Jump to content

Barnett v. Raoul (3:23-cv-00209) (S.D. Ill. 2023) - NSSF Gun/Mag Ban


Upholder

Recommended Posts

On February 7, 2024 at 09:28 AM CST, Molly B. said:
Has a date been set for the next status hearing? Or whatever happens next?

There was a status hearing on February 2. There have been no rulings or further events scheduled. The topic was supposed to be discussion of a discovery schedule.

There is still an undisposed motion before the court from December to rule summarily on Langley's 5th Amendment claim. Presumably that would have been discussed on February 2, also, as was probably done in January's status hearing.

I've posted on this before, but I suspect the judge is inclined just to get on with the common claims, since anything he does is just going to get appealed to CA7. If he handles the unique claims first, it would delay proceeding on the common claims for months (or a year or whatever) at the district level. Pushing for the unique claims first hurts the case, which is probably why the state supports the issuance of a ruling on the 5th Amendment claim now. (Seriously, when your enemy is cheering you on, you should suspect it's because he's laughing at the stupidity of your actions.)

So the thing to expect next is (IMO) the schedule for discovery and maybe a tentative date for argument. Maybe he'll rule on the 5th Amendment claim, but maybe he'll ignore it, after issuing the discovery schedule. If he issues a ruling on the 5th Amendment claim, the Appeals Court fumbling around with it is going to blow any date he sets for argument, but maybe discovery can still proceed.
Link to comment
Share on other sites

Petition for Writ of Certiorari to SCOTS filed by NAGR:  https://gunrightsfoundation.org/wp-content/uploads/SCOTUS-cert-petition.pdf

 

Three questions are presented to SCOTUS:

  1. Is the State of Illinois’ ban of certain hand-
    guns constitutional in light of the holding in D.C. v.
    Heller, 554 U.S. 570 (2008), that handgun bans are
    categorially unconstitutional?
  2. Is the “in common use” test announced in
    D.C. v. Heller, 554 U.S. 570 (2008), hopelessly circular
    and therefore unworkable?
  3. Can the government ban the sale, purchase,
    and possession of certain semi-automatic firearms and
    firearm magazines that are possessed by millions of
    law-abiding Americans for lawful purposes when
    there is no analogous Founding era regulation?

 

 

Edited by Upholder
Update plainffs in this brief
Link to comment
Share on other sites

Petition for Writ of Certiorari to SCOTUS filed by NSSF, et al: https://www.nssf.org/wp-content/uploads/2024/02/Barnett-FFLpetition.pdf

 

The question presented is:

 

Whether Illinois’ sweeping ban on common and
long-lawful arms violates the Second Amendment.

 

 

 

Edited by Upholder
typo
Link to comment
Share on other sites

The remaining consolidated case from the Southern District which has not filed a petition for certiorari is Langley. I'm not sure there will be one from Langley.

I think it's central to the process that the thing on which certainty is being sought is the stay on the injunction.

None of these cases have even made it to trial yet, so the petitions are not about trial decisions. None of these petitions are (or should be) about an injunction, because there's already an injunction (which has been stayed). These petitions are about the stay issued by the 7th Circuit on the injunction issued by the Southern District. The basis for that stay is the 7th Circuit's ruling that Friedman is compatible with Bruen. Therefore, IMO, Friedman should be central to the petitions.

The 7th Circuit had also consolidated some cases from the Northern District into Barnett for the appeal, but those cases did not have injunctions. They were seeking injunctions. Reiterating, these petitions are about the stay on the injunction that already exists. That said, here is a summary of the petitions.

Barnett petition said:
The question presented is:
Whether Illinois' sweeping ban on common and long-lawful arms violates the Second Amendment.
...
Indeed, rather than faithfully follow Heller and Bruen, the majority castigated and cast them aside at every turn. It expressly rejected what this Court has repeatedly instructed is the Second Amendment's "definition" of "Arms." It refused to engage with this Court's common-use test, deriding it as a "slippery concept" that is "circular," not "very helpful," and inferior to the court's own analysis in Friedman v. City of Highland Park .... The majority even went so far as to declare Friedman "basically compatible with Bruen" ... which would surely come as a surprise to Bruen's author, who decried Friedman as "flout[ing]" this Court's "precedents" and "relegating the Second Amendment to a second-class right" ... (Thomas, J., dissenting from the denial of certiorari).
...

Bevis petition said:
QUESTIONS PRESENTED

1. Is the State of Illinois' ban of certain handguns constitutional in light of the holding in D.C. v. Heller ... that handgun bans are categorically unconstitutional?

2. Is the "in common use" test announced in D.C. v. Heller ... hopelessly circular and therefore unworkable?

3. Can the government ban the sale, purchase, and possession of certain semi-automatic firearms and firearm magazines that are possessed by millions of law-abiding Americans for lawful purposes when there is no analogous Founding era regulation?

...
Judicial resistance to Bruen reached its apex just last week when the Supreme Court of Hawaii declared open rebellion against the authority of this Court in State v. Wilson ...

Harrel petition said:
QUESTIONS PRESENTED

(1) Whether the Constitution allows the government to prohibit law-abiding, responsible citizens from protecting themselves, their families, and their homes with semiautomatic firearms that are in common use for lawful purposes.

(2) Whether the Constitution allows the government to prohibit law-abiding, responsible citizens from protecting themselves, their families, and their homes with ammunition magazines that are in common use for lawful purposes.

(3) Whether enforcement of Illinois's semiautomatic firearm and ammunition magazine bans should be enjoined.

...
In reversing an injunction against the Illinois ban, however, the Seventh Circuit has complicated matters needlessly by applying the wrong test and calling for the development of irrelevant information. Rather than acknowledging that the Second Amendment protects the right of law-abiding citizens to possess commonly used arms, the Seventh Circuit instead concluded that "the Arms protected by the Second Amendment do not include weapons that may be reserved for military use." ... And compounding this initial error, the Seventh Circuit concluded that the civilian, semiautomatic arms banned by Illinois are "indistinguishable from" machineguns used by the military ..., even though semiautomatic firearms, unlike machineguns, "traditionally have been widely accepted as lawful possessions," ... and all semiauatomatic firearms are, by definition, distinguishable from automatic machineguns.
...

(Again IMO) the only petition to put Friedman front and center is the Barnett petition, although it doesn't put Friedman specifically in the questions presented. The others mention Friedman in the arguments for their petitions, but not as the petitions themselves.

The Bevis petition apparently wants to litigate the Hawaii ruling in Wilson. While the Hawaii ruling is certainly inflammatory, it's not relevant to PICA. Hawaii is a completely different state from Illinois. The Harrel petition apparently wants to have its trial at the Supreme Court before it's even been held in the Southern District.

If the Supreme Court grants any of these petitions, its ruling would be on the basis for the stay as a matter of law. Assuming it vacates the 7th Circuit's ruling, it would hand the case back to the 7th Circuit with orders to do the appeal over, probably with instructions not to use Friedman as the basis for this case or any other case. I'm not so sure the Supreme Court would do that without oral arguments, so I'm also not so sure that the Supreme Court would be interested in deliberating a ruling on a case before its trial has even been held.

As always, IANAL
Link to comment
Share on other sites

Note on the above post, Bevis is one of the cases from the Northern District, so it's not about the stay. I wouldn't expect the Supreme Court to grant its petition on the basis of that alone. Bevis and Herrera were consolidated at the appellate level, but are otherwise not consolidated with Barnett.

Meanwhile:
SC docket for Barnett
SC docket for Harrel

Edited by Euler
Link to comment
Share on other sites

 

 

 

 

 

These petitions are simply a cry of shenanigans.  Millions of people have their rights infringed and the CA courts are essentially playing wack a mole with the cases and still refusing to follow Bruen and clinging to bad law by trying to set new tests.  

 

Bruen was what? 2022?  Yet here we are.   The Justices can't be blind as to what is going on.  If they don't step in, that means they are okay with the games being played by the lower courts.  If that is the case, then resources would be better spent on moving vans and dropping all the lawsuits in the unfriendly circuits.  Just have a tiny town in Texas or someplace take one for the team and pass an AWB so it makes it way rapidly through a more friendly appeals circuit.   If the anti-gun commies can game the system, why shouldn't we?

 

 

 

 

Link to comment
Share on other sites

Based on the above analyses, it sounds like these petitions for cert are certainly more likely to be accepted than the previous Bevis petition from December.  That said, more likely than "snowball's chance in heck" doesn't narrow it down much.  It has been repeated multiple times that SCOTUS is very unlikely to take anything related to these cases or any others until the final decisions on the facts have been reached, so do we have any examples of successful petitions to overturn a stay such as Barnett is now seeking?  I can't imagine this is the first, and thus far, only argument ever made to the supreme court for an interlocutory appeal due to a lower courts disregard for precedent.  

Link to comment
Share on other sites

On 2/15/2024 at 2:40 AM, Dumak_from_arfcom said:

Bruen was what? 2022?  Yet here we are.   The Justices can't be blind as to what is going on.  If they don't step in, that means they are okay with the games being played by the lower courts.  If that is the case, then resources would be better spent on moving vans and dropping all the lawsuits in the unfriendly circuits.  Just have a tiny town in Texas or someplace take one for the team and pass an AWB so it makes it way rapidly through a more friendly appeals circuit.   If the anti-gun commies can game the system, why shouldn't we?

I'm really wondering if the court even cares. These people have made $200k+ from the bench for years while they live in gated communities separated from us. The system works for them, why rock the boat.

Link to comment
Share on other sites

On 2/15/2024 at 2:40 AM, Dumak_from_arfcom said:

Bruen was what? 2022?  Yet here we are.   The Justices can't be blind as to what is going on.  If they don't step in, that means they are okay with the games being played by the lower courts.  If that is the case, then resources would be better spent on moving vans and dropping all the lawsuits in the unfriendly circuits.  Just have a tiny town in Texas or someplace take one for the team and pass an AWB so it makes it way rapidly through a more friendly appeals circuit.   If the anti-gun commies can game the system, why shouldn't we?

We won vs Cook County in the State Supreme Court in October 2021 regarding the 2A Tax.  That court remanded the case back to the trial court with instructions to grant us summary judgement:

 

 

Under that level of scrutiny, the firearm and ammunition tax ordinances violate the uniformity clause. Accordingly, we reverse the summary judgment entered in favor of defendants and remand to the circuit court for entry of summary judgment in favor of plaintiffs.

https://ilcourtsaudio.blob.core.windows.net/antilles-resources/resources/4ae5afd7-087c-49d9-900a-e0c3864eaf26/Guns Save Life, Inc. v. Ali, 2021 IL 126014.pdf

 

Yet here we are, two plus years later, waiting on the trial judge to do what his superiors told him to do.

Dan E

Link to comment
Share on other sites

On 2/15/2024 at 10:44 PM, Maxon Shooters said:

Yet here we are, two plus years later, waiting on the trial judge to do what his superiors told him to do.

Dan E

 

 No Consequences = No Compliance.  There are seemingly no consequences for lower court judges who ignore SCOTUS or their precedents. So they will do as they wish with impunity.

 

VooDoo

Link to comment
Share on other sites

On 2/15/2024 at 10:44 PM, Maxon Shooters said:

We won vs Cook County in the State Supreme Court in October 2021 regarding the 2A Tax.  That court remanded the case back to the trial court with instructions to grant us summary judgement:

 

 

Under that level of scrutiny, the firearm and ammunition tax ordinances violate the uniformity clause. Accordingly, we reverse the summary judgment entered in favor of defendants and remand to the circuit court for entry of summary judgment in favor of plaintiffs.

https://ilcourtsaudio.blob.core.windows.net/antilles-resources/resources/4ae5afd7-087c-49d9-900a-e0c3864eaf26/Guns Save Life, Inc. v. Ali, 2021 IL 126014.pdf

 

Yet here we are, two plus years later, waiting on the trial judge to do what his superiors told him to do.

Dan E

 

So what can be done about it?!

 

Can the IL Supreme court issue an injunction prohibiting the county from collecting the tax until the Judge gets "around to it"?

 

Can an appellate court issue an injunction prohibiting the county from collecting the tax until the Judge gets around to it?

 

Can and have complaints be filed?
ISBA talks about it here - https://www.isba.org/committees/governmentlawyers/newsletter/2019/04/alookattheprocessforremovingjudgesi.

 

Do we need another case prohibiting counties from collecting "Amusement taxes" at gun ranges?

 

Is this case in the Judicial section of IL Carry?

 

 

 

 

Link to comment
Share on other sites

On 2/16/2024 at 7:03 PM, Vodoun da Vinci said:

 

 No Consequences = No Compliance.  There are seemingly no consequences for lower court judges who ignore SCOTUS or their precedents. So they will do as they wish with impunity.

 

VooDoo

Similar to what the judicial system just handed Donald Trump in the NY “fraud” case ruling today.  Absolutely bogus.  Absolutely should be overturned on appeal.  But they don’t give a 💩 !  No consequences.

Link to comment
Share on other sites

On 2/16/2024 at 9:54 PM, mab22 said:

 

So what can be done about it?!

 

Can the IL Supreme court issue an injunction prohibiting the county from collecting the tax until the Judge gets "around to it"?

 

Can an appellate court issue an injunction prohibiting the county from collecting the tax until the Judge gets around to it?

 

Can and have complaints be filed?
ISBA talks about it here - https://www.isba.org/committees/governmentlawyers/newsletter/2019/04/alookattheprocessforremovingjudgesi.

 

Do we need another case prohibiting counties from collecting "Amusement taxes" at gun ranges?

 

Is this case in the Judicial section of IL Carry?

 

 

 

 

How about Federal law that removes immunity?  Personal Liability for judges that blatantly rule unconstitutionally and have their rulings overturned?   Wishful thinking.

Link to comment
Share on other sites

So Illinois Supreme court did set time standards for cases, maybe it will help other in the future as well.

 

https://www.illinoiscourts.gov/News/1067/Illinois-Supreme-Court-announces-time-standards-for-case-closure-in-trial-courts/news-detail/

 

https://www.isba.org/barnews/2022/03/illinoissupremecourtannouncestimest

 

Times are here. However, it states for cases on or after Jan 1 2022, Maybe appealing to the supreme court or something higher up could get it moving.
https://drive.google.com/file/d/17FfTNIZ_WYL7ZzrxlJt0DZjiApx-xicQ/view

 

 

 

Link to comment
Share on other sites

On 2/16/2024 at 7:03 PM, Vodoun da Vinci said:

 

 No Consequences = No Compliance.  There are seemingly no consequences for lower court judges who ignore SCOTUS or their precedents. So they will do as they wish with impunity.

 

VooDoo

I'm to the point that we need to start mocking SCOTUS for letting all the lower courts ignore them. Time to name and shame.

Link to comment
Share on other sites

On February 23, the district judge issued an order to outline the points that the parties must address in their briefs. It follows and aligns with the recent 7th Circuit logic regarding the interpretation of Bruen, but he does throw out some bones.

Order said:
...
Bevis requires the Plaintiffs to establish by a preponderance of the evidence that:
  1. The weaponry in question is an item an ordinary person would keep at home for purposes of self-defense;
  2. The weaponry in question is not exclusively or predominantly useful in military service; and
  3. The weaponry in question is not possessed for unlawful purposes.
...
Thus, while both members of the military and civilians may be called upon to engage in mortal combat, the civilian is often an "army of one" with no backup, no support, and no reinforcements in the moment when the attack occurs. The life and death stakes mandate that their firearms have both lethal capabilities and give, at a minimum, our citizens a fighting chance. Therefore, sorting between military use and civilian use is an exercise in understanding the complex dynamics of self-defense in which lethal force may be required to repel a rapist, a murderer, an arsonist, a kidnapper, a stalker, an armed burglar, or multiple attackers at once.
...
If the Plaintiffs establish that the weapons, attachments, or ammunition-feeding devices proscribed by PICA are "Arms" included within the protective reach of the Second Amendment in line with Friedman and Bevis, the Government "must affirmatively prove" that PICA "is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms" via a showing of "how and why the regulations burden a law-abiding citizen's right to armed self-defense."
...
The factual questions the Court will address include:
  1. Is the item an "Arm" as defined in Heller and Bruen?
  2. Is the item an "Arm" as defined in Bevis?
  3. Is there a rational basis for a civilian to select a particular "Arm" for use in self-defense in the home?
  4. Is there a rational basis for a civilian to select a particular item for use in self-defense outside the home?
  5. Is there a rational basis for a civilian to select a particular item for use in self-defense to repel a riot or large-scale attack?
  6. Is the item an "Arm" that may be used to resist tyranny?
  7. Is the item exclusively or predominantly useful in military or law enforcement settings?
  8. Is the item specifically designated by the United States military as a weapon to be acquired by the United States military and issued to its troops?
  9. Does the item meet all of the specifications required by the United States military to qualify for issue as a rifle or pistol to be deployed with United States troops?
  10. Is the weapon materially different from an M16, M4, or machinegun?
  11. Is the firing rate of semiautomatic weapons banned by PICA materially different from the firing rate of the M16, M4, or fully automatic machineguns?
  12. Is the item a dual-use Arm that may be used in both military and civilian settings?
  13. Is the item principally possessed and used for unlawful purposes?
  14. Is the item in common use?
  15. Is the item "dangerous and unusual"?
...
Link to comment
Share on other sites

Mark Smith is really good at explaining the inside baseball part. Being a 45yr old pitcher/2B, who can still hobble my way on to the 40 and over baseball field... 🤣

Edited by ealcala31
Link to comment
Share on other sites

On 2/23/2024 at 7:17 PM, Euler said:

On February 23, the district judge issued an order to outline the points that the parties must address in their briefs. It follows and aligns with the recent 7th Circuit logic regarding the interpretation of Bruen, but he does throw out some bones.
 

There is no way to prove "The weaponry in question is not possessed for unlawful purposes."

Computers can be used by  Hackers.

Cell phones can be used by anyone to coordinate a crime, or even defraud someone of money.

Cars can be stolen to be used in a crime.

Matches and lighters can be used by arsonists.

Anyone can use anything for an "unlawful purpose".

 

Link to comment
Share on other sites

On 2/23/2024 at 9:02 PM, mab22 said:

There is no way to prove "The weaponry in question is not possessed for unlawful purposes."

Computers can be used by  Hackers.

Cell phones can be used by anyone to coordinate a crime, or even defraud someone of money.

Cars can be stolen to be used in a crime.

Matches and lighters can be used by arsonists.

Anyone can use anything for an "unlawful purpose".

 

 

And the correct argument for our lawyers  is to declare it Easterbrook's interest balancing. Then use your example that any item can be used for unlawful purposes. 

 

Then when they get to the military test. Just about every action (lever, bolt, revolver, trap door, musket, semi-auto, auto) have been used by the military at one time. So Easterbrook's military test would allow a ban on virtually every type of gun which is in violation of Heller's common use. 

Link to comment
Share on other sites

Create an account or sign in to comment

You need to be a member in order to leave a comment

Create an account

Sign up for a new account in our community. It's easy!

Register a new account

Sign in

Already have an account? Sign in here.

Sign In Now
  • Recently Browsing   0 members

    • No registered users viewing this page.
×
×
  • Create New...