60 replies to this topic

[Tvandermyde]

here it is the Court again ruled that semi-auto bans are ok in some twisted logic equating semi-autos with machineguns and using intermediate scrutiny

[Bird76Mojo]

Sounds like a judge needs throw out of his high and mighty throne.

[Buzzard]

SURPRISE!

SURPRISE!

SURPRISE!

[paknon2wheels]

[mstrat]

This was the case I was most anxiously hoping for a victory in.     Second only to outlawing Right To Carry, the semi-auto ban is the most egregious violation of Second Amendment rights.

Has it been announced yet whether there will be an appeal/filing to the federal courts?

[Buzzard]

Chicago, once again, squandering tax dollars while infringing on people's rights. Just disgusting.

[Federal Farmer]

mstrat, on 10 February 2011 - 10:24 PM, said:

This was the case I was most anxiously hoping for a victory in.     Second only to outlawing Right To Carry, the semi-auto ban is the most egregious violation of Second Amendment rights.

Has it been announced yet whether there will be an appeal/filing to the federal courts?

They'll probably re-appeal to the IL Appellate Court and on to the IL Supreme Court before going Federal.

[mstrat]

Federal Farmer, on 10 February 2011 - 11:05 PM, said:

mstrat, on 10 February 2011 - 10:24 PM, said:

This was the case I was most anxiously hoping for a victory in.     Second only to outlawing Right To Carry, the semi-auto ban is the most egregious violation of Second Amendment rights.

Has it been announced yet whether there will be an appeal/filing to the federal courts?

They'll probably re-appeal to the IL Appellate Court and on to the IL Supreme Court before going Federal.

Aha! For some reason (i'll blame late night, blurry eyes, and lack of sleep) I was thinking this was already at the state supreme court.

Good news then. I never expected a victory in the lower courts.   I sure hope they keep the fight going.

[Skorpius]

Hurry up and wait!  

[GarandFan]

Tagged for updates.

When we get the decision, it will be interesting to look for real analysis.  It's my prediction that they adopted some sort of weak "interest-balancing" approach, along the lines of "we feel that the risk of owning said firearm outweighs the perceived benefit."

Disappointing but unsurprising (at least until we see the decision).

[05FLHT]

Disappointing, but expected. I'm sure the courts analysis was laughably weak and loaded with "think of the children" rhetoric.

[mstrat]

GarandFan, on 11 February 2011 - 06:13 AM, said:

It's my prediction that they adopted some sort of weak "interest-balancing" approach, along the lines of "we feel that the risk of owning said firearm outweighs the perceived benefit."

This is my suspicion as well. And it really burns me up.

The SCOTUS made it clear in the McDonald and Heller rulings that the burden is on courts/legislators to demonstrate the need for restrictions on the 2nd Amendment. I want to see the court provide ONE BIT of evidence that semi automatic rifles are any more dangerous to society than semi-automatic handguns (which the SCOTUS said cannot be banned).

[Houndawg]

I don't get it. The ISC vacated the lower court's ruling. How can they just turn around and give the same ruling again?

[GarandFan]

Houndawg, on 11 February 2011 - 06:56 PM, said:

I don't get it. The ISC vacated the lower court's ruling. How can they just turn around and give the same ruling again?

Can someone in the know post the old ruling (that was appealed to the SC) and also this new ruling?  It would be quite interesting to compare them.

[Black Flag]

Does anyone have a link to the decision?

[GarandFan]

Here is the original decision of 19 August 2010, from the First District Appellate Court.  This was the decision that the IL Supreme Court vacated and remanded back to the First District Appellate Court for reconsideration in light of the McDonald US Supreme Court decision.

http://caselaw.findl...ls/1219426.html

When the most recent decision is finally posted, it will be interesting to compare the reasoning there (post-McDonald), with the reasoning of the court in the decision above (pre-McDonald).

[GarandFan]

GarandFan, on 12 February 2011 - 11:58 AM, said:

Here is the original decision of 19 August 2010, from the First District Appellate Court.  This was the decision that the IL Supreme Court vacated and remanded back to the First District Appellate Court for reconsideration in light of the McDonald US Supreme Court decision.

http://caselaw.findl...ls/1219426.html

When the most recent decision is finally posted, it will be interesting to compare the reasoning there (post-McDonald), with the reasoning of the court in the decision above (pre-McDonald).

In looking carefully at the 19 Aug 2010 decision, it is confusing as to what reasoning is applied to uphold Cooks semiauto ban.  It truly seems like a bit of a laundry list, including:



In Heller, the Supreme Court considered the District of Columbia's handgun ban that “totally bans handgun possession in the home.”

The [Heller] majority concluded that it was also popularly understood as an individual right to self-defense-unconnected to militia service-particularly to the defense of one's home and hearth.

The Miller decision was the closest the Court had come to examining the scope of the second amendment when it determined that the second amendment right was a collective right that applied to weapons traditionally used by a well-regulated militia. [selective reading of Miller]

Therefore, based on the Miller Court's finding that this certain type of weapon could be freely regulated, the Heller Court found that Miller stood for the proposition that the right extended only to certain types of weapons.

Despite a consensus of case law interpreting the right as being a collective one, the Court concluded that Miller did not find that the second amendment right was not an individual right. [implying that Heller was wrongly decided]

Also ... the Court noted that the incorporation question was not at issue and ... that all gun bans would easily pass the rational basis test. ... it also declined to enumerate any standard for the review of whether gun control legislation is unconstitutional.

Accordingly, on its own, the holding in Heller does not support plaintiffs' argument that Cook County may not violate their second amendment rights by banning assault weapons.

Plaintiffs argue that “Heller clearly enunciates the ‘fundamental right’ to keep and bear arms,” and consequently, statutes restricting that right are subject to strict scrutiny review ... While both cited pages refer to the right as an “individual right,” neither page uses the word “fundamental.”

The term [arms] was applied, then as now, to weapons that were not specifically designed for military use and were not employed in a military capacity.

We need not reach whether the restrictions recognized by Heller apply to the county ordinance at issue because we find that Heller does not support plaintiffs' argument that the second amendment is incorporated to be applicable to the states through the fourteenth amendment.

We agree with the NRA court's holding and find that plaintiffs' argument here also must fail. Heller does not stand for the creation of a broad fundamental right. The Heller Court explicitly refused to address the incorporation issue. ... that is a matter for the United States Supreme Court, and not this court, to undertake.

However, this expanded right was explicitly limited in the Illinois Constitution by the inclusion of “the police power.” ... The Kalodimos court concurred with Quilici in finding that the ban on a discrete category of firearms was a reasonable response to the stated public welfare concerns.

As we held above, Heller did not announce that the second amendment right is a fundamental right. We agree with the NRA court that only the Supreme Court may change its holdings. ... The appellate court lacks authority to overrule decisions of this court, which are binding on all lower courts. ... Accordingly, we do not hold that Heller overruled Kalodimos. Kalodimos remains the law in Illinois and the individual right to keep and bear arms in Illinois is subject to the police power.

As described above, Heller did not pronounce the second amendment right as fundamental. Accordingly, plaintiffs' overbreadth argument fails as the second amendment right does not enjoy the same protection provided the first amendment.

While plaintiffs are correct that the second amendment is an individual right, the regulation of these particular firearms clearly furthers a legitimate government interest under Kalodimos. .... Accordingly, we reject plaintiffs' contention that we should use the strict scrutiny test in this case.

For the foregoing reasons, the order of the trial court is affirmed. Affirmed.

[Sigma]

because they vacated it, do you think they will rule properly when/if it gets back to them

[Buzzard]

I really like this analogy that I gleaned from the Mexico thread:

"Here in the United States, the gun-control crowd insists that the Second Amendment doesn’t apply any longer because our Founding Fathers never envisioned semi-automatic weapons with large-capacity magazines. Using that failed logic might lead one to conclude the First Amendment no longer protects free speech on radio, TV or the Internet, because the Founders never considered the evolution of mass communications."

[1957Human]

Sigma, on 12 February 2011 - 03:08 PM, said:

because they vacated it, do you think they will rule properly when/if it gets back to them

Not because it vacated the first time, but if the appellate court's second opinion is little different from its first, then I believe the supreme court will reverse the appellate court, based on the holding in Heller. Heller held not only that we retain the right to defend the home with a weapon, but also that we may use weapons that are commonly used. In today's world, an autoloader is one of the most popular defense weapons. SCOTUS said the states may ban weapons such as machine guns, and may keep guns out to the hands of criminals, the insane, etc. But this ordinance, in short, simply bans everyone from owing one of the most commonly used weapons, which is not in the same "class" as a machine gun. None of this can stand under Heller, regardless of the standard of scrutiny adopted there.

The court will do the right thing.

[Sigma]

everyone should send $5.00 to the group fighting this case so they can afford to appeal again

[Druid]

new decision posted in the "Locked" topic above. Sorry to post it in JPG and not PDF... It was the only way I had the means to do so tonight.

[GarandFan]

It seems to me that above all else ... the court ruled that a ban on semiauto guns "assault weapons" is constitutional because (they hold) the weapons are "dangerous and unusual" because they are not "in common use for lawful purposes" per Heller.  The analysis is poor, and from my quick read, there are many paragraphs pretty much verbatim from their earlier ruling.  I'll look at it more carefully later, but to me, that was the crux of their decision (dangerous and unusual).  Of course we know that "assault weapons" let alone semiauto guns are certainly in common use for lawful purposes, but Wilson's attorneys must not have convinced the judges.

Also, it seems a bit like they were reasoning however they could to reach a predetermined conclusion (but I am quite biased).

[GarandFan]

It's interesting the court brought up Marzzarella (3rd federal circuit) as an example/justification for applying intermediate scrutiny.  At issue there was whether the requirement of serial numbers offends the second amendment.  The court concluded intermediate scrutiny was appropriate because "the burden imposed by the law did not severely limit the possession of firearms."

There is a very bright line between requiring serial numbers on guns, and banning the guns altogether.  Unreal.

This IL appellate court seems to be grasping for their conclusion.


(PS - where the hell was Halbrook during all this?)

[GarandFan]

Equally amazing, this IL appellate court uses three other examples of where intermediate scrutiny was applied.  US v Skoien (whether the right applies to violent domestic misdemeanants), US v Williams (whether the right applies to convicted felons), and States v Yancy (whether the right applies to addicts of controlled substances).

These cases involved categories of prohibited persons (triggering something other than strict scrutiny applying to them) ... what seems odd to me is that the court seems to be projecting the "categorical approach" of prohibited persons onto a "categorical approach" of supposedly prohibited classes of arms.  This seems "apples and oranges" to me.

My take from those example cases above is this ... if the right to arms is being applied to categories of prohibited persons (eg. wife-beaters, felons, or drug addicts), it could arguably trigger intermediate scrutiny.  But this implies that if the right to arms is being applied to a law-abiding citizen (like Wilson et al.), a higher level of scrutiny must be applied.  The reasoning of the court on this seems flatly incorrect.

[GarandFan]

Also, this IL appellate court relies heavily on the "Heller II" ruling, out of the federal DC district court (judge Urbina).  I believe Heller II was appealed to the DC Circuit court, and the decision there is still pending.

[Tvandermyde]

Garand --

Hollbrook ws helping ISRA. NRA decided not to file a brief in the appeal to see if they got it right and hold some of our ammo for the Supreme. So I would expect them to file an amicus in the next stage.

That aside, I think you and I should write a brief for Illinois carry to file. I agree with you about the courts use of types of people being able to own guns vs braod bans on types of guns. We should drive a statke through kaladimos once and for all. Kaladimos approach was rejected by Heller in total.

[GarandFan]

Thus far in my reading of this IL appellate court decision, I have found what I think is the crux of their decision ... and it is lifted directly from a California appellate case called "People v James" (challenging the CA "assault weapons" ban):

"While the fully-automatic nature of machine guns renders such a weapon arguably more dangerous and unusual than a semiautomatic assault weapon, that observation does not negate the fact that assault weapons, like machine guns, are not in common use by law-abiding citizens for lawful purposes and likewise fall within the category of dangerous and unusual weapons that the government can prohibit for individual use." [James, 94 Cal. Rptr. 3d at 586]


So in effect, what this does is equate semiauto guns to full auto guns.  But it is clear that full auto guns have long been handled differently by federal law ... precisely, full auto guns are subject to NFA of 1934, whereas semiauto guns are not.  State appellate courts, whether in CA or IL, cannot simply equate full- and semi-auto guns.  That is flatly unprecedented and incorrect.

It is also absurd for them to hold that semiauto guns are not in common use by law-abiding citizens.  Correct me if I am wrong, but AR-type firearms are the best-selling type of firearm in the United States.  Moreover, those sales have overwhelmingly involved buyers who have passed NICS background checks (so they are decidedly being purchased by law-abiding citizens).  

So what we have here is "the best selling rifle in America today" (NSSF statement) being purchased overwhelmingly by law-abiding citizens (subject to and passing criminal background checks).  How the preceding facts comport with the IL appellate court's dependence on "assault weapons ... are not in common use by law-abiding citizens for lawful purposes and likewise fall within the category of dangerous and unusual weapons that the government can prohibit for individual use" is completely beyond me, and I suspect, completely beyond any rational person.

[Buzzard]

GarandFan, on 13 February 2011 - 07:10 AM, said:

It seems to me that above all else ... the court ruled that a ban on semiauto guns "assault weapons" is constitutional because (they hold) the weapons are "dangerous and unusual" because they are not "in common use for lawful purposes" per Heller.  The analysis is poor, and from my quick read, there are many paragraphs pretty much verbatim from their earlier ruling.  I'll look at it more carefully later, but to me, that was the crux of their decision (dangerous and unusual).  Of course we know that "assault weapons" let alone semiauto guns are certainly in common use for lawful purposes, but Wilson's attorneys must not have convinced the judges.

Also, it seems a bit like they were reasoning however they could to reach a predetermined conclusion (but I am quite biased).

In short, their reasoning is based on the erroneous notion that semi auto guns are practically machine guns on a somewhat lessor scale. It would seem that the court has "bought into" the idea that "assault weapons" are somehow more deadly due to the aesthetic features they usually have and which have been written into the ordinance.

Therefore, they wanted a ruling a that would be consistent with machine guns (full auto). But since they couldn't find a common link between the two types of guns, they were forced to follow a contorted path and "jury rig" (pun intended) several decisions together to reach the decision they wanted to deliver.

My question is this. The reasoning and decision by the justices is due to what? Liberal bias? An attempt to legislate from the bench? Outright court tampering from another official? Or are they just afraid of the "boogie man" - whereas "assault weapons" are just evil?

[Houndawg]

"While the fully-automatic nature of machine guns renders such a weapon arguably more dangerous and unusual than a semiautomatic assault weapon, that observation does not negate the fact that assault weapons, like machine guns, are not in common use by law-abiding citizens for lawful purposes and likewise fall within the category of dangerous and unusual weapons that the government can prohibit for individual use."

That entire statement is one huge fallacy based on complete ignorance.