123 replies to this topic

[Tvandermyde]

As most know, on wednesday the IL Supreme Court accepted a petition of appeal of the First District's second decision in Willson v. Cook County.

on that day, the Court also accepted People V. Aguilar. This is a case dealing with HB182 that we passed a couple years ago, and the UUW / AG UUW statute on a Second Amendment challenge, that the right protected under the Heller decision extends outside the home.

In Aguilar, we have a minor allegedly in possession of a handgun when on anothera property. The issues presented besides if the Heller decision applies outside the home is if HB182 should be applied retroactively, the issue of permission.

While we worked long and hard to develope a case and plantiff like Mary Shepard, we have had this case not of our making dumped in our lap. And we will be working on it very diligently.

So in addition to 4 cases against Chicago, 2 RTC/UUW challenges, we now have two cases pending before the Illinois Supreme Court.

looks like we are about as ground zero as it can get.

Link to Aguilar appeallate decision:

http://www.state.il....ary/1090840.pdf

[bob]

The defense seems to be making two claims here.

Claiming the revised UUW statute should be applied retroactively seems absurd on its face, given as the legislature did not make it retroactive.

The actual 2A claim seems like a good one, but my guess is until the federal courts decide otherwise, state of Illinois courts are going to deny this one. There just is no federal court ruling that says you have any right to carry a gun outside of your home yet, and there is nothing in IL law that says it either.

I wonder why they even chose to accept the case. It would have been a lot easier just to not take it without comment. I wonder if they are trying to prevent clogging up the courts with 2A appeals from gang bangers on gun charges by making some kind of ruling here.

In any case, it will be interesting to see what happens at the state level when SCOTUS gets around to saying the RTKBA really does extend outside the home. I wonder what the heck the state courts are going to do then. They are going to be in a bit of a pickle.

[Tvandermyde]

The retro claim is not absurd as the change in law was in response to an absurd reading and ruling of the UUW statute.

The Second Amendment claim is not a good one for us as you have a minor in possession of a handgun, and no mention of a FOID.

[mauserme]

Just last October a Clark County, WI judge found their law unconstitutional in a knife carry case:

http://www.weau.com/..._105001764.html

...
In his decision, Judge Counsell found the state's concealed carry law "unconstitutional on its face as overly broad in violation of the Second and Fourteenth Amendments of the United States Constitution."
...

Different facts, different culture. But it demonstrates that a lower court actually can build on Heller and McDonald, as I believe SCOTUS intended.

[bob]

The Second Amendment claim is not a good one for us as you have a minor in possession of a handgun, and no mention of a FOID.

I was thinking more along the lines of extending the "gun in a house" Heller ruling to "gun in the yard", maybe even to invitees in the house or yard. That is not all that huge of a stretch.

I don't think there is a good legal challenge to the FOID card, or minor with a gun, even with strict scrutiny. I must say I was moderately offended that the guy was not sent to prison though not at all surprised that he got no time.

[bob]

Just last October a Clark County, WI judge found their law unconstitutional in a knife carry case:

http://www.weau.com/..._105001764.html

...
In his decision, Judge Counsell found the state's concealed carry law "unconstitutional on its face as overly broad in violation of the Second and Fourteenth Amendments of the United States Constitution."
...

Different facts, different culture. But it demonstrates that a lower court actually can build on Heller and McDonald, as I believe SCOTUS intended.

I am inclined to agree with him but I think he is ahead of the curve. There just is not enough case law to support this kind of decision yet. IIRC, the prosecution declined to appeal. That means it doesn't matter much except to the defendant and the judge. It would have been nice if the prosecution would have appealed so we could get it into a higher court to rule the same way. WI courts are headed this way already based on WI law. Add a little federal constitution to the mix and you have a winner, at least for people in WI. May not make much difference in WI. There is a chance they get permitless carry there this summer. Hard to say what the chances are. It is a big jump from no carry to permitless carry.

We need to get into federal court to get in line to SCOTUS with a good case, and that would seem to be what the latest cases are really about. I can't see the state courts giving us any relief unless there is some big shift at the federal level that does not seem to be immediately forthcoming, so my guess is that we lose at the IL SC and start over at a federal district court and work our way up the ladder.

I kind of wonder why a carry case was not tried in DC. It would seem to be a much faster route to the top, being as there are far fewer stops along the way.

[CraigC]

Just last October a Clark County, WI judge found their law unconstitutional in a knife carry case:

http://www.weau.com/..._105001764.html

...
In his decision, Judge Counsell found the state's concealed carry law "unconstitutional on its face as overly broad in violation of the Second and Fourteenth Amendments of the United States Constitution."
...

Different facts, different culture. But it demonstrates that a lower court actually can build on Heller and McDonald, as I believe SCOTUS intended.

I am inclined to agree with him but I think he is ahead of the curve. There just is not enough case law to support this kind of decision yet. IIRC, the prosecution declined to appeal. That means it doesn't matter much except to the defendant and the judge. It would have been nice if the prosecution would have appealed so we could get it into a higher court to rule the same way. WI courts are headed this way already based on WI law. Add a little federal constitution to the mix and you have a winner, at least for people in WI. May not make much difference in WI. There is a chance they get permitless carry there this summer. Hard to say what the chances are. It is a big jump from no carry to permitless carry.

We need to get into federal court to get in line to SCOTUS with a good case, and that would seem to be what the latest cases are really about. I can't see the state courts giving us any relief unless there is some big shift at the federal level that does not seem to be immediately forthcoming, so my guess is that we lose at the IL SC and start over at a federal district court and work our way up the ladder.

I kind of wonder why a carry case was not tried in DC. It would seem to be a much faster route to the top, being as there are far fewer stops along the way.

SAF/Gura have a case. Palmer v DC

The last filings were submitted in July '10 , but it seems that Judge Kennedy is behind in his rulings and hasn't gotten to it yet. Check out the discussion here

http://forum.opencar...ict-of-Columbia

[bob]

Is there a link somewhere to the filings? It seems like the judge is waiting a long time. Maybe he knows some other case is about to be ruled on that may impact his decision and wants to get it right as one of the posters suggested.

I just do not recall reading about this case before, and I thought I was reasonably up on such things. Thanks for bringing it to my attention.

ETA. Never mind I found it at the SAF web site. I will read it later after I get back from the rehab place.

[Howard Roark]

(upstairs)

^^^^ Thank you.

[Tvandermyde]

Today two Amici briefs were filed in the Aguilar case pending before the Illinois Supreme Court.

Attached Files

•  NRA_Amicus_Curiae_Brief_(Filed).pdf   1.31MB   380 downloads
•  Leg_aguilar-brief.PDF   1.77MB   343 downloads

[sirflyguy]

I LOVE the conclusion, simply and succinctly stated:

"For the foregoing reasons, this court should hold that Illinois' ban on carrying firearms in public is unconstitutional under the Second and Fourteenth Amendments to the United States Constitution."

[bob]

I LOVE the conclusion, simply and succinctly stated:

"For the foregoing reasons, this court should hold that Illinois' ban on carrying firearms in public is unconstitutional under the Second and Fourteenth Amendments to the United States Constitution."

Should, but probably won't.

OTOH, they might decide the gig is up.

[THE KING]

Very interesting to read. It actually picked my spirits up when considering what state I'm in. I'm referring to the state of Illinois if anyone wonders. But I found this quote from page 20 rather enlightening. It made me think of NFA Class III for some reason. The bolded section is from the brief and it is not by my doing. But that is the section I am referring to.



That the Second Amendment is a "fundamental right" is further reinforced by the
Cours' discussions in Heller and Ezell The Heller Court compared the Second
Amendment to the First Amendment, providing guidance as to how the fundamental right
protected under the Second Amendment should be treated, stating:

Some have made the argument, bordering on the frivolous, that only those
arms in existence in the 18th century are protected by the Second
Amendment. We do not interpret constitutional rights that way. Just as
the First Amendment protects modern forms of communications, e.g.,
Reno v. American Civil Liberties Union, 521 U.S. 844, 849, 117 S.Ct.
2329, 138 L.Ed.2d 874 (1997), and the Fourth Amendment applies to
modern forms of search, e.g., Kyllo v. United States, 533 U.S. 27, 35-36,
121 S.Ct. 2038, 150 L.Ed.2d 94 (2001), the Second Amendment extends,
prima facie, to all instruments that constitute bearable arms, even those
that were not in existence at the time of the founding.

[Sigma]

Bazooka's too?

[THE KING]

Bazooka's too?

If bearable means carry, well heck YEAH !!

[w00dc4ip]

Bazooka's too?

If bearable means carry, well heck YEAH !!

A bazooka may in fact be a bearable arm, but the contents of the projectile it launches are considered a "destructive device", something regulated much more heavily than firearms, kind of like TNT, C4, and ANFO. Something tells me those regulations aren't going away any time soon.

[bob]

Bazooka's too?

I think a good argument might be made that bearing of arms by "the people" might well leave out crew served weapons, even if one might be able to carry one by one's self. Bazookas are not exactly real practical to use by one's self. Not impossible, but not exactly the most practical.

Stinger missiles OTOH ...

I am willing to bet that we will never have any kind of tight to those kinds of weapons, at least not one that is recognized.

I think we have a chance at other neat things though. It is hard to say how much of a chance. If we get strict scrutiny, it is going to be very hard to argue with a straight face that a single barrel 20 gauge shotgun with stock and barrel sized for a small statured person is unprotected but one sized for a larger human being is. Don't dwarfs have the same rights to properly sized firearms as full size people?

[Sigma]

to all instruments that constitute bearable arms

good job finding that golden nugget. the more people point things out in heller the more I wonder how there's even a fight. its in plain english.

[THE KING]

to all instruments that constitute bearable arms

good job finding that golden nugget. the more people point things out in heller the more I wonder how there's even a fight. its in plain english.

Thanks Sigma

I actually enjoy reading some of the written opinions and briefs. I find the frustrating part as you have just said. It is in plain english and there shouldn't be a fight. I just wish there was an IMMEDIATE way of holding our elected officials accountable when it comes to this issue. As the courts have said, ignorance of the law is no excuse. Maybe that should be a two way street and not just ONE WAY.

[lockman]

Bazooka's too?

Any weapons that employs an explosive upon the target and probably can kill or injure people in close proximity when the target is struck is certainly ripe for proper limitations and safeguards.

[Sigma]

Bazooka's too?

Any weapons that employs an explosive upon the target and probably can kill or injure people in close proximity when the target is struck is certainly ripe for proper limitations and safeguards.

Of course im joking about a bazooka, but that one line should throw out Cook county's assault weapon ban. How did we loose heller 2

[colt-45]

Bazooka's too?

Any weapons that employs an explosive upon the target and probably can kill or injure people in close proximity when the target is struck is certainly ripe for proper limitations and safeguards.

Of course im joking about a bazooka, but that one line should throw out Cook county's assault weapon ban. How did we loose heller 2

i didn't even know there was a heller2, what was that case about?

[GarandFan]

i didn't even know there was a heller2, what was that case about?

http://volokh.com/po...217308399.shtml

http://www.washingto...8072801357.html

[GarandFan]

Amicus curiae brief on behalf of Aguilar!

http://works.bepress...ichael_oshea/7"

[bob]

Amicus curiae brief on behalf of Aguilar!

http://works.bepress...el_oshea%2F7%22

Good reading.

[Molly B.]

Where does this case stand? I thought we were suppose to hear something this past January . . .

[NakPPI]

Where does this case stand? I thought we were suppose to hear something this past January . . .

As far as I know, they haven't had oral arguments on it yet.

[Gray Peterson]

Has there been any filings to the Supreme Court of Illinois especially in light of the 7th Circuit decision.

[Tvandermyde]

the court has asked for memos/briefs in light of Shepard/Moore

I think the deadline is 1/15

[NakPPI]

We could still lose this case if the court finds that because Aguilar was a minor, he lacks standing to contest the 2A issues. It will be interesting to read.

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