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Langley et al v Kelly - IL Gun/Magazine Ban - Thomas Maag Attorney


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On 2/10/2023 at 1:14 AM, Dumak_from_arfcom said:

 

Need more info.  Did the plaintiffs actually introduce that into the case, or was it in response to an argument from the defense?   If so, this is what I was afraid of - we don't need to introduce or even engage in an interest balancing argument. 

 

If the plaintiffs state that 50bmg is not being used in crimes, then the state will argue that semi-autos were used in all of these other crimes and mass shootings. 

We just have to argue that they are not dangerous and unusual. 

 

 

 

 

I hate to point this out because I don't think it should be banned either, rather I'm going to play devil's advocate here and throw some arguments that very well might be presented over this:

 

But I'm afraid to say that I'm not sure the .50BMG round passes the dangerous and unusual test.  Ownership of .50BMG I'm certain to say is very rare among gun owners and arguably so for many reasons such as cost, intended purpose, and ability to handle the power of the cartridge.  It's always been rare, too.

 

The cartridge was originally created to take down planes, not stop people.  Even today a primary use in the military (at least not involving use in the M2 machine gun) is to disable vehicles.  For civilian use that'd be hard to justify as a lawful purpose...

 

As for self defense I'm not sure you can justify it being practical for defending home and property either--as really the only justification for it's use beyond taking out a vehicle, is really long distance shots above the alternatives, and that far exceeds what I think you can justify for self defense.  As for long distance shots,  it's a REALLY long distance and numerous cartridges that are still legal in IL (in the context of the new ban itself)  exist that are actually better for even this purpose, too.  As for the dangerousness of it: no body armor exists that will stop it and even if it did the impact would still likely kill the person.  Also honestly I'm not sure I would know many people that could even physically shoot it, safely.

 

Yes the argument can still be made to qualify the test to keep it legal, but I think the counter points outweigh it...

 

That and machine guns are two aspects that I think wouldn't stand up to Bruen. 

 

All the other restrictions though are doomed in light of Bruen.  

 

 

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.50 ammo has been common in civilian possession for years.  heck, we used to play with the stuff as a kid, I remember going to gun shows, and seing live .50BMG rounds used in trigger guards to hold long guns at an angle on the table.  50 BMG has been in sporting use since the 1930s, Hatcher, in his famous notebook, commented on the practice of rebarreling WWI Mauser I Gewehr's with .50 BMG barrels.  I've been shooting .50 BMG since college, and have been to several long range target shoots with them.  I can also say they are LESS DANGEROUS than a run on the mill 9mm pistol.  My uncle was shot 7 times with one by the Chinese in Korea, and basically died of old age 50 years later.  Hardly a magic death ray.  The gun is also usefull for committing street crime, as it weighs so much.  A .50 bMG is basically a modern rampart gun.  rampart guns, to my knowledge, were never regulated in the past.

 

The only real danger from one, is shooting it without hearing protection.

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Based on the high-water mark set by Caetano of 200k stun guns lawfully owned nationwide being common use, I wonder how many Desert Eagles have been sold over the years,  I suspect it's at least a significant percentage of that 200k with just that one model of firearm, let alone the various .50BMG rifles such as the Barrett...

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On 2/10/2023 at 2:55 PM, Upholder said:

Based on the high-water mark set by Caetano of 200k stun guns lawfully owned nationwide being common use, I wonder how many Desert Eagles have been sold over the years,  I suspect it's at least a significant percentage of that 200k with just that one model of firearm, let alone the various .50BMG rifles such as the Barrett...


+1

That is the correct way to argue 50 cal without going into interest balancing.     All the states have left are racist historical laws, twisting opinions from dangerous and unusual into dangerous or unusual, and trying to get the courts to continue to interest balance safety vs freedom.  

 

The problem with introducing the argument that 50 cal isn't dangerous because it wasn't used in any crime is the state will argue that semi-autos are used in the vast majority of gun crimes. They just opened the door to an interest balancing argument. 



 

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At some point the "unusual" test will have to be addressed because, in the development of firearms through history, each has been unusual until it became common.  When introduced, trap doors were novel compared to muzzle loaders.  Bolt actions, lever actions, revolvers, semi-autos were each unusual both in the sense of being different than what came before, and in the sense of not being commonly owned until they were readily available in the market and people purchased them.

 

If "unusual" equated to "prohibited" in our firearm tradition, no advancement in firearm design could ever have taken place.  We know that is not the case.  It is a circular argument that they now can prohibit unusual weapons that are unusual only because they are prohibited.

 

 

 

 

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Of course, it's not both directions where things that are not both "dangerous and unusual" can be always be banned.  It's a one-way ratchet where if it is in common use, it cannot be unusual and thus cannot be banned as being both "dangerous and usual."

 

If it is not in common use, it still might not be banable as the text, history, and tradition test would need to be applied to anything that constituted a bearable arm.

 

Common use is by no means the only test, but it is one that is very easily applied and is insurmountable by those that want to ban things.

 

 

Edited by Upholder
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On 2/10/2023 at 3:32 PM, Upholder said:

Of course, it's not both directions where things that are not both "dangerous and unusual" can be always be banned.  It's a one-way ratchet where if it is in common use, it cannot be unusual and thus cannot be banned as being both "dangerous and usual."

 

If it is not in common use, it still might not be banable as the text, history, and tradition test would need to be applied to anything that constituted a bearable arm.

 

Common use is by no means the only test, but it is one that is very easily applied and is insurmountable by those that want to ban things.

 

 


My point is, back when the lawsuits were initially being discussed I commented on how the state was going to try to keep interest balancing as a test, and that the lawyers on our side should not allow the argument or make a mistake and get into an interest balancing argument before the court.  Now that our side has introduced interest balancing the state can make the counter argument that semi-autos are dangerous because they are used in the vast majority of gun crimes. 

IANAL, but I think it was clearly a mistake by our side.  If I can see it, I bet the anti-gun lawyers can see it.  


 

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The only thing the plaintiffs have done is submit evidence. They're not making an argument or reintroducing interest balancing.

 

When you watch TV or movies of a courtroom scene, where one side or the other says "I'd like to submit this evidence as Exhibit #XXX," that's crap. Not only does that never happen, but it's not allowed to happen. It's dramatic, but it's fiction. (You know TV and movies aren't real, right?)

 

Neither side gets to submit evidence during trial. All evidence must be submitted before trial (or arguments), then screened through evidentiary hearings, before the trial ever begins. Step one is submitting the evidence.

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Well I can tell you that in most cases, the lawyer does offer various evidence such as documents, physical objects and deposition transcripts into evidence.  The other side makes any objections and then the court rules on whether to admit the document or other item into evidence.   Sometimes evidentiary objections are dealt with before trial or are dealt with one at a time as they come up at trial or in motions when there is a jury.  Sometimes they are left to the end of trial when it is a bench trial. Anything that is not accepted into evidence cannot be used in an appeal.  However, just because you put something into evidence does not mean that you actually made an argument to the court or jury using that item of evidence.,  You do have to be careful here since once you get something into evidence, the other side can use it in its argument just as well as you can.  This often happens with documents where there are good and bad things for both sides in a document.  There are often objections to evidence offered in preliminary injunction motions and summary judgement motions.  For the most part, when the judge is making the final decision on the case, decisions on evidence may be left to the very end since the judge understands the rules on what he can consider as evidence and what cannot be considered.  You will sometimes get a ruling on summary judgement or the ruling after trial and evidentiary decisions will come along with that decision.

Edited by gunuser17
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On 2/10/2023 at 2:18 PM, hceuterpe said:

The cartridge was originally created to take down planes, not stop people.  Even today a primary use in the military (at least not involving use in the M2 machine gun) is to disable vehicles.  For civilian use that'd be hard to justify as a lawful purpose...

 

As for self defense I'm not sure you can justify it being practical for defending home and property either--as really the only justification for it's use beyond taking out a vehicle, is really long distance shots above the alternatives, and that far exceeds what I think you can justify for self defense. 

The request/need for the cartridge was influenced by other anti-armor rounds and went on to be used for anti aircraft purposes over time.  Thousands of firearms chambered for it have been in play since WWI and— with more than 100 years of availability— it is not consistently used by criminals.  50 BMG rifles are in the arsenals of many police departments and since the police don’t start/fight wars, these rifles can’t be weapons of war or they wouldn’t need them either, would they? 
 

In any case, I know that you said you’re playing devil’s advocate but show us where the second amendment is only for self or home defense against soft targets if this line of thought is going to be pushed.

 

Calibers don’t have to be justified for self defense and there there is no interest balancing argument that is allowable here (for private citizens… but maybe there could be for non-military government police forces?).

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On 2/10/2023 at 7:45 PM, Yeti said:

Calibers don’t have to be justified for self defense and there there is no interest balancing argument that is allowable here (for private citizens… but maybe there could be for non-military government police forces?).

 

That is an interesting and valid argument 👍

 

On 2/10/2023 at 2:18 PM, hceuterpe said:

Ownership of .50BMG I'm certain to say is very rare among gun owners and arguably so for many reasons such as cost, intended purpose, and ability to handle the power of the cartridge.  It's always been rare, too.

 

 

That is why I'm 100% against using equating a sliding quantitative value to the phrase "common use" an item does not need to be used by the masses to be in common use, that is a flawed argument at the foundation.

 

50 BMG has been in "common use" for decades, sure it's not as the most popular round likely due to cost, but that in no way means it's not in common use.

 

The cartridge was originally created to take down planes, not stop people.  Even today a primary use in the military (at least not involving use in the M2 machine gun) is to disable vehicles.  For civilian use that'd be hard to justify as a lawful purpose...

 

I 100% beg to differ, shooting at pieces of paper is a lawful purpose as is simply hanging the thing on the wall, as is taking a junk car out to the field and shooting at it, all lawful uses...  But, as has been said many a times, one need not justify a need or use the exercise a civil right...  So we go into history and tradition, and considering at the founding of our nation coach mounted, ship mounted, and even house mounted canons were in common use, it's silly to suggest that the 2nd is limited to only arms used against people in the course of self defense.  And last but not least, I would argue that the 2nd is not limited to self defense, yes Heller revolved around self defense, but as a civil right if I choose to simply hang an arm on the wall, I fully believe that is within the enumerated right, just like the right to freedom of religion does not only apply to those actively practicing religion, but also to those that might just want to hang a cross or star on their wall or winter solstice tree.

 

As for self defense I'm not sure you can justify it being practical for defending home and property either--as really the only justification for it's use beyond taking out a vehicle, is really long distance shots above the alternatives, and that far exceeds what I think you can justify for self defense.  As for long distance shots,  it's a REALLY long distance and numerous cartridges that are still legal in IL (in the context of the new ban itself)  exist that are actually better for even this purpose, too.  As for the dangerousness of it: no body armor exists that will stop it and even if it did the impact would still likely kill the person.  Also honestly I'm not sure I would know many people that could even physically shoot it, safely.

 

You continue to argue that one needs to show a need to exercise a right, that is simply not how rights work a need, needs not to be proven, if it did the government could outlaw every right, as none of the rights in the Constitution are actually needed.

 

In regards to dangerous firearms by their nature are dangerous, every single one of them, thus the reason the Supreme Court qualified it with "and unusual" nothing about the 50 BMG is unusual besides it's bigger than most modern bullets.  In fact I have said over and over again, I also believe the Miller ruling was wrong in determining that sawed off shotguns were "dangerous and unusual" and I would actually like the Supreme Court to revist that and the entire NFA that followed.

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On 2/10/2023 at 10:23 PM, Flynn said:

I also believe the Miller ruling was wrong in determining that sawed off shotguns were "dangerous and unusual" and I would actually like the Supreme Court to revist that and the entire NFA that followed.

 

Miller was decided like it was because there was no one to represent Miller at the hearing. He'd already died and the lawyers were no longer being paid, etc.  They took no judicial notice of short barreled shotguns having military purposes, even though they were used by both sides during the trench warfare of WWI less than 2 decades prior -- and there was nobody there to present that evidence to them and force them to take notice.

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On 2/11/2023 at 12:19 AM, Upholder said:

 

Miller was decided like it was because there was no one to represent Miller at the hearing. He'd already died and the lawyers were no longer being paid, etc.  They took no judicial notice of short barreled shotguns having military purposes, even though they were used by both sides during the trench warfare of WWI less than 2 decades prior -- and there was nobody there to present that evidence to them and force them to take notice.

 

Yep, and let's not forget that short barrel 'scatter guns' both pistol and rifle aka "blunderbuss" were very much in common use at the founding of this nation, so we actually have a historical analog in our favor that they were considereed protected arms by our founders as they were not outlawed at that time.

Edited by Flynn
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On 2/10/2023 at 10:23 PM, Flynn said:

 

That is an interesting and valid argument 👍

 

 

 

That is why I'm 100% against using equating a sliding quantitative value to the phrase "common use" an item does not need to be used by the masses to be in common use, that is a flawed argument at the foundation.

 

50 BMG has been in "common use" for decades, sure it's not as the most popular round likely due to cost, but that in no way means it's not in common use.

 

 

 

 

I 100% beg to differ, shooting at pieces of paper is a lawful purpose as is simply hanging the thing on the wall, as is taking a junk car out to the field and shooting at it, all lawful uses...  But, as has been said many a times, one need not justify a need or use the exercise a civil right...  So we go into history and tradition, and considering at the founding of our nation coach mounted, ship mounted, and even house mounted canons were in common use, it's silly to suggest that the 2nd is limited to only arms used against people in the course of self defense.  And last but not least, I would argue that the 2nd is not limited to self defense, yes Heller revolved around self defense, but as a civil right if I choose to simply hang an arm on the wall, I fully believe that is within the enumerated right, just like the right to freedom of religion does not only apply to those actively practicing religion, but also to those that might just want to hang a cross or star on their wall or winter solstice tree.

 

 

 

 

You continue to argue that one needs to show a need to exercise a right, that is simply not how rights work a need, needs not to be proven, if it did the government could outlaw every right, as none of the rights in the Constitution are actually needed.

 

In regards to dangerous firearms by their nature are dangerous, every single one of them, thus the reason the Supreme Court qualified it with "and unusual" nothing about the 50 BMG is unusual besides it's bigger than most modern bullets.  In fact I have said over and over again, I also believe the Miller ruling was wrong in determining that sawed off shotguns were "dangerous and unusual" and I would actually like the Supreme Court to revist that and the entire NFA that followed.

 

 

I had a feeling this would cause a stir... I just want to make it clear here that I personally think it's unconstitutional to ban .50BMG. Rather if I was forced to argue against it (remember high school debate?) that's the argument I'd go with and I have to admit it is somewhat easier to argue against it then say mag limits.  Perhaps also what the state might use, too (so we should be prepared).  Would it win? I hope not, but at the same time it's not quite a slam dunk argument on why banning AR-15s or mag cap limits are grossly unconstitutional.  It's such a small piece of the AWB that I doubt that alone would merit the law to stand in any way.  However if this happens, I won't be surprised if they try to enact a new law targeting .50BMG specifically...

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On 2/11/2023 at 3:20 PM, richp said:

Get the state to cite one example of a 50 caliber long gun being used in a crime here.

...

 

The fact that it can't is what started this tangent.

 

On 2/9/2023 at 10:23 PM, Euler said:

The plaintiffs FOIA'd the state to find any record of the criminal use of a revolving cylinder shotgun or a 50 BMG rifle. ISP has responded that no such records exist. On February 9, plaintiffs submit the absence of evidence as evidence that there were no such crimes.

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On 2/10/2023 at 2:55 PM, Upholder said:

Based on the high-water mark set by Caetano of 200k stun guns lawfully owned nationwide being common use, I wonder how many Desert Eagles have been sold over the years,  I suspect it's at least a significant percentage of that 200k with just that one model of firearm, let alone the various .50BMG rifles such as the Barrett...

 

Correct me if I am wrong but isn't the round used in the Desert Eagle a "straight walled pistol cartridge"?  That makes a very large difference than a "stepped" .50 BMG rifle round.

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And so the divide and conquer argument is alive and well. 

 

"I don't have one so I see no need for anyone else have one."

 

Just because you don't, thousands of legal citizens in this country own a rifle chambered in .50 BMG.  They are used in long range matches, for pleasure shooting,  and just for the enjoyment of firing something that large in caliber.  

 

It's really just a name that they are after.  Don't you think that a .416 Barrett is in the same rifle based on the .50 BMG case is next?  They just have not thought of it yet.

 

Look at the .500 S&W.  From what I can tell, it is banned just based on caliber.  It is chambered in revolvers as well as H&R Handi-Rifles (single shot rifles break action rifles).  Unless IDNR specifically exempts them, they are banned as well.

 

It is a slippery slope when pro-Second Amendment people start playing for the other side.

Edited by Paints-n-cows
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On 2/13/2023 at 10:07 AM, Paints-n-cows said:

And so the divide and conquer argument is alive and well. 

 

"I don't have one so I see no need for anyone else have one."

 

Just because you don't, thousands of legal citizens in this country own a rifle chambered in .50 BMG.  They are used in long range matches, for pleasure shooting,  and just for the enjoyment of firing something that large in caliber.  

 

It's really just a name that they are after.  Don't you think that a .416 Barrett is in the same rifle based on the .50 BMG case is next?  They just have not thought of it yet.

 

Look at the .500 S&W.  From what I can tell, it is banned just based on caliber.  It is chambered in revolvers as well as H&R Handi-Rifles (single shot rifles break action rifles).  Unless IDNR specifically exempts them, they are banned as well.

 

It is a slippery slope when pro-Second Amendment people start playing for the other side.

 

Who are you quoting?

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Docket entry contains an order from the judge:

 

17 - Feb 13, 2023 - ORDER: ORDER: Within the response to 6 Motion for Preliminary Injunction, Defendants shall provide illustrative examples of each and every item banned under 720 ILCS 5/24-1.9. Signed by Judge Stephen P. McGlynn on 2/13/2023. (jce) THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 02/13/2023)

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On 2/13/2023 at 10:51 AM, Upholder said:

Docket entry contains an order from the judge:

 

17 - Feb 13, 2023 - ORDER: ORDER: Within the response to 6 Motion for Preliminary Injunction, Defendants shall provide illustrative examples of each and every item banned under 720 ILCS 5/24-1.9. Signed by Judge Stephen P. McGlynn on 2/13/2023. (jce) THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 02/13/2023)


edit....
nevermind...  opsec. move along. 

 

Edited by Dumak_from_arfcom
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https://www.thecentersquare.com/illinois/federal-judge-in-illinois-gun-ban-cases-orders-state-to-show-each-and-every-item/article_936ac308-abeb-11ed-83a0-e3b567a83f36.html

 

Quote

Thomas Maag, who brought the state level Crawford County case that was transferred to federal court, said the judge's order will make it difficult for the state to comply.

 

“Because the ban is so all encompassing and uses a great many vague terms that I’m not even sure that exactly what is banned and that’s probably why judge McGlynn ordered the state to do that so that we could find out what exactly we are arguing about,” Maag told The Center Square on Monday.

 

He said “the state has a tough row to hoe,” especially given recent U.S. Supreme Court precedent that cases regarding the Second Amendment must review text and tradition, not a balancing of state interest versus individual civil liberties.

 

“The plaintiffs in my case remain extremely confident that we’re going to succeed on the merits of this case,” Maag said. “This statute never should have been passed in the first place. And applying the Bruen analysis, we believe that the days of Illinois’ magazine and firearms ban are numbered and the number is not very large.”

 

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Defendants' Agreed Motion for Entry of Proposed Stipulation Regarding Coordinated Preliminary Injunction Briefing:

 

 https://storage.courtlistener.com/recap/gov.uscourts.ilsd.94369/gov.uscourts.ilsd.94369.33.0.pdf

 

 

They state the the various plaintiffs have all agreed as well and that:

Quote

Among other things, the agreed stipulation provides one deadline for one
consolidated response by the State Defendants to Plaintiffs’ motions for preliminary injunction
(March 2, 2023), and another deadline for the State Defendants to answer or otherwise plead to all
of Plaintiffs’ respective complaints (March 16, 2023).

 

Edited by Upholder
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On 2/13/2023 at 10:51 AM, Upholder said:

Docket entry contains an order from the judge:

 

17 - Feb 13, 2023 - ORDER: ORDER: Within the response to 6 Motion for Preliminary Injunction, Defendants shall provide illustrative examples of each and every item banned under 720 ILCS 5/24-1.9. Signed by Judge Stephen P. McGlynn on 2/13/2023. (jce) THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 02/13/2023)

 

Hey, did anyone get the ISRA Thursday bulletin?  RP stated the order is for the defendants to list every banned firearm.  

"Within is the response to (16) Motions for a Preliminary Injunction, Defendants shall provide illustrative examples of each and every banned firearm under 720 ILCS 5/24-1.9.  Signed by Judge Stephen P. McGlynn on 2/13/2023."

isra-thursday-bulletin-february-16-2023.htm

Edited by Dumak_from_arfcom
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