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Wilson decision -- remand on 2-615 motion


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#31 Talonap

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Posted 05 April 2012 - 02:45 PM

So can we figure about another year or so until the lower court gets to it again? Also, will this probably go before the same judge? Just wondering...

#32 NakPPI

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Posted 05 April 2012 - 03:13 PM

While the opinion is well written, it's really a slap in the face to the trial court. It's like saying, "Hey dumby you messed up a fairly basic procedural issue."

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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.

#33 Druid

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Posted 05 April 2012 - 03:52 PM

While the opinion is well written, it's really a slap in the face to the trial court. It's like saying, "Hey dumby you messed up a fairly basic procedural issue."


Justice would be served if now that trial court had to pay the ISRA attorneys their legal Fees to go thru this all again due to their error.

#34 bob

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Posted 05 April 2012 - 04:05 PM

It appears to me like the IL SC told the lower court to actually look at the 2A issues. That would seem to be a major victory for us.

Edited by bob, 05 April 2012 - 04:06 PM.

bob

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The opinions expressed by this poster do not reflect the official stance of Illinois Carry. Apparently there was some confusion on the part of at least one person that it does, and I want to make things clear that my opinion is my own and that whatever the official stance of IC is or is not at present, it may or may not reflect my own opinion.

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#35 TFC

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Posted 05 April 2012 - 04:09 PM

A major victory would have been if the law were overturned.
Being told by the court to go back to court is just marking time, and burning through the plaintiff's cash. Looks like the machine is playing the same old games.
~If you speak of a gun as a toy, then you see medical waste as playground filler. Yes, it means you're a screwed up individual.~
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I predicted that Chicago/Cook county will be sold out in order to get "shall issue".
Based on the restrictions on carry in Chicago/Cook County, I was right.

...doing just enough to keep them out of Federal Court...

#36 xmikex

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Posted 05 April 2012 - 05:42 PM

Well, Looks like we're taking the scenic route... :headbang1:


No worries - this will just delay the inevitable.
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#37 Druid

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Posted 05 April 2012 - 06:10 PM

While holding that the lower Court’s dismissal of the 2-615 motion erred re part of our claims, the Court clearly stated that all our arguments in the amended Complaint shown at Count IV pertaining to 2nd Amendment rights were properly pleaded, and we get a second bite at the apple before the trial court. Since the Judge is now an appellate judge, we will have a new one appointed by the Chief Judge in Chancery.

#38 Federal Farmer

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Posted 05 April 2012 - 06:27 PM

While holding that the lower Court’s dismissal of the 2-615 motion erred re part of our claims, the Court clearly stated that all our arguments in the amended Complaint shown at Count IV pertaining to 2nd Amendment rights were properly pleaded, and we get a second bite at the apple before the trial court. Since the Judge is now an appellate judge, we will have a new one appointed by the Chief Judge in Chancery.


Peter Principle at work! So what exactly is the "second bite?"

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#39 Tvandermyde

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Posted 05 April 2012 - 07:10 PM

Every day in the fight I learn something new.

Today the Court returned Wilson v. Cook County to the trial court ruling that they court was wrong to dismiss the complaint without a hearing and taking evidence.

When this got to the Appellate Court, the Court took off on a long winded diatribe against the 2 Amendment. It then went to the Supreme Court where they sat on it awaiting the outcome of McDonald. Once delivered, they remanded back to the Appellate Court to try again. Again the Court took off on an anti-Second Amendment screed. That became the distraction.

The whole case was really about the 2-615 motion. But we didn't want to not brief the other possible issues. And then with the orals on Wilson, the Court dove into a look at the Second Amendment and some of the issues present by the case.

Justice Freeman's first question certainly set a tone and provided a false lead for where things might go. Only Justice Thies really stuck to the issue at hand. And she wrote the opinion which was joined by all the other judges, with no separate opinions.

At the time this case was started, Heller had not been accepted for cert. There was very little Second Amendment jurisprudence and hence the void for vagueness, due process and equal protection claims. Once Heller came out, the Appellate Court pivoted and tossed out the rabbit we all chased until today.

The fact is all of that was a dress rehearsal for what is about to come. Now we get to build a record of why the County is wrong and why we are right.

I think the Court did us a favor by tossing the vagueness part out. The Court said:

"When the Ordinance is read as a whole, reference to section 54-211(1) through

(6) would also put an individual on notice whether a particular

weapon is banned based on the specific characteristics of the weapon."

The single feature test of the ban scoops up a lot of guns. That makes the ban much broader than the Clinton gun ban. And easier to defeat at the end of the day.

I am told that some from the Cook County SA office watch this blog for comments and things I say so I won't go into a lot of detail at this point. But suffice it to say, we get to argue all the points. And I think that the Court over the past few months and with this decision has given us a road map to follow. A very well defined map of the issues at hand. And today was no exception to that.

I would also add that Justice Thies is what I would consider the worst possible draw for us on an opinion. And while she may have tipped her hand a bit, this was the best they could do. As a guess. Maybe I'm reading to much into it, but they didn't seem to have the votes it to drop kick up through the goal posts. And maybe some of the ones on our side of the issue, show more restraint.

But today we won. The Court refused to summarily dismiss a challenge to a semi-auto ban. They recognized a valid Second Amendment complaint existed. Cook sought to have this ruled on as a legitimate part of their legislative powers, which was not upheld. But they did live to fight another day.

The Court already tossed out rational basis. So now we will fight over the standard of review. We will fight over "in common use", "dangerous or unusual" as well has a host of other things. It is going to make for a very long record, which we know will end up back in front of the Illinois Supreme Court.

And based upon Chicago's handling of Ezell, and the Counties handling of Diggins, Holmes and Wilson, I know who has the better arguments and case to present.

As to the Wildlife Code and the preemption argument, I here there is some debate about that at the County. And now they will have to face it head on, with the real prospect, that it could gut their precious ban. I was a bit surprised that they did not address it, but they didn't have to. They decided on the 2-615 motion, agreed that there was a 2A challenge at hand and that was all the further they really need to go. They had dealt with the due process, equal protection and vagueness charges, thus laying out how they think the claims should proceed.

But they left it wide open for us to challenge and debate.
While a 9 mm or .40 caliber bullet may or may not expand, it is an undeniable fact that a .45 caliber bullet will never shrink.

#40 Drylok

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Posted 05 April 2012 - 08:34 PM

Todd are you going to be on Cam & Company tonight?
"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"
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#41 Tvandermyde

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Posted 05 April 2012 - 08:42 PM

nope still no voice to speak of
While a 9 mm or .40 caliber bullet may or may not expand, it is an undeniable fact that a .45 caliber bullet will never shrink.

#42 Davey

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Posted 05 April 2012 - 08:57 PM

[size="3"][font="Calibri"]The Court already tossed out rational basis. So now we will fight over the standard of review. We will fight over "in common use", "dangerous or unusual" as well has a host of other things.]



How do we prove in common use? Can we not just do some market research and come up with the number of semi auto AKs and ar15s that have been sold or shipped? I'm sure its well into the millions. How about showing the court three gun competitions and such? How much more sporting can one get than that?

#43 colt-45

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Posted 05 April 2012 - 09:01 PM

thanks for the up date Todd.

#44 Drylok

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Posted 05 April 2012 - 09:06 PM

nope still no voice to speak of


I asked Cam, he said he's having the attorney on.
"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-

Now two flags fly above my land that really sum up how I feel. One is the colors that fly high and proud the red, the white, the blue. The other ones got a rattle snake with a simple statement made, don't tread on me, is what it says and I'll take that to my grave
-Aaron Lewis-

#45 Uncle Harley

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Posted 05 April 2012 - 09:31 PM


[size="3"][font="Calibri"]The Court already tossed out rational basis. So now we will fight over the standard of review. We will fight over "in common use", "dangerous or unusual" as well has a host of other things.]



How do we prove in common use? Can we not just do some market research and come up with the number of semi auto AKs and ar15s that have been sold or shipped? I'm sure its well into the millions. How about showing the court three gun competitions and such? How much more sporting can one get than that?


almost every Walmart that sells firearms, carries AR's...............Doesn't get much more common than walmart does it????
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#46 TFC

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Posted 05 April 2012 - 10:06 PM

Between reps from the manufactures providing numbers and the umpteen shows about competitions using the AR families as well as hunting shows featuring AR uses, providing proof of common use should be very easy.

Very few so-called "assault weapons" are used in crimes, so says the FBI stats.

If the county were smart, they'd cut their losses and lose the ban.
~If you speak of a gun as a toy, then you see medical waste as playground filler. Yes, it means you're a screwed up individual.~
~"An invasion of mainland America is unwise. Behind every blade of grass a rifle would await us"
-Yamamoto Isoroku
I predicted that Chicago/Cook county will be sold out in order to get "shall issue".
Based on the restrictions on carry in Chicago/Cook County, I was right.

...doing just enough to keep them out of Federal Court...

#47 Tvandermyde

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Posted 05 April 2012 - 10:21 PM

We will have lots of things to show in common use, Illinois firearms manufactures data, and lots of them make ARs.

Take for instance Rock River's Coyote AR. designed for hunting. Why? cause they are popular. Look at Remington's AR line of camo guns.

WE will be looking at all kinds of stuff to prove up our point and in my opinion, overwhelm the Court with information. So much so they won't know what to do.
While a 9 mm or .40 caliber bullet may or may not expand, it is an undeniable fact that a .45 caliber bullet will never shrink.

#48 Howard Roark

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Posted 05 April 2012 - 10:58 PM

Our facts are 10,000% better than their facts. Narrowing the remand to just 2A is also a win for us. No side issues, just 1 clean 2A issue. I hate to wait, but waiting is sometimes good.
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#49 bob

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Posted 06 April 2012 - 05:51 AM

It will not be hard at all to show ARs and other semiautomatic firearms are in common use. Sales figures are easy to come by via manufacturers who are required to provide them to the BATFE. They may even be on line at their website. I have seen them for previous years somewhere.

I never bought into the vagueness argument. The law is expansive, deliberately so, but it is not especially vague as laws go. The argument seemed to be more that something might change along the way that could cause a "legal" gun to become "illegal". But it seemed to me the law was deliberately written that way.

This gives us a good shot at a 2A challenge. I expected they would just tell us to go pound sand on everything.
bob

Disclaimers: I am not a lawyer, cop, soldier, gunsmith, politician, plumber, electrician, or a professional practitioner of many of the other things I comment on in this forum.

The opinions expressed by this poster do not reflect the official stance of Illinois Carry. Apparently there was some confusion on the part of at least one person that it does, and I want to make things clear that my opinion is my own and that whatever the official stance of IC is or is not at present, it may or may not reflect my own opinion.

http://ilbob.blogspot.com/

#50 Yas

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Posted 06 April 2012 - 07:49 AM

Will common usage / availability come into play?

Heck Walmart is selling AR's. Is it worth discussing the general election election ballot referendum from Nov 2006 that started the whole fiasco?

 
“For the health and safety of children and the entire community, shall the State of Illinois enact a comprehensive ban on the manufacture, sale, delivery and possession of military-style assault weapons and .50 caliber rifles?”
 


The state never passed it, just Cook.

#51 ckm

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Posted 06 April 2012 - 08:58 AM

WE will be looking at all kinds of stuff to prove up our point and in my opinion, overwhelm the Court with information. So much so they won't know what to do.


<tongue-in-cheek>Now, now, Todd, you don't want to unnecessarily burden them with all that information: if they delay issuing a ruling because of information-overload, we'll be pointing the finger at you!</tongue-in-cheek>

As Howard said, we've got the facts (and law, via McDonald and Heller!) on our side, they just need to be clearly articulated and documented in the record, so our side can pound away on them. We'll let the other side pound the table, since that's all they'll have!
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#52 Tvandermyde

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Posted 06 April 2012 - 09:04 AM


WE will be looking at all kinds of stuff to prove up our point and in my opinion, overwhelm the Court with information. So much so they won't know what to do.


<tongue-in-cheek>Now, now, Todd, you don't want to unnecessarily burden them with all that information: if they delay issuing a ruling because of information-overload, we'll be pointing the finger at you!</tongue-in-cheek>

As Howard said, we've got the facts (and law, via McDonald and Heller!) on our side, they just need to be clearly articulated and documented in the record, so our side can pound away on them. We'll let the other side pound the table, since that's all they'll have!



Oh they can pound the table all right, if they can find the top of ot under all the stuff we produce. . .

We will make rational cogent arguements and back it up with real data. When a small time manufacturer can come in and say he has standing orders to his suppliers for parts for a 1000 ARs per month, they will have to take notice.
While a 9 mm or .40 caliber bullet may or may not expand, it is an undeniable fact that a .45 caliber bullet will never shrink.

#53 Jason4567

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Posted 06 April 2012 - 09:35 AM

So can we figure about another year or so until the lower court gets to it again? Also, will this probably go before the same judge? Just wondering...


I'm wondering that too. Anyone?

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#54 stm

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Posted 06 April 2012 - 09:36 AM

I really don't want to sound like Bob here, but I predict the mantra of the county will be "handgun in the home." And I suspect most judges from the NE corner of the state will buy that line.

[/Bob]

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


#55 Tvandermyde

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Posted 06 April 2012 - 09:57 AM

not worried about what the district judges buy. setting the record is for the Supreme Court. listen to the orals, read the decision.
While a 9 mm or .40 caliber bullet may or may not expand, it is an undeniable fact that a .45 caliber bullet will never shrink.

#56 NakPPI

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Posted 06 April 2012 - 11:23 AM

not worried about what the district judges buy. setting the record is for the Supreme Court. listen to the orals, read the decision.


The Court wants a 2A record so that it can make a 2A decision, rather than a procedural one.

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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.

#57 stm

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Posted 06 April 2012 - 11:34 AM

not worried about what the district judges buy. setting the record is for the Supreme Court. listen to the orals, read the decision.

Oh, I agree with you. I've read the decision, I need to listen to the orals, though. Don't get me wrong, I really appreciate all your hard work. It's just that the anti's are going to hammer away at the "handgun in the home" line and try to ignore the dicta from Heller and McDonald.

I'm confident we will ultimately succeed, but they won't make it easy on us. And as you said, it's not the district judges we need to worry about in the end.

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


#58 bob

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Posted 06 April 2012 - 04:13 PM


not worried about what the district judges buy. setting the record is for the Supreme Court. listen to the orals, read the decision.

Oh, I agree with you. I've read the decision, I need to listen to the orals, though. Don't get me wrong, I really appreciate all your hard work. It's just that the anti's are going to hammer away at the "handgun in the home" line and try to ignore the dicta from Heller and McDonald.

I'm confident we will ultimately succeed, but they won't make it easy on us. And as you said, it's not the district judges we need to worry about in the end.



the more they focus on "handgun in the home" the less they focus on the real issues. that is good for us. they can argue that the moon is made of green cheese too.

it seems to me that the IL SC wants to make a ruling on the 2A as it applies to IL. That is a whole lot better than them telling us to pound sand.

we have been waiting a long time, what's another year or two.
bob

Disclaimers: I am not a lawyer, cop, soldier, gunsmith, politician, plumber, electrician, or a professional practitioner of many of the other things I comment on in this forum.

The opinions expressed by this poster do not reflect the official stance of Illinois Carry. Apparently there was some confusion on the part of at least one person that it does, and I want to make things clear that my opinion is my own and that whatever the official stance of IC is or is not at present, it may or may not reflect my own opinion.

http://ilbob.blogspot.com/

#59 Druid

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Posted 06 April 2012 - 06:38 PM

Edited an earlier post of mine. Just added some clarity about the 2-615 motion and how it was brought by the State and the trial judge granted that motion.

#60 Federal Farmer

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Posted 07 April 2012 - 12:24 PM

Edited an earlier post of mine. Just added some clarity about the 2-615 motion and how it was brought by the State and the trial judge granted that motion.


I think I misread 'before the trial court' as 'prior to the trial court' but you meant 'in front of the trial court'.

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