Silhouette

Trying to bring this back a bit... There appears to be a lot of old common law (colonial era and preceding) from England regarding the age of majority (traditionally 21) as well as simultaneous different ages for military service (sometimes as young as 12) and ages of consent (also sometimes as young as 12) (info sourced via wikipedia -- better sources or corrections are welcome). The UK and US now have the age of majority at 18. I am not sure from where the idea that all rights in our legal system must attach at the same moment comes. There are currently plenty examples including drinking, voting, smoking, age of consent etc that attach at different times, and the constitution specifies ages for senators and presidents explicitly. All that said, there may be every reason to argue that certain rights like self-defense should be tied to others like national defense and military service -- especially given the wording in the (non-limiting) preamble to the second amendment.

Though I'm not saying that this is what is happening here, one reason to pursue things in both State and Federal courts is to create a split is "courts of last resort." Most laws running afoul of 2A fundamental rights happen in the same circuit or suffer from precedent in a single circuit (see Friedman). It's not like we can challenge an "assault weapons" ban in Texas because one doesn't exist. Therefore getting the same result with different rationale or different rulings between a state supreme court and a circuit court of appeals is one route to improving the chance of SCOTUS review. That said, judges may notice this approach and choose to find adjacent, non-binding precedent persuasive. This type of strategy is a long shot, but it isn't totally without merit.

@BMeyers The conference mentioned here is not the process that you describe above (though that could conceivably happen in a year's time). When there is a petition for certiorari requesting that Scotus exercise its authority to hear a case, the Justices consider that petition. In very broad strokes, they get together and vote on whether to hear the case. It takes four votes to grant the petition and have SCOTUS take up the case. At a more granular level (but still not complete), most justices participate in a "cert pool" where their clerks divide up the cert petitions and summarize the issues concisely for the justices so that they can decide how to vote. Then, at the weekly Friday conference, if a case looks promising (the vast majority of requests are denied), it often gets relisted for a future conference at which point the justices take a close look through their own processes and clerks. At a subsequent conference, the justices may actually vote on the case. Some petitions are relisted over 10 times. In the modern era, most cases that will be accepted are relisted at least once. The case being discussed here is at the petition for certiorari stage and is fully briefed and scheduled the petition for cert is scheduled for the conference on 5/16. The justices can do whatever they deem appropriate, but betting odds would be on denial (bad for us) or relist (promising). The hope is that certiorari (review) will ultimately be granted so that oral arguments can happen next term.

This is a fascinating mess. There is an article here detailing a similar situation in the 5th circuit (not binding on anything here) suggesting some strategies, but it is clearly going to be complex. https://finaldecisions.org/avoiding-but-not-disarming-the-finality-trap/ Short summary: Joyal's claims were presumably dismissed under Rule 41 meaning the decision can't now be declared final -- even if the district court tries to do so under Rule 58,. Also, the court probably can't go back and use rule 54b (lots of gymnastics with this one) to get around the issue. The recommended approach, which is not guaranteed to work, would be to have Joyal bindingly disclaim the right to reassert the claims.

This seems like quite an unforced error (or suggests some strange shifts in politics). Is there a way to recover from this with an additional filing from Joyal?

This rehearing en banc seems to be related to Maryland Shall Issue v Moore: https://www.courtlistener.com/docket/66754326/maryland-shall-issue-inc-v-wes-moore/ The two cases hinge on the same question of law and MSI v Moore had an opinion striking down the Md Handgun license law in November. It seems odd to summarily grant an en banc hearing sua sponte in Bianchi because of MSI, especially when the en banc decision wouldn't obviously be binding on the panel in Bianchi. Don't get me wrong. I don't like it. ...but it's not quite as odd in light of MSI v Moore.

Thank you, Euler. I don't know how I missed that. Mea Culpa.

I just read the Range v. US opinion (both the 3rd circuit from November and the en banc 3rd circuit decision from June). The June decision is a particularly good read. Was there a thread on that case on this forum? If so, I missed it. In Range v. US, a state law due to welfare/food stamp fraud made Range a felon and he successfully challenged the federal statute that removed his ability to have a firearm. For those who may have also missed this case, a link to the final decision is here. (I note that the Range case is binding precedent for the case in this thread so I hope my including the link is not off topic.) https://law.justia.com/cases/federal/appellate-courts/ca3/21-2835/21-2835-2023-06-06.html

Here's a link to the motion for a stay pending appeal: https://oag.ca.gov/system/files/attachments/press-docs/Miller - Motion for Stay Pending Appeal.pdf

Molly provided an updated about three pages back that I believe is still the most up-to-date happening in this matter.

For reference, the unlawful use of a weapon statute in Illinois deems mere possession in a vehicle to be a "use". Similarly, mere purchase of an assault weapon is a "use." I hope CA7 or SCOTUS doesn't entertain this mincing of words that these firearms are not in use.

Scotus declined to intervene. https://www.scotusblog.com/2023/05/court-rejects-request-to-temporarily-block-illinois-assault-weapon-bans/

Thank you very much, Euler, for typing up this synopsis of the hearing!

It sounds like this court responsibly felt that its hands were tied by the higher court. At least they didn't waste inordinate amounts of time getting to this point. Good luck at the next court getting the precedent overturned!!

Facts are determined by a jury and an evidence record, but matters of law get de novo review. Text, history, and tradition are not facts of the case but rather matters of law. They would have the opportunity to argue any such legal analysis by the judge at the next step.