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Moore vs IL Attorney General


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It's been almost two months since the hearing. I wonder how much longer the judge needs to think this one over.

 

Until the IL GA comes convenes for the veto session???

That seems more and more likely. Although HB148 would probably give us more, at least initially, I would rather see a court ruling in our favor, declaring the Right-To-Carry is protected by the 2A.

 

It will most likely be a combination of the two. Court says unconstitutional for a complete ban you have X days to fix it, we pass 148 and there we have it.

that would be nice:yes1:

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It's been almost two months since the hearing. I wonder how much longer the judge needs to think this one over.

 

Until the IL GA comes convenes for the veto session???

That seems more and more likely. Although HB148 would probably give us more, at least initially, I would rather see a court ruling in our favor, declaring the Right-To-Carry is protected by the 2A.

 

It will most likely be a combination of the two. Court says unconstitutional for a complete ban you have X days to fix it, we pass 148 and there we have it.

that would be nice:yes1:

 

I do not beleive the court would put themselves in a position to rule the Illinois ban unconstitutional and then state that you have 90 or 120 days to continue to violate their rights. It has been stated that the "legislative vacuum" created by the striking of any law in violation of the constitution is not a valid argument to continue the abuse.

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It's been almost two months since the hearing. I wonder how much longer the judge needs to think this one over.

 

Until the IL GA comes convenes for the veto session???

That seems more and more likely. Although HB148 would probably give us more, at least initially, I would rather see a court ruling in our favor, declaring the Right-To-Carry is protected by the 2A.

 

It will most likely be a combination of the two. Court says unconstitutional for a complete ban you have X days to fix it, we pass 148 and there we have it.

that would be nice:yes1:

 

I do not beleive the court would put themselves in a position to rule the Illinois ban unconstitutional and then state that you have 90 or 120 days to continue to violate their rights. It has been stated that the "legislative vacuum" created by the striking of any law in violation of the constitution is not a valid argument to continue the abuse.

 

That does happen. I beleive that's called "granting a stay" which means it is unconstitutional but can stay in place for x days and after that if the legislature has not fixed it, it is simply abolished. In other words either they pass 148 and we have shall issue or they let the x days run and do nothing and on x +1 day we have constitution carry.

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That does happen. I beleive that's called "granting a stay" which means it is unconstitutional but can stay in place for x days and after that if the legislature has not fixed it, it is simply abolished. In other words either they pass 148 and we have shall issue or they let the x days run and do nothing and on x +1 day we have constitution carry.

 

Once the determination that the statute is unconstitutional is made how can you stay your decision? I know you can order a stay against enforcement of a law, but how would a stay affect the underlying unlawful nature of the statute? If arrested for carry during the stay, when your court appearance comes up what leg will they have to stand on if the operating statute was never constitutional in the first place? It makes no legal sense.

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I do not beleive the court would put themselves in a position to rule the Illinois ban unconstitutional and then state that you have 90 or 120 days to continue to violate their rights. It has been stated that the "legislative vacuum" created by the striking of any law in violation of the constitution is not a valid argument to continue the abuse.

 

That does happen. I beleive that's called "granting a stay" which means it is unconstitutional but can stay in place for x days and after that if the legislature has not fixed it, it is simply abolished. In other words either they pass 148 and we have shall issue or they let the x days run and do nothing and on x +1 day we have constitution carry.

 

 

Courts can really only (or are only supposed to) grant a stay in cases where something doesn't infringe on your rights (illegal but not unconstitutional) or where you can be awarded damages later for harm endured. Ezell established that trampling second amendment rights is an irreparable harm and thusly damages cannot compensate you for having that right infringed. A ruling in our favor on this case would fail both tests, so it would be hard for the judge to stay the judgment (and such a stay would be subject to further challenge, I believe).

 

The thought, then, is that the court is getting around that by "unofficially staying" the ruling by withholding it until a time at which the ILGA would be in session to react immediately and pass a carry bill that is constitutional.

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If the courts always operated the way they should, we would not be in this mess in the first place.

 

What makes anyone think they will do the right thing this time around when there is over a century of getting it wrong to fall back on?

 

It could happen, but there are no guarantees. Courts have been tending of late (even more so since 9/11) toward far less liberty and more government control in all other areas. And courts have generally given great deference to government power over individual liberty. There have been a few exceptions along the way, so hopefully this ends up being one of them. But, there is just no way to tell what will end up happening.

 

Given the clear words of the 2A and the unambiguous nature of Heller and McDonald one would think we are on pretty solid ground, but there is just no way to know.

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Everyone should take notice that the district judge in Ezell gave the parties an opportunity to come up with an "agreed" injunction, even though the plaintiffs are suffering irreparable harm. This judge could grant the parties in Moore the same opportunity.

 

Can they stay enforcement of a law conditionally?

 

Such as no enforcement of 720 ILCS 5/21‑6, 720 ILCS 5/24‑1(4) or (10), and 720 ILCS 5/24‑1.6 (1) or (2) against those with a valid FOID or out of state LTC? It would solve the problem for most of the state, but would leave Chicago and a few other places in limbo due to local ordinances.

 

I think a judge is going to have a very tough time telling the state they can't enforce all of them unconditionally, and I don't think a judge can basically make up a new law.

 

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Municipal codes are not being challenged, so those would remain unchanged. There is no jurisdiction over Chicago or Highland Park in this case. However, you would have a really good defense to the ticket... Also the municipalities would likely take notice of the decision and change their codes voluntarily to avoid being sued.

 

The judge has to strike or enjoin the bad statutes, regardless of how municipalities "feel" about it. Whether the injunction will apply to Foid holders or everyone remains to be seen.

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Everyone should take notice that the district judge in Ezell gave the parties an opportunity to come up with an "agreed" injunction, even though the plaintiffs are suffering irreparable harm. This judge could grant the parties in Moore the same opportunity.

That's an interesting thought. Think maybe that's going on now behind the scenes? :rolleyes:lips%20sealed.gif

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Everyone should take notice that the district judge in Ezell gave the parties an opportunity to come up with an "agreed" injunction, even though the plaintiffs are suffering irreparable harm. This judge could grant the parties in Moore the same opportunity.

That's an interesting thought. Think maybe that's going on now behind the scenes? :rolleyes:lips%20sealed.gif

 

I doubt it. In Ezell the court ORDERED the parties to attempt an agreed injunction.

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It will affect local ordinances. If a state statute is struck down any local ordinance that is similar or stricter than the stricken state law will be effectively void. A creation of the state may not claim powers beyond those of the Creator.

 

 

Then how did Chicago get away with their total handgun ban all these years?

Until McDonald the state had the authority to enact a complete ban on handguns even though it never chose to do so. Since it had that authority, entities that derive their power from the state could also enact a ban.

 

If we get an injuction against enforcement of UUW and AgUUW, I also believe many local ordinances could be in jeopardy.

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It will affect local ordinances. If a state statute is struck down any local ordinance that is similar or stricter than the stricken state law will be effectively void. A creation of the state may not claim powers beyond those of the Creator.

 

 

Then how did Chicago get away with their total handgun ban all these years?

 

Municipalities and Counties have no authority not delegated by the State. The State can only delegate those powers it has.

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If we get an injuction against enforcement of UUW and AgUUW, I also believe many local ordinances could be in jeopardy.

 

A pretty good bet. We would still have to go after them though, unless whatever we get out of the court cases were to be strong enough to cover the municipal ordinances as well.

 

It seems likely that most such ordinances would just no longer be enforced, but some places like Chicago might well do their own thing.

 

For instance, even if we got the offensive parts of state law thrown out and had what some call constitutional carry imposed, Chicago could create an onerous LTC that only applied inside Chicago. It is another reason why we need pre-emption. Every home rule unit could create a LTC requirement. You might end up needing 20 different LTC issued by 20 different localities even if you had no such requirement state wide.

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If we get an injuction against enforcement of UUW and AgUUW, I also believe many local ordinances could be in jeopardy.

 

A pretty good bet. We would still have to go after them though, unless whatever we get out of the court cases were to be strong enough to cover the municipal ordinances as well.

 

It seems likely that most such ordinances would just no longer be enforced, but some places like Chicago might well do their own thing.

 

For instance, even if we got the offensive parts of state law thrown out and had what some call constitutional carry imposed, Chicago could create an onerous LTC that only applied inside Chicago. It is another reason why we need pre-emption. Every home rule unit could create a LTC requirement. You might end up needing 20 different LTC issued by 20 different localities even if you had no such requirement state wide.

 

This is not correct. The IL FOID law gives the authority to regulate guns to the locality. This is a challenge to state law which is the underlying basis of that authority. If the state cannot, the city cannot either.

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If we get an injuction against enforcement of UUW and AgUUW, I also believe many local ordinances could be in jeopardy.

 

A pretty good bet. We would still have to go after them though, unless whatever we get out of the court cases were to be strong enough to cover the municipal ordinances as well.

 

It seems likely that most such ordinances would just no longer be enforced, but some places like Chicago might well do their own thing.

 

For instance, even if we got the offensive parts of state law thrown out and had what some call constitutional carry imposed, Chicago could create an onerous LTC that only applied inside Chicago. It is another reason why we need pre-emption. Every home rule unit could create a LTC requirement. You might end up needing 20 different LTC issued by 20 different localities even if you had no such requirement state wide.

 

This is not correct. The IL FOID law gives the authority to regulate guns to the locality. This is a challenge to state law which is the underlying basis of that authority. If the state cannot, the city cannot either.

If we got a favorable ruling, there is nothing preventing Chicago from passing the most restrictive LTC law possible, just like they did after McDonald. If we get HB148 passed, it includes some statewide firearms preemption measures that would prevent Chicago from doing that.

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This is not correct. The IL FOID law gives the authority to regulate guns to the locality. This is a challenge to state law which is the underlying basis of that authority. If the state cannot, the city cannot either.

FOID gives no authority at all to localities to regulate guns. The state constitution gives all home rules units near carte blanche to regulate just about anything and everything that is not specifically preempted.

 

Given that Heller strongly suggested that LTC was not an unconstitutional infringement, there is no reason to believe that Chicago could not enact a LTC statute that applied within Chicago even if at the state level it is not needed because the UUW clauses were struck down.

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This is not correct. The IL FOID law gives the authority to regulate guns to the locality. This is a challenge to state law which is the underlying basis of that authority. If the state cannot, the city cannot either.

FOID gives no authority at all to localities to regulate guns. The state constitution gives all home rules units near carte blanche to regulate just about anything and everything that is not specifically preempted.

 

Given that Heller strongly suggested that LTC was not an unconstitutional infringement, there is no reason to believe that Chicago could not enact a LTC statute that applied within Chicago even if at the state level it is not needed because the UUW clauses were struck down.

Bingo!!! And don't think for a minute that they haven't already got it all drawn up. They people in that area are going to get "thrown under the bus" no matter what happens elsewhere. Wait n see.

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This is not correct. The IL FOID law gives the authority to regulate guns to the locality. This is a challenge to state law which is the underlying basis of that authority. If the state cannot, the city cannot either.

FOID gives no authority at all to localities to regulate guns. The state constitution gives all home rules units near carte blanche to regulate just about anything and everything that is not specifically preempted.

 

Given that Heller strongly suggested that LTC was not an unconstitutional infringement, there is no reason to believe that Chicago could not enact a LTC statute that applied within Chicago even if at the state level it is not needed because the UUW clauses were struck down.

I think you're wrong again Bob about a Chicago specific statute. Note the use of the phrase exclusive in HB148 and the Illinois Constitution.

Jmho here but when HB148 passes Chicago will have nothing to say about the issue and a favorable ruling at the District level in either of the Federal cases will only expedite the passage.

 

As introduced HB148 said "The General Assembly finds, in keeping with the Heller decision, that as a matter of public policy it is necessary to provide statewide uniform standards for issuing permits to carry concealed firearms and that no person who does not qualify under the provisions of this Act receives a permit to carry concealed firearms. The General Assembly recognizes that it already regulates the use and possession of concealed firearms under Sections 24-1 and 24-1.6 of the Criminal Code of 1961 and that the regulation of concealed firearms is an exclusive Statewide function.

 

IIRC Article VII Section 6. POWERS OF HOME RULE UNITS includes the following language The General Assembly may provide specifically by law for the exclusive exercise by the State of any power or function of a home rule unit other than a taxing power or function specified in subsection (1) of this Section.

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This is not correct. The IL FOID law gives the authority to regulate guns to the locality. This is a challenge to state law which is the underlying basis of that authority. If the state cannot, the city cannot either.

FOID gives no authority at all to localities to regulate guns. The state constitution gives all home rules units near carte blanche to regulate just about anything and everything that is not specifically preempted.

 

Given that Heller strongly suggested that LTC was not an unconstitutional infringement, there is no reason to believe that Chicago could not enact a LTC statute that applied within Chicago even if at the state level it is not needed because the UUW clauses were struck down.

I think you're wrong again Bob about a Chicago specific statute. Note the use of the phrase exclusive in HB148 and the Illinois Constitution.

Jmho here but when HB148 passes Chicago will have nothing to say about the issue and a favorable ruling at the District level in either of the Federal cases will only expedite the passage.

 

As introduced HB148 said "The General Assembly finds, in keeping with the Heller decision, that as a matter of public policy it is necessary to provide statewide uniform standards for issuing permits to carry concealed firearms and that no person who does not qualify under the provisions of this Act receives a permit to carry concealed firearms. The General Assembly recognizes that it already regulates the use and possession of concealed firearms under Sections 24-1 and 24-1.6 of the Criminal Code of 1961 and that the regulation of concealed firearms is an exclusive Statewide function.

 

IIRC Article VII Section 6. POWERS OF HOME RULE UNITS includes the following language The General Assembly may provide specifically by law for the exclusive exercise by the State of any power or function of a home rule unit other than a taxing power or function specified in subsection (1) of this Section.

I think Bob's right here. You're citing HB148, which is not law yet. If we get a favorable ruling from the courts, and the UUW/AUUW laws are ruled unconstitutional, any home rule unit could pass a local ordinance regulating (but not prohibiting) carrying firearms. Those ordinances could be challenged later, as has happened with Chicago's handgun ordinance after Heller.

 

If HB148 is passed, it would specifically preempt any home rule ordinance regulating the carrying of firearms. Until that happens, we could end up with a patchwork of carry laws regulating when, where, and how we could carry. And those regulations could be as restrictive as Chicago's CFP. Or worse. And we would have to challenge each one in court.

 

Without some sort of state-level preemption, a court ruling may not give us everything we thought it would. But if HB148 or something similar passes, then there is nothing a home rule unit can do to regulate carry.

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This is not correct. The IL FOID law gives the authority to regulate guns to the locality. This is a challenge to state law which is the underlying basis of that authority. If the state cannot, the city cannot either.

FOID gives no authority at all to localities to regulate guns. The state constitution gives all home rules units near carte blanche to regulate just about anything and everything that is not specifically preempted.

 

Given that Heller strongly suggested that LTC was not an unconstitutional infringement, there is no reason to believe that Chicago could not enact a LTC statute that applied within Chicago even if at the state level it is not needed because the UUW clauses were struck down.

I think you're wrong again Bob about a Chicago specific statute. Note the use of the phrase exclusive in HB148 and the Illinois Constitution.

Jmho here but when HB148 passes Chicago will have nothing to say about the issue and a favorable ruling at the District level in either of the Federal cases will only expedite the passage.

 

As introduced HB148 said "The General Assembly finds, in keeping with the Heller decision, that as a matter of public policy it is necessary to provide statewide uniform standards for issuing permits to carry concealed firearms and that no person who does not qualify under the provisions of this Act receives a permit to carry concealed firearms. The General Assembly recognizes that it already regulates the use and possession of concealed firearms under Sections 24-1 and 24-1.6 of the Criminal Code of 1961 and that the regulation of concealed firearms is an exclusive Statewide function.

 

IIRC Article VII Section 6. POWERS OF HOME RULE UNITS includes the following language The General Assembly may provide specifically by law for the exclusive exercise by the State of any power or function of a home rule unit other than a taxing power or function specified in subsection (1) of this Section.

I think Bob's right here. You're citing HB148, which is not law yet. If we get a favorable ruling from the courts, and the UUW/AUUW laws are ruled unconstitutional, any home rule unit could pass a local ordinance regulating (but not prohibiting) carrying firearms. Those ordinances could be challenged later, as has happened with Chicago's handgun ordinance after Heller.

 

If HB148 is passed, it would specifically preempt any home rule ordinance regulating the carrying of firearms. Until that happens, we could end up with a patchwork of carry laws regulating when, where, and how we could carry. And those regulations could be as restrictive as Chicago's CFP. Or worse. And we would have to challenge each one in court.

 

Without some sort of state-level preemption, a court ruling may not give us everything we thought it would. But if HB148 or something similar passes, then there is nothing a home rule unit can do to regulate carry.

I wasn't quite sure how to interpret the Chicago permit comment but if Bob indeed meant what you just explained in your comment I agree with you both.

 

Unfortunately for me sometimes what's obvious to others isn't so obvious to me. :thumbsup:

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I wasn't quite sure how to interpret the Chicago permit comment but if Bob indeed meant what you just explained in your comment I agree with you both.

Unfortunately for me sometimes what's obvious to others isn't so obvious to me. smile.gif

 

I think he summed it up pretty well. We certainly cannot rely on a law that has not passed. Whatever we get from the courts is highly unlikely to give us pre-emption. But, the lawyers certainly could ask for something approaching pre-emption if we are granted some kind of injunction at some point. Whether such a request fits well into their strategy is something else, and despite its apparent desirability to us it may not be desirable to those making the decisions.

 

Whether the judge would grant such a request is another thing, but I think a good argument could be made that Chicago has shown a history of trying to frustrate the constitution in this area, and if nothing else, just asking for it, and making a good argument might be enough to deter at least some home rule units even if it were not granted.

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