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


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On 4/12/2023 at 2:19 PM, MRE said:


I would caution against reading too much into questions a judge asks at hearing. I say this because many judges ask questions to play devils advocate, even of arguments they end up agreeing with. 

Agreed. Now if we don't see the same thing when the state presents their case, I'll be worried.

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Copy/paste of Bishop's tweets:

 

[1:40pm CDT]

 

Attorneys from the various parties, about a dozen, announce themselves. "Anyone else," Judge McGlynn said. "This is a very important case." He then shows on a screen an illustration, asking "how many saw a duck, how many saw a bunny."

 

Another pic. "How many see a young women, how many see an older women." Talks about optical illusions. What happens is we see things and try to make order out of chaos. We're trying to make sense of things logically in our minds. ...

 

"In my experience, these firearms cases have a lot of the same things. People look at mass shootings and they look at gun regulations, some people zero in to just focus on the guns, others look to the victims."

 

"Some people see these guns as their rights, some see them as things to be banned … It would be foolhardy not to acknowledge those who seek out these very weapons to do very senseless acts ... to seek a higher body count to appease some demonic impulse ..."

 

"I ask each of you to look at the people around you and understand they may see things entirely different than you do. Their minds are trying to make sense of the same fragments as you are ... but we are fellow citizens and we want to treat each other with respect."

 

"My job is to keep an open mind. I have not made up my mind … It's not my job to make policy decisions. My job is to make sure that the policy decisions of the legislative or executive branch are consistent with the constitution."

 

"I've had to read a lot of paperwork in this case," as McGlynn holds up a binder about 10 inches thick.

 

Erin Murphy for plaintiffs. Says If conduct is protected by the Second Amendment, it is presumptively protected.

 

"The supreme court has defined what arms mean and what the historical tradition of this country is and what is protected," plaintiffs say.

 

The supreme court articulated … the definition of arms "simply means anything that is bearable arms." Makes the argument that pistol grips don't exclude something as a bearable arm. Some questions back and forth with judge over whether grenade launcher is considered arms.

 

"My clients don't want to possess a magazine just because, they want to have a magazine to equip arms for lawful purposes." Whether a fixed or detachable makes no difference, they argue.

 

Judge asks whether Bruen changes everything. Murphy doesn't think so. But, says once something is an arm, it is protected. That doesn't end the inquiry, it shifts the burden to the state to prove something is out of bounds.

 

Grenade launcher is perfect example, they may be able to be picked up, but are not commonly held by citizens for self defense, Murphy said. Judge asks about a .50 caliber. "We did not challenge the .50 cal," but deferred to other plaintiffs attorneys.

 

"Wear, bear or carry on their person, on their clothing or their pocket to be able to be armed in case of a conflict of another person, so says the supreme court," McGlynn said. "So are arms that are typically or commonly possessed." Asks what is common use?

 

Murphy says there are standards, but "wherever the line is, we far surpassed." AR-platform rifles are second most popular, after handguns, she said.

 

This really is the state's burden, Murphy said. A list that identifies particular arms, but you also have a features ban that we certainly don't think there's any category, except grenade launchers, that are not dangerous or unusual & are common.

 

Judge asks about magazine capacity. Murphy says there isn't a particular number, but talks more about commonality of what is already owned being the standard.

 

We've seen things that come onto the market that don't find a home for people to keep and bear for self defense. Some devices that get larger and larger are less reliable and consumers don't take them up in common use, Murphy says.

 

Judge asks about machine guns in the 20s. Were banned because they were weapons of bootleggers and bank robbers, as opposed to common citizens. Where they banned because they could fire rapidly. "In a short period of time, they could spread a lot of lead."

 

Murphy argues that is different tech, and people gravitate to more accurate firing than just indiscriminate firing. The state has singled out, set aside the .50 cal, the features that don't have any impact on the lethality of the firearm, Murphy said.

 

Murphy argues that is different tech, and people gravitate to more accurate firing than just indiscriminate firing. The state has singled out, set aside the .50 cal, the features that don't have any impact on the lethality of the firearm, Murphy said.

 

Half the magazines at this point, people own are listed by Illinois as banned. Many law abiding people who have them believe they are best for self defense, Murphy said.

 

Once commonality is found, that's the end of the inquiry. Points back to Bruen decision.

 

Even if societal norms shift to things once scary now commonly owned for self defense, that's what matters with historical tradition of text, not what the state says is firearms from the founder's era, she said.

 

Judge McGlynn says 200 years ago, it was not possible to use available firearms to kill 20 people, asks if the legislature is out of bounds restricting things.

 

Murphy says the state has great leeway to punish misuse, many things they can do, but the Second Amendment tis there to arm against disarming law abiding citizens.

 

McGlynn looks for plaintiffs to address the impact on concealed carry. Murphy says there's no basis to single out commonly owned weapons like this.

 

McGlynn asks "looks to me like you can put one in your car if no ammo and locked but how do you defend yourself outside?" Murphy says that's another issue with the law. "I just don't think they can do that here."

 

McGlynn says military issued pistols and shotguns and discusses some of the standards in Heller. "Nail in the coffent for most useful in military test" from Heller is the Bruen standard that focuses on history and tradition.

 

[2:19pm CDT]

 

Edited by Euler
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On 4/12/2023 at 2:29 PM, Euler said:

Copy/paste of Bishop's tweets:

 

McGlynn says military issued pistols and shotguns and discusses some of the standards in Heller. "Nail in the coffent for most useful in military test" from Heller is the Bruen standard that focuses on history and tradition.

 

[2:19pm CDT]

 

 

For the life of me I have no idea what that means.  Someone asked Bishop to clarify this as well, and has not received a response.  

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Let's also not forget that a ton is getting lost in translation as I am sure Bishop isnt able to post every word spoken.  

 

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On 4/12/2023 at 2:36 PM, Dumak_from_arfcom said:

 

For the life of me I have no idea what that means.  Someone asked Bishop to clarify this as well, and has not received a response.  

 

I'm guessing, but I think it's a misinterpreted reference to this, from DC v Heller:

 

It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and

 

tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.

 

 

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On 4/12/2023 at 3:02 PM, mauserme said:

 

I'm guessing, but I think it's a misinterpreted reference to this, from DC v Heller:

 

It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and

 

tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.

 

 

 

The board needs a +1 button. 

 

+1

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More copy/paste of Bishop's tweets:

 

[2:36pm CDT]

 

Court back with plaintiffs attorney Thomas Maag to address grenade launchers. Judge puts illustration of a "grenade launcher," Maag disputes that and says it's a commonly held flare launcher. Says its self defense or self preservation.

 

Maag says there is a similar device that can fire fragmentation grenades of 40 mm, but that's not the 37 mm flare launcher. He says state's depiction is incorrect and is not a "grenade launcher."

 

On .50 cal, Maag said the standard bore diameter in the 18th century was basically a 12 gauge bore and said no major crimes have been shown to be conducted with a .50 cal. Says they are more for recreation.

 

Troy Owens, with the McHenry County State's Attorney's office as defendants, sides with the plaintiffs on this case. Note: they are also plaintiffs in the Northern District challenging the gun ban. Says injunction should be granted.

 

Owens argues there's no doubt the text and history has the Second Amendment giving people the right to keep and bear arms. Says he believes Bruen changes the paradigm on how such laws can be enforced.

 

[2:46pm CDT]

 

[3:09pm CDT]

 

[Laptop died. Tweeting by phone] Back after break for state to set up slide show, Christopher Wells for the defense says plaintiffs argument of common use is too simple. Lays out recent mass shootings, including Highland Park July 4th, as to why such guns should be banned

 

Wells shows images of arms being a pistol, a missile, a fighter jet, a tank, and says plaintiffs say must be bearable. Argues shoulder launched rockets can be bearable and are being used in Ukraine right now.

 

Wells argues such guns are common only after federal ban was lifted and that should not be the standard that market is flooded with them.

 

Wells argues some magazines are fine, but not all magazines. Equates short barreled shot gun regulation as something only criminals use.

 

State continues defense. Wells discusses M16s as standard issue for military that can be regulated for civillians. The main difference is automatic vs semi-automatic. The semi-auto is a distinction but suggests there's not a lot of functional difference with how they're used.

 

Wells discusses Heller. Says protected arms are those for self defense. Others with different use are not protected. McGlynn asks who gets to choose what weapon law abiding can use for for self defense. Wells says the use and attributes are the difference.

 

McGlynn gives scenario of wife home alone and four intruders. Wife has choice of shotgun with three rounds, handgun or AR15 with 5 or 30 round magazine. Suggests wife should take 30 round AR. "Who gets to decide?" McGlynn asks.

 

Wells suggests products like baby cribs that cause harm are taken off market. Such guns commit harm and should be taken off market. McGlynn says baby cribs are not protected in the Constitution.

 

Wells says 66% of consumers chose handguns, second is shotguns, third is rifles. McGlynn with another scenario: man takes wife and kids to learn how to fire shotgun. They fire. "I don't like the recoil." AR15? "More comfortable, better shoot." But, dismiss that as "survey says"?

 

Wells responds that legislature through self government can make such choices for citizens. McGlynn asks if that's infringement. Wells says no, points to other stats. McGlynn says other stats shows thousands of instances of people using such guns for self defense.

 

Wells says there are still options for self defense with ban in place. Says McGlynn's scenarios could be made with full auto options too.

 

Wells concedes the question is if plaintiffs prove they're common, says they are not.

 

McGlynn raises issue with mag limits for those with valid concealed carry permits. Wells says 15 round mag in concealed semiautomatic handgun allowed. Wells says state gets sued if they regulate, get sued if they don't.

 

Wells says it's absurd that just counting sales is a good standard. Says history has 1994 federal assault weapons bans. 2004, ban lifts, sales increase. After Sandy Hook 2012 shooting, another spike. Shows graphic of modern sporting rifle sales.

 

Wells says there are 170k privately owned machine guns. McGlynn says those individuals go through "a lot of hurdles." Wells flashes graphic of AR15 ads "consider your man card reissued," argues targeted campaign illudes to military use and mass shootings.

 

Wells argues only 2% of public own modern sporting rifles. Shows another graphic that 50% of guns are handguns. Dismisses question of how many of those are banned by Illinois' law.

 

McGlynn says he's concerned about things like flash suppressors being illegal. Wells says the features list, differ from the gun list, is about attachments that make rapid fire more stable. McGlynn says it helps the shooter with single shot sight.

 

McGlynn asks about another state illustration of pistol with protruding grip and impacts on gun owners who are elderly or have disabilities. Wells says on particular features. "Not here for that." "I'm here for that," McGlynn said.

 

McGlynn questioned the state's ban on features that bans things to make firing safer for gun holder. "You're making it illegal for people who need that for self defense," McGlynn said. Wells says there are still other legal guns on market.

 

McGlynn questioned the state's ban on features that bans things to make firing safer for gun holder. "You're making it illegal for people who need that for self defense," McGlynn said. Wells says there are still other legal guns on market.

 

What about 82 year old lawful citizen trying to defend his home, McGlynn asks. Wells says similar arguments could be made for short barreled shotguns, it's about how they are used criminally.

 

McGlynn brings up gun stats collecting in Illinois, reading article that such data is uncollectable. Wells says firearms lobby works to limit data. McGlynn says if so, how can state say people with disabilities and the elderly aren't using such guns for self defense.

 

Wells says legislature is elected and makes such judgments. McGlynn with another scenario: Tall husband, short wife, one AR. Stock adjustment is necessary, McGlyyn suggests. Wells says there are benefits to such, but AR15s have many combined features.

 

Wells says there are line-drawing challenges, but are they used commonly for self defense? Argues they are not. Court recesses for 7 minutes.

 

[3:53pm CDT]

 

[4:04pm CDT]

 

Court back in session. Wells says he can make history arguments quickly. McGlynn says he wants to get this right and can give more time. Says he wants people to make their argument.

 

Wells says both sides acknowledge the interplay of common use for self defense and regulating dangerous and unusual. Says sales being standard is not correct. Wells says they are proliferating and are causing problems, are dangerous.

 

Wells says unprecedented societal concerns means more nuance and "dramtic tech change" allows for regulatory response. Wells says consideration goes beyond 1791, 1868. Shows illustration of musket with 2 rounds a minute vs AR15 with 100 rounds a minute.

 

Wells shows chart of mass shootings over time, suggests there's an unprecedented societal concern. McGlynn asks if law abiding citizenry should be able to equip with comparable guns criminals use?

 

Wells refers back to regulations on machine guns. Says particular attributes may be for self defense, but others are being used for crime. Wells asks what does the constitution require and what latitude does legislature have?

 

McGlynn says bolt action is legal. Such gun was used in 1963 to kill JFK. Even says had 5 round mag. Got off 3 shots. One shot hits, another is the kill shot. If Oswald decided to keep firing, he could have done more damage with a gun perfectly legal under this law, McGlynn said.

 

Wells points back to graph of recent mass shootings. McGlynn asks if any such mass shootings with guns legal under statute, "yes," Wells said, but suggests law is meant to curb such violence by limiting availability.

 

Wells says historical tradition doesn't show number of sales being common use. Shows slide of regulations on other weapons: 17th century pocket pistol, 19th century bowie knife and revolver. Says weapons are regulated when more common and used more in crimes.

 

McGlynn says law makes law abiding criminals without committing crime with Class 3 felony, 2 to 5 years, surrender all firearms and more. "That's pretty darn steep," McGlynn said.

 

Wells says ignorance of law isn't a defense. McGlynn said prosecutors and sheriffs aren't going to enforce. Wells says some are suing the state.

 

Wells says some law enforcement support the law. Says law regulates sales, focused on gun manufactures and gun dealers. Says that's where law will have some bite. Five minutes left.

 

Wells points to short barreled shotgun, machine gun regulations, AWB from 1994. Only difference between then and now is firearms marketing that succeeded to bring in major sales. Says that's not how we do constitutional law.

 

On irreparable harm charge, three groups: individuals with ARs, gun stores losing sales, and organizational plaintiffs, Wells says on other side, mass shootings are happening and guns should be regulated and statute should be deemed constitutional and upheld.

 

[4:33pm CDT]

 

Wells finishes. Plaintiffs return to podium, say defense wants to only focus on Heller without referencing Bruen case. Says it's the state's burden to prove law doesn't violate Second Amendment.

 

Plaintiffs say sales weren't from clever marketing after AWB lifted in 2004, many AR15 were owned before. Also clarifies that CCW holders cannot carry pistol with more than 15 round mag.

 

McGlynn brings up access to AR15s for those who commit harm. Plaintiffs say semi-automatics have been around a long time and doesn't correlate with mass shootings. Says Illinois' law is an outlier law.

 

Last point plaintiffs want to make, notion of self governance state argued. Says that can't impede on Bill of Rights. Just because a majority of people may want to limit speech or allow warrantless searches, that can't happen per Bill of Rights.

 

Plaintiffs finish: these are advancements that have been welcomed developments that people want to see in firearms and courts say if they're common, they can't be banned.

 

McGlynn thanks attorneys and brief writers. Says "we see the victims and perpetrators and all want to see reduction of mass shooter crime, but from where I sit, I think we need to look at more than just the gun, but what are troubled teens doing, medicines taken, red flags. ...

 

A lot to think about, but we are adjouned, judge says.

 

[4:45pm CDT]

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This case is not about providing weapons to criminals. There's a valid debate about which criminals should have their rights suspended, but this case isn't it. This case is about suspending the civil liberties of people who aren't criminals (i.e., everyone). The state had the burden to prove the law is constitutional, but the state's entire argument is irrelevant.

 

Burden not met.

 

Edited by Euler
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