Bevis v Naperville - AWB

[mab22]

Does it matter if there is a temporary restraining order or not in the new AWB law, or does the judge just toss it out because of the new AWB law?
 

[Euler]

On 1/12/2023 at 11:16 PM, mab22 said:

Does it matter if there is a temporary restraining order or not in the new AWB law, or does the judge just toss it out because of the new AWB law?

 

A restraining order on either the state law or the municipal law won't affect the other law. Since the state law supersedes the municipal law, there's a strong argument to moot the suit against the city, but the argument still has to be made. It won't "just" happen.

 

There's also an argument to keep the suit in play. If the state law gets enjoined (or even restrained), the city could still choose to enforce the municipal law, so mooting the suit against the city now could be premature.

[Flynn]

On 1/12/2023 at 10:40 PM, Euler said:

There's also an argument to keep the suit in play. If the state law gets enjoined (or even restrained), the city could still choose to enforce the municipal law, so mooting the suit against the city now could be premature.

 

Since it's a civil rights issue, I would hope the Judge does that anything less would be a legal travesty.

[Upholder]

Motion to amend the complaint: https://storage.courtlistener.com/recap/gov.uscourts.ilnd.418943/gov.uscourts.ilnd.418943.41.0.pdf

[Upholder]

This motion is where they intend to expand the case to include PA 102-1116 (HB5471).

[Upholder]

Naperville has moved to consolidate this case with Viramontes v. Cook County :

 

https://storage.courtlistener.com/recap/gov.uscourts.ilnd.406666/gov.uscourts.ilnd.406666.65.0.pdf

[Upholder]

First amended and supplemented complaint filed:

 

https://storage.courtlistener.com/recap/gov.uscourts.ilnd.418943/gov.uscourts.ilnd.418943.48.0.pdf

[Upholder]

Motion for TRO and Preliminary Injunction filed:

 

https://storage.courtlistener.com/recap/gov.uscourts.ilnd.418943/gov.uscourts.ilnd.418943.50.0.pdf

[Upholder]

[Upholder]

[illinois_buckeye]

Hopefully they keep with that line of thinking.  Looks like according to the judge it’sa pretty cut and dry case.  Hopefully that will extend to the entire state also.

[cbunt32]

Response in opposition of TRO is basically Bruen did not abrogate Friedman v Highland Park. Court should focus on Friedman, not Bruen. But if the Court wants to focus on Bruen, it only protects arms in common use, not common ownership. Ownership does not equal use.

 

gov.uscourts.ilnd.418943.57.0.pdf

[Matt B]

On 1/31/2023 at 11:27 AM, cbunt32 said:

Response in opposition of TRO is basically Bruen did not abrogate Friedman v Highland Park. Court should focus on Friedman, not Bruen. But if the Court wants to focus on Bruen, it only protects arms in common use, not common ownership. Ownership does not equal use.

 

gov.uscourts.ilnd.418943.57.0.pdf 311.94 kB · 8 downloads

This is such a silly stance. If you have smoke detectors in your home, you are using smoke detectors to protect your home. It doesn’t matter if a fire actually ever happens to trigger those alarms. Same with firearms. Should be easy to counter this argument.

[Upholder]

 

 

I've seen quoted a number of times that there is no State interest in enforcing an unconstitutional law.. but here we are.

[Upholder]

Quote

However, under Rule 5.1, “the attorney general may intervene
within 60 days after the notice is filed or after the court certifies the challenge, whichever is
earlier.” Therefore, the Illinois attorney general has 60 days from January 24, 2023 (March 25,
2023) to intervene in this litigation. Until Rule 5.1 is fully satisfied, litigation attacking
HB5471—including litigation on this motion—is improperly before the court

 

So, they claim that you have to wait a minimum of 60 days of your rights being violated before you can redress the courts for relief.

[Upholder]

Quote

Even if the Court finds
Bruen does affect this analysis, HB5471 survives under the text-and-history standard established
by the Bruen court. Plaintiffs cite no case that confers a constitutional right to sell or even own
assault weapons like those contemplated in the State law. Plaintiffs cannot succeed on the merits
and their Motion should be denied.

 

 

They've got the test completely backwards -- the plaintiffs do not need to show that the right is protected by caselaw, the government must show that the Text, History, and Tradition at the time of the founding has at least an analogue to the restrictions they have put into law.

[Upholder]

Quote

The Friedman holding is fatal to Plaintiffs’ claim. Plaintiffs
do not confront that the Friedman Court conducted a similar historical analysis as the one Plaintiffs
demanded, but reached the opposite conclusion. See generally Dkt. 50. Applying Heller, the
Seventh Circuit queried whether (1) the banned weapons were “common at the time of ratification
[of the Second Amendment] or those that have ‘some reasonable relationship to the preservation
or efficiency of a well-regulated militia,’” and (2) whether “law-abiding citizens retain adequate
means of self-defense.” Id. at 410 (quoting Heller, 544 U.S. at 622–25).4 Bruen has not abrogated
Friedman because Friedman did not apply the means-end test Bruen held was inconsistent with
Heller. See Bruen, 142 S. Ct. at 2129, (“[T]he Courts of Appeals’ second step is inconsistent with
Heller’s historical approach and its rejection of means-end scrutiny.”). Instead of applying the
means-end test, Friedman rooted its analysis in Heller. See Friedman, 784 F.3d at 410 (declining

to “decide what level of scrutiny applies”).

(emphasis added)

 

Limiting the scope of common use to the time of ratification is improper as show by Caetano, among others.

 

As I recall, and correct me if I'm wrong, Friedman allowed the Highland Park ban to stand because it let people FEEL SAFER, without calling it a particular level of scrutiny...

[cbunt32]

On 1/31/2023 at 12:14 PM, Matt B said:

This is such a silly stance. If you have smoke detectors in your home, you are using smoke detectors to protect your home. It doesn’t matter if a fire actually ever happens to trigger those alarms. Same with firearms. Should be easy to counter this argument.

I agree it should be easy. My AR has been used for home defense for a decade but I haven't fired a shot outside of a range. Shouldn't have to win a gunfight to prove what you are using your gun for.

[Upholder]

Quote

According to the plain term of the Supreme Court’s
Second Amendment precedents, the test for Second Amendment protection of a particular weapon

is common use, not common ownership.6

 

[...]

6 The Second Amendment protects only those weapons that are “‘in common use at the time’ for lawful purposes
like self-defense.” Heller, 554 U.S. at 624 (emphasis added) (quoting United States v. Miller, 307 U.S. 174, 179
(1939)); see also Bruen, 142 S. Ct. at 2134 (referencing whether the subject “weapons [are] ‘in common use’ today
for self-defense” (quoting Heller, 554 U.S. at 627)). This “important limitation on the right to keep and carry arms,”
recognized in Heller, remains a critical limitation on the Second Amendment following Bruen. See id. at 2162
(Kavanaugh, J., concurring).

 

Their own footnote doesn't support the argument they're making, let alone the verbage used in Caetano which is very explicit that 200k stun guns owned nationwide was sufficient to demonstrate that they are in common use.

 

[MrTriple]

On 1/31/2023 at 11:27 AM, cbunt32 said:

Response in opposition of TRO is basically Bruen did not abrogate Friedman v Highland Park. Court should focus on Friedman, not Bruen. But if the Court wants to focus on Bruen, it only protects arms in common use, not common ownership. Ownership does not equal use.

 

gov.uscourts.ilnd.418943.57.0.pdf 311.94 kB · 7 downloads

Predictable, but it's all they have. Maryland tried the "use does not mean ownership" trick in court but the judges really pushed back on it.

[Upholder]

Quote

Plaintiffs have similarly not demonstrated that assault weapons are not “dangerous [or]
unusual,” ignoring entirely the “dangerous” component of this test. On the other hand, evidence
exists that assault weapons, including those contemplated by HB5471, are highly dangerous and
used to commit mass murder all too often.

 

They once again try and substitute "[or]" in the place of "and", deliberately misquoting the rulings in Heller and Bruen.  And then they go off into interest balancing again.

 

[Upholder]

Quote

Thus, even
if Plaintiffs could meet their burden that limitations on the commercial sale of assault rifles is
governed by the text of the Second Amendment, HB5471 would still be constitutionally valid
because its prohibition is consistent with the Nation’s tradition of regulating “dangerous [or]
unusual weapons.” Bruen, 142 S. Ct. at 2128 (quoting Heller, 554 U.S. at 627).

 

[Upholder]

My personal opinion is that, as an officer of the court, the Lawyer who put his name on a motion that deliberately misrepresents the rulings in Bruen and Heller five times in this instance.. should be brought before the Bar and disciplined.

[Dumak_from_arfcom]

On 1/31/2023 at 12:26 PM, Upholder said:

 

 

They've got the test completely backwards -- the plaintiffs do not need to show that the right is protected by caselaw, the government must show that the Text, History, and Tradition at the time of the founding has at least an analogue to the restrictions they have put into law.

Wow...  I'd say I'm shocked, but not really.  What is interesting is how they are going after the Bruen decision.  I think it is clear they know they are going to lose, but I think their goal is to narrow the scope of Bruen so they can peck away at it in future cases.
 

 

On 1/31/2023 at 12:21 PM, Upholder said:

 

 

I've seen quoted a number of times that there is no State interest in enforcing an unconstitutional law.. but here we are.

 

This one can be read as...  Even if Bruen, we still should get to interest balance because States have the power to regulate behavior.    
 

[MrTriple]

On 1/31/2023 at 12:44 PM, Dumak_from_arfcom said:

Wow...  I'd say I'm shocked, but not really.  What is interesting is how they are going after the Bruen decision.  I think it is clear they know they are going to lose, but I think their goal is to narrow the scope of Bruen so they can peck away at it in future cases.

That could be the case, but I suspect it's simply a matter of using whatever arguments they can. They can't argue from Bruen so they have to find creative ways around the ruling.

[cbunt32]

On 1/31/2023 at 12:30 PM, Upholder said:

(emphasis added)

 

Limiting the scope of common use to the time of ratification is improper as show by Caetano, among others.

 

As I recall, and correct me if I'm wrong, Friedman allowed the Highland Park ban to stand because it let people FEEL SAFER, without calling it a particular level of scrutiny...

I believe you are correct. I think the court looked at whether assault weapons were in common use in 1791 (can't do that per Caetano) and whether citizens have other means of self defense (again...Caetano). Add Heller, Bruen, and other cases in to the discussion and the whole thing is nonsense. 

 

But this started out as a suit against Naperville and shifted to a suit against the State AWB. That might be enough for the judge to punt on the TRO issue.

[Craigcr2]

On 1/31/2023 at 12:39 PM, Upholder said:

My personal opinion is that, as an officer of the court, the Lawyer who put his name on a motion that deliberately misrepresents the rulings in Bruen and Heller five times in this instance.. should be brought before the Bar and disciplined.

This judge has already threatened the city's attorney with sanctions over less significant issue. I wouldn't put anything past her if she believes that there are deliberate misrepresentations. 

 

https://www.courtlistener.com/docket/64952499/33/bevis-v-city-of-naperville-illinois/  

[MrTriple]

On 1/31/2023 at 12:53 PM, cbunt32 said:

I believe you are correct. I think the court looked at whether assault weapons were in common use in 1791 (can't do that per Caetano) and whether citizens have other means of self defense (again...Caetano). Add Heller, Bruen, and other cases in to the discussion and the whole thing is nonsense. 

 

But this started out as a suit against Naperville and shifted to a suit against the State AWB. That might be enough for the judge to punt on the TRO issue.

Could the case be held pending a decision in Harrel?

[Flynn]

On 1/31/2023 at 12:34 PM, Upholder said:

 

Their own footnote doesn't support the argument they're making, let alone the verbage used in Caetano which is very explicit that 200k stun guns owned nationwide was sufficient to demonstrate that they are in common use.

 

 

I would argue all day long that common use should never be defined by a number!  In a town of 50 people the arms commonly used for self defense could be 50 entirely different arms, or it could be 10 different arms, defining common use based on numbers is flawed, especially when previous unconstitutional laws influenced what people were allowed to choose from.

 

IMO at most it should be defined as an entire class of what is available, I never fully agreed with Miller as sawed off shotguns were in common use, just like pistols are common use, rifles are common use, shotguns are common use, even destructive devices are common use, cannons are common use and so on.

 

I believe the test for what is covered by the 2nd should simply be "Is it an arm as commonly defined"

Edited January 31, 2023 at 07:41 PM by Flynn

[Upholder]

On 1/31/2023 at 1:37 PM, Flynn said:

I would argue all day long that common use should never be defined by a number! 

 

I would argue that a number should not be the only way to be able to show common use, but it is a clearly objective thing that can be measured and therefore a useful way to show common use, and thus very hard to argue that something is "unusual" when there's more AR platform rifles owned by the general public than F-150 pickup trucks, for example.