63 replies to this topic

[Federal Farmer]

GarandFan, on 06 February 2012 - 03:06 PM, said:

I like how David Hardy put it, in reference to Judge Myerscough's logic:

"Second amendment rights are not unlimited.  State statutes canning carry a limitation.  Thus, state statutes banning carry are constitutional."

Heh heh ...

I have far more confidence that the 7th circuit will get this right.

Here's hoping we don't get Easterjerk or Poser...

[NakPPI]

There is no question that we want Sykes on this appeal. Her dissent in Skoien put great emphasis on the dicta in Heller, rather than beating the holding to death as judge Meyerscough has done.
The dicta in Heller keeps getting ignored, that's how we get these bad decisions. See also, Judge Neville's dissent in Aguilar.

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[abolt243]

NakPPI, on 06 February 2012 - 04:06 PM, said:

There is no question that we want Sykes on this appeal. Her dissent in Skoien put great emphasis on the dicta in Heller, rather than beating the holding to death as judge Meyerscough has done.
The dicta in Heller keeps getting ignored, that's how we get these bad decisions. See also, Judge Neville's dissent in Aguilar.

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Syllabus: Page 1.



Held:



1. The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.

************************************



Would THAT be the dicta of which you speak??

Sorry, the formatting didn't come over very well.

Tim

[Getzapped]

Call me crazy, but it took this judge almost a year to come up with that lame a$$ excuse to dismiss it!  Sure seem like she wasted a whole bunch of time and money on something she already new that she was gonna dismiss.

[abolt243]

Getzapped, on 06 February 2012 - 05:29 PM, said:

Call me crazy, but it took this judge almost a year to come up with that lame a$$ excuse to dismiss it!  Sure seem like she wasted a whole bunch of time and money on something she already new that she was gonna dismiss.  

In fairness, 6 months.  I believe arguments were made Aug 4, 2011.  6 months is lightspeed in our judicial system!!!

Tim

[dmefford]

Scummmm!

And what part of, "shall not be infringed" do they not understand?

Regards, Drd

Edited by dmefford, 06 February 2012 - 07:14 PM.

[Getzapped]

abolt243, on 06 February 2012 - 05:34 PM, said:

Getzapped, on 06 February 2012 - 05:29 PM, said:

Call me crazy, but it took this judge almost a year to come up with that lame a$$ excuse to dismiss it!  Sure seem like she wasted a whole bunch of time and money on something she already new that she was gonna dismiss.  

In fairness, 6 months.  I believe arguments were made Aug 4, 2011.  6 months is lightspeed in our judicial system!!!

Tim

6 months is pretty fast, I thought it was filed last spring like april or may.  Still seems like she just wanted it out of her court!

[abolt243]

Getzapped, on 06 February 2012 - 07:24 PM, said:

abolt243, on 06 February 2012 - 05:34 PM, said:

Getzapped, on 06 February 2012 - 05:29 PM, said:

Call me crazy, but it took this judge almost a year to come up with that lame a$$ excuse to dismiss it!  Sure seem like she wasted a whole bunch of time and money on something she already new that she was gonna dismiss.  

In fairness, 6 months.  I believe arguments were made Aug 4, 2011.  6 months is lightspeed in our judicial system!!!

Tim

6 months is pretty fast, I thought it was filed last spring like april or may.  Still seems like she just wanted it out of her court!

It was filed 6-May-2011.  Orals were heard Aug 4 (?).  Well under a year and fast in terms of judicial speed.

[NakPPI]

The dicta I am referring to is the same from Judge Neville's dissent in Aguilar, which of course will be part of our appellate argument, I assume.

The Heller Court explained that the second amendment protects the right to “bear arms”(U.S. Const., amend. II), which it defined as the right to “ ' “wear, bear, or carry [arms] *** upon the person or in the clothing or in a pocket, for the purpose *** of being armed and ready for offensive or defensive action in a case of conflict with another person.” ' “ Heller, 554 U.S. at ___, 128 S. Ct. at 2793 (quoting Muscarello v. United States, 524 U.S. 125, 143 (1998) (Ginsburg, J.,dissenting, joined by Rehnquist, C.J. and Scalia and Souter, JJ.), quoting Black’s Law Dictionary 214 (6th ed. 1998)). Thus, the second amendment, at its core, protects the right of every citizen to have firearms available to protect himself or herself in case a conflict with another person arises. Heller, 554 U.S. at ___, 128 S. Ct. at 2793. The second amendment itself does not restrict the right to keep and bear arms to the home, and nothing in the Heller Court’s reasoning restricts this right to the home. U.S. Const., amend. II; Heller, 554 U.S. at ___, 128 S. Ct. at 2793.

People v. Aguilar

Edited by NakPPI, 06 February 2012 - 08:10 PM.

[Gary]

NakPPI, on 06 February 2012 - 08:09 PM, said:

The dicta I am referring to is the same from Judge Neville's dissent in Aguilar, which of course will be part of our appellate argument, I assume.

The Heller Court explained that the second amendment protects the right to “bear arms”(U.S. Const., amend. II), which it defined as the right to “ ' “wear, bear, or carry [arms] *** upon the person or in the clothing or in a pocket, for the purpose *** of being armed and ready for offensive or defensive action in a case of conflict with another person.” ' “ Heller, 554 U.S. at ___, 128 S. Ct. at 2793 (quoting Muscarello v. United States, 524 U.S. 125, 143 (1998) (Ginsburg, J.,dissenting, joined by Rehnquist, C.J. and Scalia and Souter, JJ.), quoting Black’s Law Dictionary 214 (6th ed. 1998)). Thus, the second amendment, at its core, protects the right of every citizen to have firearms available to protect himself or herself in case a conflict with another person arises. Heller, 554 U.S. at ___, 128 S. Ct. at 2793. The second amendment itself does not restrict the right to keep and bear arms to the home, and nothing in the Heller Court’s reasoning restricts this right to the home. U.S. Const., amend. II; Heller, 554 U.S. at ___, 128 S. Ct. at 2793.

People v. Aguilar

This is as clear as a spotlight.  It makes one wonder how anyone but particularly a judge can look directly into a bright light and insist that it is dark.

[abolt243]

NakPPI, on 06 February 2012 - 08:09 PM, said:

The dicta I am referring to is the same from Judge Neville's dissent in Aguilar, which of course will be part of our appellate argument, I assume.

The Heller Court explained that the second amendment protects the right to “bear arms”(U.S. Const., amend. II), which it defined as the right to “ ' “wear, bear, or carry [arms] *** upon the person or in the clothing or in a pocket, for the purpose *** of being armed and ready for offensive or defensive action in a case of conflict with another person.” ' “ Heller, 554 U.S. at ___, 128 S. Ct. at 2793 (quoting Muscarello v. United States, 524 U.S. 125, 143 (1998) (Ginsburg, J.,dissenting, joined by Rehnquist, C.J. and Scalia and Souter, JJ.), quoting Black’s Law Dictionary 214 (6th ed. 1998)). Thus, the second amendment, at its core, protects the right of every citizen to have firearms available to protect himself or herself in case a conflict with another person arises. Heller, 554 U.S. at ___, 128 S. Ct. at 2793. The second amendment itself does not restrict the right to keep and bear arms to the home, and nothing in the Heller Court’s reasoning restricts this right to the home. U.S. Const., amend. II; Heller, 554 U.S. at ___, 128 S. Ct. at 2793.

People v. Aguilar

Thanks NakPPI.

[Drylok]

In her ruling, Judge Meyerscough stated, “This Court finds that the Illinois ‘Unlawful Use of Weapons’ and ‘Aggravated Unlawful Use of a Weapon’ statutes do not violate Plaintiffs’ Second Amendment rights. The United States Supreme Court and the Seventh Circuit have recognized only a Second Amendment core individual right to bear arms inside the home. Further, even if this Court recognized a Second Amendment right to bear arms outside of the home and an interference with that right, the statutes nonetheless survive constitutional scrutiny.”

So she's saying we don't have a right beyond the home and even if she did recognize the right, this law is ok because she damn well said so?????

[papa]

Drylok, on 07 February 2012 - 09:30 AM, said:

In her ruling, Judge Meyerscough stated, "This Court finds that the Illinois 'Unlawful Use of Weapons' and 'Aggravated Unlawful Use of a Weapon' statutes do not violate Plaintiffs' Second Amendment rights. The United States Supreme Court and the Seventh Circuit have recognized only a Second Amendment core individual right to bear arms inside the home. Further, even if this Court recognized a Second Amendment right to bear arms outside of the home and an interference with that right, the statutes nonetheless survive constitutional scrutiny."

So she's saying we don't have a right beyond the home and even if she did recognize the right, this law is ok because she damn well said so?????

You catch on pretty quick for a youngster. LOL Sad that they just look at " in the home " and nothing else, simply because they don't want it to go any farther.

[Talonap]

Didn't SCOTUS say somethng like,"...such as in the home..."?

[Lou]

Talonap, on 07 February 2012 - 12:30 PM, said:

Didn't SCOTUS say somethng like,"...such as in the home..."?

Quote

The second amendment itself does not restrict the right to keep and bear arms to the home, and nothing in the Heller Court’s reasoning restricts this right to the home. U.S. Const., amend. II; Heller, 554 U.S. at ___, 128 S. Ct. at 2793.

[dmefford]

She appears to indifferent to the cause of Liberty, she doesn't want to do the research to study the real truth about the meaning of "shall not be infringed." She did not do any original work that I could see but rather borrowed from everyone else's language and interpretations. She had no "strength" and/or no balls to venture out to a reasoning process like imagining whether the founders would mean anything like "just to exercise the right in the home." The Founders, by any objective form of reasoning process, would not have held that type of meaning. She would be able to find no evidence of this type of meaning anywhere in the contemporary literature of founding era.

SCOTUS, in Heller, responded to the narrow question before the court with regard to use of a gun in the home. They chose not to expand their answer to beyond the questions brought before the court, which were in essence: Does a person have the right to keep and bear an arm and if so is can the right be exercised in the home for defense of self, family, friends and property? Alan Gura stated to those of us who were in Chicago for the GRPC that they preferred to keep the case very narrowly defined. They may deal with the back yard next, then the street etc... It made the perfect narrow case for the court.

Most judges, and I will pick on most attorneys as well, have no clue of the first duty of government, according to the Founders. Ask any judges or attorneys or most of your friends what the first duty of the Federal Government is; and while we are at it the first duty of the Illinois government. Most answers will be to protect Public Safety or provide for common defense or control the People to preserve civilization.

My proof comes from two areas:

• Declaration of Independence 2nd paragraph: ". . .men are. . . endowed by our Creator with certain unalienable rights, among these are Life, Liberty, and the Pursuit of Happiness -- That to secure these Rights, Governments are instituted among men . . ."
• Illinois Constitution, Article 1, Section 1: "All men . . . 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, deriving their just powers from the consent of the governed."
  [Edited for brevity]

I like this comment Justice George Sutherland who wrote a dissent and made this observation:

"Whether the legislation under review is wise or unwise is a matter with which we have noting to do. Whether it is likely to work well or work ill presents a question entirely irrelevant to the issue. The only legitimate inquiry we can make is whether it is constitutional. If it is not, its virtues, if it have any, cannot save it; if it is, its faults cannot be invoked to accomplish its destruction. If the provisions of the Constitution be not upheld when they pinch as well as when they comfort, they may as well be abandoned."

Regards, Drd

Edited by dmefford, 07 February 2012 - 01:09 PM.

[Sigma]

Forget her, she is stupid. Who appointed her?
Appeal court that gave us Ezell will do us right.

[blackhalo]

I see that the appeal has been docketed with the Seventh Circuit.  Could someone please post the non-Pacer/archive.org docket page?  I can't figure out how to access it outside of Pacer.

Thanks in advance.

[NakPPI]

The docketing statement was filed. David Sigale and ***Alan Gura*** are in as attorneys of record. David Jensen is out.

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[tysonu74]

NakPPI, on 09 February 2012 - 09:57 AM, said:

The docketing statement was filed. David Sigale and [red]***Alan Gura***[/red] are in as attorneys of record. David Jensen is out.

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This is a good thing

[Federal Farmer]

NakPPI, on 09 February 2012 - 09:57 AM, said:

The docketing statement was filed. David Sigale and ***Alan Gura*** are in as attorneys of record. David Jensen is out.

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Mr. Jensen, no doubt, is probably sick of coming to our pathetic state.  I met him at GRPC, great guy, concealed permit holder.

[05FLHT]

NakPPI, on 09 February 2012 - 09:57 AM, said:

The docketing statement was filed. David Sigale and ***Alan Gura*** are in as attorneys of record. David Jensen is out.

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I don't think my smile will be going away any time soon.

After reading the opening brief in Hightower v. Boston, I'm pretty sure Mr. Gura will be bringing his big stick.

 Hightower Appellant Opening Brief - CA1.pdf   1.03MB   164 downloads

[dmefford]

05FLHT, on 09 February 2012 - 12:32 PM, said:

I don't think my smile will be going away any time soon.

After reading the opening brief in Hightower v. Boston, I'm pretty sure Mr. Gura will be bringing his big stick.

Hightower Appellant Opening Brief - CA1.pdf

05FLHT,

Thanks for posting the opening brief... Alan is really amazing. He has managed to snag a really good case here since it is so blatantly subjective by authority. I really love this little part of the brief:

Particularly instructive is the Oregon Supreme Court's opinion in
State v. Blocker, 291 Ore. 255, 630 P.2d 824 (1981). That court had
earlier held that possession of a billy club was secured by the
constitutional guarantee that "[t]he people shall have the right to bear
arms for the defence of themselves . . ." Ore. Const. art. I, § 27; see
State v. Kessler, 289 Ore. 359, 614 P.2d 94 (1980). In Blocker,
prosecutors argued that the right should be confined to Kessler's facts,
relating to home possession of a billy club, and not to the public
carrying of the same arm. The court disagreed:
The text of the constitution is not so limited; the language is not
qualified as to place except in the sense that it can have no effect
beyond the geographical borders of this state . . . In Kessler we
started from the premise that under § 27 a person has a right to
bear arms for defense of self . . . We then moved from that general
proposition to the more particular one that a person had the
constitutional right to have a billy in his home for defense.
Blocker, 291 Ore. at 259, 630 P.2d at 825-26 (citation and footnote
omitted).
Likewise, Heller announced a general proposition respecting
constitutional protection for the possession of handguns, and applied it
34
Case: 11-2281 Document: 00116330344 Page: 51 Date Filed: 02/07/2012 Entry ID: 5616838
to the home-bound facts of the case. That does not inform a limitation
of the right itself.

He secured the Heller case by narrowly limiting to the question of carry in the home. Now outside the home.

This is a highly instructive brief against a clearly capricious and arbitrary law. Hopefully they will prevail big time!

Regards, DrD

Edited by dmefford, 09 February 2012 - 09:59 PM.

[Don Gwinn]

This is why Illinois is the low-hanging fruit.  It's next to impossible to defend Illinois' statute without tying yourself in rhetorical knots before the other side even really gets started.  You have to do things like ruling that the Supreme Court allowed for prohibition of concealed carry, but that's not enough in Illinois, where you'll also have to ignore the fact that those prohibitions are probably only constitutional as long as they're offset by a permissive open-carry system . . . and the fact that Illinois tries to have it both ways.  
"You may choose either A or B.  Please choose."
"OK . . . both!"
"No, you may choose either A or B.  You are allowed to choose neither, but not both.  Please choose."
"Sorry about that.  I choose B."
"Thank--"
"And A!"
"You can't--"
"A and B!"
"Stop th--"
"BOTH!"
"Sigh. Is there someone else I could speak to?  A parent or guardian, perhaps?"

[NakPPI]

Don Gwinn, on 10 February 2012 - 12:25 AM, said:

This is why Illinois is the low-hanging fruit.  It's next to impossible to defend Illinois' statute without tying yourself in rhetorical knots before the other side even really gets started.  You have to do things like ruling that the Supreme Court allowed for prohibition of concealed carry, but that's not enough in Illinois, where you'll also have to ignore the fact that those prohibitions are probably only constitutional as long as they're offset by a permissive open-carry system . . . and the fact that Illinois tries to have it both ways.  
"You may choose either A or B.  Please choose."
"OK . . . both!"
"No, you may choose either A or B.  You are allowed to choose neither, but not both.  Please choose."
"Sorry about that.  I choose B."
"Thank--"
"And A!"
"You can't--"
"A and B!"
"Stop th--"
"BOTH!"
"Sigh. Is there someone else I could speak to?  A parent or guardian, perhaps?"

Low hanging fruit is a good way to describe Illinois. Attorneys always want the "best case" for creating case law on appeal. This is why I was not particularly upset when SCOTUS declined to hear our two 2A cases last year. The issue of Illinois' laws are very narrow--is a blanket prohibit on the bearing of arms outside of the home for self defense constitutional? Illinois' laws are better than even California's laws in this respect because California has a permitting system and specific exceptions for bearing arms outside the home in certain instances, Illinois of course has none of these issues to muddy the waters.

Moore v. Madigan Docketing Statement

[dmefford]

NakPPI, on 10 February 2012 - 07:39 AM, said:

Don Gwinn, on 10 February 2012 - 12:25 AM, said:

This is why Illinois is the low-hanging fruit. It's next to impossible to defend Illinois' statute without tying yourself in rhetorical knots before the other side even really gets started. You have to do things like ruling that the Supreme Court allowed for prohibition of concealed carry, but that's not enough in Illinois, where you'll also have to ignore the fact that those prohibitions are probably only constitutional as long as they're offset by a permissive open-carry system . . . and the fact that Illinois tries to have it both ways.
"You may choose either A or B. Please choose."
"OK . . . both!"
"No, you may choose either A or B. You are allowed to choose neither, but not both. Please choose."
"Sorry about that. I choose B."
"Thank--"
"And A!"
"You can't--"
"A and B!"
"Stop th--"
"BOTH!"
"Sigh. Is there someone else I could speak to? A parent or guardian, perhaps?"

Low hanging fruit is a good way to describe Illinois. Attorneys always want the "best case" for creating case law on appeal. This is why I was not particularly upset when SCOTUS declined to hear our two 2A cases last year. The issue of Illinois' laws are very narrow--is a blanket prohibit on the bearing of arms outside of the home for self defense constitutional? Illinois' laws are better than even California's laws in this respect because California has a permitting system and specific exceptions for bearing arms outside the home in certain instances, Illinois of course has none of these issues to muddy the waters.

Moore v. Madigan Docketing Statement

Great responses. I think we all feel the potential for good things happening within our lifetimes.

Yes, Illinois is the low hanging fruit. However I still feel like the courts and the attorneys for "our side" are missing a key issue, that being the number one (#1) function of government:

"... [we] are endowed by our Creator with certain unalienable Rights . . . -- to secure these Rights Governments are instituted among men. . ." Declaration of Independence

". . . [The People] have certain inherent and inalienable rights among which are life, liberty and the pursuit of happiness. To secure these rights and the protection of property, governments are instituted among men. . ." Illinois Constitution, Article 1, Section

The courts and even most attorneys make a false assumption; they assume that "public safety" is the primary function of government. Then they proceed from there. Public safety has some merit but the preservation of our Fundamental/Natural Rights is the Prime #1 function. Almost all infringement comes from the assumption that the Public Safety supersedes the rights of the People. Repeatedly you hear the Right isn't absolute. Well no right is absolute. All rights carry a corresponding weighty responsibility. It is not up to government to determine the amount of acceptable infringement but rather when the infringement occurs, as it will occur, to meet out appropriate justice.

Our Founders did NOT fight a war for Public Safety. They shed their blood to SECURE OUR FUNDAMENTAL RIGHTS! You cannot have both safety and security without loss of Liberty. The safest and most secure place to be in Pike County is our County jail. Do I want live there? NO.

In the name of Public Safety we now have the Patriot Act, NDAA with its onerous provisions and you know I can go on ad nauseum.

Regards, DrD

Edited by dmefford, 12 February 2012 - 08:27 PM.

[willxjcherokee]

I really feel 2012 will be a bad year for us...
With all the semi-auto bans and changes.

Man it looks bad.

[colt-45]

willxjcherokee, on 10 February 2012 - 05:58 PM, said:

I really feel 2012 will be a bad year for us...
With all the semi-auto bans and changes.

Man it looks bad.

no i disagree 2012 will be the best cause we will get RTC.

[mikew]

willxjcherokee, on 10 February 2012 - 05:58 PM, said:

I really feel 2012 will be a bad year for us...
With all the semi-auto bans and changes.

Man it looks bad.

I could see where you could feel like that if you are all alone.

But we are a team, with victories under our belt, and this is going to be a great year.

[dmefford]

mikew, on 10 February 2012 - 06:45 PM, said:

willxjcherokee, on 10 February 2012 - 05:58 PM, said:

I really feel 2012 will be a bad year for us...
With all the semi-auto bans and changes.

Man it looks bad.

I could see where you could feel like that if you are all alone.

But we are a team, with victories under our belt, and this is going to be a great year.

I agree some positive things are happening. Keep in mind we are getting traction. Read the Hightower brief above. It will do you good. We must persist. We are hopefully seeing the dying movements of the last of the Firearm crap.

Regards, DrD

Edited by dmefford, 10 February 2012 - 07:27 PM.