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Palmer vs DC - WIN! Ban on Carry declared unconstitutional


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#31 skinnyb82

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Posted 26 July 2014 - 06:09 PM

Moore?  Moore and Shepard didn't win, didn't you hear? :P  Just ask AAG Terrence Corrigan (see Moore remand thread).


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#32 C0untZer0

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Posted 26 July 2014 - 06:23 PM

I'm kind of disappointed that there weren't more direct quotes from Posner (Moore), in the opinion.  And the one I found didn't cite Moore - the citation was omitted :(

 

He sure cited Peruta !

 

EDIT :  Oh wait - I did find a direct citation from Moore, but still it seems pretty light on citing Moore directly and references Moore indirectly by mentioning the Peruta citations of Moore.  Kind of odd.


Edited by C0untZer0, 26 July 2014 - 06:28 PM.

“Most gun control arguments miss the point. If all control boils fundamentally to force, how can one resist aggression without equal force? How can a truly “free” state exist if the individual citizen is enslaved to the forceful will of individual or organized aggressors?
 
 It cannot.” 

 

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#33 C0untZer0

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Posted 26 July 2014 - 06:44 PM

they'll just reinstate the technical issuance of carry permits under a "may issue" scheme and then only issue them to VIPs as they see fit.

 

 

They might, Chicago and DC are shining examples of cities that do extraordinarily stupid things after getting their ***** kicked in court.  But I do not see very much room for a "may issue" scheme in this ruling, especially with it's heavy referencing of Peruta.

 

Any scheme that they would make up would basically amount to denying the desire for self defense as a proper justification for applying for the carry permit, and that would be in direct opposition to this opinion.


Edited by C0untZer0, 26 July 2014 - 06:44 PM.

“Most gun control arguments miss the point. If all control boils fundamentally to force, how can one resist aggression without equal force? How can a truly “free” state exist if the individual citizen is enslaved to the forceful will of individual or organized aggressors?
 
 It cannot.” 

 

― Tiffany Madison― 


#34 defaultdotxbe

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Posted 26 July 2014 - 06:46 PM

I don't think DC will appeal, I think most of the gun control folks were scared to death that Madigan would appeal Moore/ Shepard - I'm even of the opinion that they asked her not to, because they were afraid of Moore, and Posner's verbiage becoming the law of the land.

 

I think they're just as afraid of Palmer.  Why have the case go any higher with even more potential to hurt the gun control cause?

 

It also seems kind of senseless to appeal - if the court didn't hear Woollard or Kwong, why would they hear Palmer?

I think they will appeal, since Palmer (like Moore/Shepard) narrowly challenges a total ban on carry (not may-issue like Woolard or Kwong) and DC was the last total ban still standing they have nothing to lose by appealing, and everything to gain. Imagine if SCOTUS rules against Palmer, it would essentially overturn Moore/Shepard and even Peruta. Now I don't think that is too likely and you are probably correct that they will be denied cert, but like I said, they have nothing left to lose


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#35 s0beit

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Posted 26 July 2014 - 07:00 PM

Let's assume that they do not appeal and want to adopt some kind of crazy may-issue scheme, isn't that impossible under this opinion? People say they may do that, but by using the precedent set and by applying it to all people, I just don't see how may issue is possible. Maybe something a little harsher than ours (like shall-issue that barely rides the line, requiring psyche evaluation like California, all guns registered, caliber registered, again like Cali, tons of off limits places, etc) but there's no way to reject people for intent, and to assume that doesn't apply to everyone would be quite a stretch. I don't see a may-issue scheme being possible under this decision. It applies to everyone, it is a right recognized under Heller - seems to me there is little room for arbitrary rejection. It'll be "lots-of-hoops-to-jump-through"-issue, or something. Assuming they don't appeal, of course.

#36 TyGuy

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Posted 26 July 2014 - 07:26 PM

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#37 borgranta

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Posted 26 July 2014 - 07:36 PM

Is this ruling limited to only handguns or any legal firearm such as shotgun or rifle?  Will this ruling effect Adam Kokesh sentencing since  one of the 2 crimes that he pled guilty to was a felony charge for illegally carrying?


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#38 borgranta

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Posted 26 July 2014 - 07:47 PM

If this case made it to SCOTUS and they ruled the same exact way it would force all the states to make it possible for any non-resident to carry which would mean that ILLINOIS would be forced to allow all non-residents the right to carry.


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#39 skinnyb82

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Posted 26 July 2014 - 08:02 PM

First of all, Kokesh is a moron. Now that we've got that out of the way, Judge Scullin didn't declare the ordinances void ab initio and even if he did declare them void as if they never existed and Kokesh somehow gets his conviction for possessing a long gun vacated (not a chance), there's still the drug conviction. Doesn't matter if the flat ban is unconstitutional when you have shrooms on you and a gun, it's still illegal to possess a firearm and Schedule I narcotics...simultaneously, no less (if you're gonna get raided, get rid of the drugs and that goes back to my point about him being an idiot). This case is about the flat-ban on carry of pisols outside the home. The opinion is much like Peruta and Moore so don't expect to get open carry of shotguns legalized in D.C. since Scullin specifically referred to handguns when he issued his opinion. Kokesh has no bargaining chips because of the drugs. If he had a pistol and was arrested for simple possession like Aguilar, incidental to something else, and there were no aggravators then OK but he taunted the police with a damn video that he posted online and had drugs in his apartment. Get the search tossed and it's a different story but slim chance of that.

"In light of Heller, McDonald, and their progeny, there is no longer any basis on which this Court can conclude that the District of Columbia's total ban on the public carrying of ready-to-use handguns outside the home is constitutional under any level of scrutiny. Therefore, the Court finds that the District of Columbia's complete ban on the carrying of handguns in public is unconstitutional. Accordingly, the Court grants Plaintiffs' motion for summary judgment and enjoins Defendants from enforcing the home limitations of D.C. Code § 7-2502.02(a)(4) and enforcing D.C. Code § 22-4504(a) unless and until such time as the District of Columbia adopts a licensing mechanism consistent with constitutional standards enabling people to exercise their Second Amendment right to bear arms. Furthermore, this injunction prohibits the District from completely banning the carrying of handguns in public for self-defense by otherwise qualified non-residents based solely on the fact that they are not residents of the District."

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Edited by skinnyb82, 26 July 2014 - 08:13 PM.

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#40 GAS3987

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Posted 26 July 2014 - 08:12 PM

This is great news and steps in the right direction!

Luke 12:48
 


#41 Gamma

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Posted 26 July 2014 - 08:47 PM

Let's assume that they do not appeal and want to adopt some kind of crazy may-issue scheme, isn't that impossible under this opinion?

Probably, but it would probably take another 5 years to litigate against the new ordinance.

Let's not forget the Rube Goldberg apparatus that one has to navigate just to purchase and possess a handgun in DC.

Edited by Gamma, 26 July 2014 - 08:48 PM.

Illinois' FCCA is a prime example of the maxim that sufficiently advanced incompetence is indistinguishable from malice.

#42 Rail

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Posted 26 July 2014 - 09:25 PM

Look at all those references to Peruta! That is a GOOD sign. :)



#43 tchostler

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Posted 26 July 2014 - 09:49 PM

Yeah!

#44 Bitter Clinger

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Posted 27 July 2014 - 06:22 AM

Since the law was ruled unconstitutional, is there a chance that Mark Witaschek can bring a civil rights lawsuit against the city?  This is the guy who had is house raided, was arrested and had is life ruined for having a single, non-operable shotgun shell in his house. 

I would LOVE to see that happen.



#45 skinnyb82

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Posted 27 July 2014 - 09:16 AM

Since the law was ruled unconstitutional, is there a chance that Mark Witaschek can bring a civil rights lawsuit against the city?  This is the guy who had is house raided, was arrested and had is life ruined for having a single, non-operable shotgun shell in his house. 

I would LOVE to see that happen.


No. If you actually bother to read the opinion (or the posts above yours), you'd notice this paragraph which begins on the bottom of page 16....

"In light of Heller, McDonald, and their progeny, there is no longer any basis on which this Court can conclude that the District of Columbia's total ban on the public carrying of ready-to-use handguns outside the home is constitutional under any level of scrutiny. Therefore, the Court finds that the District of Columbia's complete ban on the carrying of handguns in public is unconstitutional. Accordingly, the Court grants Plaintiffs' motion for summary judgment and enjoins Defendants from enforcing the home limitations of D.C. Code § 7-2502.02(a)(4) and enforcing D.C. Code § 22-4504(a) unless and until such time as the District of Columbia adopts a licensing mechanism consistent with constitutional standards enabling people to exercise their Second Amendment right to bear arms. Furthermore, this injunction prohibits the District from completely banning the carrying of handguns in public for self-defense by otherwise qualified non-residents based solely on the fact that they are not residents of the District."

Does this apply to anything but carriage of loaded handguns? No.

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#46 KarlJ

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Posted 27 July 2014 - 09:44 AM

What court issued the ruling? A federal court like our 7th. circuit?

It's a feel good win for American patriots. Another chalk line for the constitution. I didn't realize how messed up DC is with the right to keep and bear arms. Gotta keep up the good fight in DC and when the smoke settles they'll have a a good carry law and we'll be one step closer to practicing our right through out all of the US of A.
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#47 skinnyb82

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Posted 27 July 2014 - 09:55 AM

The U.S. District Court for the District of Columbia. The districts are triers of fact. The appellate courts review the district court rulings for errors. Again, does ANYONE ever bother to read the opinion?

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#48 C0untZer0

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Posted 27 July 2014 - 09:55 AM

Gura said in Emily Miller's story that he expects an appeal - so he probably knows best.

 

He also said:

 

We’ll be happy to keep the fight going

 

 

 

http://www.foxnews.c...constitutional/


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#49 bob

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Posted 27 July 2014 - 09:59 AM

It is certainly another good step in the right direction.


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The opinions expressed by this poster do not reflect the official stance of Illinois Carry. Apparently there was some confusion on the part of at least one person that it does, and I want to make things clear that my opinion is my own and that whatever the official stance of IC is or is not at present, it may or may not reflect my own opinion.

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#50 KarlJ

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Posted 27 July 2014 - 10:25 AM

The U.S. District Court for the District of Columbia. The districts are triers of fact. The appellate courts review the district court rulings for errors. Again, does ANYONE ever bother to read the opinion?
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It's not that I didn't read it. I'm not a legal eagle, just trying to understand. No reason to get snippy.
Illinois win happened in the 7th circuit. The only place it could go from there is the US supreme.
Is DC ruling in the highest court, less the supreme?
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#51 skinnyb82

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Posted 27 July 2014 - 10:49 AM

The U.S. District Court for the District of Columbia. The districts are triers of fact. The appellate courts review the district court rulings for errors. Again, does ANYONE ever bother to read the opinion?
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It's not that I didn't read it. I'm not a legal eagle, just trying to understand. No reason to get snippy.
Illinois win happened in the 7th circuit. The only place it could go from there is the US supreme.
Is DC ruling in the highest court, less the supreme?


Sorry I'm just frustrated because of the questions about shotguns...when Scullin specifically referred to the carriage of handguns.

It cannot go to SCOTUS without first going through CADC (U.S. Court of Appeals for the District of Columbia Circuit). The same court Obama stacked with characters like Judge Nina Pillard who has made statements about her "views" on gun ownership. When CADC rules on it, then the losing party must either file for rehearing en banc to make the case ripe for appeal (cert petition), then if en banc is denied, the party may file cert petition. Or just accept the loss. The District is too stubborn to not appeal.

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#52 lockman

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Posted 27 July 2014 - 11:29 AM

Fox news reported this morning that the city of DC stated they would file for an Enbanc review.

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#53 Federal Farmer

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Posted 27 July 2014 - 04:30 PM

Fox news reported this morning that the city of DC stated they would file for an Enbanc review.

 

I'm curious how they could file for an En Banc when it hasn't even gone to the appellate court.  I believe the next step would be a 3 judge panel.  Would be nice to have Silberman on it if he's still sitting.


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#54 Elmer Fudd

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Posted 27 July 2014 - 04:34 PM

The logical next step..which I would bet happens Monday is that DC goes to the CADC and files for a stay until the appellate case is here. Given the composition of that court, the stay is probably a slam dunk. 



#55 lockman

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Posted 27 July 2014 - 05:03 PM


Fox news reported this morning that the city of DC stated they would file for an Enbanc review.


 
I'm curious how they could file for an En Banc when it hasn't even gone to the appellate court.  I believe the next step would be a 3 judge panel.  Would be nice to have Silberman on it if he's still sitting.


That is interesting. I did not catch that. It was not one of the commentators,it was the guest they were taking to. I wonder if he misspoke or expected to lose at the appellate panel level? He referenced an appeal to the full court, whatever that meant.

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#56 s0beit

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Posted 27 July 2014 - 07:09 PM

First of all, Kokesh is a moron. Now that we've got that out of the way, Judge Scullin didn't declare the ordinances void ab initio and even if he did declare them void as if they never existed and Kokesh somehow gets his conviction for possessing a long gun vacated (not a chance), there's still the drug conviction. Doesn't matter if the flat ban is unconstitutional when you have shrooms on you and a gun, it's still illegal to possess a firearm and Schedule I narcotics...simultaneously, no less (if you're gonna get raided, get rid of the drugs and that goes back to my point about him being an idiot).


If the conviction for the possession were vacated though, would he have grounds to overturn the others? In that case the unconstitutional arrest would have lead to the search of his home. I don't think he'll get out of anything personally, but I assumed that unlawful arrest = unlawful search = unlawful evidence.

#57 Elmer Fudd

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Posted 27 July 2014 - 07:24 PM

Kokesh absolutely deserves the fifteen year sentence he got. What a smartass. 



#58 skinnyb82

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Posted 27 July 2014 - 07:50 PM

First of all, Kokesh is a moron. Now that we've got that out of the way, Judge Scullin didn't declare the ordinances void ab initio and even if he did declare them void as if they never existed and Kokesh somehow gets his conviction for possessing a long gun vacated (not a chance), there's still the drug conviction. Doesn't matter if the flat ban is unconstitutional when you have shrooms on you and a gun, it's still illegal to possess a firearm and Schedule I narcotics...simultaneously, no less (if you're gonna get raided, get rid of the drugs and that goes back to my point about him being an idiot).

If the conviction for the possession were vacated though, would he have grounds to overturn the others? In that case the unconstitutional arrest would have lead to the search of his home. I don't think he'll get out of anything personally, but I assumed that unlawful arrest = unlawful search = unlawful evidence.
Judge Scullin declared the flat ban on carriage of loaded handguns in public in the Distri t of Columbia to be unconstitutional. The brandishing statute stays in place, as it should. By definition, Kokesh brandished a shotgun, on video posted online, with D.C. landmarks in the background. Mark my words, the conviction will stand. Even if Scullin had said "Oh and these laws were never on the books in the first place" he'd still have committed a felony by bringing an unregistered shotgun into the District and carrying it openly, brandishing it. They can arrest you for something you do on video and are stupid enough to post it on the internet. Recording the crime is enough PC for police to obtain a search warrant. heck, he even told them to look at surveillance footage because they thought he might've done it in front of a green screen. He's a serial offender by definition. No judge in their right mind would give a motion to vacate his sentence more than the time it takes to read it before denying it. The warrant was obtained based on the video of him racking that shotgun in D.C., no questions, it is a matter of fact stipulated to by Kokesh himself. The warrant was lawfully obtained and properly served. The evidence is admissible even if he had been cracked for carrying a gun on his person and the police found drugs on him. The arrest is lawful. The evidence is admissible. The conviction will stand.

It's like saying that since you were stopped by a LEO for speeding prior to the Moore opinion being published. The LEO conducts a Terry Stop and Frisk, finds a loaded, uncased firearm on your person, places you under arrest for AUUW (the Class 4 not Class 3, pre-Moore), and during.the inventory conducted by the arresting LE agency subsequent to the traffic stop, the police find a body in your trunk, and arguing that you can't be charged with homicide or whatever happened to the person in your trunk. It doesn't matter if the AUUW offense could be vacated since that search subsequent to arrest is considered lawful under the good-faith exemption to the exclusionary rule. The same principle applies here. The search and subsequent discovery of the body (evidence) would be considered lawful and the evidence lawfully obtained under the good-faith exemption to the exclusionary rule.

The memorandum opinion contained the words "ready-to-use handgun" not "ready-to-use firearm." One cannot draw an inference that Scullin's opinion is broad. In fact, it is narrow in scope and unambiguous. Plaintiffs sought declaratory and injunctive relief in the form of enjoining D.C. from enforcing its flat-ban on carrying handguns outside the home as well as a separate Equal Protection claim. They did not seek to brandish firearms in public.

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Edited by skinnyb82, 27 July 2014 - 07:53 PM.

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#59 glen

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Posted 27 July 2014 - 08:08 PM

a win for the good guys



#60 xbaltzx

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Posted 27 July 2014 - 08:34 PM

According to Emily Miller:

 

"STUNNING DEVELOPMENT: DC Police Chief Lanier just told force not to arrest a person who can legally carry a gun in DC or any state."

 

"More -- DC police chief using guidance from AG -- grants full reciprocity for all open and concealed carry from others states."

 

"Only gun arrests now in DC can be DC residents with unregistered guns and non-residents who are prohibited under federal laws."

 

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