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#31 stm

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Posted 17 January 2012 - 12:50 PM

Len, I have to agree with Lockman. We were 3 to 6 votes short of a SUPERMAJORITY last Spring. I don't think the opposition will be able to gather enough votes to pass anything they want. They may try to introduce some watered-down may-issue Chicago-excluding bill, but they won't get enough votes for it, especially if we lobby all those Reps who voted for us in May.

If we get a favorable ruling from either case, it may very well exclude any possibility of may-issue or excluding Chicago/Cook County if RTC is recognized as being a right protected by the 2A.

yea everyone makes fun of the redneck till the zombies show up. . .


#32 Drylok

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Posted 17 January 2012 - 03:19 PM

Me thinks may issue is about to get the boot by SCOTUS, especially if Obama gets defeated in November and the next POTUS nominates constitutional justice to the high court. Posted Image
"A strong body makes the mind strong. As to the species of exercises, I advise the gun. While this gives moderate exercise to the body, it gives boldness, enterprise and independence to the mind. Games played with the ball, and others of that nature, are too violent for the body and stamp no character on the mind. Let your gun therefore be your constant companion of your walks"
-Thomas Jefferson-

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#33 Xwing

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Posted 17 January 2012 - 04:06 PM

It sure would be nice to see a favorable ruling on this case. But IMO, it will have to go to the S.C. (and be ruled in our favor) to force the hand of the legislature in IL.
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#34 NakPPI

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Posted 17 January 2012 - 04:27 PM

It sure would be nice to see a favorable ruling on this case. But IMO, it will have to go to the S.C. (and be ruled in our favor) to force the hand of the legislature in IL.

It's definitely possible that the judge adopts the ruling from People v Mimes which applies an intermediate scrutiny test to uphold the statute, describing it as a "time place and manner " restriction, not a ban. I hope not, but it's possible.

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Stung by the result of McDonald v. City of Chicago, 130 S. Ct. 3020 (2010), the City quickly enacted an ordinance that was too clever by half. Recognizing that a complete gun ban would no longer survive Supreme Court review, the City required all gun owners to obtain training that included one hour of live‐range instruction, and then banned all live ranges within City limits. This was not so much a nod to the importance of live‐range training as it was a thumbing of the municipal nose at the Supreme Court.

#35 lockman

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Posted 17 January 2012 - 09:27 PM

Time/place/manor

When can you carry a loaded firearm in a public place to exercise your fundamental right to self-defense?

Allowed times: NEVER
Allowed public places: ummm NONE
Allowed manor: ANY WAY AS LONG AS IT IS NOT VISIBLE OR CONCEALED!

Yep, sounds like intermediate scrutiny will be just fine. :headbang:
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#36 NakPPI

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Posted 17 January 2012 - 09:45 PM

While, I share your frustration Lockman, it's not the simple. (Our briefs explain it well.)
However, the court could easily cut and paste this argument

People v. Mimes

Next, we consider the fit between the challenged AUUW provision and its substantial
and important goals. Defendant complains that the AUUW statute makes it impossible for
law-abiding citizens to carry operable and loaded firearms in public for the lawful purpose
of self-defense should a confrontation with another person arise. However, the carrying of
uncased, loaded and accessible firearms in public on the street, even if for the purpose of
self-defense, poses unusual and grave dangers to the public, particularly innocent bystanders
who may be severely or fatally injured by stray bullets. Courts frequently hear cases
involving claims of self-defense where unintended victims were shot, injured or killed. See,
e.g., People v. Figueroa, 381 Ill. App. 3d 828 (2008) (the defendant asserted he acted in selfdefense when he fired a gun at rival street gang members during a car chase, but the
unintended victim, a 12-year-old boy playing baseball with his younger brother, was shot in
the chest by a stray bullet and killed). Furthermore, devastating consequences have resulted
when the bearer of a firearm shot a perceived offender or threat in public but was mistaken
about the need for self-defense. See, e.g., Daniels v. Police Board, 338 Ill. App. 3d 851

(2003) (following a car chase, an unarmed passenger, who ignored police officers’
instructions to show her hands and exit the car, was shot and killed by a police officer who
saw a silver object and mistakenly thought the passenger was reaching for a gun). Even here,
defendant alleged that he fired his gun at Richardson because defendant mistakenly thought
Richardson was reaching for a gun.

Defendant argues that the challenged prohibition is not limited to individuals carrying
a firearm in a sensitive place, like a school or government building. According to defendant,
the Heller Court could not have intended that “sensitive places” meant everywhere except
one’s own home, land and fixed place of business. Defendant’s argument, however, is not
persuasive. The prohibition at issue here does not criminalize the carrying of firearms
everywhere outside the individual’s home, land or fixed place of business. Rather, the
prohibition impacts the individual right to self-defense based upon factors concerning both
where the firearm is carried and the manner in which it is carried. Specifically, if an
individual is not on his land or in his home or place of business, then the gun cannot be
carried uncased, loaded and in an accessible manner.


Contrary to defendant’s assertion that the AUUW imposes a “blanket prohibition” on
carrying firearms outside the home, the statute is limited to preventing the carrying of loaded,
uncased and accessible firearms in public on the street.
Certainly, the prohibited place at
issue here, i.e., in public on the street, is broad. Nevertheless, the prohibition is justified by
the potential deadly consequences to innocent members of the general public when someone
carrying a loaded and accessible gun is either mistaken about his need for self-defense or just
a poor shot.

Defendant also argues that the challenged provisions of the AUUW statute are not
necessary to protect the public because other provisions of the Criminal Code are more than
adequate to satisfy the State’s interest in deterring the use of firearms in violent crimes.
Defendant cites, for example, the State’s ability to prohibit possession of firearms by felons,
the mentally ill, most minors, those possessing illegal drugs, those not complying with
reasonable registration requirements, and those engaged in street-gang activity. We do not
agree. As discussed above, the purpose of the AUUW statute is to advance public and police
officer safety by eliminating the inherent threats posed by loaded and accessible firearms in
public on the street. Certainly, the statutory prohibitions that defendant cites with approval
are necessary components of the overall scheme to achieve the statute’s goal of safety.
Nevertheless, if the challenged provisions at issue here were stricken from the statute, that
omission would defeat the statute’s purpose of protecting the general public and police
officers from the dangers of firearms in public places. Absent the challenged provisions, the
statute would fail to prevent situations where criminal conduct was not intended but resulted
nevertheless. See Marin, 342 Ill. App. 3d at 727.

Edited by NakPPI, 17 January 2012 - 09:46 PM.

Stung by the result of McDonald v. City of Chicago, 130 S. Ct. 3020 (2010), the City quickly enacted an ordinance that was too clever by half. Recognizing that a complete gun ban would no longer survive Supreme Court review, the City required all gun owners to obtain training that included one hour of live‐range instruction, and then banned all live ranges within City limits. This was not so much a nod to the importance of live‐range training as it was a thumbing of the municipal nose at the Supreme Court.

#37 dmefford

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Posted 18 January 2012 - 03:11 AM

. . .if the challenged provisions at issue here were stricken from the statute, that
omission would defeat the statute's purpose of protecting the general public and police
officers from the dangers of firearms in public places. . .


I see reference to protecting the police who are aware of the dangers and request employment in the field anyway. . . I see danger to the public since they are now all potential sheep like victims without the right of reasonable self defense by an equalizing weapon. However, I do not see the court doing its primary job, which is of course to preserve the fundamental right to defense of oneself, family and friends. I base that on:

"We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are Life, Liberty, and the Pursuit of Happiness—That to secure these Rights, Governments are instituted among Men" Declaration of Independence

"All men are by nature free and independent and have certain inherent and inalienable
rights among which are life, liberty and the pursuit of happiness. To secure these
rights . . . governments are instituted among men
. . ." Illinois Constitution 1970 Article 1, Section 1 (right up front)

The judge has forgotten or ignored the true function of government made clear in the our first founding document and the Illinois Constitution. "to secure these Rights, Governments are instituted among Men". Notwithstanding the phrase later in IL Const. Art. 1, Sec. 22, Subject to the police powers, the right of the individual citizen to keep and bear arms shall not be infringed.

The primary function of government is not public safety, but rather, to secure these Rights...! I am not saying that public safety should be ignored, however you cannot pass a statute that robs a fundamental right in the name of safety! Especially when safety is reduced because the people are not able to mount an adequate defense against truly violent offenders. Not knowing whether someone might have an adequate means of self defense can be a deterrent to crime and overall increased public safety is the result.

I haven't even started on the rights secured by the Ninth amendment to the US Const. or the Art. 1 Sec. 24 of IL Const, rights retained.

BTW, NakPPI, I realize you are not defending the court, but making the point that the court could just simply choose follow the previous case...

Regards, Drd

Edited by dmefford, 18 January 2012 - 03:15 AM.

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#38 NakPPI

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Posted 18 January 2012 - 07:16 AM

I understand you're not critiquing me. :thinking:

Remember that Mimes is a First District case. (Chicago) While I disagree with the analysis, I think that the statutory intent is unconstitutional from inception, Judge Lampkin is highly respected and this was a unanimous decision. So a Federal judge could adopt this opinion without hesitation.

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Stung by the result of McDonald v. City of Chicago, 130 S. Ct. 3020 (2010), the City quickly enacted an ordinance that was too clever by half. Recognizing that a complete gun ban would no longer survive Supreme Court review, the City required all gun owners to obtain training that included one hour of live‐range instruction, and then banned all live ranges within City limits. This was not so much a nod to the importance of live‐range training as it was a thumbing of the municipal nose at the Supreme Court.

#39 stm

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Posted 18 January 2012 - 09:36 AM

While, I share your frustration Lockman, it's not the simple. (Our briefs explain it well.)
However, the court could easily cut and paste this argument

People v. Mimes

...
Defendant also argues that the challenged provisions of the AUUW statute are not
necessary to protect the public because other provisions of the Criminal Code are more than
adequate to satisfy the State’s interest in deterring the use of firearms in violent crimes.
Defendant cites, for example, the State’s ability to prohibit possession of firearms by felons,
the mentally ill, most minors, those possessing illegal drugs, those not complying with
reasonable registration requirements, and those engaged in street-gang activity. We do not
agree. As discussed above, the purpose of the AUUW statute is to advance public and police
officer safety by eliminating the inherent threats posed by loaded and accessible firearms in
public on the street. Certainly, the statutory prohibitions that defendant cites with approval
are necessary components of the overall scheme to achieve the statute’s goal of safety.
Nevertheless, if the challenged provisions at issue here were stricken from the statute, that
omission would defeat the statute’s purpose of protecting the general public and police
officers from the dangers of firearms in public places. Absent the challenged provisions, the
statute would fail to prevent situations where criminal conduct was not intended but resulted
nevertheless. See Marin, 342 Ill. App. 3d at 727.

Was it Heller or McDonald that refuted this notion of the "regulatory vaccuum?" I think a SCOTUS decision would carry more weight than a state circuit court, especially is US District Court.

Edit: it was Ezell v. Chicago. Not SCOTUS, but the 7th US Circuit Court. Same principle.

Edited by stm, 18 January 2012 - 09:45 AM.

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#40 NakPPI

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Posted 18 January 2012 - 09:54 AM

The regulatory vaccuum is a different issue. Mimes is discussing the intention of the statute, not whether the removal of the statute would create "chaos" if stricken. The Court is saying that the legislators intended for ALL loaded guns to be prohibited in public, regardless of criminal intent, etc which is what the other statutes prohibit.

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Stung by the result of McDonald v. City of Chicago, 130 S. Ct. 3020 (2010), the City quickly enacted an ordinance that was too clever by half. Recognizing that a complete gun ban would no longer survive Supreme Court review, the City required all gun owners to obtain training that included one hour of live‐range instruction, and then banned all live ranges within City limits. This was not so much a nod to the importance of live‐range training as it was a thumbing of the municipal nose at the Supreme Court.

#41 stm

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Posted 18 January 2012 - 11:29 AM

Subtle difference, at least to my uneducated mind.

So it comes down to standard of review? Does public safety outweigh an individual's right to bear arms for self defense? Can the legislative intent of protecting the public and police from loaded guns in public be achieved with less restrictive means?

I really do appreciate your insight, NakPPI.

yea everyone makes fun of the redneck till the zombies show up. . .


#42 NakPPI

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Posted 18 January 2012 - 11:56 AM

It's how the judge interprets the standard. For example, judge Neville in People v. Aguilar applied intermediate scrutiny and determined that the AgUUW statute was unconstitutional.
The regulatory technique must be proportion to the interests of the State. Neville said that a ban is not proportional. Specifically, "the criminalization of all gun possession outside the home... Could have a severe effect on those too weak to protect themselves without guns... " The statute sweeps with breadth disproportionate to its legitimate purpose of improving public safety.



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Stung by the result of McDonald v. City of Chicago, 130 S. Ct. 3020 (2010), the City quickly enacted an ordinance that was too clever by half. Recognizing that a complete gun ban would no longer survive Supreme Court review, the City required all gun owners to obtain training that included one hour of live‐range instruction, and then banned all live ranges within City limits. This was not so much a nod to the importance of live‐range training as it was a thumbing of the municipal nose at the Supreme Court.

#43 lockman

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Posted 18 January 2012 - 03:44 PM

The problem with intermediate scrutiny is the jurisdiction can make the public safety claim, and under strict scrutiny they must prove it conclusively!
"We must, indeed, all hang together, or most assuredly we shall all hang separately."
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#44 NakPPI

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Posted 18 January 2012 - 03:53 PM

The problem with intermediate scrutiny is the jurisdiction can make the public safety claim, and under strict scrutiny they must prove it conclusively!


Not exactly. Under strict scrutiny the statute must be "narrowly tailored" to meet the goal. Obviously, AgUUW fails this test, as it is not tailored at all. It's a blunderbuss, pun intended.

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Stung by the result of McDonald v. City of Chicago, 130 S. Ct. 3020 (2010), the City quickly enacted an ordinance that was too clever by half. Recognizing that a complete gun ban would no longer survive Supreme Court review, the City required all gun owners to obtain training that included one hour of live‐range instruction, and then banned all live ranges within City limits. This was not so much a nod to the importance of live‐range training as it was a thumbing of the municipal nose at the Supreme Court.

#45 dmefford

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Posted 18 January 2012 - 06:22 PM

The problem with intermediate scrutiny is the jurisdiction can make the public safety claim, and under strict scrutiny they must prove it conclusively!


The public safety claim by the state could possibly be refuted with statistics and anecdotal if admitted. For instance this Pit Bull topic and tons of murder stories in Chicago with atrocities to innocents unable to protect themselves etc. Whether it would fly or not remains to be seen.

Regards, Drd

Edited by dmefford, 19 January 2012 - 01:27 AM.

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Rightful liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others. I do not add 'within the limits of the law' because law is often but the tyrant's will, and always so when it violates the rights of the individual.
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#46 NakPPI

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Posted 18 January 2012 - 07:51 PM


The problem with intermediate scrutiny is the jurisdiction can make the public safety claim, and under strict scrutiny they must prove it conclusively!


The public safety claim by the state could possibly be refuted with statistics and anecdotal if admitted. For instance this Pit Bull topic tons of murder stories in Chicago with atrocities to innocents unable to protect themselves etc. Whether it would fly or not remains to be seen.

Regards, Drd


Statistics don't matter for the purposes of a constitutional test. The question is based on "how important" the public policy issue is compared to how the regulation is "tailored" to meet that goal. The higher the level of inquiry, the more strict of a tailoring is required. It doesn't matter how many people are attacked by dogs or how many people are shot accidentally by negligent use of firearms.

For our purposes, the AgUUW statute was designed to prohibit the carrying of loaded guns in public to prevent accidents and to protect police officers. The question is whether prohibiting ALL loaded weapons fits with this goal under the different tests.

Judge Lampkin says that the statute is constitutional under intermediate scrutiny in People v. Mimes.
Judge Neville says that the statute is unconstitutional under intermediate scrutiny in People v. Aguilar, dissenting.
Judge Sykes says they're both wrong (in my opinion) and the test is heightened scrutiny pursuant to Ezell v. Chicago.

If there is a conflict as to whether AgUUW satisfies intermediate scrutiny, there is no way that it could pass heightened or strict scrutiny.
Stung by the result of McDonald v. City of Chicago, 130 S. Ct. 3020 (2010), the City quickly enacted an ordinance that was too clever by half. Recognizing that a complete gun ban would no longer survive Supreme Court review, the City required all gun owners to obtain training that included one hour of live‐range instruction, and then banned all live ranges within City limits. This was not so much a nod to the importance of live‐range training as it was a thumbing of the municipal nose at the Supreme Court.

#47 dmefford

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Posted 19 January 2012 - 02:19 AM


The problem with intermediate scrutiny is the jurisdiction can make the public safety claim, and under strict scrutiny they must prove it conclusively!


Not exactly. Under strict scrutiny the statute must be "narrowly tailored" to meet the goal. Obviously, AgUUW fails this test, as it is not tailored at all. It's a blunderbuss, pun intended.

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I went ahead and downloaded and read the People v Mimes case. At paragraph 61, referencing Heller, we read:

The Court also rejected a judge-empowering, freestanding, interest-balancing
inquiry for evaluating second amendment restrictions and, in particular, for the core
protection of an enumerated constitutional right.

I was wondering what "judge-empowering, freestanding, interest-balancing inquiry," language might refer to?

Regards, Drd

Edited by dmefford, 19 January 2012 - 02:20 AM.

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Rightful liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others. I do not add 'within the limits of the law' because law is often but the tyrant's will, and always so when it violates the rights of the individual.
--Thomas Jefferson to I. Tiffany, 1819

#48 NakPPI

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Posted 19 January 2012 - 07:06 AM

I took this from Findlaw, basically you could imagine under this test the state would always win in a second amendment case.

"The test, rather, must be one of balancing of interests. ''When particular conduct is regulated in the interest of public order, and the regulation results in an indirect, conditional, partial abridgement of speech, the duty of the courts is to determine which of these two conflicting interests demands the greater protection under the particular circumstances presented.'' Inasmuch as the interest in the restriction, the government's right to prevent political strikes and the disruption of commerce, is much more substantial than the limited interest on the other side in view of the relative handful of persons affected in only a partial manner, the Court perceived no difficulty upholding the statute. "

The state would say that there interest in preventing violence to the public is greater than people desiring to carry loaded guns in public...

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Stung by the result of McDonald v. City of Chicago, 130 S. Ct. 3020 (2010), the City quickly enacted an ordinance that was too clever by half. Recognizing that a complete gun ban would no longer survive Supreme Court review, the City required all gun owners to obtain training that included one hour of live‐range instruction, and then banned all live ranges within City limits. This was not so much a nod to the importance of live‐range training as it was a thumbing of the municipal nose at the Supreme Court.

#49 dmefford

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Posted 22 January 2012 - 11:23 PM

I took this from Findlaw, basically you could imagine under this test the state would always win in a second amendment case.

"The test, rather, must be one of balancing of interests. ''When particular conduct is regulated in the interest of public order, and the regulation results in an indirect, conditional, partial abridgement of speech, the duty of the courts is to determine which of these two conflicting interests demands the greater protection under the particular circumstances presented.'' Inasmuch as the interest in the restriction, the government's right to prevent political strikes and the disruption of commerce, is much more substantial than the limited interest on the other side in view of the relative handful of persons affected in only a partial manner, the Court perceived no difficulty upholding the statute. "

The state would say that there interest in preventing violence to the public is greater than people desiring to carry loaded guns in public...

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I see how the reference is within your example. Interest balancing with regard to the state's interest and/or the individuals rights.
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--Thomas Jefferson to I. Tiffany, 1819

#50 stm

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Posted 06 February 2012 - 05:36 PM

Defendants have filed a motion to cite supplemental authority. My guess is they want to cite the recent order in Moore v. Madigan. I was expecting this...

Edit to add: http://www.archive.o....52207.55.0.pdf

Edited by stm, 06 February 2012 - 05:42 PM.

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#51 papa

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Posted 06 February 2012 - 05:38 PM

:) I am really starting to not like this state .

#52 colt-45

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Posted 06 February 2012 - 05:50 PM

one judge was waiting on the other to rule. so one wouldn't look like an idiot first. i hope that this case will get us what we need and more.

#53 snubjob

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Posted 06 February 2012 - 06:35 PM

It sure would be nice to see a favorable ruling on this case. But IMO, it will have to go to the S.C. (and be ruled in our favor) to force the hand of the legislature in IL.

I believe you are absolutely correct sir. We shall see. I still think some are far underestimating the strength and reach of Crook county's machine. It is an election year too. Let's not forget that important little tid-bit.

#54 stm

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Posted 13 February 2012 - 03:04 PM

ISRA has filed a response to the State's request to cite the recent decision in Moore v. Madigan.

http://www.archive.o....52207.56.0.pdf

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#55 NakPPI

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Posted 13 February 2012 - 03:56 PM

Brilliant response. Seriously. Mr. Howard is awesome. Not a single wasted word. :whistle:

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Stung by the result of McDonald v. City of Chicago, 130 S. Ct. 3020 (2010), the City quickly enacted an ordinance that was too clever by half. Recognizing that a complete gun ban would no longer survive Supreme Court review, the City required all gun owners to obtain training that included one hour of live‐range instruction, and then banned all live ranges within City limits. This was not so much a nod to the importance of live‐range training as it was a thumbing of the municipal nose at the Supreme Court.

#56 TomKoz

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Posted 13 February 2012 - 08:16 PM

Brilliant response. Seriously. Mr. Howard is awesome. Not a single wasted word. :whistle:

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Yes, but what does that mean to us non-attorney folks????
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#57 abolt243

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Posted 13 February 2012 - 08:40 PM


Brilliant response. Seriously. Mr. Howard is awesome. Not a single wasted word. Posted Image

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Yes, but what does that mean to us non-attorney folks????



I think it means that although Mr. Howard did a masterful job rebutting the motion, the judge will probalby still allow Lisa and Pat to cite "Moore vs. Madigan". They key is if it will have any impact on the judge's decision.

Tim
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#58 NakPPI

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Posted 13 February 2012 - 08:43 PM


Brilliant response. Seriously. Mr. Howard is awesome. Not a single wasted word. :D

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Yes, but what does that mean to us non-attorney folks????


Mr. Howard, in a very lawyerly way, said that the Judge in Moore v. Madigan was wrong and here's why. It's funny because he spent all of 1 and a half pages to explain why Judge Myerscough's 48 page opinion was completely wrong in history and law. He basically thumbed his nose in the general direction of the Moore v. Madigan opinion. There's definitely some subtle lawyer humor in this. Think about it this way, the State just won a huge windfall in a similar case, and instead of Mr. Howard breaking down every error by Judge Myerscough, he manages to address the entire opinion in a little over a page? :thumbsup:

In reaching its erroneous conclusion that the Second Amendment is limited to the
home, Moore asserts that the Supreme Court has not "explicitly recognized] a general right to
carry firearms in public." Slip. Op. at 28. Supreme Court precedent does, however, speak
directly to the meaning of the right to "bear arms" in public subject to regulation, such as
involving sensitive places. See Doc. No. 40 at 13-15. At any rate, the fact that the Supreme
Court has left an issue not wholly decided does not relieve a lower court of the duty to face that
issue squarely when properly presented in a case before it
. See id. at 15-16.


The underlined part is basically a thumb in the eye of Judge Myerscough...
Stung by the result of McDonald v. City of Chicago, 130 S. Ct. 3020 (2010), the City quickly enacted an ordinance that was too clever by half. Recognizing that a complete gun ban would no longer survive Supreme Court review, the City required all gun owners to obtain training that included one hour of live‐range instruction, and then banned all live ranges within City limits. This was not so much a nod to the importance of live‐range training as it was a thumbing of the municipal nose at the Supreme Court.

#59 Mr. Fife

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Posted 13 February 2012 - 09:31 PM

Yes, but what does that mean to us non-attorney folks????



More waiting :thumbsup:

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#60 Hatchet

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Posted 14 February 2012 - 09:36 AM

I wonder if the judge in Moore said no so the judge in Shepard can say yes, instant conflict. Would that not go to Illinois Supreme rite away? or am I as stupid at the judicial system as I think I am?
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