Bevis v Naperville - AWB

[Flynn]

On 1/31/2023 at 1:40 PM, Upholder said:

 

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.

 

Yes, but if you allow numbers for one side it can be flipped and used by the other to argue the opposite, and they could say, that your WILE-15 made by ACME is not in common used, since it was a limited addition of 50, or that your home build a FU-15 is not in common use as you only made one.  Allowing numbers to define common use is a very slippery slope.

 

It's a term the courts are going to have to define sooner than later, and it's probably going to take another SCOTUS to help define it.

[Flynn]

limited 'edition' 🤣 and 'home built' autocorrect gets me all the time.

[Upholder]

On 1/31/2023 at 1:46 PM, Flynn said:

It's a term the courts are going to have to define sooner than later, and it's probably going to take another SCOTUS to help define it.

 

That SCOTUS case is Caetano v. Massachusetts which set the largest threshold for "common use" at 200k stun guns owned nationwide.

 

Later cases may well move that number lower or introduce other factors that can be considered for something to be deemed "in common use" when less than that number, but anything that exceeds 200k nationwide is already, by a test set forth by SCOTUS, in common use.

 

This is not my argument, this is what the SCOTUS has already ruled.

[Upholder]

From Caetano:

Quote

As the foregoing makes clear, the pertinent Second Amendment inquiry is whether stun guns are commonly possessed by law-abiding citizens for lawful purposes today . The Supreme Judicial Court offered only a cursory discussion of that question, noting that the " ‘number of Tasers and stun guns is dwarfed by the number of firearms.’ " 470 Mass., at 781, 26 N.E.3d, at 693. This observation may be true, but it is beside the point. Otherwise, a State would be free to ban all weapons except handguns, because "handguns are the most popular weapon chosen by Americans for self-defense in the home." Heller, supra, at 629, 128 S.Ct. 2783.

The more relevant statistic is that "[h]undreds of thousands of Tasers and stun guns have been sold to private citizens," who it appears may lawfully possess them in 45 States. People v. Yanna, 297 Mich.App. 137, 144, 824 N.W.2d 241, 245 (2012)

 

[Flynn]

On 1/31/2023 at 3:41 PM, Upholder said:

 

That SCOTUS case is Caetano v. Massachusetts which set the largest threshold for "common use" at 200k stun guns owned nationwide.

 

Later cases may well move that number lower or introduce other factors that can be considered for something to be deemed "in common use" when less than that number, but anything that exceeds 200k nationwide is already, by a test set forth by SCOTUS, in common use.

 

This is not my argument, this is what the SCOTUS has already ruled.

 

I would argue Yanna/Caetano establish that number as a baseline qualifier of what is in common use, instead they stated that the 2nd is not limited and applicable to only the most popular 2nd choice(s) for self defense, they only used that "Hunderds of thousands" as a frame of context to that specific case to show they were not some obscure item, and they proceeded on to show that based on the fact they were lawfully used for self defence as an entire 'class' of similar arms and not some one off obscure arm.  Note they did no limit it to type or model, like the antis are trying to do, they lumped the entire 'class' of stun/tazers into one single 'class' much like pistols, rifles, shotguns, swords, knives and so one should also be single 'classes' of similar protected arms.  They went on to elaborate that "The prosecution fails to put forth evidence that would give the Court reason to doubt that the vast majority of tasers and stun guns are possessed by law-abiding citizens for lawful purposes." and I believe that is the more relavant standard of 'common use' set by that/those courts, as it sets these lawfully used arms into a class distinct from those that may be dangerous and unusual and are almost entirely used for criminal purposes.

[Upholder]

 

[Euler]

On February 16, Herrera filed a motion to consolidate Herrera v Raoul and Bevis v Naperville into Goldman v Highland Park and to reassign to the court in Bevis. Bevis and Goldman concur.

 

Edited February 17, 2023 at 03:49 AM by Euler

[Tvandermyde]

today the Judge denied the TRO and injunction in the Naperville case 

 

She bought all the anti-gun bullpuckey hook, line and sinker, remember this is the judge that ruled against us in Ezell at the district court level

 

more as I get it I'm gonna cut a video tonight

[apex84]

Saw this on Twitter.

 

https://storage.courtlistener.com/recap/gov.uscourts.ilnd.418943/gov.uscourts.ilnd.418943.63.0.pdf

 

From here:

 

[Euler]

  

On 2/17/2023 at 8:24 PM, steveTA84 said:

The judge’s ruling LOFL. My god....rubber bands were a factor in their order 

 

 

Bevis can appeal the decision for a TRO. Sadly, appeals cannot contest the facts on which a lower court decided a ruling, even if they're wrong. They can only contest the interpretation of the law.

[MrTriple]

I still don't think this will matter at the end of the day, I still think the Harrel case is the big one, not Bevis.

 

Bevis will likely continue to get drawn out, while Harrel gets a TRO/Preliminary Injunction rather quickly*, followed by a ruling a few months later, followed by a (predictable) appeal by the state to the Seventh Circuit.

 

*Granted, there's the question of whether the state can appeal the TRO. If they can/do, what happens next depends on whether or not the Seventh Circuit rules for or against the state in the matter. Regardless of what happens on that front, it'll all likely happen far more quickly than anything in Bevis.

 

In fact, I half-jokingly wonder if Bevis will still be stuck in limbo even after the predictable appeal of Harrel to the Seventh Circuit.

Edited February 18, 2023 at 02:22 AM by MrTriple

[MrTriple]

On 2/17/2023 at 8:22 PM, MrTriple said:

I still don't think this will matter at the end of the day, I still think the Harrel case is the big one, not Bevis.

 

Bevis will likely continue to get drawn out, while Harrel gets a TRO/Preliminary Injunction rather quickly*, followed by a ruling a few months later, followed by a (predictable) appeal by the state to the Seventh Circuit.

 

*Granted, there's the question of whether the state can appeal the TRO. If they can/do, what happens next depends on whether or not the Seventh Circuit rules for or against the state in the matter. Regardless of what happens on that front, it'll all likely happen far more quickly than anything in Bevis.

 

In fact, I half-jokingly wonder if Bevis will still be stuck in limbo even after the predictable appeal of Harrel to the Seventh Circuit.

I also wonder whether the plaintiffs can or should appeal the denial of the TRO or simply wait for Harrel. Guess it depends on whether they get a good slate of judges on the appellate panel. Might just be faster to let this one slide and wait for the other case to move forward.

[MRE]

On 2/17/2023 at 8:13 PM, Euler said:

  

 

Bevis can appeal the decision for a TRO. Sadly, appeals cannot contest the facts on which a lower court decided a ruling, even if they're wrong. They can only contest the interpretation of the law.

That’s true, but her interpretation of the law and the Bruen test seems to completely ignore half of the test. It’s not an “or” it’s an “and”, meaning just the fact that it’s “dangerous” isn’t enough. She completely twists what the Supreme Court said. Common use for lawful purposes. 
 

But I would’ve been shocked if this Judge ruled otherwise. I fully expect judge McGlynn to find the other way in the Southern District.

Edited February 18, 2023 at 02:29 AM by MRE

[Dumak_from_arfcom]

 

I warned about this same thing in another thread discussing our side using statistics that show 50 cal is not used in crime.  

 

Our side shouldn't be using crime statistics to argue whether guns are dangerous or not because that is playing right into the anti-gunner strategy. This judge did exactly what I suspected they were going to do.  They are trying to make "dangerous" the new interest balancing and they are using crime statistics to show semi-autos are more dangerous than other guns.

 

This is why I keep bringing up that our side cannot fall into that trap.  

I think this judge would have found any way possible to rule against us.  But this judge just showed their full strategy that will be used in addition to interest balancing.  They are going to twist the historic test to any law that restricts any weapon (not just firearms) from any time period that supports their side.  

[Dumak_from_arfcom]

On 2/17/2023 at 8:29 PM, MRE said:

That’s true, but her interpretation of the law and the Bruen test seems to completely ignore half of the test. It’s not an “or” it’s an “and”, meaning just the fact that it’s “dangerous” isn’t enough. She completely twists what the Supreme Court said. Common use for lawful purposes. 
 

But I would’ve been shocked if this Judge ruled otherwise. I fully expect judge McGlynn to find the other way in the Southern District.

The judge incorrectly interpreted the Bruen decision by applying interest balancing and that not being able to purchase a weapon is different than banning ownership.  If you can't buy one or transfer one, how does someone obtain a semi-auto rifle?

 

 

Edited February 18, 2023 at 04:41 AM by Dumak_from_arfcom

[MrTriple]

On 2/17/2023 at 10:35 PM, Dumak_from_arfcom said:

 

I warned about this same thing in another thread discussing our side using statistics that show 50 cal is not used in crime.  

 

Our side shouldn't be using crime statistics to argue whether guns are dangerous or not because that is playing right into the anti-gunner strategy. This judge did exactly what I suspected they were going to do.  They are trying to make "dangerous" the new interest balancing and they are using crime statistics to show semi-autos are more dangerous than other guns.

 

This is why I keep bringing up that our side cannot fall into that trap.  

I think this judge would have found any way possible to rule against us.  But this judge just showed their full strategy that will be used in addition to interest balancing.  They are going to twist the historic test to any law that restricts any weapon (not just firearms) from any time period that supports their side.  

While I agree with you in principle, I think this judge will prove to be an outlier.

 

And I would again argue that the really important case is (and will prove to be) Harrel, not Bevis. I wouldn't be surprised if the latter languishes in limbo for months without any action while the former results in a quick preliminary injunction and (potentially) a permanent injunction long before anything ever happens in Bevis. From there the state would appeal to the Seventh Circuit where Bevis (again, potentially) continues to languish. Maybe not, but I think that this decision, while unfortunate, will prove to be a sideshow to the main attraction.

[MrTriple]

On 2/17/2023 at 10:42 PM, MrTriple said:

While I agree with you in principle, I think this judge will prove to be an outlier.

 

And I would again argue that the really important case is (and will prove to be) Harrel, not Bevis. I wouldn't be surprised if the latter languishes in limbo for months without any action while the former results in a quick preliminary injunction and (potentially) a permanent injunction long before anything ever happens in Bevis. From there the state would appeal to the Seventh Circuit where Bevis (again, potentially) continues to languish. Maybe not, but I think that this decision, while unfortunate, will prove to be a sideshow to the main attraction.

Also, if there's a preliminary injunction in Harrel as I'm thinking there will be, the state will have no choice but to focus all of their attention (or most of it) on that case. Bevis will presumably continue to sit there gathering dust, while Illinois will probably try appealing the injunction and/or mounting a fight over that case instead. Same for the state cases barring quick action at the State Supreme Court.

 

Granted that will also depend on whether or not the plaintiffs appeal the denial of a TRO in Bevis, but that remains to be seen. I just don't think Bevis is as important.

Edited February 18, 2023 at 04:53 AM by MrTriple

[Dumak_from_arfcom]

On 2/17/2023 at 10:42 PM, MrTriple said:

While I agree with you in principle, I think this judge will prove to be an outlier.

 

It isn't who gets the votes, it is who counts the votes.   

The SCOTUS clearly laid out the new test. This judge completely ignored half of it, and twisted the rest of it.   Leftist judges have a giant lack of respect for the current Supreme Court.   

[MrTriple]

On 2/17/2023 at 10:53 PM, Dumak_from_arfcom said:

It isn't who gets the votes, it is who counts the votes.   

The SCOTUS clearly laid out the new test. This judge completely ignored half of it, and twisted the rest of it.   Leftist judges have a giant lack of respect for the current Supreme Court.   

Still, this decision will be subject to either of the following:

 

-An appeal to a higher court (either on the merits, over the denial of an injunction, or both), or:

-A remand order in the event that another case is appealed to/ruled upon by a higher court before Bevis.

 

If Harrel is injuncted, then the state will appeal that injunction. That would be a greater (and more immediate) concern for the state (and would sidestep the nonsense in Bevis) as a cheap win there does them no good if they are barred from enforcing the law because of Harrel.

 

I agree that the judge's logic is legally flawed, but we also have to consider the timeline of each case.

Edited February 18, 2023 at 05:19 AM by MrTriple

[Dumak_from_arfcom]

 

One more thing from me tonight... 

I was listening to Todd's video on this, and I got the impression that the judge's opinion looked to be making a point that because modern semi-autos weren't around at the time the Constitution was ratified they can't be applied to a historical test from that time period, so she looked to much much later laws that covered semi-autos as a valid historical test. 

Anyone else get that impression?  

 

  

[2A4Cook]

Just what the heck would anyone expect from a "judge" foisted upon us by Durbin and Obama???  Gee, what a surprise -- yet another left wing political activist in black robes.  

[Euler]

Judge at District Court, N.D. Illinois (January 3, 2006 – Present)

Appointed By: George W. Bush

Selected By: Appointment (President) on Sept. 28, 2005

Judicial Committee Action Date: Nov. 17, 2005

Nomination Hearing Date: Nov. 15, 2005

Confirmation Date: Dec. 21, 2005

Vote Info: Senate voted by voice vote

[Dumak_from_arfcom]

On 2/18/2023 at 12:18 AM, Euler said:

Judge at District Court, N.D. Illinois (January 3, 2006 – Present)

Appointed By: George W. Bush

Selected By: Appointment (President) on Sept. 28, 2005

Judicial Committee Action Date: Nov. 17, 2005

Nomination Hearing Date: Nov. 15, 2005

Confirmation Date: Dec. 21, 2005

Vote Info: Senate voted by voice vote

GWB nominated some horrible judges.  

This judge was part of that Fed run program... project safe neighborhoods which is anti-gun focused.  It is even worse now, it is all about promoting equity/social justice, ending gun violence without putting offenders in jail. 

[Craigcr2]

On 2/17/2023 at 8:28 PM, MrTriple said:

I also wonder whether the plaintiffs can or should appeal the denial of the TRO or simply wait for Harrel. Guess it depends on whether they get a good slate of judges on the appellate panel. Might just be faster to let this one slide and wait for the other case to move forward.

A pretty common theme/error that I’ve noticed in the early reporting on this one is that she denied the TRO. In reality she denied the TRO & MPI; denial of the MPI can be appealed.
 

Bevis is very likely to get to the 7th first unless the SD cases move along to a PI and the appeals move with incredible speed. 

[2A4Cook]

On 2/18/2023 at 12:18 AM, Euler said:

Judge at District Court, N.D. Illinois (January 3, 2006 – Present)

Appointed By: George W. Bush

Selected By: Appointment (President) on Sept. 28, 2005

Judicial Committee Action Date: Nov. 17, 2005

Nomination Hearing Date: Nov. 15, 2005

Confirmation Date: Dec. 21, 2005

Vote Info: Senate voted by voice vote

This was back when politics ln Washington were "polite."  The POTUS generally would take the recommendation of the senior senator or both senators of the situs state.  In her case, she was picked by the Dumbnatic Duo of Durbin and Obama.  They even put out a joint presser to gloat about her appointment.

[THE KING]

 

[mab22]

On 2/18/2023 at 6:33 AM, Craigcr2 said:

A pretty common theme/error that I’ve noticed in the early reporting on this one is that she denied the TRO. In reality she denied the TRO & MPI; denial of the MPI can be appealed.
 

Bevis is very likely to get to the 7th first unless the SD cases move along to a PI and the appeals move with incredible speed. 

Might want to realize that not all of us following along know all the abbreviations. 
TRO Temp restraining order.

SD?
PI Preliminary Injunction 

MPI?

 

[Euler]

On 2/18/2023 at 10:57 PM, mab22 said:

Might want to realize that not all of us following along know all the abbreviations. 
TRO Temp restraining order.

SD?
PI Preliminary Injunction 

MPI?

 

Southern District (of Illinois)

Motion for Preliminary Injunction

[mab22]

On 2/18/2023 at 10:00 PM, Euler said:

 

Southern District (of Illinois)

Motion for Preliminary Injunction

Thank you!
 

[fxdpntc]

On 2/18/2023 at 12:18 AM, Euler said:

Judge at District Court, N.D. Illinois (January 3, 2006 – Present)

Appointed By: George W. Bush

Selected By: Appointment (President) on Sept. 28, 2005

Judicial Committee Action Date: Nov. 17, 2005

Nomination Hearing Date: Nov. 15, 2005

Confirmation Date: Dec. 21, 2005

Vote Info: Senate voted by voice vote

Reminded me of the Harriet Miers fiasco, which turned into Alito.