editing and revising briefs and preparing attorneys for oral argument-have occupied a substantial amount of time in May and the first two weeks ofJune, 2013.


Edited by Lou, 18 June 2013 - 04:57 PM.

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#22 skinnyb82

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Posted 18 June 2013 - 04:54 PM

Oh she'd come up with some convoluted crap to justify it. "Well it's different since plaintiff may only handle fully automatic weapons and destructive devices either on base or in a war zone where he is being shot at. The fact that plaintiff is a 'Ranger' does not mean that he is entitled to own a firearm. He must get his mother's signature."
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#23 skinnyb82

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Posted 18 June 2013 - 06:14 PM

Oh look at this crap.

From Trame's MTD....

"8. Plaintiff’s complaint should be dismissed because Plaintiff has alleged no activity protected by the Second Amendment. See Nat’l Rifle a**'n of America, Inc. v. McCraw, --- F.3d ----, 2013 WL 2156571, at *5 (5th Cir. 2013); Nat’l Rifle a**’n of America, Inc. v. Bureau of Alcohol, Tobacco, Firearms, & Explosives, 700 F.3d 185, 204 (5th Cir. 2012)."

9. Alternatively, the complaint should be dismissed because the FOID Card Act survives intermediate scrutiny under the Second Amendment. See Nat’l Rifle a**’n of America, Inc., 700 F.3d at 204 (5th Cir. 2012) (alternative holding that federal law prohibiting the purchase or sale of firearms by persons under 21 was consitutional under intermediate scrutiny); People v. Alvarado, 2011 IL App (1st) 082957, ¶ 66, 964 N.E.2d 532, 547–48 (Ill. App. 2011) (upholding Illinois’ restrictions on the possession of firearms by persons under 21)."

So, Trame's counsel (Madigan just signed on as counsel too...VERY VERY busy!) cited rulings from the Fifth Circuit, and an Illinois (Cook County) Appellate Court. In other words, compelling in nature but hardly binding. The memorandum in support is just straight up offensive, though. I spotted a Woollard citation...come on.

Here, a denial is justified because they can also deny felons the right to own a firearm. "The Court has suggested...." Right, "suggested" is the functional word. Uh huh so those under 21, same as a felon....
"Even if the Court rejects the analysis of the Fifth Circuit and concludes that the Second Amendment’s scope extends to persons under the age of 21, the law at issue passes 'means-end' scrutiny. The Seventh Circuit has not addressed the level of scrutiny that should apply to a categorical limit based on age, such as the one involved here, but the Court has suggested that intermediate review is appropriate for such categorical restrictions and has directly held that intermediate review applies to categorical bans on the right to bear arms as applied to convicted felons. U.S. v. Williams, 616 F.3d 685, 692 (7th Cir. 2010); Skoien, 614 F.3d at 642."

Then her counsel goes into this whole load of crap about how the FOID Act denies those under 21 who do not have an endorsement from mommy and daddy as a case of intermediate scrutiny, balancing public safety with restricting firearm possession to responsible persons, again, referencing Alvarado (AUUW charge) then referencing Moore v. Madigan as some kind of "split" (uh no). Oh and by far, my favorite, noting testimony in front of Congress in 2000 about HANDGUNS and then just taking it upon himself to apply it to ALL GUNS, saying 18-20 year olds are not fully developed mentally (does that mean they're mentally...retarded?), but 21 year olds are...ha where did this guy go to college. I love that arbitrary age threshold kinda like "Oh it's OK to buy cigarettes if you're 18 years old but not if you're 17 years and 364 days old."

Eh read the MTD:
http://www.archive.o...d.61825.7.0.pdf

Memorandum in Support of MTD:
http://www.archive.o...d.61825.8.0.pdf
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#24 vezpa

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Posted 18 June 2013 - 06:19 PM

Her parents are behind this all the way but need to look the opposite for the suit.

Skinny I don't understand your argument above. If they didn't want to issue to 18 year olds that is one thing but to actually issue with a parents signature is different. The argument is that you dont need a parents signature if you are 18, not that they are not issuing to ANY 18 year olds.

Our attorney general's office just loves fighting no win cases. All they had to do was change the wording in the FOID. Once again this just shows they will once again do anything to **** us. They have admitted over and over the FOID is outdated and needs to be re-vamped, yet the will die to protect it.

It just doesn't make sense until you realize this is Illinois.

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Edited by vezpa, 18 June 2013 - 06:24 PM.

Laws that forbid the carrying of arms disarm only those

who are neither inclined nor determined to commit crimes.

                                                    

                                                                                                                                                     

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#25 Federal Farmer

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Posted 18 June 2013 - 06:42 PM

Technically her argument is that IL's Solicitor General is too busy, not herself.

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#26 soundguy

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Posted 18 June 2013 - 07:53 PM

At the age of 18, you become an adult whether you are capable or not. You may legally sign contracts, buy cigarettes, join the military (by force in the old days), get married...

In the brief it says something about 21 being the age of majority (“The courts found that at the Founding and in the mid-Nineteenth Century, legislatures, courts, and commentators recognized the validity of firearms restrictions as to categories of individuals, including persons under the age of 21, noting that such individuals were considered ‘minors’ at the time,” the office states in its motion.) from our country's founding through the mid 19th century (1850ish?)... I soooo don't think so.

Good golly... This young woman should be issued a FOID card if she otherwise qualifies.
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#27 Patriots & Tyrants

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Posted 18 June 2013 - 08:35 PM

Technically her argument is that IL's Solicitor General is too busy, not herself.

I wish I could make that argument when I was busy at work "Well I can't quote that for you, I am too busy".....that would really go over well.

#28 Ashdump

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Posted 18 June 2013 - 09:02 PM

I wish the Madigans would just dry up and blow away. It's beyond me why the people of this state put up with this crap.

#29 Jen-in-Normal

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Posted 19 June 2013 - 05:54 AM

This makes no sense. I was able to enlist in the military at 18 without mommy and daddy's signature but its not possible to get a FOID card without it? So I can go around the world and be put in harms way, but I cannot have a legally possessed rifle in my own home? Wow, glad I'm a little older than 18 now. I actually agree with her parents' decision to not sign the form. After all, she is an adult, so why should they? If she commits a crime, she would be dealt with as an adult, not a juvenile. I do hope this is resolved in her favor and the rules are changed.


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Posted 19 June 2013 - 10:40 AM

The argument is that intermediate scrutiny is appropriate. The requirement for parental endorsement for those under 21 is balancing public safety with keeping guns out of the hands of the irresponsible (to paraphrase). That is BS. It basically says "if mommy or daddy wont sign off then you cannot be a responsible gun owner." But since the Circuit has never set any precedent, Trame's counsel is arguing that age should be used to disqualify persons based on a SUGGESTION by CA7 in a case that age...well read the quote above. Basically equating 18-20 yr olds who can't get parental endorsement to felons. Yes.

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Edited by skinnyb82, 19 June 2013 - 10:45 AM.

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