339 replies to this topic

[05FLHT]

Tvandermyde, on 12 July 2011 - 12:01 PM, said:

there is no way the Court if going to go from no carry at all to vermont with the stroke of a pen. just not going to happen.

Even in Ezell the remanded back to the lower court for further proceedings.

But, isn't that the point of seeking the PI in the first place? I'm not saying we'll have Vermont style carry, but if granted the injunction is going to force the ILGA to pass 148. What is the State going to do, appeal to the 7th?

My question though is what happens in between passing the bill, applying, and actually receiving a permit. My fundamental right didn't just disappear, so I think there needs to be some 'adjustments' made to 148. Again, I'm not retired LEO and my permit would not be recognized in all 50 States, so the NRA basic pistol should be sufficient training. To put things in perspective, WI allows 'internet training.'

Also, the requal requirement is BS. Again, I'm not going to be able to carry in all 50 States. LE made their bed. Just because they crapped in theirs doesn't mean I want crap in mine.

While we are at it, and for some real common sense, how about changing the original qualification to something realistic. 3, 5, or 7 yards is 'REALISTIC' self defense distances. I had a good laugh this past Sunday with my wife while at the range. She doesn't shoot often and was doing pretty well at 5-7 yards (keeping everything on an sheet of paper). When I put my target out to 45ft and told her this was the proposed qualifying distance for 148, she busted out laughing. We both agree that if I'm taking head shots at 15 yards, I may have some difficulty in justifying self defense.

[mauserme]

05FLHT, on 12 July 2011 - 12:25 PM, said:

[... I think there needs to be some 'adjustments' made to 148.

It was stated in another thread that 80% of HB148 would be constitutional under Ezell.  My question is,  why give 80% if we can get it done with 20%?

[BShawn]

Tvandermyde, on 12 July 2011 - 12:01 PM, said:

there is no way the Court if going to go from no carry at all to vermont with the stroke of a pen. just not going to happen.

Even in Ezell the remanded back to the lower court for further proceedings.

Never say never, anything is possible... Though it may be unlikely, one can dream, can we not

That would surely be my dream come true!

[Tvandermyde]

05FLHT, on 12 July 2011 - 12:25 PM, said:

Tvandermyde, on 12 July 2011 - 12:01 PM, said:

there is no way the Court if going to go from no carry at all to vermont with the stroke of a pen. just not going to happen.

Even in Ezell the remanded back to the lower court for further proceedings.

But, isn't that the point of seeking the PI in the first place? I'm not saying we'll have Vermont style carry, but if granted the injunction is going to force the ILGA to pass 148. What is the State going to do, appeal to the 7th?

My question though is what happens in between passing the bill, applying, and actually receiving a permit. My fundamental right didn't just disappear, so I think there needs to be some 'adjustments' made to 148. Again, I'm not retired LEO and my permit would not be recognized in all 50 States, so the NRA basic pistol should be sufficient training. To put things in perspective, WI allows 'internet training.'

Also, the requal requirement is BS. Again, I'm not going to be able to carry in all 50 States. LE made their bed. Just because they crapped in theirs doesn't mean I want crap in mine.

While we are at it, and for some real common sense, how about changing the original qualification to something realistic. 3, 5, or 7 yards is 'REALISTIC' self defense distances. I had a good laugh this past Sunday with my wife while at the range. She doesn't shoot often and was doing pretty well at 5-7 yards (keeping everything on an sheet of paper). When I put my target out to 45ft and told her this was the proposed qualifying distance for 148, she busted out laughing. We both agree that if I'm taking head shots at 15 yards, I may have some difficulty in justifying self defense.

If the lower court granted it, the state would appeal. And stay the order while on appeal. If we win the apeal the state would most likely appeal to SCOTUS. wheather they take it or not is anyones guess.

But if we win either the lower court or the Appeal, then the legislature woul dbe in the delma of acting to remedy the change or let the courts do it. either way, once we win, it is not going to be right to carry overnight with the stroke of a pen. the Court will allow the state to fashion a remedy and give them some time to do so.

it would toss into question a lot of prosecutions

[junglebob]

05FLHT, on 12 July 2011 - 12:25 PM, said:

Tvandermyde, on 12 July 2011 - 12:01 PM, said:

there is no way the Court if going to go from no carry at all to vermont with the stroke of a pen. just not going to happen.

Even in Ezell the remanded back to the lower court for further proceedings.

But, isn't that the point of seeking the PI in the first place? I'm not saying we'll have Vermont style carry, but if granted the injunction is going to force the ILGA to pass 148. What is the State going to do, appeal to the 7th?

My question though is what happens in between passing the bill, applying, and actually receiving a permit. My fundamental right didn't just disappear, so I think there needs to be some 'adjustments' made to 148. Again, I'm not retired LEO and my permit would not be recognized in all 50 States, so the NRA basic pistol should be sufficient training. To put things in perspective, WI allows 'internet training.'

How many rounds were to be fired at 15 yards?  I  think for law enforcement qualification its only a few, probably 6 at the most.  I think you could get no rounds on the target and at 15 and still possibly qualify. If there is a LEO here who wants to give the number of rounds at each distance, I'd like to know.  I was in an NRA course and we had an extra class where we did the LEO qualification, everyone passed but one on the first try.  On the second try everyone did.  They better not make the qualificions tougher than LEO qualification, unless we can carry in 50 states.
Also, the requal requirement is BS. Again, I'm not going to be able to carry in all 50 States. LE made their bed. Just because they crapped in theirs doesn't mean I want crap in mine.

While we are at it, and for some real common sense, how about changing the original qualification to something realistic. 3, 5, or 7 yards is 'REALISTIC' self defense distances. I had a good laugh this past Sunday with my wife while at the range. She doesn't shoot often and was doing pretty well at 5-7 yards (keeping everything on an sheet of paper). When I put my target out to 45ft and told her this was the proposed qualifying distance for 148, she busted out laughing. We both agree that if I'm taking head shots at 15 yards, I may have some difficulty in justifying self defense.

My post got in the middle of the previous one somehow, BTW.  It starts at  How many rounds were to be fired at 15 yards?

[stm]

Tvandermyde, on 12 July 2011 - 12:47 PM, said:

If the lower court granted it, the state would appeal. And stay the order while on appeal. If we win the apeal the state would most likely appeal to SCOTUS. wheather they take it or not is anyones guess.

But if we win either the lower court or the Appeal, then the legislature woul dbe in the delma of acting to remedy the change or let the courts do it. either way, once we win, it is not going to be right to carry overnight with the stroke of a pen. the Court will allow the state to fashion a remedy and give them some time to do so.

it would toss into question a lot of prosecutions

Isn't that the point of filing for a preliminary injunction? Because denying the rights of the plaintiff while the matter is being decided constitutes "irreparable harm?" Why would the court rule irreparable harm, and then let the defendants continue to deny the rights of the plaintiff until the defendant exhausts their appeals? That doesn't make sense.

If the Southern District grants an injunction, and the defendants appeal to the 7th District Court of Appeals, why would the 7th reverse themselves and say its not irreparable harm after Ezelle? I guess I'm just not seeing the logic here. Sure, they could appeal to SCOTUS at that point, but that's probably many months away. Doesn't irreparable harm lose its meaning and urgency in that time frame?

ETA: Just as in Ezelle, I think the ILGA would have a narrow window to act quickly and fill the void before the injunction goes in to effect. But not a very big window.

[05FLHT]

stm, on 12 July 2011 - 01:54 PM, said:

Isn't that the point of filing for a preliminary injunction? Because denying the rights of the plaintiff while the matter is being decided constitutes "irreparable harm?" Why would the court rule irreparable harm, and then let the defendants continue to deny the rights of the plaintiff until the defendant exhausts their appeals? That doesn't make sense.

If the Southern District grants an injunction, and the defendants appeal to the 7th District Court of Appeals, why would the 7th reverse themselves and say its not irreparable harm after Ezelle? I guess I'm just not seeing the logic here. Sure, they could appeal to SCOTUS at that point, but that's probably many months away. Doesn't irreparable harm lose its meaning and urgency in that time frame?

ETA: Just as in Ezelle, I think the ILGA would have a narrow window to act quickly and fill the void before the injunction goes in to effect. But not a very big window.

^^^This!!!^^^

How could the court grant an injunction for irreparable harm of a fundamental constitutional right and then stay that order...?

There's irreparable harm or there isn't...the point is to stop the irreparable harm. Again, ASSuming the district court follows the logic in Ezell (and based off of the venue you would think they would), the ILGA should be 'motivated' to pass 148.

TBH, I doubt half of what's in 148 will be constitutional. Unless HB148 becomes an 'instant' (or close too as possible) shall issue bill, with minimal cost, and realistic (if any) required training, I see a lot that will be ruled unconstitutional for 'infringing' upon a fundamental right.

[papa]

Ok , I am a du..errr.. less than well educated person when it comes to bills waiting to be voted on.

Since HB148 is on hold at this time can things be changed like , lower cost for license , less training , etc , etc....or would we have to start over with a fresh bill to get things changed?

[mauserme]

Yes, it can be amended.

[frankw438]

From Ezell v. Chicago ruling, page 50:

Quote

To the contrary, a preliminary injunction against the range
ban does not open the door to a parade of firing‐range
horribles. Cf. McDonald, 130 S. Ct. at 3047 (“Despite municipal
respondents’ doomsday proclamations, incorporation
does not imperil every law regulating firearms.”). The City
may promulgate zoning and safety regulations governing
the operation of ranges not inconsistent with the Second
Amendment rights of its citizens; the plaintiffs may challenge
those regulations, but not based on the terms of this
injunction. As for the City’s concern about a “regulatory
vacuum” between the issuance of the preliminary injunction
and the promulgation of firing‐range zoning and safety regulations,
we note that it faced a similar dilemma after
the Supreme Court decided McDonald. The sky did not
fall.

Emphasis added.

I don't think the sky would fall in this case, either.

-- Frank

[papa]

mauserme, on 12 July 2011 - 05:27 PM, said:

Yes, it can be amended.

Thank you

[NakPPI]

This is actually a relatively simple issue now that the Ezell opinion is out.  

The judge's analysis is fairly straight forward:
1. Is there irreparable harm? (Ezell tells us the answer is yes without showing any damage)
2. Does a ban pass heightened scrutiny? (Heller, McDonald, and Ezell all tell us BANS are not ok when it comes to a constitutional right and there may be appropriate REGULATION, but an outright prohibition on a constitutional right doesn't even require a test. Remember Ezell and Heller comments about a ban not passing "any kind of scrutiny")

I don't see how the State can win this at the district level, then if the state appeals they're right back in front of the judges that just gave us the Ezell opinion. This is SAF/NRA's case to lose...

[w00dc4ip]

NakPPI, on 12 July 2011 - 08:59 PM, said:

I don't see how the State can win this at the district level, then if the state appeals they're right back in front of the judges that just gave us the Ezell opinion. This is SAF/NRA's case to lose...

According to the lawyer I spoke with earlier today, if the injunction is granted at the district level (or the appellate level), it would be in effect immediately.  If the state chose to appeal, it would do so with the injunction in effect during the appeal process.  That is the result of the "irreparable harm" language from the Ezell Ruling.

In other words, the state has exactly the amount of time from when the ruling is initially read to the time it is published to put a permit process into place, otherwise UUW/AUUW is unenforceable.  I hope Todd and the others are pressuring the legislators "on our side" not to accept just anything in regards to "regulation" if the state chooses to drag it's feet until a ruling is issued.  My guess is Madigan and company will wait until they receive advance warning of what the ruling will be (just like Rahmbo did in the Ezell case), and then they'll write a new law and try to force it through in a single emergency session.  I would hope "our" legislators don't just accept whatever regulation Madigan decides is appropriate and call it a victory.  

Wishful dreaming: It would be nice if the 65 (68?) house members who voted with us on 148 initially would get together and tell Quinn / Madigan they have 1 week to get 148 passed and signed, or they'll hold up a vote on any permit process or new UUW/AUUW statutes once the current one gets thrown out by the courts, making the FOID card a de facto CCW permit.

[BShawn]

w00dc4ip, on 12 July 2011 - 09:19 PM, said:

NakPPI, on 12 July 2011 - 08:59 PM, said:

I don't see how the State can win this at the district level, then if the state appeals they're right back in front of the judges that just gave us the Ezell opinion. This is SAF/NRA's case to lose...

According to the lawyer I spoke with earlier today, if the injunction is granted at the district level (or the appellate level), it would be in effect immediately.  If the state chose to appeal, it would do so with the injunction in effect during the appeal process.  That is the result of the "irreparable harm" language from the Ezell Ruling.

In other words, the state has exactly the amount of time from when the ruling is initially read to the time it is published to put a permit process into place, otherwise UUW/AUUW is unenforceable.  I hope Todd and the others are pressuring the legislators "on our side" not to accept just anything in regards to "regulation" if the state chooses to drag it's feet until a ruling is issued.  My guess is Madigan and company will wait until they receive advance warning of what the ruling will be (just like Rahmbo did in the Ezell case), and then they'll write a new law and try to force it through in a single emergency session.  I would hope "our" legislators don't just accept whatever regulation Madigan decides is appropriate and call it a victory.  

Wishful dreaming: It would be nice if the 65 (68?) house members who voted with us on 148 initially would get together and tell Quinn / Madigan they have 1 week to get 148 passed and signed, or they'll hold up a vote on any permit process or new UUW/AUUW statutes once the current one gets thrown out by the courts, making the FOID card a de facto CCW permit.

^^ this

I could not have said it better myself

[TTIN]

frankw438, on 12 July 2011 - 05:42 PM, said:

From Ezell v. Chicago ruling, page 50:

Quote

To the contrary, a preliminary injunction against the range
ban does not open the door to a parade of firing‐range
horribles. Cf. McDonald, 130 S. Ct. at 3047 (“Despite municipal
respondents’ doomsday proclamations, incorporation
does not imperil every law regulating firearms.”). The City
may promulgate zoning and safety regulations governing
the operation of ranges not inconsistent with the Second
Amendment rights of its citizens; the plaintiffs may challenge
those regulations, but not based on the terms of this
injunction. As for the City’s concern about a “regulatory
vacuum” between the issuance of the preliminary injunction
and the promulgation of firing‐range zoning and safety regulations,
we note that it faced a similar dilemma after
the Supreme Court decided McDonald. The sky did not
fall.

Emphasis added.

I don't think the sky would fall in this case, either.

-- Frank

That could be problematic,no?

[bob]

I see it like this.

Lower court probably does nothing as far as an injunction of any kind goes at this stage, mostly due to thinking it is above their pay grade.

Case proceeds on its merits and we find out the result within a year. We likely get at least a partial win. Then the court has to figure out just what remedy is appropriate which will involve some kind of injunction against some part of the firearms laws in IL.

One or both sides appeal and the lower court delays enforcement of the injunction to give the appeals court time to think about it, or for the parties involved to work things out.

It takes another year or so to get a decision out of the appeals court. Who knows what they have to say about it. Probably sends it back to the lower court with some vague instructions.

A few months later we get whatever it is the courts are going to give us.

My guess is neither side is real happy with what we end up with and one or both sides tries to take it to SCOTUS.

OTOH, there are other cases farther along that might get to SCOTUS first that might change things. If not we probably find out our eventual fate in June of 2014, although if the other side is clever they can probably stretch it out till June of 2015. Or they may get really clever and not appeal a ruling that gives us a win that does not give us meaningful carry.

Keep in mind that predicting what the courts will do where there is little in the way of precedent is never a simple thing and no one can really tell where such a case is headed.

[mauserme]

bob, on 13 July 2011 - 05:42 AM, said:

Who knows what they (the courts) have to say about it.

True. no one can know what the courts will say until they actually ask.  

Dick Heller certainly did not know his case would define the right as fundamental.

Otis McDonlad did not know his case would incorporate the right.

Rhonda Ezell did not know a framework for future litigation would be established when she filed her case.  Even the most optimistic among us did not see that coming.

All of the plaintiffs got past their fears and misgivings, actually asked the question, and taught us it is those who oppose gun rights that should fear the courts.

Who knows how far Shepherd and Moore will go?  Neither you nor I can answer that question but at least we can now find out the answer.  And I'm glad for that because never trying is the equivalent of never succeeding.

[stm]

It's like the lottery: You can't win if you don't play. If I were a gambling man, I wouldn't put too much money on any given scenario or outcome. I know what we all want and hope for, but speculation gets us no where. In the meantime, a few tweaks to HB148 would be a good idea so we are ready if/when an injunction is issued. But that's another topic for another thread...

[NakPPI]

Forget about hb 148 and start thinking sb 82. No re-training requirement, restaurant carry, college carry, easier instructor requirements and preempts home rule. Introduced by Gary Forby.

[mauserme]

stm, on 13 July 2011 - 08:56 AM, said:

It's like the lottery: You can't win if you don't play. If I were a gambling man, I wouldn't put too much money on any given scenario or outcome. I know what we all want and hope for, but speculation gets us no where. In the meantime, a few tweaks to HB148 would be a good idea so we are ready if/when an injunction is issued. But that's another topic for another thread...

The thing about this lottery, though, is even a loss in a lower court can lead to a larger win in a court above. This scenario would add frustration to our wait in Illinois but the national implications could be quite large. Look at the arguments made in the the Shepard memorandum - are they all really meant for the district or something higher?

[NakPPI]

The lower court has to follow Ezell unless the state can distinguish the law in Ezell some how. They would have to make a better argument than "public safety" I would think. The worst case for the state would be to lose in the district and then get another scathing rebuke from the 7th circuit.

[lockman]

mauserme, on 12 July 2011 - 12:36 PM, said:

05FLHT, on 12 July 2011 - 12:25 PM, said:

[... I think there needs to be some 'adjustments' made to 148.

It was stated in another thread that 80% of HB148 would be constitutional under Ezell. My question is, why give 80% if we can get it done with 20%?

Under Ezell 100% of concealed carry would be lawful if open carry were not prohibited. Under Ezell I would suggest that permit fees in excess of what would be required to administer the background check would be unconstitutional if open carry were not allowed. If concealed carry is the only allowed method of carry and open carry is prohibited, then the strict scrutiny standard would apply to most concealed carry issues.

[lockman]

NakPPI, on 13 July 2011 - 09:57 AM, said:

The lower court has to follow Ezell unless the state can distinguish the law in Ezell some how. They would have to make a better argument than "public safety" I would think. The worst case for the state would be to lose in the district and then get another scathing rebuke from the 7th circuit.

They can no longer argue "public safety", without presenting the court actual "proof" that public safety will be enhanced without the fundamental right being violated. No longer can hypothetical situations or generalized fears be a legitimate argument before the courts to violate second amendment rights.

[Sigma]

lockman, on 13 July 2011 - 01:34 PM, said:

NakPPI, on 13 July 2011 - 09:57 AM, said:

The lower court has to follow Ezell unless the state can distinguish the law in Ezell some how. They would have to make a better argument than "public safety" I would think. The worst case for the state would be to lose in the district and then get another scathing rebuke from the 7th circuit.

They can no longer argue "public safety", without presenting the court actual "proof" that public safety will be enhanced without the fundamental right being violated. No longer can hypothetical situations or generalized fears be a legitimate argument before the courts to violate second amendment rights.

Which is why i have wet my pants.
If they cant use the "we have a duty to protect the people" line what do they have? 300 ccw ppl killed someone?

[mauserme]

lockman, on 13 July 2011 - 01:27 PM, said:

mauserme, on 12 July 2011 - 12:36 PM, said:

05FLHT, on 12 July 2011 - 12:25 PM, said:

[... I think there needs to be some 'adjustments' made to 148.

It was stated in another thread that 80% of HB148 would be constitutional under Ezell. My question is, why give 80% if we can get it done with 20%?

Under Ezell 100% of concealed carry would be lawful if open carry were not prohibited. Under Ezell I would suggest that permit fees in excess of what would be required to administer the background check would be unconstitutional if open carry were not allowed. If concealed carry is the only allowed method of carry and open carry is prohibited, then the strict scrutiny standard would apply to most concealed carry issues.

I also believe if only one method of carry is allowed, training requirements will come into question under strict scrutiny.

If both open and concealed carry come to pass, training requirements will probably be constituional for concealed but perhaps not for open carry.

[colt-45]

[quote name='mauserme' date='13 July 2011 - 03:18 PM' timestamp='1310591882' post='282346']
[quote name='lockman' date='13 July 2011 - 02:27 PM' timestamp='1310585250' post='282305']
[quote name='mauserme' date='12 July 2011 - 01:36 PM' timestamp='1310495813' post='282115']
[quote name='05FLHT' date='12 July 2011 - 01:25 PM' timestamp='1310495154' post='282111']
[... I think there needs to be some 'adjustments' made to 148.
[/quote]
It was stated in another thread that 80% of HB148 would be constitutional under Ezell. My question is, why give 80% if we can get it done with 20%?
[/quote]

Under Ezell 100% of concealed carry would be lawful if open carry were not prohibited. Under Ezell I would suggest that permit fees in excess of what would be required to administer the background check would be unconstitutional if open carry were not allowed. If concealed carry is the only allowed method of carry and open carry is prohibited, then the strict scrutiny standard would apply to most concealed carry issues.
[/quote]
I also believe if only one method of carry is allowed, training requirements will come into question under strict scrutiny.

If both open and concealed carry come to pass, training requirements will probably be constituional for concealed but perhaps not for open carry.
[/quote]we can only hope and wait.

[05FLHT]

lockman, on 13 July 2011 - 01:34 PM, said:

NakPPI, on 13 July 2011 - 09:57 AM, said:

The lower court has to follow Ezell unless the state can distinguish the law in Ezell some how. They would have to make a better argument than "public safety" I would think. The worst case for the state would be to lose in the district and then get another scathing rebuke from the 7th circuit.

They can no longer argue "public safety", without presenting the court actual "proof" that public safety will be enhanced without the fundamental right being violated. No longer can hypothetical situations or generalized fears be a legitimate argument before the courts to violate second amendment rights.

Which is impossible for Illinois to argue, being that it is the only State that prohibits carry.

[bob]

They can make any argument they want to. Whether it will be effective is something else.

Since they are unlikely to prevail on constitutional grounds they have to make some kind of effort on other grounds.

If I were the lawyers on the other side I think I would just tell them the best result that can be achieved is a delay, maybe hoping for some kind of miracle during the delay.

[colt-45]

bob, on 13 July 2011 - 08:01 PM, said:

They can make any argument they want to. Whether it will be effective is something else.

Since they are unlikely to prevail on constitutional grounds they have to make some kind of effort on other grounds.

If I were the lawyers on the other side I think I would just tell them the best result that can be achieved is a delay, maybe hoping for some kind of miracle during the delay.

how long do they have to answer the court?

[ishmo]

bob, on 13 July 2011 - 08:01 PM, said:

They can make any argument they want to. Whether it will be effective is something else.

Since they are unlikely to prevail on constitutional grounds they have to make some kind of effort on other grounds.

If I were the lawyers on the other side I think I would just tell them the best result that can be achieved is a delay, maybe hoping for some kind of miracle during the delay.

Please keep posting your thoughts and opinions Bob. I find them interesting as I'm sure the legal people on our side as well as the other do.