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


Upholder

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On 3/16/2023 at 11:33 PM, Upholder said:

I'm not sure of the answers but NYSPRA v Bruen had no trial.  The various cases in front of the Federal court in California have had no trials..  I would not expect a Jury trial to be warranted here.

 

Even if either or both sides request a jury trial, they'll also both file lots of motions for summary judgement (i.e., no oral arguments on anything but motions, no trial). What goes to trial is whatever the judge leaves for trial, which might be nothing.

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I don't see how fact determination could be referred to a special master when there is a jury demand.  That would require both sides to agree  and essentially waive the jury demand.  A special master is usually just a substitute for a judge in a bench trial when the judge cannot get to the case quickly enough for the parties.  And the judge would still have to affirm any by the master.  The judge could appoint his own "expert" but that still doesn't resolve any factual disputes.

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   If somehow the judge grants the request for a jury, then they only need a few non-gun owners.  I think this is a hail mary to get around the strict-scrutiny test of Bruen and other tests like dangerous AND unusual that jurors won't understand.   If the jury gets to decide what is or isn't factual like...  is an AR15 dangerous AND unusual, then we are in for it. 

My friend who is a lawyer said the request for a jury trial should not be granted on anything, but dumber things have happened.  He also thinks this could be a way to set up a future appeal.  The state could argue that it should have gotten a jury trial for something in the hopes the case gets sent back down.

 

He also said, if they get a jury, other states will follow that tactic.    

 

 

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On 3/17/2023 at 12:53 AM, gunuser17 said:

I don't see how fact determination could be referred to a special master when there is a jury demand.  That would require both sides to agree  and essentially waive the jury demand.  A special master is usually just a substitute for a judge in a bench trial when the judge cannot get to the case quickly enough for the parties.  And the judge would still have to affirm any by the master.  The judge could appoint his own "expert" but that still doesn't resolve any factual disputes.

 

As Euler said "What goes to trial is whatever the judge leaves for trial, which might be nothing." if the court appoints a special master and they deal with any questions the judge doesn't want to deal with during 'pre-trial' that in turn leaves nothing for trial, there is no trial and thus no need for a jury.

 

In a case like this the judge is likely to rule on the Constitutionality of the law(s) themselves on a summary judgement motion, if the judge rules it unconstitutional on a summar judgment there is nothing left for trial as the law is mooted and the case is over.

 

As for appeals, the losing side is almost certainly going to appeal anyway, so this is just the first battle in the war, it would be great to win every battle (and we should) but this case is not going to be the end no matter how the court rules.

Edited by Flynn
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On 3/17/2023 at 8:51 AM, Flynn said:

 

As Euler said "What goes to trial is whatever the judge leaves for trial, which might be nothing." if the court appoints a special master and they deal with any questions the judge doesn't want to deal with during 'pre-trial' that in turn leaves nothing for trial, there is no trial and thus no need for a jury.

 

In a case like this the judge is likely to rule on the Constitutionality of the law(s) themselves on a summary judgement motion, if the judge rules it unconstitutional on a summar judgment there is nothing left for trial as the law is mooted and the case is over.

 

As for appeals, the losing side is almost certainly going to appeal anyway, so this is just the first battle in the war, it would be great to win every battle (and we should) but this case is not going to be the end no matter how the court rules.

 

Did they ask for any damages? I could see that going to a jury. 

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If the request for a jury was made within the proper time, it cannot be denied by the judge.  The more important question is whether there are any fact issues that require determination by a jury.  As noted, most of these cases in the past were determined by the judge because there were no factual issues in dispute.  However, we are in a new day requiring a different analysis today.  I have no clue whether there will be any actual factual disputes to be resolved now but I don't think that anyone can forecast the future and say that there are  no factual issues in dispute either.  

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there isn't going to be a jury trial. they did that to slow things down. Look at the Keannelly case and they asked for directed verdict on the pleadings -- wonder why?

 

they are doing everything they can to get any other case in front of us where we have a battery of attorneys and try to get a case up with no record on our side as they flood the court with all kinds of bullpucky. 

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You may well be right that there will be no jury trial.  But I don't see any way that a request for a jury trial would have any impact or delay on timing at this point in the case.  It simply is a request that most make in federal court at this point just to preserve that right - it can always be waived later if both sides agree.  If I remember correctly,  the defendant must make the request within 14 days of filing the answer in federal court. 

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Plaintiffs Dane Harrel, C4 Gun Store, LLC, Marengo Guns, INC., Illinois State Rifle Association, Firearms Policy Coalition, INC., and Second Amendment Foundation's Reply to Defendants Raoul and Kelly's Response to Plaintiff's Motion for Preliminary Injunction:

 

https://storage.courtlistener.com/recap/gov.uscourts.ilsd.94464/gov.uscourts.ilsd.94464.66.0.pdf

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On 3/23/2023 at 6:44 PM, steveTA84 said:
 

 

 

Ah yes.  The full retard revision of the Bruen decision.   I couldn't believe what I was reading at the time and thought I was completely losing it until I saw SteveTA84 also picked up on it. 

 

The Bruen decision calls for historical analogs to justify constitutionality of a law.  So since they don't have any, they take not having any to be in itself an analog.  So they claim Bruen doesn't apply to guns not around in 1791.

    

This is why I can't be a lawyer.  My response to that would have been GTFO.  

 

Edited by Dumak_from_arfcom
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On 3/23/2023 at 7:55 PM, Upholder said:

Having read through a lot of briefs in the last 4 months associated with many cases, this brief is one of the clearest and most compelling in my opinion.  Bravo to the team that put it together.

 

It's well written, yes, but I still have some personal objections.  I know that it makes it easier to win this battle and that is likely why it's done, but keeping a foot in the door for another challenge still irks me.

 

One, as a 2nd community, we can acknowledge the 2nd is a primarily a right to self defense, but when arguing the right it should be argued as a right “for personal protection and all lawful purposes.” with emphasis on the highlighted part.  That ends the State's blah, blah, blah it's not used in self defense argument instantly, as a lawful purpose could be as mundane as I want to own one just because, it doesn't need to be anything related or even connected to self defense.

 

Two, I believe we should focus less on the volume of this or that specific firearm model being sold/manufactured as being the measure of 'common use' and more on a general class of arms as a whole, aka semi-automatice rifles, semi-automatic pistols, shotguns and so on vs specific sales of this or that model.  Our current sales volume argument works great for AR15s, but not so well for more obscure firearms like say the FN SCAR.

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On 3/24/2023 at 12:15 AM, Flynn said:

 

It's well written, yes, but I still have some personal objections.  I know that it makes it easier to win this battle and that is likely why it's done, but keeping a foot in the door for another challenge still irks me.

 

One, as a 2nd community, we can acknowledge the 2nd is a primarily a right to self defense, but when arguing the right it should be argued as a right “for personal protection and all lawful purposes.” with emphasis on the highlighted part.  That ends the State's blah, blah, blah it's not used in self defense argument instantly, as a lawful purpose could be as mundane as I want to own one just because, it doesn't need to be anything related or even connected to self defense.

 

Two, I believe we should focus less on the volume of this or that specific firearm model being sold/manufactured as being the measure of 'common use' and more on a general class of arms as a whole, aka semi-automatice rifles, semi-automatic pistols, shotguns and so on vs specific sales of this or that model.  Our current sales volume argument works great for AR15s, but not so well for more obscure firearms like say the FN SCAR.

 

 

I agree.  We need to point out this ban goes far beyond militaristic looking weapons.  They passed a law that bans virtually everyone who doesn't own a semi-auto rifle from owning almost every type of semi-auto rifle in Illinois.  All lawful purposes. In common use. Dangerous and unusual.  We need to live and die by those criteria.    

 

Also, can the judge ask for examples of something that is uncommon?  or something that is dangerous and unusual?   We should have solid answers for those questions.  I think answers to those questions could make or break the lawsuit.    

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On 3/24/2023 at 2:20 AM, Dumak_from_arfcom said:

Also, can the judge ask for examples of something that is uncommon?  or something that is dangerous and unusual?   We should have solid answers for those questions.  I think answers to those questions could make or break the lawsuit.    

 

I would argue that is not for anyone but the court to decide and I would not entertain any request to offer up examples as I personally don't believe any arm falls into either category and outside the plain text of the 2nd.

 

I have said multiple times, I don't agree with the Miller's "in common use" test nor Heller's "dangerous and unusual" test, and although the case laws test we are currently bound by, I believe they are flawed test as when one looks at the historical record (like we are now) our founding fathers appear to have already clearly defined what the 2nd covers in the plain text of the 2nd, that being (all) arms, as there is essentially no record of them banning this or that arm, the bans on arms came much later.  So the test should simply be "Is it an arm, if so it's protected"

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more briefs were filed. FFL & Clement's people collaborated with each side taking certain arguments so as not to step on each other and be repetitious. which has it's own challenges. 

 

I filed a declaration as an "expert"  My illustrations were 70 pages

 

We'll talk about it a bit more in depth later. But I would think that you see the writing on the wall about what the antis are tossing up. using the ballistics of .223 to gin up dangerousness. 2% of the population does not make them common it makes them unusual. 

 

So in a perfect world, I would have someone do an amici on Dangerous & unusual. another on ballistics. the bowie laws etc. In the very near future their lines of attack will all have been explored and we really only need about 7 or 8 of these to just debunk their theories. I expect them to try and recycle a bunch of these arguments in other instances but the funny thing is they quit making new history in 1791 and it's not like there is a library of Alexandria of founding era documents that has not been discovered.

 

this rush of theirs in 2023 will be a high water mark for them and its all circling the drain from here on out.

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67 - Mar 23, 2023 - REPLY to Response to Motion re 10 MOTION for Preliminary Injunction filed by Caleb Barnett. (Pinter, Gary):

https://storage.courtlistener.com/recap/gov.uscourts.ilsd.94464/gov.uscourts.ilsd.94464.67.0.pdf

 

68 - Mar 23, 2023 - REPLY to Response to Motion re 10 MOTION for Preliminary Injunction filed by Jeremy W. Langley. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D FBI data)(Maag, Thomas):

https://storage.courtlistener.com/recap/gov.uscourts.ilsd.94464/gov.uscourts.ilsd.94464.68.0.pdf

 

69 - Mar 23, 2023 - REPLY to Response to Motion re 10 MOTION for Preliminary Injunction filed by Debra Clark, Federal Firearms Licensees of Illinois, Gun Owners Foundation, Gun Owners of America, Guns Save Life, Chris Moore, Piasa Armory, Jasmine Young. (Attachments: # 1 Exhibit Declaration of Donald T. Vandermyde, # 2 Exhibit Declaration of Ashley Hlebinsky, # 3 Exhibit Declaration of Clayton Cramer, # 4 Exhibit Declaration of Stephen Helsley, # 5 Exhibit Declaration of J. Buford Boone, III)(Michel, Carl):

https://storage.courtlistener.com/recap/gov.uscourts.ilsd.94464/gov.uscourts.ilsd.94464.69.0.pdf

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Quote

8 By banning “any” part, of a person with an AR-15 had the disconnector break, allowing the firearm to fire in a fully automatic mode, Illegal under both state and federal law, that person could not obtain a new disconnector to repair the firearm to bring it into compliance.

 

That was probably the best gotcha moment in your brief.  

 

 

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