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View Full Version : Ezell v. Chicago, 7th Decides - REVERSES District, REMANDS for grant of injunction


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krucam
07-06-2011, 8:56 AM
http://www.ca7.uscourts.gov/tmp/9C0NWF4M.pdf

We reverse. The (lower) court’s decision turned on several legal
errors. To be fair, the standards for evaluating Second
Amendment claims are just emerging, and this type
of litigation is quite new. Still, the judge’s decision
reflects misunderstandings about the nature of the
plaintiffs’ harm, the structure of this kind of constitutional
claim, and the proper decision method for evaluating
alleged infringements of Second Amendment rights.

On the
present record, the plaintiffs are entitled to a preliminary
injunction against the firing‐range ban. The harm to their
Second Amendment rights cannot be remedied by damages,
their challenge has a strong likelihood of success on the
merits, and the City’s claimed harm to the public interest is
based entirely on speculation.

Quser.619
07-06-2011, 9:00 AM
No owner the new Mayor seems open to allowing ranges now, must have gotten wind of the ruling beforehand.

bulgron
07-06-2011, 9:00 AM
Well that sounds like good news.

Theseus
07-06-2011, 9:01 AM
:jump::party:

Window_Seat
07-06-2011, 9:03 AM
Looking like yet another 2A victory in Chicago. Very good week for us so far. :thumbsup:

Erik.

Mute
07-06-2011, 9:20 AM
I love it! Great ruling.

Maestro Pistolero
07-06-2011, 9:21 AM
I wonder if the Mayor's proposal hastened a decision?

G60
07-06-2011, 9:23 AM
No owner the new Mayor seems open to allowing ranges now, must have gotten wind of the ruling beforehand.
He was trying to moot the lawsuit. He wasn't so much 'open to allowing ranges' as he didn't want to get smacked down in court.


I wonder if the Mayor's proposal hastened a decision?
;):43:

safewaysecurity
07-06-2011, 9:31 AM
I wonder if the Mayor's proposal hastened a decision?

Well it did come the next day.....lol

1JimMarch
07-06-2011, 9:42 AM
Take a look at footnote 12 on page 34. They're describing a circuit split (with the ninth!) as to how to handle level of scrutiny questions. As carry rights cases come up, this will be critical. As is, a carry case in the 7th Circuit should go our way if it's consistent with this decision; the 9th could easily go against us. Circuit splits are important as they draw USSC case approval...

Foulball
07-06-2011, 9:43 AM
Just finished reading the whole thing.....Holy Crap!!! That was a complete and utter smackdown to the city and lower court!

ddestruel
07-06-2011, 9:47 AM
after reading this im seeing a big WIN

I could keep quoting but i saw some stuff that really sounds interesting, there is some meat in that text that really should have applied to Nordyke, as well as Puerta and Sykes and it should in the appeals process.

If i am reading this right the 7th just layed out a real clear cut explaination on thier inturpretation of what the supreme court is expecting. There is a serious split with the 9th's recent rulings that should help us later, maybe even on the ammo and gun bans if its acceptable federally to the general law abiding population, why then can a single state take it away from law abiding citizens. Though its a long ways down the road (years) if this stands, post trial and is used by the supreme court as the model then I see zoning laws standing a chance of failing now, gun store ordinances being more seriously scrutuinized, gun ranges being permited for the most part and they seem like they really went wide on this ruling to address alot of the variables that the gun control freaks have been trying to exploit in their last ditch efforts. I'd love it if this along with several other ruilings were able to be used to solidify a core argument against any further state ammunition and gun roster antics

I see a Big clear cut win hear laying out some new 6 lane interstates for our road map to relief. But im no legal expert just an enthusiastic citizen stuck in a very oppressive state.

------------------

" First, a severe burden on the core
Second Amendment right of armed self‐defense will require
an extremely strong public‐interest justification and a close
fit between the government’s means and its end. ""Second,
laws restricting activity lying closer to the margins of the
Second Amendment right, laws that merely regulate rather
than restrict, and modest burdens on the right may be more
easily justified. How much more easily depends on the
relative severity of the burden and its proximity to the core
of the right."


In Skoien we required a “form of strong showing”—a/k/a
"intermediate scrutiny”—in a Second Amendment challenge[/SIZE]to a prosecution under 18 U.S.C. § 922(g)(9), which prohibits the possession of firearms by persons convicted of
a domestic‐violence misdemeanor....... [COLOR="Red"]Intermediate scrutiny was appropriate
in Skoien because the claim was not made by a “law‐abiding,
responsible citizen”

Here, in contrast, the plaintiffs are the “law‐abiding,
responsible citizens” whose Second Amendment rights
are entitled to full solicitude under Heller, and their
claim comes much closer to implicating the core of the
Second Amendment right. The City’s firing‐range ban is not
merely regulatory; it prohibits the “law‐abiding, responsible
citizens” ..............an important corollary to the meaningful
exercise of the core right to possess firearms for self‐defense."




------------------
"It’s hard to imagine anyone suggesting that Chicago may prohibit the exercise of a
free‐speech or religious‐liberty right within its borders on the rationale that those
rights may be freely enjoyed in the suburbs. That sort of argument should be no
less unimaginable in the Second Amendment context."


------------------

Something in this last one makes me really wonder about the future challenges of the Roster or for that matter ammo bans, AWBs and any other firearm restriction by a state, if it is federally available and firearms are regulated by the federal ATF and federal standards and the right is protected federally by the US constitution how can a state take it partially away while other states do not? why do i have to travel to another state to exercize my right? shouldnt the state have to show that thier ban is justified.......??? It would similar to a state utah claiming that they have an interest in allowing various forms of the morman religion and then claiming that Jews should step over towards Wendover or Idaho falls to practice thier religion. Or similar to CA trying to regulate Violent Video games, if it is federally acceptable the state can not try to regulate it because it doesnt fit thier mold.

This makes for a Happy 4th of July (independancy day) week



:)

Librarian
07-06-2011, 10:20 AM
And a teaser I just got in email: The Second Amendment Foundation and Alan Gura are proud to have won another landmark Second Amendment case. Stay tuned as more legal filings are on deck this week.

Alan Gottlieb

G60
07-06-2011, 10:24 AM
""Stung by the result of McDonald v. City of Chicago, the City quickly enacted an ordinance that was too clever by half. Recognizing that a complete gun ban would no longer survive Supreme Court review, the
City required all gun owners to obtain training that included one hour of live‐range instruction, and then banned all live ranges within City limits.
This was not so much a nod to the importance of live‐range training as it was a thumbing of the municipal nose at the Supreme Court."

""The ordinance admittedly was designed to make gun ownership as difficult as possible.... But the Supreme Court
has now spoken in Heller and McDonald on the Second Amendment right to possess a gun...for self‐defense and the City must come to terms with that reality."

CalBear
07-06-2011, 10:29 AM
This is a much more accurate interpretation of the Heller framework than the Nordyke court opined. The Heller framework is that laws violating core aspects of the 2A for law abiding people are necessarily unconstitutional, regardless of any standards of scrutiny applied to other laws relating to the 2A. The Nordyke three wrongly interpreted Heller as implying heightened scrutiny only applies to laws that violate the fundamental right, while other laws don't trigger any heightened scrutiny.

safewaysecurity
07-06-2011, 10:31 AM
And a teaser I just got in email:

This week! Wow. Can't wait :D

wash
07-06-2011, 10:36 AM
Could someone confirm that this is a permanent ruling?

I think it is but I hope it doesn't just grant a preliminary injunction that will only be good until Rahm moots the case, thus ending any chance of SAF and ISRA getting their legal fees paid.

I was hoping this case could fund a sweet set of rims for Alan...

wildhawker
07-06-2011, 10:38 AM
Take that.

dantodd
07-06-2011, 10:39 AM
Could someone confirm that this is a permanent ruling?

I think it is but I hope it doesn't just grant a preliminary injunction that will only be good until Rahm moots the case, thus ending any chance of SAF and ISRA getting their legal fees paid.

I was hoping this case could fund a sweet set of rims for Alan...

That trick didn't work for Chicago when they tried it with McDonald. This ruling doesn't sound like it is coming from a court that will accept such attempts at avoiding responsibility by the City.

jdberger
07-06-2011, 10:41 AM
Looking like yet another 2A victory in Chicago. Very good week for us so far. :thumbsup:

Erik.

THREE-PEAT!

Sutcliffe
07-06-2011, 10:41 AM
I'm certain they will find new and improved ways of stalling, subverting or otherwise denying the people of chicago their right to arms. The courts haven't managed to smack down or hinder that town's ability to moot the rule of law for over a hundred years.

krucam
07-06-2011, 10:42 AM
This is a much more accurate interpretation of the Heller framework than the Nordyke court opined. The Heller framework is that laws violating core aspects of the 2A for law abiding people are necessarily unconstitutional, regardless of any standards of scrutiny applied to other laws relating to the 2A. The Nordyke three wrongly interpreted Heller as implying heightened scrutiny only applies to laws that violate the fundamental right, while other laws don't trigger any heightened scrutiny.

Footnote 12 on Pg 34 calls out the Nordyke panel's "analysis"

jrr
07-06-2011, 10:44 AM
Wow... this quote right here:

"This is a serious
encroachment on the right to maintain proficiency in
firearm use, an important corollary to the meaningful
exercise of the core right to possess firearms for self‐defense"

That is PURE GOLD. Indicating in strong language that there is a right to maintain proficiency with firearms as a corrolary to the right to keep arms for self defense opens up all sorts of avenues for defeating ammo bans, and even taking on gun rosters. After all you cant be proficient with a gun you arent comfortable using, which is the reason we have left handed people wanting ambidextrous guns, small handed people wanting small "pocket pistols" etc. Great ruling.

FullMetalJacket
07-06-2011, 10:44 AM
Do I understand correctly: has the 7th Court said (in effect) that firing ranges are protected under the Second Amendment, as their prohibition impacts on the core right of having a gun for self-defense?

Patrick-2
07-06-2011, 10:52 AM
OK, I reserved comment until I read all 50+ pages, a number of them twice.

First: this is a first-class judicial smackdown.

I won't go through the details right now, but they are extensive and more importantly, instructive. The court here was clearly targeting the bigger picture.


The Moneyshot:

The range ban is dead, but so are a whole slew of regulations that are tangentially related:

They are entitled to a preliminary injunction to that effect. To be effective, how‐ ever, the injunction must also prevent the City from enforc‐ ing other provisions of the Ordinance that operate indirectly to prohibit range training. The plaintiffs have identified several provisions of the Ordinance that implicate activities integral to range training: CHI. MUN. CODE §§ 8‐20‐020 (prohibiting the possession of handguns outside the home), 8‐20‐030 (prohibiting the possession of long guns outside the home or business), 8‐20‐080 (prohibiting the possession of ammunition without a corresponding permit and registration certificate), 8‐20‐100 (prohibiting the transfer of firearms and ammunition except through inheritance), 8‐24‐010 (prohibiting the discharge of firearms except for self‐defense, defense of another, or hunting). To the extent that these provisions prohibit law‐abiding, responsible citizens from using a firing range in the city, the preliminary injunction should include them as well. Similarly, the injunction should prohibit the City from using its zoning code to exclude firing ranges from locating anywhere in the city.

Finally, because range training is required for the issuance of a Chicago Firearm Permit, a registration certificate, and ultimately, for lawful possession of any firearm, see CHI. MUN. CODE §§ 8‐20‐110(a), 8‐20‐140(a)‐(b), the firing‐range ban implicates not only the right to train at a range but also the core Second Amendment right to possess firearms for self‐defense. Accordingly, the preliminary injunction should include sections 8‐20‐110(a) and 8‐20‐140(a) to the extent that those provisions operate to prohibit otherwise eligible persons from “carry[ing] or possess[ing] a firearm” at a range without a Permit or registration certificate while they are trying to complete the range‐training prerequisite for lawful firearm possession.

Sorry for the long quote, but the context matters.

Did you catch that highlighted part? Read it again:

"Accordingly, the preliminary injunction should include sections ... to the extent that those provisions operate to prohibit otherwise eligible persons from “carry[ing] or possess[ing] a firearm” at a range without a Permit or registration certificate while they are trying to complete the range‐training prerequisite for lawful firearm possession.

It's a small effect today but a big one in the future. The circuit just shut down the permit requirement for possession for those the city have not yet permitted to own a gun, as long as the persons are training to attain the permit. If you think that is a BS position, you are correct. And the court knows it.

Remember, the court is not going to rule on non-contested provisions. But they did extend a pretty wide sweep in their tangential holdings. So wide that the NRA case against the permit requirements in general just got a big boost.

Add to that a smackdown of restrictions on carry outside the home for training purposes. These are small issues today (and obvious), but they create a template for all future challenges. This is a big deal.

The Seventh looked well beyond range bans and learned something from the Fourth: don't be circumspect in your framework (ala Chester) and leave the door open for a Masciandaro. Be broad and go for the flag. They did that here. But then again, so did the Ninth in Nordyke.

FWIW, they came real close to requiring strict scrutiny for gun ranges for regular training purposes. I think that was intentional - strict would be a bit too much. But they did require the city provide "empirical proof" that a range is harmful to the public when the city restricts a gun range somewhere. That means that creative zoning gets kicked to the curb. They just created a very high standard to meet. I doubt the city will make it.

Ranges Are Protected

The next big holding: ranges are protected. Not strictly, but damn close enough to require a serious showing of harm before they can be shut down. If extended nationwide, that portends good things for the range on my property.

Results for the Rest of the Nation

I'll say that this comes real close to creating a circuit split with the Ninth. I'd have to dig a bit more, but the originalist approach here does not comport one bit with Nordyke. Hell, the Seventh actually call that out themselves. I suspect that results in some serious framework analysis issues in the evaluation of a fundamental right. That means likely cert. The question is whether Chicago will take the appeal route. My guess is the answer will be "no".

But...the Nordykes just got a shot of adreneline on their en banc and likely appeal. Even if Chicago avoids the fight, the decision here diverges far enough from the Nordyke framework to probably result in cert in Nordyke. If nothing, it will force the Ninth to read carefully in their upcoming en banc (assuming they agree to it).


You can thank Chicago for a great ruling. Their city council - like DC's - is the gift that keeps on giving. Also, it's pretty clear Rahm caught wind of this and tried to foreclose it. Fail.

Keep in mind that at this point, no city law change will moot the case. And it looks like the circuit opened the door to gun ranges in a far wider breadth of neighborhoods than the city would prefer:

The City hypothesized that one cause of range‐related injury could be stray bullets, but this seems highly implausible insofar as a properly equipped indoor firing range is concerned. The district court credited the plaintiffs’ evidence that “mobile ranges are next to Sam’s Clubs and residences and shopping malls and in parking lots, and there’s not been any difficulties with them in those places.” Commissioner Scudiero acknowledged that the law‐enforcement and private‐security firing ranges in Chicago are located near schools, churches, parks, and stores, and they operate safely in those locations.

Oops.

jdberger
07-06-2011, 10:52 AM
Do I understand correctly: has the 7th Court said (in effect) that firing ranges are protected under the Second Amendment, as their prohibition impacts on the core right of having a gun for self-defense?

If so, it's going to have some interesting impacts on land-use law.

Patrick-2
07-06-2011, 10:53 AM
Do I understand correctly: has the 7th Court said (in effect) that firing ranges are protected under the Second Amendment, as their prohibition impacts on the core right of having a gun for self-defense?

Yes. They applied "almost" strict scrutiny.

Strict would have been a little too much for ranges, but they may have struck a good balance here. They foreclosed a good amount of creative zoning thanks to Chicago's own acceptance of ranges in other-than-manufacturing districts.

mdimeo
07-06-2011, 10:55 AM
Do I understand correctly: has the 7th Court said (in effect) that firing ranges are protected under the Second Amendment, as their prohibition impacts on the core right of having a gun for self-defense?

Pretty clearly, yes. But don't get carried away; many kinds of regulation (zoning, for example) are going to be permissible.

wash
07-06-2011, 11:00 AM
Two pages of this decision gave me an idea for a Nordyke follow up.

I've got to talk to the right people.

Maestro Pistolero
07-06-2011, 11:08 AM
To be effective, however,
the injunction must also prevent the City from enforcing
other provisions of the Ordinance that operate indirectly
to prohibit range training. The plaintiffs have identified
several provisions of the Ordinance that implicate activities
integral to range training: CHI. MUN. CODE §§ 8‐20‐020
(prohibiting the possession of handguns outside the home),
8‐20‐030 (prohibiting the possession of long guns outside
the home or business), 8‐20‐080 (prohibiting the possession
of ammunition without a corresponding permit and registration
certificate), 8‐20‐100 (prohibiting the
transfer of firearms and ammunition except through
inheritance), 8‐24‐010 (prohibiting the discharge of
firearms except for self‐defense, defense of another, or
hunting). To the extent that these provisions prohibit
law‐abiding, responsible citizens from using a firing
range in the city, the preliminary injunction should
include them as well. Similarly, the injunction should
prohibit the City from using its zoning code to exclude
firing ranges from locating anywhere in the city.

All that and a bag of chips.

Maestro Pistolero
07-06-2011, 11:10 AM
. . . and a couple of extra pickles:

This was not so much a nod to the importance of live‐range training as it was a thumbing of the municipal nose at the Supreme Court. The effect of the ordinance is another complete ban on gun ownership within City limits.

The ordinance admittedly was designed to make
gun ownership as difficult as possible. The City has legitimate,
indeed overwhelming, concerns about the prevalence
of gun violence within City limits. But the Supreme Court
has now spoken in Heller and McDonald on the Second Amendment
right to possess a gun in the home for self defense
and the City must come to terms with that reality.

Gray Peterson
07-06-2011, 11:16 AM
Take that.

Two great minds think alike.

foxtrotuniformlima
07-06-2011, 11:27 AM
Well it seems there are actually some judges who read everything and take their job seriously. What a pleasant surprise.

In order to have a permit for a handgun, you need training but there is no place to get training and if there was, you would not be allowed to have the gun needed to get the training because you would have no permit. A circle that never ends.

Thanks 7th Cir for seeing the details.

spgripside
07-06-2011, 11:30 AM
Damn fine decision. This week seems to be shaping up pretty good for us.

curtisfong
07-06-2011, 11:35 AM
Wow... this quote right here:

"This is a serious
encroachment on the right to maintain proficiency in
firearm use, an important corollary to the meaningful
exercise of the core right to possess firearms for self‐defense"

That is PURE GOLD. Indicating in strong language that there is a right to maintain proficiency with firearms as a corrolary to the right to keep arms for self defense opens up all sorts of avenues for defeating ammo bans, and even taking on gun rosters. After all you cant be proficient with a gun you arent comfortable using, which is the reason we have left handed people wanting ambidextrous guns, small handed people wanting small "pocket pistols" etc. Great ruling.

Really, really excellent. Hope you are paying attention Kevin DeLeon. Eventually, one of your stupid laws is going to the 9th, and even if you "win", you'll see a circuit split over it.

Patrick-2
07-06-2011, 11:38 AM
If so, it's going to have some interesting impacts on land-use law.

I agree.

Assuming this standard was applied everywhere, the effect would be notable. Specifically, it raises the bar to challenges on indoor ranges such that you need to demonstrate an empirical danger to the public. That is real hard to pull off against an indoor range. I think the only possible issue is noise ordinances, but even those can be handled. And in the end, this elevates the ranges to point where a city could not say "Noise ordinance in general is 90 decibels at property line (a common standard), unless a gun range is involved - in which case it is 40 decibels."

Again...they need to empiracally prove a problem.

For outdoor ranges, this would be a shot in the arm for those of us with ranges on our own property. In essence, to ban the range on my property they would need to argue that the possible overshot wold hurt someone. Fair enough. But then they could not allow hunting, either. That pretty much shuts down most of the hunting land in Maryland.

Current law says I need to be 150 yards from a neighbor before I discharge. I am. But I have a "neighbor" 1/2 mile distant who calls the sheriffs every time someone (anyone) fires a gun in my area. That pretty much means every damn day. Guns go off here all the time. I bought suppressors just to avoid the problem, but they called even when I fired a few non-suppressed rounds. These days I don't care. Neither do the Sheriff's Deputies. They apologized profusely for disturbing me last time they were out here and promised to not bug me again (they asked if they could measure the distance to the idiot's house. I said yes, then whipped out the iPhone and mapped the distance. They laughed then asked about my favorite guns.).

But...if enough of these city transplants got together, they could pressure the county council to pass a range ordinance.

Unless Ezell's logic holds. In which case, they can kiss my AK-47 firing ***.

Librarian
07-06-2011, 11:38 AM
Could someone confirm that this is a permanent ruling?

I think it is but I hope it doesn't just grant a preliminary injunction that will only be good until Rahm moots the case, thus ending any chance of SAF and ISRA getting their legal fees paid.


I saw someplace that Alan tweeted it would not be mooted.

Technically it is NOT permanent; the injunction is (will be) issued based on the idea that the plaintiffs, in the opinion of the 7th Circuit, are likely to prevail at trial.

In a sensible world, the 7th just saved the defendants a few 100K$ in legal costs. This, however, is Chicago. They could go to trial.

Southwest Chuck
07-06-2011, 11:41 AM
I'm certain they will find new and improved ways of stalling, subverting or otherwise denying the people of chicago their right to arms. The courts haven't managed to smack down or hinder that town's ability to moot the rule of law for over a hundred years.

Read pages 48-50

"D. Balance of Harms
The remaining consideration for preliminary injunctive
relief is the balance of harms."

The plaintiffs asked the district court to enjoin the enforcement
of Chicago Municipal Code § 8‐20‐280—the prohibition
No. 10‐3525 49
on “[s]hooting galleries, firearm ranges, or any other place
where firearms are discharged.” They are entitled to a
preliminary injunction to that effect.

To be effective, however,
the injunction must also prevent the City from enforcing
other provisions of the Ordinance that operate indirectly
to prohibit range training. The plaintiffs have identified
several provisions of the Ordinance that implicate activities
integral to range training: CHI. MUN. CODE §§ 8‐20‐020
(prohibiting the possession of handguns outside the home),
8‐20‐030 (prohibiting the possession of long guns outside
the home or business), 8‐20‐080 (prohibiting the possession
of ammunition without a corresponding permit and registration
certificate), 8‐20‐100 (prohibiting the
transfer of firearms and ammunition except through
inheritance), 8‐24‐010 (prohibiting the discharge of
firearms except for self‐defense, defense of another, or
hunting). To the extent that these provisions prohibit
law‐abiding, responsible citizens from using a firing
range in the city, the preliminary injunction should
include them as well.

Similarly, the injunction should
prohibit the City from using its zoning code to exclude
firing ranges from locating anywhere in the city.
Finally, because range training is required for the issuance
of a Chicago Firearm Permit, a registration certificate, and
ultimately, for lawful possession of any firearm, see CHI.
MUN. CODE §§ 8‐20‐110(a), 8‐20‐140(a)‐(b), the firing‐range
ban implicates not only the right to train at a range but also
the core Second Amendment right to possess firearms for
self‐defense. Accordingly, the preliminary injunction should
include sections 8‐20‐110(a) and 8‐20‐140(a) to the extent
that those provisions operate to prohibit otherwise eligible
50 No. 10‐3525
persons from “carry[ing] or possess[ing] a firearm” at a
range without a Permit or registration certificate while they
are trying to complete the range‐training prerequisite for
lawful firearm possession.

Those are the bounds of the proposed preliminary
injunction, which should be entered upon remand.

No zoning restrictions anywhere in the City????

Can you say MOMENTOUS WIN !!! ???

Patrick-2
07-06-2011, 11:43 AM
...

In a sensible world, the 7th just saved the defendants a few 100K$ in legal costs. This, however, is Chicago. They could go to trial.

That would be good for Rahm's fund raising but bad for Obama next year. As much as the are in different towns, the fact is they are connected in the minds of the people.

Rahm playing 'sensible' on gun control is good for Obama. I seriously doubt Chicago will fight this. Anything less makes it an Obama issue, fair or not.

CHS
07-06-2011, 11:45 AM
the City’s claimed harm to the public interest is based entirely on speculation.

That sentence right there is absolutely beautiful and what I want to see more of.

I'm sick and tired of the argument being "more guns equals blood in the streets!!!" when that is nothing but pure unfounded speculation.

Judges need to smack down more laws that are based on nothing more than speculation rather than a narrowly tailored government interest!

bwiese
07-06-2011, 12:20 PM
FFL resale gunshop operation is a subset of the functionality of typical gunranges. (Owners come in/out transporting w/secured firearms and ammo - only difference is lack of firing on the non-range.)

Sunnyvale Planning commission needs to read this :)

choprzrul
07-06-2011, 12:24 PM
Seems like grounds for stopping SB124 & SB427 cold in their tracks. Since passage will ensure a trip to court, thus increasing expenditure of tax receipts, shouldn't those two bills include budget considerations also?

.

wash
07-06-2011, 12:25 PM
I saw someplace that Alan tweeted it would not be mooted.

Technically it is NOT permanent; the injunction is (will be) issued based on the idea that the plaintiffs, in the opinion of the 7th Circuit, are likely to prevail at trial.

In a sensible world, the 7th just saved the defendants a few 100K$ in legal costs. This, however, is Chicago. They could go to trial.
I guess I did have a little to worry about but it will probably buy some rims for Alan.

Thanks for letting me know.

Maestro Pistolero
07-06-2011, 12:27 PM
So, while this is an excellent window into the likelihood of prevailing in a future case, as a preliminary injunction, it does not provide precedent without prevailing at full trial, correct?

rt55c
07-06-2011, 12:38 PM
It's too bad Daley isn't still the mayor. It would've been another slap too his face and we would have another one of his whining press conferences to laugh at

Tarn_Helm
07-06-2011, 12:49 PM
http://www.ca7.uscourts.gov/tmp/9C0NWF4M.pdf

We reverse. The (lower) court’s decision turned on several legal
errors. To be fair, the standards for evaluating Second
Amendment claims are just emerging, and this type
of litigation is quite new. Still, the judge’s decision
reflects misunderstandings about the nature of the
plaintiffs’ harm, the structure of this kind of constitutional
claim, and the proper decision method for evaluating
alleged infringements of Second Amendment rights.

On the
present record, the plaintiffs are entitled to a preliminary
injunction against the firing‐range ban. The harm to their
Second Amendment rights cannot be remedied by damages,
their challenge has a strong likelihood of success on the
merits, and the City’s claimed harm to the public interest is
based entirely on speculation.

Hot diggety!!!
:D

Scarecrow Repair
07-06-2011, 12:58 PM
... but I don't quite understand how this relates to the brand new Chicago law on ranges. Near as my dense brain can tell, it throws out the old range law, and associated stupid laws on transporting and permitting while training to get the permit. But it doesn't throw out the requirement to get range time, right? So wouldn't the part that throws out the old range law be mooted by the new range law?

jb7706
07-06-2011, 1:04 PM
Stick that in yer pipe and smoke it. Chi Town just got :owned:.

mdimeo
07-06-2011, 1:14 PM
It's a small effect today but a big one in the future. The circuit just shut down the permit requirement for possession for those the city have not yet permitted to own a gun, as long as the persons are training to attain the permit. If you think that is a BS position, you are correct. And the court knows it.

I don't think it goes quite that far - the city could still ban possession other than at a range for non-permit-holders, and allow use of instructor-owned firearms or rentals at a range, under the described injunction.

Still an awesome ruling. We got almost everything we would want, and the grabbers got nothing at all that I can see.

Peter.Steele
07-06-2011, 1:44 PM
This is the part that I really found interesting, from the bottom of page 19:

"This reasoning assumes that the harm to a constitutional right is measured by the extent to which it can be exercised in another jurisdiction. That’s a profoundly mistaken assumption. In the First Amendment context, the Supreme Court long ago made it clear that “ ‘one is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place.’” Schad v. Borough of Mt. Ephraim, 452 U.S. 61, 76‐77 (1981) (quoting Schneider v. State of New Jersey, 308 U.S. 147, 163 (1939)). The same principle applies here. It’s hard to imagine anyone suggesting that Chicago may prohibit the exercise of a free‐speech or religious‐liberty right within its borders on the rationale that those rights may be freely enjoyed in the suburbs. That sort of argument should be no less unimaginable in the Second Amendment context."


Applicability re: roster & AWB?

wash
07-06-2011, 1:53 PM
I don't see how a range ban and mandatory range training can be directly compared to the roster or "assault weapon" ban.

If you want to look at the "assault weapon" issue, it's like how the CA "assault weapon" permit is supposed to be shall issue but they will not really issue one unless you are a movie prop master or something.

Librarian
07-06-2011, 1:59 PM
... but I don't quite understand how this relates to the brand new Chicago law on ranges. Near as my dense brain can tell, it throws out the old range law, and associated stupid laws on transporting and permitting while training to get the permit. But it doesn't throw out the requirement to get range time, right? So wouldn't the part that throws out the old range law be mooted by the new range law?

Middle of page 49 Similarly, the injunction should prohibit the City from using its zoning code to exclude firing ranges from locating anywhere in the city.That exclusion-by-zoning is the substance of the new ordinance.

There might actually be someplace that fits the new ord., but the 3-judge panel of the 7th is clearly not amused - from the concurrence (pp 51-52)This was not so much a nod to the importance of live‐range training as it was a thumbing of the municipal nose at the Supreme Court.

bulgron
07-06-2011, 2:14 PM
Applicability re: roster & AWB?

Roster & AWB, nothing. That seems to go to the heart of the "in the home" argument that we've been getting saddled with since Heller.

Rossi357
07-06-2011, 2:27 PM
Someone please tell me how this balancing harm applies to LOC and LCC. There is no evidence of blood running in the streets in AZ, AK, etc. Did the camel get his nose under the tent flap?

Scarecrow Repair
07-06-2011, 2:32 PM
That exclusion-by-zoning is the substance of the new ordinance.

There might actually be someplace that fits the new ord., but the 3-judge panel of the 7th is clearly not amused - from the concurrence (pp 51-52)

Yes, I agree it puts a ginormous burden on Chicago in defending their new range law, but it still will require a brand new trial to condemn the new law, right? Whereas if the range time requirement had been thrown out, it's the Chicago council who would be on the defensive.

Or am I misunderstanding something here?

wash
07-06-2011, 2:39 PM
Someone please tell me how this balancing harm applies to LOC and LCC. There is no evidence of blood running in the streets in AZ, AK, etc. Did the camel get his nose under the tent flap?
There are far more important things to worry about than carry in Chicago.

It's backward but politicly impossible to import good laws to Chicago, we have to wait for them to make stupid laws and then knock them down. This was a very good start.

HowardW56
07-06-2011, 3:02 PM
And a teaser I just got in email:

WOW, this will be an exciting week.

dfletcher
07-06-2011, 3:21 PM
This is purely a layman's approach, having read more of the comments than the decision itself, but it seems to me this is the first ruling to embrace the concept of fully exercising the right - not a "nuts & bolts" yes you can have a handgun in your home, but a ruling that really reflects the spirit of fully exercising the 2nd Amendment.

Rossi357
07-06-2011, 3:32 PM
There are far more important things to worry about than carry in Chicago.

It's backward but politicly impossible to import good laws to Chicago, we have to wait for them to make stupid laws and then knock them down. This was a very good start.

Hey Chicago. Getting carry for you is less important. HUH?
My question was about all the imaginary and speculative dangers of law abiding citizens carrying guns, and how it will play in the future.

timdps
07-06-2011, 3:51 PM
This is the part that I really found interesting, from the bottom of page 19:

It’s hard to imagine anyone suggesting that Chicago may prohibit the exercise of a free‐speech or religious‐liberty right within its borders on the rationale that those rights may be freely enjoyed in the suburbs. That sort of argument should be no less unimaginable in the Second Amendment context."


Applicability re: roster & AWB?

I think what Peter was asking is why does the unlawful "no exercise of a right in the city if you can exercise the right in the suburbs" excuse not also apply to from state to state?

If we rewrite it for California it looks like this:

It’s hard to imagine anyone suggesting that California may prohibit the exercise of a free‐speech or religious‐liberty right within its borders on the rationale that those rights may be freely enjoyed in other states. That sort of argument should be no less unimaginable in the Second Amendment context.

Tim

Homebrew2
07-06-2011, 4:01 PM
... Current law says ... But I have a "neighbor" ... Guns go off here all the time. ... Neither do the Sheriff's Deputies. ... They laughed ... .

Same here in "somewhat free" Commifornia. My final response to the deputies is usually, "can you take a break and shoot with us/me?" They usually say, "nah, on duty, have a good day/night." Hasn't happened in a couple years though ... appropriate neighbor "education".

BTW, thank you for your numerous posts across many threads. They are much appreciated.

mdimeo
07-06-2011, 4:06 PM
I've still only skimmed it (basically read all the paragraphs that had "scrutiny" in them :)). Does anyone have any thoughts on how much the requirement for training played into the rationale for granting the injunction?

I didn't see a lot in there about the training requirement, and my impression was that the range ban would have been enjoined even without the training requirement. Anyone disagree?

OleCuss
07-06-2011, 4:08 PM
Read pages 48-50

No zoning restrictions anywhere in the City????

Can you say MOMENTOUS WIN !!! ???

I think that might be going a bit too far.

I suspect you can parse the text at least two ways:

1. You can't use zoning to prohibit firing ranges in any zone at all. Or to say it another way - you have to allow firing ranges in commercial, residential, and all other zones.

2. You can't have a zoning ordinance which effectively prohibits location of a firing range within the city at all. Or, to say it another way, - you have to allow firing ranges somewhere in the city.

Number 2 is likely closer to what the court meant. I seriously doubt that the court meant that firing ranges can be absolutely any zone someone might want to put them in.

So I'm guessing it sorts out more like an injunction saying that there must firing range access to zones such that there can be a bunch of ranges scattered around the city for easy access by the citizenry. So you get ranges in commercial and industrial zones - but maybe not in residential ones?

But then, IANAL, so I don't really know how it'll sort out.

Liberty1
07-06-2011, 4:20 PM
Looking forward to a future home range and suppressor purchase in Ca!

command_liner
07-06-2011, 4:40 PM
All of this talk about buying Calguns and/or Alan cars and rims is interesting,
but we should REALLY buy a road roller. And put pictures on it. Sure, it
might be towed if Alan drove it to court, but perhaps not.

Look in http://www.machinerytrader.com/. You can buy a real used road roller
for the price of a nice used car.

I love the thought of driving a "steam roller" through SFO traffic and showing up
at the Nordyke 4 hearing.

wildhawker
07-06-2011, 4:48 PM
Don't think that the next CGF block party with Alan, Don, and Jason *won't* have some heavy iron to play with. :43:

All of this talk about buying Calguns and/or Alan cars and rims is interesting,
but we should REALLY buy a road roller. And put pictures on it. Sure, it
might be towed if Alan drove it to court, but perhaps not.

Look in http://www.machinerytrader.com/. You can buy a real used road roller
for the price of a nice used car.

I love the thought of driving a "steam roller" through SFO traffic and showing up
at the Nordyke 4 hearing.

hoffmang
07-06-2011, 4:51 PM
This is a huge win.

It:

1. Creates a circuit split between Nordyke and Ezell.

2. Adopts the 1A irreparable harm standard meaning that we're going to be able to get TRO's or preliminary injunctions against laws that infringe the right to keep or bear arms.

3. Adopts strict scrutiny in everything but name.

4. Invalidates most of the newly revised ordinance.

5. Puts the en-banc 7th in a fun place.

6. Requires the evidence that lots of us has been saying is required to regulate the 2A. Realize that LCAV/CSGV/Brady et al now have to actually spend real money to fund real studies to find actual causation to have any attempt of making an ordinance/law stick. Sunnyvale would need to spend $25K to $75K creating a study of actual harm to pass an ordinance restricting an FFL - for example.

Preliminary injunctions are not final... but... They are un-final in name only. If you win a PI, you're going to win. Now, this may take a subtly different course because they changed the law, but the core concept here is that Chicago loses.

I have a hunch what SAF has in store for us, and damn its going to be fun!

This case begins a trend I expect a lot of. We create precedent out of California that we then dare California courts to create circuit splits on!

#WINNING!

-Gene

bwiese
07-06-2011, 4:55 PM
I think that might be going a bit too far.

I suspect you can parse the text at least two ways:

1. You can't use zoning to prohibit firing ranges in any zone at all. Or to say it another way - you have to allow firing ranges in commercial, residential, and all other zones.

2. You can't have a zoning ordinance which effectively prohibits location of a firing range within the city at all. Or, to say it another way, - you have to allow firing ranges somewhere in the city.

Number 2 is likely closer to what the court meant. I seriously doubt that the court meant that firing ranges can be absolutely any zone someone might want to put them in.

So I'm guessing it sorts out more like an injunction saying that there must firing range access to zones such that there can be a bunch of ranges scattered around the city for easy access by the citizenry. So you get ranges in commercial and industrial zones - but maybe not in residential ones?.

I think practicalities will come into minor play - yeah, no gun range in an exclusively residential area. But then nothing else than residences there anyway...

What it will mean is that a gun range can be (/must be allowed to be) placed where there are businesses 'appreciably similar' in size, traffic, hours, etc. Gun range status in appropriate area cannot be basis for denial of operation. Unfair regulation of other similar businesses categories because the category encompassess gun ranges will also not fly.

Gun shops without firing ranges will have similar treatment - really, a gun shop is just a shooting range with no shooting.

kcbrown
07-06-2011, 4:57 PM
3. Adopts strict scrutiny in everything but name.


Furthermore, it adopts a real form of strict scrutiny, not the laughingstock "strict scrutiny == rational basis" version the 9th defined in Nordyke.

This circuit split was badly needed. The 9th's ruling in Nordyke must not be allowed to stand.

kcbrown
07-06-2011, 4:59 PM
I think practicalities will come into minor play - yeah, no gun range in an exclusively residential area. But then nothing else than residences there anyway...

What it will mean is that a gun range can be (/must be allowed to be) placed where there are businesses 'appreciably similar' in size, traffic, hours, etc. Gun range status in appropriate area cannot be basis for denial of operation. Unfair regulation of other similar businesses categories because the category encompassess gun ranges will also not fly.

Gun shops without firing ranges will have similar treatment - really, a gun shop is just a shooting range with no shooting.

I'm interested, too, in the implications this will have on shooting ranges in the home.

Patrick-2
07-06-2011, 5:03 PM
... but I don't quite understand how this relates to the brand new Chicago law on ranges. Near as my dense brain can tell, it throws out the old range law, and associated stupid laws on transporting and permitting while training to get the permit. But it doesn't throw out the requirement to get range time, right? So wouldn't the part that throws out the old range law be mooted by the new range law?

That question was not asked in this suit, so it was not answered.

But the question is coming. I think that is something we are going to see from the SAF real soon now...and not just Chicago.

Patrick-2
07-06-2011, 5:04 PM
It's a small effect today but a big one in the future. The circuit just shut down the permit requirement for possession for those the city have not yet permitted to own a gun, as long as the persons are training to attain the permit. If you think that is a BS position, you are correct. And the court knows it.

I don't think it goes quite that far - the city could still ban possession other than at a range for non-permit-holders, and allow use of instructor-owned firearms or rentals at a range, under the described injunction.

Still an awesome ruling. We got almost everything we would want, and the grabbers got nothing at all that I can see.

I agree with you. I did not do a good job explaining my line of thinking there. Will try again another time...

Thanks.

Stonewalker
07-06-2011, 5:05 PM
This is a huge win.

It:

1. Creates a circuit split between Nordyke and Ezell.

2. Adopts the 1A irreparable harm standard meaning that we're going to be able to get TRO's or preliminary injunctions against laws that infringe the right to keep or bear arms.

3. Adopts strict scrutiny in everything but name.

4. Invalidates most of the newly revised ordinance.

5. Puts the en-banc 7th in a fun place.

6. Requires the evidence that lots of us has been saying is required to regulate the 2A. Realize that LCAV/CSGV/Brady et al now have to actually spend real money to fund real studies to find actual causation to have any attempt of making an ordinance/law stick. Sunnyvale would need to spend $25K to $75K creating a study of actual harm to pass an ordinance restricting an FFL - for example.

Preliminary injunctions are not final... but... They are un-final in name only. If you win a PI, you're going to win. Now, this may take a subtly different course because they changed the law, but the core concept here is that Chicago loses.

I have a hunch what SAF has in store for us, and damn its going to be fun!

This case begins a trend I expect a lot of. We create precedent out of California that we then dare California courts to create circuit splits on!

#WINNING!

-Gene

:D:D:D:D

Blackhawk556
07-06-2011, 5:08 PM
Originally Posted by FullMetalJacket Do I understand correctly: has the 7th Court said (in effect) that firing ranges are protected under the Second Amendment, as their prohibition impacts on the core right of having a gun for self-defense?********** I have a question on this. If the court is saying that ranges are an important part of the 2A, can't we use this against possible Ammo bans??? What good are firing ranges if we can't get ammo to fire. I'm pretty sure someone can better explain what I'm trying to say. Or am I wrong here??

bwiese
07-06-2011, 5:16 PM
Originally Posted by FullMetalJacket Do I understand correctly: has the 7th Court said (in effect) that firing ranges are protected under the Second Amendment, as their prohibition impacts on the core right of having a gun for self-defense?********** I have a question on this. If the court is saying that ranges are an important part of the 2A, can't we use this against possible Ammo bans??? What good are firing ranges if we can't get ammo to fire. I'm pretty sure someone can better explain what I'm trying to say. Or am I wrong here??


Ammo bans in general don't fly because ammo is a key component of an operational firearm.

We do have to worry about lead ammo bans specifically, and that is done outside pure RKBA grounds by exercising raw political power plays, showing bad (or worse) science/research on the condors, etc. The antis would really love for us to switch over to copper ammo - and raw copper in the environment is worse (as the brake pad people are finding out), as copper salts are soluble, while spent lead eventually gets a nitrate/sulfate coating that is not water soluble.

Fjold
07-06-2011, 5:24 PM
That is a major slapdown of the city of Chicago!

7th Circuit Court of Appealing
9th Circus Court of Appalling

Homebrew2
07-06-2011, 5:41 PM
I'm interested, too, in the implications this will have on shooting ranges in the home.

Are you actually insinuating that city dwellers should have similar liberties as we rural dwellers ? /sarcasm :cheers2:

2009_gunner
07-06-2011, 5:41 PM
Just got a phone call from the SAF asking for more money, and I gladly gave another $35. Of course, they deserve more from us, but it adds up.

yellowfin
07-06-2011, 5:48 PM
I REALLY would like to see many aspects of this decision used against NYC, Albany, and Rochester.

Homebrew2
07-06-2011, 6:00 PM
... I gladly gave ...

Same here.

"Pay no mind to the quiet gentleman in the bowtie ... nor to the steamroller rolling off the rubble that was once your sacred house."

Fjold
07-06-2011, 6:09 PM
I just signed up for a Life membership at SAF

Peter.Steele
07-06-2011, 6:14 PM
I think what Peter was asking is why does the unlawful "no exercise of a right in the city if you can exercise the right in the suburbs" excuse not also apply to from state to state?

If we rewrite it for California it looks like this:

It’s hard to imagine anyone suggesting that California may prohibit the exercise of a free‐speech or religious‐liberty right within its borders on the rationale that those rights may be freely enjoyed in other states. That sort of argument should be no less unimaginable in the Second Amendment context.

Tim


This is exactly what I was asking.

hoffmang
07-06-2011, 6:16 PM
This is exactly what I was asking.

It could undermine arguments about where you can conceal versus open carry, but that argument is a few years from now.

-Gene

jwkincal
07-06-2011, 6:19 PM
It could undermine arguments about where you can conceal versus open carry, but that argument is a few years from now.

-Gene

You mean it isn't in two weeks?

hoffmang
07-06-2011, 6:22 PM
You mean it isn't in two weeks?

TWO YEARS!!!

and can I just add.

Damn this is a big win!

-Gene

jwkincal
07-06-2011, 6:25 PM
Damn this is a big win!
-Gene

Concur. Me likes.

Liberty1
07-06-2011, 6:29 PM
Great job Alan and Co.!

trashman
07-06-2011, 6:37 PM
Wow, I wondered why my 3-month old son was so happy in the bath tonight!

Seriously though - this is a fantastic outcome so far. I feel a little bit like I did when the original Nordyke decision was announced -- "like I kind of can't believe it".

--Neill

Southwest Chuck
07-06-2011, 6:38 PM
TWO YEARS!!!

and can I just add.

Damn this is a big win!

-Gene

Never seen you absolutely "giddy" before Gene :D

It is a tremendous win, folks :thumbsup:

RomanDad
07-06-2011, 6:43 PM
Wow.... The language in that is REALLY good!

HowardW56
07-06-2011, 7:01 PM
Wow.... The language in that is REALLY good!


I agree, it is very good! :D

Southwest Chuck
07-06-2011, 7:01 PM
So, while this is an excellent window into the likelihood of prevailing in a future case, as a preliminary injunction, it does not provide precedent without prevailing at full trial, correct?


Evidently it does. See below.....


This is a huge win.

It:

1. Creates a circuit split between Nordyke and Ezell.

2. Adopts the 1A irreparable harm standard meaning that we're going to be able to get TRO's or preliminary injunctions against laws that infringe the right to keep or bear arms.

3. Adopts strict scrutiny in everything but name.

4. Invalidates most of the newly revised ordinance.

5. Puts the en-banc 7th in a fun place.

6. Requires the evidence that lots of us has been saying is required to regulate the 2A. Realize that LCAV/CSGV/Brady et al now have to actually spend real money to fund real studies to find actual causation to have any attempt of making an ordinance/law stick. Sunnyvale would need to spend $25K to $75K creating a study of actual harm to pass an ordinance restricting an FFL - for example.

Preliminary injunctions are not final... but... They are un-final in name only. If you win a PI, you're going to win. Now, this may take a subtly different course because they changed the law, but the core concept here is that Chicago loses.

I have a hunch what SAF has in store for us, and damn its going to be fun!

This case begins a trend I expect a lot of. We create precedent out of California that we then dare California courts to create circuit splits on!

#WINNING!

-Gene

WINNING BIG !!

Wildhawk66
07-06-2011, 7:32 PM
Seriously though - this is a fantastic outcome so far. I feel a little bit like I did when the original Nordyke decision was announced -- "like I kind of can't believe it".

--Neill

Exactly how I am feeling. I feel like I just got a glimps of the present pile on Christmas morning and it's a big one! No doubt tearing into anti-gun laws is going to be even more exciting! :43:

bulgron
07-06-2011, 7:44 PM
I, for one, am delighted that the courts are finally noticing that the laws the anti-gunners have been passing are nothing more than a great big pile of hooey.

Southwest Chuck
07-06-2011, 8:00 PM
Even the anti-gun judge (older woman ?) who argued for Chicago's position, ended up concurring in the opinion and said this (emphasis mine):
....But the Supreme Court
has now spoken in Heller and McDonald on the Second
Amendment right to possess a gun in the home for self defense
and the City must come to terms with that reality.Any regulation on firearms ownership must respect that right. For that reason, I respectfully concur in the judgment.

Read, she had no choice. In other words, she respectfully, apologetically concurred (to her anti-gun, Chicago minions). ;)

I love it ! :p

Theseus
07-06-2011, 8:14 PM
Although I agree this is a huge win, how does it come to terms with the issue of Nordyke, the prohibition on county property?

The issue at heart in the Ezell case seemed to surround the full-ban within their jurisdiction, not a full-ban in a section of the jurisdiction. More importantly, the argument that I can see for Nordyke defendants is essentially that you can still buy guns in the county, just not at county owned property. That is not the same as requiring citizens to leave the county in order to buy a gun.

command_liner
07-06-2011, 8:29 PM
This is a huge win.

3. Adopts strict scrutiny in everything but name.

-Gene

Consider it another way. The whole "strict scrutiny", "intermediate
scrutiny", "left handed scrutiny", "nose picking scrutiny" and all the rest
of the crap was just complex, century-old way to ignore the plain text
of the 14th amendment.

Justice Thomas concurring agreement in McDonald goes in this direction.
Anybody with a brain and an ability to read the plain text of the Constitution
should be in favor of putting "scrutiny" in the ash heap of history. Where
it belongs.

hoffmang
07-06-2011, 8:45 PM
Although I agree this is a huge win, how does it come to terms with the issue of Nordyke, the prohibition on county property?

The issue at heart in the Ezell case seemed to surround the full-ban within their jurisdiction, not a full-ban in a section of the jurisdiction. More importantly, the argument that I can see for Nordyke defendants is essentially that you can still buy guns in the county, just not at county owned property. That is not the same as requiring citizens to leave the county in order to buy a gun.

Read closer.

1. Since ranges are all over Chicago for LEA, then ranges don't cause harm.

2. Acquiring, and training are in the CORE right.

Once in the core right, strict scrutiny applies. Isn't banning sales on county property under inclusive since sales occur elsewhere? Isn't banning sales a core violation?

This opinion makes it clear that the answers to the above are not in Alameda's favor. CA-9 will see that. What they do with that will be challenging... for them.

-Gene

mdimeo
07-06-2011, 8:55 PM
Even the anti-gun judge (older woman ?) who argued for Chicago's position, ended up concurring in the opinion and said this (emphasis mine):

That to me was the best surprise at all. I would have given odds on a 2-1 win. Her concurrence was a bit weak, so I'll call it a 2.7-0.3 win :)

Theseus
07-06-2011, 9:01 PM
Read closer.

1. Since ranges are all over Chicago for LEA, then ranges don't cause harm.

2. Acquiring, and training are in the CORE right.

Once in the core right, strict scrutiny applies. Isn't banning sales on county property under inclusive since sales occur elsewhere? Isn't banning sales a core violation?

This opinion makes it clear that the answers to the above are not in Alameda's favor. CA-9 will see that. What they do with that will be challenging... for them.

-Gene
OK. I see.

The issue isn't whether they can ban in sections, but if they have any empirical justification to ban at all, and that the prohibition actually is tailored to achieve the goal.

Sometimes I think I just drink too much coffee and can't see the obvious right in front of me.

mdimeo
07-06-2011, 9:02 PM
Although I agree this is a huge win, how does it come to terms with the issue of Nordyke, the prohibition on county property?


I think the Ezell panel almost certainly would have come out in favor of the Nordykes. The logic of the opinion fully applies. If Chicago wants to ban gun sales of any kind, they'll have to come up with an extremely compelling reason to support it, and frankly they won't be able to meet that burden.

I predict a Gura challenge to Chicago gun store bans in the near future, building on the Ezell win.

Getting this scrutiny split in front of SCOTUS might be even more valuable strategically than getting a carry case up first.

Scott Connors
07-06-2011, 9:08 PM
Now that Paul Helmke is retiring from his position as Sad Panda, maybe Rahm Emanuel can take over the position?

microwaveguy
07-06-2011, 9:08 PM
That was a damn fine read :43:

I think the 9th en banc is going have a hard time trying to reconcile this with the nordyke vs king decision :eek:

Everyone here should read this . This is going to be one of those judgments that we look back on in a couple of years and really go WOW about how big a win this is for us. :D

Rossi357
07-06-2011, 9:19 PM
Chicago was saying, "it's ok to ban ranges here because you can go to a range in an another city."
Alameda is saying, "it's ok to ban gun shows here, because you can have gunshows in another city."

Am I over simplifing it?

thenodnarb
07-06-2011, 9:22 PM
Just made my first donation to SAF. Feels Good! Way to go guys!

strongpoint
07-06-2011, 9:57 PM
in addition to being phenomenally well-reasoned, the decision is notable for the clarity with which it's written. applause on both counts.

Maestro Pistolero
07-06-2011, 10:18 PM
re: Nordyke:

This court said (in so many words) that the fact that there are gun ranges within a certain distance for most people is irrelevant to whether there is a right to have them somewhere in the city. Any burden "no matter how small" is unacceptable.

Just as the gun ranges outside of the city do not justify the range ban, neither does the ability to by a gun elsewhere justify the ban of gun-show sales on public property where other lawful products might be sold. The public safety defense is out the window when it comes to the core right. To permit dubious commerce, then ban commerce that directly supports a fundamental right seems to have an equal protection component. But I am sure Mr Kilmer has been down that road many times in all these years.

If merely practicing at a range is near the core of the right, then certainly acquiring the arm in the first place ought to be even closer.

Anyway, that's what I am taking away from the ruling as it may apply to Nordyke.

Patrick-2
07-07-2011, 2:47 AM
Read closer.

1. Since ranges are all over Chicago for LEA, then ranges don't cause harm.

2. Acquiring, and training are in the CORE right.

Once in the core right, strict scrutiny applies. Isn't banning sales on county property under inclusive since sales occur elsewhere? Isn't banning sales a core violation?

This opinion makes it clear that the answers to the above are not in Alameda's favor. CA-9 will see that. What they do with that will be challenging... for them.

-Gene

Let me add:

Both Nordyke and Ezell put forth frameworks to evaluate claims, in general. They outlined the path to make a decision on any 2A topic, not just those before the court. This results in confusion on all topics, not the least of which being public carry and commerce in arms.

Each framework is different:

The Ninth laid out a path that makes clear they will probably view RKBA though the lens of a "burden" imposed by the government. Sounds nice until you realize their view of burden is not ours. They gave exceptional latitude to elected bodies to decide just what that burden entails, and also said that public safety arguments are too complex for the courts to analyze - so they just defer to the reasonable legislature instead. Ahem.

The Seventh used an originalist approach to say that the first step in evaluating any proposed right would be to evaluate whether the exercise of that activity was understood to be core to the second amendment back when the 14th Amendment was passed. If the answer to that questions is affirmative, then you move on to the claims the government has in regulating that activity. In all cases this pretty much requires some form of heightened scrutiny - where the government must now empirically prove those claims valid, and not just trot out theoretical public safety claims. There has to be damn good reasons to restrict the right. Reasonable doubt favors the right, not the government.


Each of those frameworks were designed to apply to more than the instant cases. Each issues instructions for all courts in their circuit to follow when evaluating any 2A claim. Each of those frameworks is incompatible with the other, and that means the people of the Ninth will get a different version of the right than the people of the Seventh. That calls for Supreme Court intervention.

We have two cases before the SCOTUS from Fourth Circuit territory asking for cert - one each originating in the state and federal systems. The Fourth was not so complete in its framework guidance in Chester - they even went so far as to ignore it in Masciandaro. It is pretty easy to point to Chester, Ezell and Nordyke and ask "WTF?"

That is why we have the SCOTUS - to answer "WTF?"

Glock22Fan
07-07-2011, 7:06 AM
Am I correct in assuming that it's probably too late for the Supremes to consider this in the next session, so we will have to wait until 2013?

Another two weeks years

CHS
07-07-2011, 7:45 AM
Let me add:

The Ninth laid out a path that makes clear they will probably view RKBA though the lens of a "burden" imposed by the government. Sounds nice until you realize their view of burden is not ours. They gave exceptional latitude to elected bodies to decide just what that burden entails, and also said that public safety arguments are too complex for the courts to analyze - so they just defer to the reasonable legislature instead. Ahem.

The Seventh used an originalist approach to say that the first step in evaluating any proposed right would be to evaluate whether the exercise of that activity was understood to be core to the second amendment back when the 14th Amendment was passed. If the answer to that questions is affirmative, then you move on to the claims the government has in regulating that activity. In all cases this pretty much requires some form of heightened scrutiny - where the government must now empirically prove those claims valid, and not just trot out theoretical public safety claims. There has to be damn good reasons to restrict the right. Reasonable doubt favors the right, not the government.


Given the 9th's colorful history of being overturned on, well, EVERYTHING, the future's so bright I gotta wear shades :)

OleCuss
07-07-2011, 7:58 AM
Am I correct in assuming that it's probably too late for the Supremes to consider this in the next session, so we will have to wait until 2013?

Another two weeks years

Hmm. . . Interesting question.

I don't claim to really know the answer but I'll speculate so that one of those in the know will feel like slapping me around and in the process maybe answer your question.

I don't think Ezell will be a candidate to be taken up directly for the coming SCOTUS session. I suspect Chicago will be in no hurry to appeal the decision and that means it could be quite a few months before someone asks the Supremes to address it. Heck, Chicago may not appeal at all.

But I think Chester has been appealed and Nordyke may come up in the next session.

Since the Ezell, Chester, and Nordyke opinions all touch on related areas leading to a (several?) circuit split, it is possible that the SCOTUS could grab Chester and associate Ezell and Nordyke in some manner to resolve the issues.

I mean, if I were Gura and was handling Chester before SCOTUS I'm pretty durned sure that I'd be trying to cite Ezell as an influential authority of some sort and drag that Ezell decision in that way. Those opposing Gura would likely be trying to drag in some Nordyke verbiage.

So you end up with the SCOTUS potentially addressing several cases while only officially taking up one?

FWIW. Now I'll learn as those who know better correct me.

Maestro Pistolero
07-07-2011, 8:41 AM
Chicago may not appeal at all.No, they won't. Having lost this they will go back to playing games with crafting laws that barely, if at all, satisfy the constitution. This they can do in an afternoon, while undoing it takes years. I expect their new game will be to play chicken with the courts as long as possible, then be a little quicker on the draw, rapidly backpedaling to get cases mooted so attorneys can't get payed, and round and round we go.

It would be great if at some point, when the council cooked up it's latest onerous batch of anti-stew, the patience of the courts would run out, and contempt charges will be wielded and arrests made. The strong language in this injunction order ought to form the basis for harsh action in the future. But we shall see.

wash
07-07-2011, 8:52 AM
Hey Chicago. Getting carry for you is less important. HUH?
My question was about all the imaginary and speculative dangers of law abiding citizens carrying guns, and how it will play in the future.
No, getting rid of Chicago's license fees and FOID card or whatever they call it are more important fights than carry right now. There are also a lot of BS regulations that were passed soon after McDonald v. Chicago, those need to be fixed now.

Once Chicago becomes on par with pre-incorporation CA, then it will be time to look at carry rights and "assault weapon" bans and other fringe issues.

When I say fringe, I only mean not specifically the core of the right. We have to secure the core first because that is the easy thing to do, the path is clear and victory is highly likely. If you try to go straight from a handgun ban to permitless open carry, there is a lot of potential to screw up those core rights that you could have secured easily with the right strategy.

Of course carry is important but there are more important things to take care of first. That's what I meant.

Paul S
07-07-2011, 8:57 AM
No, they won't. Having lost this they will go back to playing games with crafting laws that barely, if at all, satisfy the constitution. This they can do in an afternoon, while undoing it takes years. I expect their new game will be to play chicken with the courts as long as possible, then be a little quicker on the draw, rapidly backpedaling to get cases mooted so attorneys can't get payed, and round and round we go.

It would be great if at some point, when the council cooked up it's latest onerous batch of anti-stew, the patience of the courts would run out, and contempt charges will be wielded and arrests made. The strong language in this injunction order ought to form the basis for harsh action in the future. But we shall see.

Similarly I would expect the 9th circuit to continue its anti 2A bias and continue with rulings which result in a split between circuits. If there is an upside I guess it means such action moves important 2A cases to the SCOTUS. But like anything there's always a risk there.
We shall see.

Patrick-2
07-07-2011, 8:58 AM
Hmm. . . Interesting question.

I don't claim to really know the answer but I'll speculate so that one of those in the know will feel like slapping me around and in the process maybe answer your question.

I don't think Ezell will be a candidate to be taken up directly for the coming SCOTUS session. I suspect Chicago will be in no hurry to appeal the decision and that means it could be quite a few months before someone asks the Supremes to address it. Heck, Chicago may not appeal at all.

But I think Chester has been appealed and Nordyke may come up in the next session.

Since the Ezell, Chester, and Nordyke opinions all touch on related areas leading to a (several?) circuit split, it is possible that the SCOTUS could grab Chester and associate Ezell and Nordyke in some manner to resolve the issues.

I mean, if I were Gura and was handling Chester before SCOTUS I'm pretty durned sure that I'd be trying to cite Ezell as an influential authority of some sort and drag that Ezell decision in that way. Those opposing Gura would likely be trying to drag in some Nordyke verbiage.

So you end up with the SCOTUS potentially addressing several cases while only officially taking up one?

FWIW. Now I'll learn as those who know better correct me.

All good points, but I think you meant to substitute Williams or Masciandaro for Chester (which is still on remand), and Stephen Halbrook or Matt Levy for Alan Gura.

The framework issue is the one that will put this forward. Nordyke is closer to prize there, I think. They might be able to ask for cert (avoiding en banc) based on the fact 9th Circuit victims will get a different right than 7th Circuit tenants, to the same question (if posed), based on the framework findings. A stretch, but possible. Wait for the en banc ruling (or denial of the request for review) and it gets easier.

Masciandaro's appeal to the court for answers to questions the lower courts are avoiding is strengthened by Ezell. It proves the point (again) of that cert request - every court is making it up as they go along. Williams is entangled just by virtue of the MD Supreme Court using a horrible framework they concocted from whole cloth to put a guy in prison.

I still think the Williams/Masciandaro petitions could (in a far realm of my imagination) both get cert and let the SCOTUS put out a two-decision donkey punch for our side. Williams = RKBA and permits; Masciandaro = sensitive places. Done and done.



That said, I think the Ezell call was one closer to the what the SCOTUS majority did in Heller and McDonald and is probably closest to how they would view 2A issues if they provided an explicit 'framework' that includes standards-based approaches ("scrutiny"). But they won't do that. At best they could agree with the Seventh on appeal.

But Chicago has a new boss and Rahm is smart. No way they will appeal this finding or framework. Doing so would be great for us and fracking idiotic for gun controllers.

I miss Daley.

OleCuss
07-07-2011, 9:05 AM
Thank you very much for that. I was hoping someone like you would straighten that out for me/us.

wash
07-07-2011, 9:08 AM
Please don't get too upset with the 9'th circuit 3 judge panel. They gave us incorporation to create a circuit split and get McDonald v. Chicago to SCOTUS. Now we are getting another split and Nordyke is pretty much ready for SCOTUS.

The bad ruling in Nordyke might lead us to a great result.

Southwest Chuck
07-07-2011, 9:20 AM
No, they won't. Having lost this they will go back to playing games with crafting laws that barely, if at all, satisfy the constitution. This they can do in an afternoon, while undoing it takes years. I expect their new game will be to play chicken with the courts as long as possible, then be a little quicker on the draw to get cases mooted so attorneys can't get payed, and round and round we go.

It would be great if at some point, when the council cooked up it's latest onerous batch of anti-stew, the patience of the courts would run out, and contempt charges will be wielded and arrests made. The strong language in this injunction order ought to form the basis for harsh action in the future. But we shall see.

I seem to remember a case years ago..... just can't put my finger on it, though. In essence, something similar was happening at the local level in my home town, and after multiple successful challenges, (the city was just changing the wording of the ordinance, but still had the same basic effect). The Plaintiffs filed for Contempt against the city so the judge ordered the city to submit a proposed re-write/ amendment to the ordinance in question for court approval. In this way, it put the city on the spot and forced them to come up with an ordinance that comported to the spirit of his ruling or risk a contempt citation and fines. I even think he threatened to put the whole city council in jail if they didn't stop playing games :eek:. Needless to say they snaped 2 pretty quickly after that. :D

Sorry, wish I could remember more specifics.(but it was 40+ years ago :( ,), but could something like this happen in this case if abuses become apparent? Can a judge take control of the ordinance writing process and make the city submit it for court approval prior to implementation? (well obviously this one did in my story). and if so how likely is that to happen here?

Cobrafreak
07-07-2011, 9:24 AM
It's too bad Daley isn't still the mayor. It would've been another slap too his face and we would have another one of his whining press conferences to laugh at

Maybe they can call the new gunrange the "Richard M. Daley Gunrange", LOL, or send him an honorary lifetime membership. That would frost his niblets.

Maestro Pistolero
07-07-2011, 11:26 AM
Maybe they can call the new gunrange the "Richard M. Daley Gunrange", LOL, or send him an honorary lifetime membership. That would frost his niblets.

I love this idea. Funded by 2A advocates. the 'Richard M Daley Academy for the Advancement of Civilian Marksmanship'.

Or just "Dick's Public Shooting Gallery".

FABIO GETS GOOSED!!!
07-07-2011, 11:31 AM
Read closer.

Good idea.

2. Acquiring, and training are in the CORE right.

It doesn’t say that.

Once in the core right, strict scrutiny applies.

It doesn’t say that either. Over and over the decision reiterates that the core and the “central component” of the 2A right is the right to possess firearms for self-defense. The ancillary rights of acquisition and training, while implied by the core right (and in the case of training “an important corollary to the meaningful exercise of the core right to possess firearms for self-defense") are not themselves “core”:

The right to possess firearms for protection implies a corresponding right to acquire and maintain proficiency in their use; the core right wouldn’t mean much without the training and practice that make it effective.

There is a similar lack of precision in this explanation:

The Seventh used an originalist approach to say that the first step in evaluating any proposed right would be to evaluate whether the exercise of that activity was understood to be core to the second amendment back when the 14th Amendment was passed.

What the decision actually says is:

First, the threshold inquiry in some Second Amendment cases will be a “scope” question: Is the restricted activity protected by the Second Amendment in the first place?

“Protected” does not necessarily mean “core.” Not every activity protected by the Second Amendment (e.g., acquisition and training) is “core” or “in the core.” The only core right identified to date – by Heller, McDonald, Ezell, Nordyke and every other post-Heller 2A decision – is the right to possess firearms for self-defense.

So Ezell does not articulate any sort of reflexive, knee-jerk, “acquisition and training are core so strict scrutiny applies” standard. (The Nordyke plaintiffs made a similarly mistaken claim when they asked the 9th circuit to look at U.S. v. Chester, asserting, incorrectly, that the 4th circuit found that “regulations of law-abiding people, engaged in law abiding Second Amendment conduct (e.g., gun shows), should be subject to strict scrutiny.”) What level of scrutiny should apply to the 2A? Ezell is in agreement with every other circuit when it says “it depends”:

[L]aws restricting activity lying closer to the margins of the Second Amendment right, laws that merely regulate rather than restrict, and modest burdens on the right may be more easily justified. How much more easily depends on the relative severity of the burden and its proximity to the core of the right.

The Ezell standard is informed by the same basic principles as Nordyke (and Chester, Skoien, etc.):

Thus, rather than strictly scrutinizing every law which burdens these rights, the Supreme Court has held that “the rigorousness of our inquiry into the propriety of a state election law depends upon the extent to which a challenged regulation burdens First and Fourteenth Amendment rights.”

Borrowing from the Court’s First Amendment doctrine, the rigor of this judicial review will depend on how close the law comes to the core of the Second Amendment right and the severity of the law’s burden on the right.

Applying these basic principles it’s no big surprise that almost-strict scrutiny was applied in Ezell. The range ban was a complete prohibition of the protected right to train. “This is a serious encroachment on the right to maintain proficiency in firearm use, an important corollary to the meaningful exercise of the core right to possess firearms for self-defense.” Not to mention that exercise of the core right in Chicago—possession of a firearm for self-defense—was conditioned on live-fire range training. (The decision contrasts the law-abiding Ezell plaintiffs to the defendant in Skoein, noting also that “their claim comes much closer to implicating the core of the Second Amendment right.”) Ezell is one of those rare and extreme cases where there is a complete prohibition and a severe burden in close proximity to the core of the right, not as extreme as Heller but way closer than any of the other 2A appellate decisions in the various federal circuits.

Window_Seat
07-07-2011, 11:51 AM
Gene, Counsel, et all;

How does this ruling (in Ezell) help, or not help with the GFSZ act here in CA, and other areas that can't be considered sensitive places?

The Nordyke panel said:

[4] Accordingly, we hold that only regulations which
substantially burden the right to keep and to bear arms
trigger heightened scrutiny under the Second Amendment.⁹

⁹We need not decide today precisely what type of heightened
scrutiny applies to laws that substantially burden Second
Amendment rights.

I know, I'm hellbent on §626.9, but... Since they say "need not decide today", is this an issue that will someday be decided due to this, as well as the decision in Ezell?

Erik.

Patrick-2
07-07-2011, 12:31 PM
There is a similar lack of precision in this explanation:
The Seventh used an originalist approach to say that the first step in evaluating any proposed right would be to evaluate whether the exercise of that activity was understood to be core to the second amendment back when the 14th Amendment was passed.
What the decision actually says is:
First, the threshold inquiry in some Second Amendment cases will be a “scope” question: Is the restricted activity protected by the Second Amendment in the first place?

If we are worried about precision we should not rely on internet postings that distill 50+ pages into seven paragraphs. But as long as we do, we should truly be as careful as we can about quoting texts, especially recent ones that maybe have not yet sunk into the collective consciousness.

McDonald confirms that when state‐ or local‐govern‐
ment action is challenged, the focus of the original‐meaning
inquiry is carried forward in time; the Second Amendment’s
scope as a limitation on the States depends on how the right
was understood when the Fourteenth Amendment was
ratified.

I hear your more nuanced discussion over the meaning of the word "core". I think you aregue that training is not "core" to the right because it is not specifically called out in the text of the amendment. But neither is publishing of newspapers, yet they are "core" to the first amendment due to their utility in the exercise of the right. So too are churches "core" to the right to practice religion as we see fit, though there is nothing in 1A that tells us so.

There are natural extensions to a right that must be observed and protected or the right becomes illusory and meaningless. Free speech would mean nothing if the government were allowed to restrict all methods of delivery save those specifically "authorized" by the text of the constitution. That pretty much means public protest and petitioning your (and only your) elected representatives. Those nasty newspapers and internet forums need not apply.

So yes, a lot of superlatives are used in these discussions and much in the way of wishful thinking is also mixed in. We do need to be careful.

But I would argue that training is arguably core to the right, especially considering foundational-era and 14th-era texts that espouse and protect it. This court pretty much says as much (I think).

FWIW, I am not sure training deserves true strict scrutiny, whatever the hell that would mean (I still hate standards-based approaches to questions of first impression). But it is close. So close that "almost strict" is probably close enough. I own a range, and look forward to some type of protection from more decisions like these in the future. But I don't think it is an absolute right, especially considering the fact my training area is outside. There may be valid public safety issues for a range, and when the government (aka: the people) can prove a problem, then the people should have the ability to protect themselves from my dangerous acts.

Nowhere does that imply a blanket ban on ranges in my county. If the Ezell decision were applied and reinforced, there is no reason I could not open an indoor range in a strip mall adjacent to a residential area - provided my range did not increase any undesirable secondary effect (noise, etc.). I know of several ranges precisely like this.

I think anything short of substantive empirical evidence demonstrating a real risk will be a problem. When you apply these standards (which I think we are going to see get argued as a result of this ruling), then apply the first amendment parallel...you are getting awfully close to the first amendment's expanded definition of the "core" activities.

Just because it is not in the text does not mean it cannot be core. It took a few decades for the Supreme Court to recognize core standing for bookstores...we just kick-started the process in under four years and somehow escaped being lumped in with Renton - gun ranges actually scored more protection from the Seventh than adult bookstores did from SCOTUS. I say we continue that trend. Step one is expanding our own view of what is "core" to the right.

Respectfully submitted.

OleCuss
07-07-2011, 12:43 PM
I know, I'm hellbent on §626.9, but... Since they say "need not decide today", is this an issue that will someday be decided due to this, as well as the decision in Ezell?

I don't think we yet know how this will affect 626.9.

It seems somewhat unlikely that Ezell will become the law of the land. It seems likely that one way or another it will influence one or more cases decided by the SCOTUS which will then become controlling here in California as well as elsewhere.

But since Ezell is out of the 7th Circuit it is not at all controlling for the 9th Circuit. It will, of course, be possible to cite Ezell as an influential case so it is very valuable.

I think that there has been a certain amount of irrational exuberance detected. Oh, don't get me wrong, I think it was a very important and a very good decision which will be very valuable to have had handed down.

But I think Fabio Gets Goosed has a point. I think there might be a little too much being read into the opinion. I think he might be a little too pessimistic, however, as the overall tone of the opinion seems to be about as good as we could hope for at this stage.

But at this time we're still working on the foundation of the edifice of rational 2nd Amendment law. Maybe a bit of the frame is being erected as well. But it is going to be a while before the doors are hung, the siding is on, the roof is ready for a downpour, etc.

There are several design teams and even more construction crews working on this edifice. You and I may know what we want, but there are going to be so many design changes along the way that we really don't know exactly how the building will look, what it will be like to live in it, or how soon it will be occupied.

Consider it design and construction by multiple committees. It's going to be a messy process and there will be parts that don't work out and have to be torn down and re-built. There are parts which will not work well at all but can't be re-done due to improper design specifications or the lack of resources - we'll just have to live with those parts.

The best we can hope for is that by reinforcing the efforts of those who share our desired outcome and who have a record of success - that we will get a workable and liveable structure within which we can live in liberty.

FWIW

thenodnarb
07-07-2011, 12:48 PM
Am I right in that this decision has nothing to do with California until the supreme court rules on this case? And does it now HAVE to go to the SC because of a circuit split? Or does this case end here? Since the case in the 9th circuit is different than the case in the 7th, what goes to the Supreme Court?

GaryV
07-07-2011, 1:10 PM
Am I right in that this decision has nothing to do with California until the supreme court rules on this case? And does it now HAVE to go to the SC because of a circuit split? Or does this case end here? Since the case in the 9th circuit is different than the case in the 7th, what goes to the Supreme Court?

I'm not a lawyer, and hopefully one on here will correct me if I'm wrong, but I'll take a stab at answering your questions from the way I understand it.

1) This decision has nothing to with California directly. California is not in the 7th Circuit, and this decision only directly affects that circuit. However, the opinions of any one circuit court can be used to influence those of other circuits, so this decision can affect California indirectly.

2) No, this case does not necessarily have to go to SCOTUS. The split is in the scheme for evaluating laws that touch on the 2A, not on the core questions being asked in the two cases (Ezell and Nordyke). Neither case will go to SCOTUS unless one of the losing parties appeals their case to SCOTUS. If that happens, then SCOTUS may or may not choose to grant cert, but the circuit split would tend to encourage them to take it on.

3) Ezell isn't over; the plaintiffs simply got their injunction, so that between now and the time the case is eventually argued and decided at trial, the law is unenforceable. But they still need to actually go to trial to overturn the law permanently.

4) What goes to SCOTUS depends on who appeals to them and which case they decide to take on. However, the split we're discussing is in the scheme by which the two different courts propose that gun laws be examined. We would obviously argue that the 7th's scheme is the proper one, whereas Alameda would argue that the 9th's is better (and might even argue that even that one gives us too much). Who knows what Chicago would argue on this point? If SCOTUS adopts the scheme put forward in this decision, gun owners everywhere in the US (and its territories) would win big.

FABIO GETS GOOSED!!!
07-07-2011, 1:13 PM
I think you argue that training is not "core" to the right because it is not specifically called out in the text of the amendment

I'm not arguing that. What I'm arguing is that nowhere does Ezell say that acquisition and training are "core" or "in the core." These rights are protected 2A rights and necessary for meaningful exercise of the core right, but with language like this you can't use Ezell as authority for labeling them "core" (let alone reflexively apply strict scrutiny based on that label):

Finally, because range training is required for the issuance of a Chicago Firearm Permit, a registration certificate, and ultimately, for lawful possession of any firearm, see CHI. MUN. CODE §§ 8‐20‐110(a), 8‐20‐140(a)‐(b), the firing‐range ban implicates not only the right to train at a range but also the core Second Amendment right to possess firearms for self‐defense.

Ezell identifies only one core right, a couple ancillary but protected rights, and says the rigor of judicial review depends among other things on the severity of the burden on the core right. On the latter point, the circuits are in fundamental agreement.

FABIO GETS GOOSED!!!
07-07-2011, 1:26 PM
I think there might be a little too much being read into the opinion.

That's all I'm saying.

socalblue
07-07-2011, 1:44 PM
I'm not a lawyer, and hopefully one on here will correct me if I'm wrong, but I'll take a stab at answering your questions from the way I understand it.

1) This decision has nothing to with California directly. California is not in the 7th Circuit, and this decision only directly affects that circuit. However, the opinions of any one circuit court can be used to influence those of other circuits, so this decision can affect California indirectly.

2) No, this case does not necessarily have to go to SCOTUS. The split is in the scheme for evaluating laws that touch on the 2A, not on the core questions being asked in the two cases (Ezell and Nordyke). Neither case will go to SCOTUS unless one of the losing parties appeals their case to SCOTUS. If that happens, then SCOTUS may or may not choose to grant cert, but the circuit split would tend to encourage them to take it on.

3) Ezell isn't over; the plaintiffs simply got their injunction, so that between now and the time the case is eventually argued and decided at trial, the law is unenforceable. But they still need to actually go to trial to overturn the law permanently.

4) What goes to SCOTUS depends on who appeals to them and which case they decide to take on. However, the split we're discussing is in the scheme by which the two different courts propose that gun laws be examined. We would obviously argue that the 7th's scheme is the proper one, whereas Alameda would argue that the 9th's is better (and might even argue that even that one gives us too much). Who knows what Chicago would argue on this point? If SCOTUS adopts the scheme put forward in this decision, gun owners everywhere in the US (and its territories) would win big.

Perhaps we might look at this in a slightly different perspective:

While only an injunction, the wording of this decision is what matters. The 7th has now strictly complied with SCOTUS (with a great quote by the 3rd judge) and has applied strict scrutiny as the standard.

The application of strict scrutiny, esp. when ignoring as irrelevant what have in the past been effective arguments, puts Nordyke & other cases in a MUCH better position. Should the 9th not reconsider given this ruling then Nordyke goes to SCOTUS due to a circuit split on the scrutiny issue.

socalblue
07-07-2011, 2:04 PM
I'm not arguing that. What I'm arguing is that nowhere does Ezell say that acquisition and training are "core" or "in the core." These rights are protected 2A rights and necessary for meaningful exercise of the core right, but with language like this you can't use Ezell as authority for labeling them "core" (let alone reflexively apply strict scrutiny based on that label):



Ezell identifies only one core right, a couple ancillary but protected rights, and says the rigor of judicial review depends among other things on the severity of the burden on the core right. On the latter point, the circuits are in fundamental agreement.

You make some valid points, though I think you may have missed a critical point or two from the ruling. What the 7th has done in this ruling is instruct on the level of scrutiny to be used (strict) when considering regulation or licensing schemes that place a barrier in front of a core right. This breaks cleanly with the 9th in Nordyke who applied a lower level when considering the ban on gun shows on county property. The 7th ignored arguments very similar to those accepted by the 9th in Nordyle as irrelevant due to the scrutiny level.

hoffmang
07-07-2011, 2:05 PM
Ah Fabio...

The plaintiffs challenge only the City’s ban on firing
ranges, so our first question is whether range training
is categorically unprotected by the Second Amendment.
Heller and McDonald suggest to the contrary. The Court
emphasized in both cases that the “central component” of
the Second Amendment is the right to keep and bear
arms for defense of self, family, and home. Heller, 554 U.S.
at 599; McDonald, 130 S. Ct. at 3048. The right to possess
firearms for protection implies a corresponding right
to acquire and maintain proficiency in their use; the
core right wouldn’t mean much without the training
and practice that make it effective. Several passages in Heller
support this understanding.

So maybe not core, but strongly implied by the core.

Window:

The GFSZs are only less toxic than Machine Guns. Do not think that anyone should be attacking school zone restrictions anywhere anytime soon. Do not take the fight to an enemy's strength. Drop it - for a few years.

-Gene

Southwest Chuck
07-07-2011, 2:58 PM
Now I'm only a poor dumb layman here and as such, am at a disadvantage, however,


First, you say:

.... nowhere does Ezell say that acquisition and training are "core" or "in the core."
Then you say (refering to acquisition and training):

These rights are protected 2A rights and necessary for meaningful exercise of the core right,

Seem contradictory. If acquisition and training ARE NECESSARY, "for meaningful exercise of the core right", then IMO, they are inexorably linked and become part of the core right, just like newspapers are part of the 1A.

I'm sure you'll set me straight though, being the poor dumb layman I am. :rolleyes:

FABIO GETS GOOSED!!!
07-07-2011, 3:01 PM
You make some valid points, though I think you may have missed a critical point or two from the ruling. What the 7th has done in this ruling is instruct on the level of scrutiny to be used (strict) when considering regulation or licensing schemes that place a barrier in front of a core right.

Show me where Ezell instructs (1) that strict scrutiny should be used (hint: it doesn't, it fashions a level of scrutiny more rigorous than Skoein and less rigorous than strict, i.e. "not quite" strict") and (2) whatever you want to call the level of scrutiny, that the same level of scrutiny to be used whenever a regulation burdens a core right.

As I stated above, Ezell is an extreme case, in my opinion not as extreme as Heller, but the dissenting judge thinks the range ban is as extreme as the handgun ban in McDonald:

The effect of the ordinance is another complete ban on gun ownership within City limits.

Drawing from first amendment and election law precedents, the scrutiny applied in Ezell depended on the various factors mentioned in the decision (proximity to the core of the right, prohibition versus regulation, burden on the core right). There is no chance that the same or higher level of scrutiny will ever be applied in Nordyke, no matter who is deciding the case. The Nordyke gun show ban does not resemble anything near the extreme prohibitions evaluated in Ezell, Heller, or McDonald. I think the best possible outcome in Nordyke (to the extent that it remains an "acquisition" case) would be a lukewarm intermediate type scrutiny, with a much less stringent evidentiary showing required to justify the regulation. (I'm basing this on how the various circuits have evaluated adult bookstore/secondary evidence cases using intermediate scrutiny, the 7th Circuit is notably more exacting than any of the other circuits in its demand for empirical evidence.)

Maestro Pistolero
07-07-2011, 3:24 PM
hint: it doesn't, it fashions a level of scrutiny more rigorous than Skoein and less rigorous than strict, i.e. "not quite" strict")You left off "IF". The phrase was ". . . IF not quite strict scrutiny". There's a difference.

FABIO GETS GOOSED!!!
07-07-2011, 3:26 PM
Seem contradictory. If acquisition and training ARE NECESSARY, "for meaningful exercise of the core right", then IMO, they are inexorably linked and become part of the core right, just like newspapers are part of the 1A.

Ancillary to, corollary to, corresponding to, implied by...that's as far as anyone can say Ezell goes because that's all that Ezell says. Like every other 2A opinion to date it identifies one core right and one core right only.

The primary issue here is scrutiny. It's a head scratcher to me how anyone could argue that Ezell says "if you have 'core' or 'in the core' then you get strict scrutiny." The 2A cases are playing out exactly how I've been saying they would for years: regulations and prohibitions will ultimately be evaluated in light of how severely they burden the right to possess and use firearms for self-defense. Extreme burdens like Ezell will not survive, slight burdens will.

IGOTDIRT4U
07-07-2011, 3:57 PM
Perhaps we might look at this in a slightly different perspective:

While only an injunction, the wording of this decision is what matters. The 7th has now strictly complied with SCOTUS (with a great quote by the 3rd judge) and has applied strict scrutiny as the standard.

The application of strict scrutiny, esp. when ignoring as irrelevant what have in the past been effective arguments, puts Nordyke & other cases in a MUCH better position. Should the 9th not reconsider given this ruling then Nordyke goes to SCOTUS due to a circuit split on the scrutiny issue.

Exactly. We've been working on circuit interpretations of what level of scrutiny applies, hoping for outcomes that find the highest practical level possible, and a building consensus among the individual circuits.

With the 7th now chiming in, and if the 9th sees it their way to apply it to the 9th on reconsideration, that's at least two circuits. We may be able to avoid going to the SCOTUS on this issue at all if a few more circuits agree with the rationale of the 7th, thus avoiding the uncertainties of the SCOTUS.

All wishful thinking, but with such as well written opinion from the 7th, it's hard to ignore.

Patrick-2
07-07-2011, 4:13 PM
Ancillary to, corollary to, corresponding to, implied by...that's as far as anyone can say Ezell goes because that's all that Ezell says. Like every other 2A opinion to date it identifies one core right and one core right only.



Nowhere is the publication of a newspaper explicitly called "core", either. But it is.

You are getting caught up in semantic differences where practical ones do not exist (or rather, should not). The reason the other side is terrified of the 1A analogy is because they know what it entails: a strong set of protections for the core and everything that is required to exercise it. That means commerce, ammunition, training...NRA bumper stickers. Everything. Any restriction which renders the exercise of the right meaningless or impractical is going to be gone.

That is the 1A analogy. There are a great number of legal scholars from the other side who spent their entire careers framing the first amendment as something "more special" than the other amendments because unlike the others - it actually protects an action of the individual. Now they lost their "organized militia" argument - and see 2A framed in terms of the same 1A lens - they have essentially cemented the outcome of 2A analysis. They undid themselves.

The primary issue here is scrutiny.

No, it is not. Standards are meaningless in issues of first impression. Less than meaningless, they are harmful.

The Seventh did a good amount of work performing a categorical analysis of the right before deciding that training was indeed covered by 2A. When we say "categorical", that means they went through history and decided whether ranges fell into a 'category' of activity that the founders and ratifiers would have recognized as a common 2A-related activity. If yes...analysis complete.

Scrutiny is an ugly mess for 2A right now, but the court is (unfortunately) compelled to address it even where (or entirely because of) the reticence of the Supreme Court to do the same in Heller. The lower courts love standards, and if you don't give them one they will simply - as we have seen - make them up. It is a necessary ugliness right now.

Go read Gura's briefs on carry; or Halbrook's cert petition for Williams. Nowhere are they arguing for a standard. They are arguing for the recognition of the right, categorically. Levy, in Masciandaro's cert petition, broaches the issue for the court and does strongly hint that some standards would be nice. But he's not hanging his hat on it. It is a "pretty please", not a "we need this standard to to find for the right."

Standards will eventually be our friend. But right now they muddle the field and leave open the door to bad decisions. Any court that performs a true categorical analysis of the plain meaning of the amendment - combined with a review of what the historical expectations were regarding that text - will rule strongl in our favor. "Scrutiny" is a convenient foil for them to dodge the question (and answer) entirely.

Standards require precedent and jurisprudence. Right now we have entirely too little of that to assign any level of scrutiny to anything. Courts are avoiding the whole of the right by simply leaning on a crutch (scrutiny) that is simply not there.

Courts lament about not having any solid jurisprudence to hang their standards-based hats, then rather than do the work of evaluating the constitutional question...they just make up some level of scrutiny that fits their view of the world. Typically that is rational basis dressed up as intermediate. And neither of those two terms mean a damn thing for the second amendment right now. They are vapor.

So we need to stop talking about scrutiny because it plays into the other side's hands. There are limited cases it makes sense (some aspects of Nordyke, for instance), but they are rare right now.

In the simplest of terms, scrutiny is the ultimate chicken/egg issue: you cannot survive a standards review of a right that is unrecognized. So even agreeing to the standards argument means you must accept that the thing you are arguing over it ancillary to 2A.

"Categorical" should be the word of the day, every day, until we are done.

navyinrwanda
07-07-2011, 4:15 PM
The Seventh used an originalist approach to say that the first step in evaluating any proposed right would be to evaluate whether the exercise of that activity was understood to be core to the second amendment back when the 14th Amendment was passed. If the answer to that questions is affirmative, then you move on to the claims the government has in regulating that activity. In all cases this pretty much requires some form of heightened scrutiny - where the government must now empirically prove those claims valid, and not just trot out theoretical public safety claims. There has to be damn good reasons to restrict the right. Reasonable doubt favors the right, not the government.
Yes and no.

First, Ezell makes the government assume the burden of establishing that questionable conduct is not within the scope of the Second Amendment:
Accordingly, if the government can establish that a challenged firearms law regulates activity falling outside the scope of the Second Amendment right as it was understood at the relevant historical moment—1791 or 1868—then the analysis can stop there; the regulated activity is categorically unprotected, and the law is not subject to further Second Amendment review.

If the government fails to establish its burden, then a balancing test is conducted:
If the government cannot establish this—if the historical evidence is inconclusive or suggests that the regulated activity is not categorically unprotected—then there must be a second inquiry into the strength of the government’s justification for restricting or regulating the exercise of Second Amendment rights...

Deciding whether the government has transgressed the limits imposed by the Second Amendment—that is, whether it has “infringed” the right to keep and bear arms—requires the court to evaluate the regulatory means the government has chosen and the public‐benefits end it seeks to achieve. Borrowing from the Court’s First Amendment doctrine, the rigor of this judicial review will depend on how close the law comes to the core of the Second Amendment right and the severity of the law’s burden on the right.

Borrowing from First Amendment jurisprudence, what will be balanced is:
In free‐speech cases, the applicable standard of judicial review depends on the nature and degree of the governmental burden on the First Amendment right and sometimes also on the specific iteration of the right... [lengthy discussion of various examples First Amendment analysis omitted]

Labels aside, we can distill this First Amendment doctrine and extrapolate a few general principles to the Second Amendment context. First, a severe burden on the core Second Amendment right of armed self‐defense will require an extremely strong public‐interest justification and a close fit between the government’s means and its end. Second, laws restricting activity lying closer to the margins of the Second Amendment right, laws that merely regulate rather than restrict, and modest burdens on the right may be more easily justified. How much more easily depends on the relative severity of the burden and its proximity to the core of the right.

In practice, Ezell may not produce a different outcome than Nordyke. The only real difference between them involves Ezell's first-step scope analysis – and, importantly, its presumption of unconstitutionality (i.e., the government must prove with evidence that what it wants to regulate is not within the historical understanding of the Second Amendment).

Nordyke instead first asks if a substantial burden has been imposed – without explicitly determining whether or not what has been burdened is even protected conduct. Ezell, on the other hand, applies a sliding-scale balancing test on protected conduct that allows less than severe burdens to be easily justified by a strong public interest showing. In all but a few instances, it's hard to imagine either approach coming to radically different results. If the Nordyke substantial burden test leads to per se invalidation of any qualifying infringement, then it could very well prove to be more robust than Ezell. On the other hand, if Ezell faithfully applies First Amendment analysis, it could reach conduct that only modestly burdened protected conduct – but only by finding that the public benefit was very weak or that the means was badly tailored.

By first making the government prove that the Second Amendment is not implicated, Ezell is a very significant and important win. If it stands, this approach should at least force the government – and judges – to make a pretense of historical research. No longer can restrictions be upheld simply by invoking “public safety” or “commonsense danger.” But as Judge Rovner's concurrence proves, judges can have differing views of the historical record, too.

And specifically on target practice, Ezell does not find that “acquiring, and training are in the CORE right.” Instead, the panel followed their two-step process, and concluded that, “[The City] falls far short of establishing that target practice is wholly outside the Second Amendment as it was understood when incorporated as a limitation on the States.”

Patrick-2
07-07-2011, 4:34 PM
The Seventh used an originalist approach to say that the first step in evaluating any proposed right would be to evaluate whether the exercise of that activity was understood to be core to the second amendment back when the 14th Amendment was passed.

Yes and no.

First, Ezell makes the government assume the burden of establishing that questionable conduct is not within the scope of the Second Amendment:

...

I appear to have fallen victim to a superlative of my own making.

I agree with your distinction (and if this is the same Fabio was making, forgive me for not seeing it earlier). I used the word "core" too broadly in that paragraph. "Implicated" would probably have been a better choice.

But I still think the Seventh heightened training to be almost as "core" to 2A as a printing press might be to 1A. Almost, but not quite. At some point, the distinctions disappear. I don't think ranges met that burden, but they came close. It does raise the bar for municipalities looking to defend other crazy schemes - and maybe even a few that are not so crazy.

kcbrown
07-07-2011, 4:57 PM
I'm not arguing that. What I'm arguing is that nowhere does Ezell say that acquisition and training are "core" or "in the core." These rights are protected 2A rights and necessary for meaningful exercise of the core right, but with language like this you can't use Ezell as authority for labeling them "core" (let alone reflexively apply strict scrutiny based on that label):


And yet, it would be improper to treat anything that is necessary for exercise of the core right as anything other than, itself, core, for if one treats such things with lesser reverence, the end result will be infringement on the core right just as surely as if the core right itself were directly implicated. That is exactly what "necessary for exercise of the core right" means.

kcbrown
07-07-2011, 5:10 PM
If the Nordyke substantial burden test leads to per se invalidation of any qualifying infringement, then it could very well prove to be more robust than Ezell.

But the Nordyke substantial burden test does not lead to direct invalidation of the qualifying infringement as per 9th Circuit jurisprudence. Instead, it leads to heightened scrutiny. That's not the same thing at all.

It's possible the Supreme Court will come right out and say that any law which burdens the core right is on its face Unconstitutional, no ifs, ands, or buts. That would yield the outcome you refer to in the above. But I wanted to make it clear that this is not what the 9th Circuit had in mind.

advocatusdiaboli
07-07-2011, 5:16 PM
Read pages 48-50

No zoning restrictions anywhere in the City????

Can you say MOMENTOUS WIN !!! ???


That's a great win for Illinois, but Illinois state cases have no controlling power whatsoever in other states including California. Let's hope this goes to SCOTUS so the PRK can be brought to heel to the 2A.

Decisions from lower Federal Courts: Decisions of the Federal District (i.e., trial) Courts, and federal Circuit Courts of Appeal (including the Ninth Circuit Court of Appeal), while entitled to "great weight," are considered to be "persuasive" only, and are not controlling in California state courts. (Raven v. Deukmejian (1990) 52 Cal.3rd 336, 352; People v. Bradley (1969) 1 Cal.3rd 80, 86; In re Tyrell J. (1994) 8 Cal.4th 68, 79; Clark v. Murphy (9th Cir. 2003) 317 F.3rd 1038, 1044.)

newbee1111
07-07-2011, 5:20 PM
Just curious, was outlawing public practice ranges considered an unconstitutional thing in of itself or was it because that it was part of the catch-22 that Chicago tried to impose. If there was no training requirement for a permit would the city still be allowed to forbid public practice ranges without it being a 2a issue?

Maestro Pistolero
07-07-2011, 5:27 PM
No. Because there was a facial challenge as well. And the court was obviously sympathetic to it.

FABIO GETS GOOSED!!!
07-07-2011, 5:39 PM
Patrick-2, I probably could have been more clear that what I meant by "The primary issue here is scrutiny" is "The primary issue [that I am commenting on] here is [the claim by another poster that courts should reflexively apply strict] scrutiny." I don't believe I've ever argued that any of the traditional levels of scrutiny should or must apply (if I did I don't remember doing it); in fact I believe I have been critical of these kinds of arguments, the comments in this thread being one example. What I do think is that the severity of the burden on the exercise of the right to possess firearms for self-defense will be a critical factor in the evaluation of 2A regulations; Nordyke followed Heller's cue on this (in both the '09 and '11 decisions).

wash
07-07-2011, 5:56 PM
While I think that shooting ranges are implicated by the understanding of the second amendment at the time of fourteenth amendment ratification, Chicago implicated it more by making firearm ownership contingent on range training.

Window_Seat
07-07-2011, 6:36 PM
...
Window:

The GFSZs are only less toxic than Machine Guns. Do not think that anyone should be attacking school zone restrictions anywhere anytime soon. Do not take the fight to an enemy's strength. Drop it - for a few years.

-Gene

I can... And will, only because you also point this out as well (among other points you make):

If you have a 12050 permit you are exempt from both the state and federal GFSZ. Why pick fights one doesn't have to. Let's get 12050 permits and ignore both GFSZ acts.

I will settle for that once I get my CCW from ALCO, and again, thanks to the tireless work of CGF.

Dropped.

Erik.

RKV
07-07-2011, 6:56 PM
Chicago Tribune Editorial on Ezell
http://blogs.chicagotribune.com/news_columnists_ezorn/2011/07/range.html
"
In anticipation of Wednesday's "stop-playing-silly-games" ruling, Ald. James Balcer, 11th, chair of the Public Safety Committee, introduced a 24-page ordinance that, technically, allows for the construction and operation of indoor gun ranges within the city limits.

I say "technically" because the restrictions the law places on those who want to open private gun ranges are so brazenly burdensome experts doubt anyone will even try.

...

At some point you have to put some legislator or mayor in jail over this nonsense. The pols in Chicago don't care about other people's money. Jail might get their attention. 18 USC 242 please.

Please do not post whole articles - see http://www.calguns.net/calgunforum/showthread.php?t=363956

I plainly did not post the whole article. Whatever floats your boat.

Typically, one (short) paragraph and a link is low-risk.

See the stickies http://www.calguns.net/calgunforum/s...d.php?t=394912
Web sites are being sued even with reasonable legal protections in place.

In this case, it isn't the whole thing - but much more than probably is OK.

See also the ordinance at http://blogs.chicagotribune.com/files/chicago-gun-range-ordinance.pdf

// Librarian

OleCuss
07-07-2011, 7:17 PM
I think realism on Ezell is clearly prevailing - and I'm loving it. Not for the associated comity, but because I think Ezell is surviving a realistic evaluation as a strong win for liberty.

But can y'all educate me on something?

I am getting the impression that the most powerful thing about the Ezell 7th Circuit ruling for the injunction is that while they skirted a declaration that gun ranges (a more-or-less necessary bit of infrastructure) are a core right, what they said made it sound an awful lot like many/most things which are requisite for the skilled exercise of a core right is a core right.

So I'm supposing that some day Ezell's language/logic will be brought before the SCOTUS and used to give the SCOTUS a clear opening to rule that, indeed, an activity, item, place, and legal structure required for the skilled use of an "arm" must not be substantially burdened unless the government has shown really good evidence that the burden is necessary and effective.

I could be using the wrong terminology as well as the wrong logic - but I couldn't pretend to be a lawyer even if I were on TV. . .

Anyway, to my untrained read on the situation it seems that it may make the Ezelle circuit decision even more powerful that they didn't find that gun ranges are "core". If they had explicitly ruled that gun ranges are core it seems to me that it would make it easier for SCOTUS to simply accept that gun ranges are core and move on to some sort of balancing or scrutiny.

Because the Ezell decision seemed to suggest that gun ranges are core but didn't actually say so it seems to me that SCOTUS may feel more of a need or obligation to define what would make something "core" to our RKBA.

But again, I recognize the fact that I'm out of my area of expertise. . .

FABIO GETS GOOSED!!!
07-07-2011, 7:19 PM
And yet, it would be improper to treat anything that is necessary for exercise of the core right as anything other than, itself, core, for if one treats such things with lesser reverence, the end result will be infringement on the core right just as surely as if the core right itself were directly implicated.

Ezell does just that (i.e., treat ancillary rights as other than "core"):

Both Heller and McDonald suggest that broadly prohibitory laws restricting the core Second Amendment right—like the handgun bans at issue in those cases, which prohibited handgun possession even in the home—are categorically unconstitutional....For all other cases, however, we are left to choose an appropriate standard of review from among the heightened standards of scrutiny the Court applies to governmental actions alleged to infringe enumerated constitutional rights....

If the training right were "core," a prohibitive range ban would restrict the right just as certainly and severely as the McDonald handgun ban restricted the core right of possession of a firearm for self-defense, and there is no reason why Ezell would not have followed Heller and McDonald's lead and ruled that the range ban was categorically unconstitutional. Obviously it didn't do that, it applied a version of heightened scrutiny which is what is says should be done in "all other cases" (i.e., where there is not a broadly prohibitory law restricting the core right). How rigorous the review should be depends:

[T]he rigor of this judicial review will depend on how close the law comes to the core of the Second Amendment right and the severity of the law’s burden on the right.

Under Ezell's own ground rules, the court's application of heightened scrutiny can mean only that the ancillary training right is "close" to core but not core itself.

timdps
07-07-2011, 7:30 PM
Would think training is pretty much required if there is to be a "well regulated Militia".

Well regulated means (among other things) well trained. Since this training is, at the very least, implied directly within the text of the 2nd Amendment I don't see how it could possibly NOT be a part of the core right.

I don't think that the definition of well regulated has been argued before a Federal court, but eventually...

The Second Amendment:
A well regulated Militia being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.

Tim



FWIW, I am not sure training deserves true strict scrutiny, whatever the hell that would mean (I still hate standards-based approaches to questions of first impression). But it is close. So close that "almost strict" is probably close enough.

kcbrown
07-07-2011, 7:43 PM
Under Ezell's own ground rules, the court's application of heightened scrutiny can mean only that the ancillary training right is "close" to core but not core itself.

Which means either that training isn't a necessary prerequisite to exercise of the core right, or the court erred in treating training with any strength less than that of the core right itself.

Again, if the core right is dependent upon something else for its exercise, that something else has to be treated as if it were the core right itself, else government could seriously reduce or eliminate entirely the exercise of the core right through sufficient regulation of everything the core right depends upon.

Southwest Chuck
07-07-2011, 8:57 PM
Which means either that training isn't a necessary prerequisite to exercise of the core right, or the court erred in treating training with any strength less than that of the core right itself.

Again, if the core right is dependent upon something else for its exercise, that something else has to be treated as if it were the core right itself, else government could seriously reduce or eliminate entirely the exercise of the core right through sufficient regulation of everything the core right depends upon.

Exactly the point I was trying to make with FGG. :thumbsup:

Lex Arma
07-07-2011, 9:18 PM
The whole core vs non-core controversy is as old as political philosophy itself. It was resolved under our Bill of Rights by Amendments 9 and 10.

Alexander Hamilton made the argument during the ratification debates that a 'bill of rights' was dangerous precisely because the process of listing rights was bound to be underinclusive and thus would give an overreaching government a justification for tyranny by saying - we aren't touching the 'core' or enumerated right.

Madison's answer was the 9 and 10 Amendments, or as called by one of my favorite authors - the presumption of liberty. Though not cited in the Ezell opinion, this was the approach taken by that panel - almost by judicial instinct based on what I have read of the other opinions written by this judge.

There certainly are analogous and ancillary rights associated with all of the enumerated rights listed in the Bill of Rights. (might be a fun game to try and list them)

What the Ezell Court got right, and what the Nordyke Court got wrong, was to make a finding that a particular activity is (or is not) an ancillary right. Keeping and bearing arms for self-defense requires the acquisition of arms. (or self-manufacturing. Anyone want to take a run at challenging the Gov't requirement to be licensed in order to make, sell and repair guns? Can you imagine the Gov't telling the NY Times they need a license to print and sell newspapers? But I digress.) Keeping and bearing arms also strongly implies obtaining the necessary training to use them, just as 'freedom of the press' implies the right to learn how to read.

The Ezell Court said training is one of these ancillary rights bundled with, AND THEREFORE RETAINED BY THE PEOPLE (i.e., the presumption of liberty) in connection with their enumerated Second Amendment Rights of keeping and bearing arms. Once this threshold finding was made, the burden of producing evidence and of advancing the case then shifted to the Gov't to justify the burden on the ancillary right.

In contrast, the Nordyke Court rejected the presumption of liberty and shifted the burden on to the plaintiff to prove whether the burden on the ancillary right (acquiring arms) would unduly burden the enumerated right before it would even consider any form of scrutiny of the Gov't's law/regulation which admittedly burdened the ancillary right.

Properly understood, the 9th and 10th Amendments resolve the sophistry of the arguments that try to distinguish core from non-core rights. Apply the presumption of liberty, and the fog begins to lift.

kcbrown
07-07-2011, 10:21 PM
The Ezell Court said training is one of these ancillary rights bundled with, AND THEREFORE RETAINED BY THE PEOPLE (i.e., the presumption of liberty) in connection with their enumerated Second Amendment Rights of keeping and bearing arms. Once this threshold finding was made, the burden of producing evidence and of advancing the case then shifted to the Gov't to justify the burden on the ancillary right.


But even that isn't necessarily consistent with Heller, for in that ruling, the Supreme Court said:


The very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all. Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad.


In other words, if the right is discovered to be infringed upon, based on an historical understanding of its scope, then there can be no governmental justification for its infringement. Infringement of a prerequisite to exercise of the right is infringement of the right itself, for it has the very same effect.

Of course, that's just my layman's take on it. And other than that, I fully agree with your analysis. The presumption is of liberty. That is precisely what a free country is all about, and it's high time we all realize that.

Maestro Pistolero
07-07-2011, 11:06 PM
It may be that we are giving likelihood of the muti-tiered approach to scrutiny too much weight. Certainly there will be fringe issues that won't require strict scrutiny, but I see no reason that the bulk of activity related to the right isn't fully protected. Buying, transporting, repairing, cleaning , fixing, practicing, carrying, and collecting. Really any traditionally lawful purpose should come under the umbrella.

We get so used to seeing the Amendment that sometimes I think we forget what it really means. The core of the right is that owning and carrying SHALL NOT BE INFRINGED. "Shall not be infringed" IS the standard of scrutiny for this enumerated right. It's not something we have to contrive out of thin air. It's right there in the amendment in the strongest possible language. It's the only amendment of which I am aware that has the standard of review written right in to it.

Keeping and bearing carry with them certain inescapable items and activities. Ammo, magazines, solvent, gun oil, spare parts, ranges at which to fire them, stores in which to buy them. ALL of those things are at the core of the right. Without ANY of them, the right is null and void.

If you don't agree, stop oiling and cleaning your gun for a few years, and then see how functional it is. So, all those things are absolutely primary to the right, not secondary.

Of course, our right to free speech doesn't allow us to read a book while driving, and our right to carry doesn't include the right to indiscriminately wave a gun around in public.

But whatever scrutiny is finally applied, it must allow for all non-threatening, traditionally lawful uses and ancillary items and activities to go unhindered. Un-infringed, if you will. Anything less is just a continued mockery of the amendment.

Theseus
07-08-2011, 7:22 AM
It may be that we are giving likelihood of the muti-tiered approach to scrutiny too much weight. Certainly there will be fringe issues that won't require strict scrutiny, but I see no reason that the bulk of activity related to the right isn't fully protected. Buying, transporting, repairing, cleaning , fixing, practicing, carrying, and collecting. Really any lawful purpose should come under the umbrella.

We get so used to seeing the Amendment that sometimes I think we forget what it really means. The core of the right is that owning and carrying SHALL NOT BE INFRINGED. "Shall not be infringed" IS the standard of scrutiny for this enumerated right. It's not something we have to contrive out of thin air. It's right there in the amendment in the strongest possible language. It's the only amendment of which I am aware that has the standard of review written right in to it.

Keeping and bearing carry with them certain inescapable items and activities. Ammo, magazines, solvent, gun oil, spare parts, ranges at which to fire them, stores in which to buy them. ALL of those things are at the core of the right. Without ANY of them, the right is null and void.

If you don't agree, stop oiling and cleaning your gun for a few years, and then see how functional it is. So, all those things are absolutely primary to the right, not secondary.

Of course, our right to free speech doesn't allow us to read a book while driving, and our right to carry doesn't include the right to indiscriminately wave a gun around in public.

But whatever scrutiny is finally applied, it must allow for all non-threatening, traditionally lawful uses and ancillary items and activities to go unhindered. Un-infringed, if you will. Anything less is just a continued mockery of the amendment.

Maybe it's just me, but using the "lawful purpose" qualifier is the exact problem we seem to be having with the courts trying to outline instead a class-determining factor of core-right. Technically, possessing in the home without a permit is unlawful in Chicago. Perhaps we should say something more along the lines of "constitutionally permissible uses"?

Maestro Pistolero
07-08-2011, 8:42 AM
Maybe it's just me, but using the "lawful purpose" qualifier is the exact problem we seem to be having with the courts trying to outline instead a class-determining factor of core-right. Technically, possessing in the home without a permit is unlawful in Chicago. Perhaps we should say something more along the lines of "constitutionally permissible uses"?Understood. Edited it to say: "traditionally lawful purpose".

dfletcher
07-08-2011, 10:56 AM
I read most but not every word of the decision and saw the court referenced "firing ranges" and "target ranges" - I saw nothing to specifiy "indoor handgun ranges" and am wondering if protection can be applied to an outdoor long gun range or an outdoor mixed use range. I've no idea if Chicago has any location where it would be safe or zoning allowed, but for the sake of discussion let's say that were the case - would an outdoor range be similarly protected?

Knowing the former Mayor's involvement in both, Miegs Field might be kind of a neat place to start. :)

Southwest Chuck
07-08-2011, 11:06 AM
Not that they wouldn't fight it, I would think that an outdoor range that conforms to generally accepted safety practices and designs that have been shown to be safe historically, (across the nation), they would be hard pressed to deny the permitting of such a range. But that just my opinion and IANAL.

hoffmang
07-08-2011, 11:23 AM
All this dicussion of standard of review ignores what the concurring judge said:

The majority goes
much farther than is required or justified, however, in
finding that the plaintiffs’ claim for live‐*range training is so
closely allied to “core” Second Amendment rights that a
standard akin to strict scrutiny should be applied.

This is all but strict scrutiny and as such I think Fabio is incorrect.

-Gene

Scott Connors
07-08-2011, 12:36 PM
Question: this decision is in response to plaintiff's request for a preliminary injunction against Chicago. Does this make it lesser authoritative than a final decision in a similar case that settled for intermediate scrutiny? Can it be overturned when 7th Circuit issues its final decision, or if Chicago manages to moot the lawsuit?

wash
07-08-2011, 1:03 PM
I asked this question earlier.

It is my understanding that this will go back to the lower court where they will most likely issue a decision that makes the injunction permanent.

If Chicago tries to moot it at this point, Alan can probably sue over that as well.

OleCuss
07-08-2011, 1:15 PM
I have my doubts Chicago will be willing to do everything it will take in order to moot the case. I'd have to go back to read everything that would have to occur - and maybe I'd have to look at Chicago's ordinances as well.

But my impression is that Chicago would have to change multiple ordinances in ways that would be politically unpleasing to multiple ward bosses - especially since Daley still looms large and Emanuel is relatively new in his position.

I think Emanuel will be able to get some changes in the ordinances. I think those changes will be enough to where the District just might let them slide - but that when Gura hauls it back up to the Circuit that there will be major displeasure with the District.

The beautiful part of that is that the Circuit just might get even more explicit about the way in which such matters must be handled - and that could be to our significant benefit. But this might be going a bit too far. I think the 7th probably thought they went about as far as they could.

The more I've thought about this the more I think that if I were Chicago my approach would be to ask to go en banc. IANAL so I could easily be wrong, but I just don't see much of a downside to their asking for that.

Edit: I should probably say that I thought it was very significant that Emanuel suggested a zoning ordinance change just before the Ezell ruling came out. To me it suggests he had intel sources inside the Circuit court who were giving him good info on what was coming down the pike. So Emanuel has likely made the political evaluation that he can get by with the ordinance change he proposed (which I understand is only a change in zoning). To go along with that, I suspect Emanuel doesn't think he can get much more than the change he proposed - and that it will be enough to satisfy the District court.

Now, if they ask for en banc and the request is denied - at least the delay means Emanuel has additional time to marshal his political clout and get the ordinance changes passed to satisfy the District. If the 7th takes it en banc, then he might get a more favorable ruling - and I doubt it could be any less favorable from his point of view.

So you request en banc and welcome the delay, but you don't get your hopes up too high.

FWIW for someone who is decidedly not a lawyer.

FABIO GETS GOOSED!!!
07-08-2011, 1:46 PM
All this dicussion of standard of review ignores what the concurring judge said:

I guess you're right, the majority reflexively applied strict scrutiny after deciding that training was "core," and we're going to see strict scrutiny in Nordyke after all! The stuff in the majority decision about severe burdens, complete prohibitions, proximity to the core right, etc. was just a smokescreen apparently.

Maestro Pistolero
07-08-2011, 2:27 PM
I guess you're right, the majority reflexively applied strict scrutiny after deciding that training was "core," and we're going to see strict scrutiny in Nordyke after all! The stuff in the majority decision about severe burdens, complete prohibitions, proximity to the core right, etc. was just a smokescreen apparently.

I can't tell for sure if your being sarcastic. I kind of don't think so. ????

FABIO GETS GOOSED!!!
07-08-2011, 2:32 PM
I can't tell for sure if your being sarcastic. I kind of don't think so. ????

haha, sarcastic. :D hoffmang is just digging his heels in yet again because he always has to be right. We'll see soon enough just how many briefs will be citing Ezell for the proposition that "acquisition and training are core therefore strict scrutiny reflexively applies" and how much traction that claim will get in the courts.

eaglemike
07-08-2011, 2:35 PM
I guess you're right, the majority reflexively applied strict scrutiny after deciding that training was "core," and we're going to see strict scrutiny in Nordyke after all! The stuff in the majority decision about severe burdens, complete prohibitions, proximity to the core right, etc. was just a smokescreen apparently.
Taking notice of previous posts, I'm thinking there IS considerable sarcasm here. I'm just wishing there could be more of "well, I disagree, and this is why" as opposed to the current communication...... I think he used this language in an attempt to stir the pot.

Obviously there is considerable difference in interpretation between the 9th and 7th.......

slow typist here, see post above for continued attempts to develop good will. [\S]

Glock22Fan
07-08-2011, 3:03 PM
All this dicussion of standard of review ignores what the concurring judge said:

This is all but strict scrutiny and as such I think Fabio is incorrect.

-Gene

I've stopped reading the detail in FGG's posts. He never agrees with anyone, and he can't be the only person who understands exactly what is being said.

Quser.619
07-08-2011, 3:09 PM
Interesting article written by David Kopel over @ Volokh regarding standard of review or scrutiny, here (http://volokh.com/2011/07/08/ezell/):

I must admit I did not immediately see the value of the Ezell win at first, but given the base doctrinal differences shown by the 9th, in comparison to the 7th in this case, I can now see that the case & it's approaches may lead to greater advances & more likelihood of SCOTUS attention. Given this understanding I cannot believe the win given to our side...

kcbrown
07-08-2011, 3:49 PM
The analysis in Ezell is certainly closer in its approach to that taken by the Supreme Court in Heller than the one in Nordyke was (the Nordyke opinion tries to give the appearance that it follows the guidelines in Heller, but upon reading the actual opinion it becomes quite obvious that it's a horrible bastardization of it, and one can hardly conclude anything other than that the 9th Circuit is attempting to minimize the scope and power of the 2nd Amendment).

It's impossible to say exactly where SCOTUS will go with all of this, but remember that they did say, in essence, that no level of scrutiny would do once infringement of the right itself was established (since the very purpose of scrutiny is to determine whether, in that specific case, "the right is really worth insisting upon"). That tells me that the approach taken in Ezell is the minimum acceptable approach. It's entirely possible that SCOTUS will remain consistent with their Heller dicta and give the Second Amendment even greater reverence than was shown in Ezell.

Does infringement of a prerequisite to the right count as infringement of the right itself? In practical terms, it most certainly does, since it reduces or prevents the exercise of the right just as surely as direct infringement would. Given the enlightenment demonstrated in Heller, I'm actually rather skeptical that the Supreme Court will fail to understand that.

FABIO GETS GOOSED!!!
07-08-2011, 3:50 PM
He never agrees with anyone, and he can't be the only person who understands exactly what is being said.

That's not entirely true, I agree with Dave Kopel (http://volokh.com/2011/07/08/ezell/) lol.

Lex Arma
07-08-2011, 3:57 PM
I've stopped reading the detail in FGG's posts. He never agrees with anyone, and he can't be the only person who understands exactly what is being said.

Can't fault FGG for not being smart. I too wish that he would put his considerable intellectual talents to work FOR the cause, instead of sideline sniping.

But since he chooses to remain anonymous (I suppose he might be a brilliant litigator who must remain anonymous in order to keep his job.), we just have to take his Monday Morning Quarter-backing for what it is -- valuable failure analysis for the next project when he is right. Empty criticism when he is wrong.

IGOTDIRT4U
07-08-2011, 4:54 PM
Can't fault FGG for not being smart. I too wish that he would put his considerable intellectual talents to work FOR the cause, instead of sideline sniping.

But since he chooses to remain anonymous (I suppose he might be a brilliant litigator who must remain anonymous in order to keep his job.), we just have to take his Monday Morning Quarter-backing for what it is -- valuable failure analysis for the next project when he is right. Empty criticism when he is wrong.

Well, then we know for sure he's not JB or Kamala!

hoffmang
07-08-2011, 4:54 PM
Point out that a concurring federal judge disagrees with someone and all you get is snark that avoids the federal judge in question :rolleyes:

I wonder if Fabio read the part of Ezell where the specifically rejected the mode of analysis in Nordyke. Circuit splits are good.

-Gene

M. D. Van Norman
07-08-2011, 5:42 PM
Rational exuberance is better than irrational exuberance. I suppose … :D

These little debates help keep us honest with ourselves.

navyinrwanda
07-08-2011, 5:52 PM
I wonder if Fabio read the part of Ezell where the specifically rejected the mode of analysis in Nordyke. Circuit splits are good.

-Gene
I still think you and Don are overreading the split. The outcomes are different because the fact patterns are different: Chicago prohibited ranges everywhere in the City (and conditioned possession on range training), whereas Alameda only banned gun shows at one location. Without changing their analysis or reasoning, it's entirely possible to see how the Nordyke panel would have granted the injunction (finding a substantial burden and applying heightened scrutiny); likewise, the Ezell panel would likely have upheld Alameda's ban (accepting conduct within the scope but balancing in favor of the County's interests).

Of course, Nordyke got it wrong on the First Amendment (and Ezell didn't go there). And Ezell is still a big win – it's just not that radically different from Nordyke. This fight over categoricalism vs. balancing has been going on for fifty years now, first between Black and Frankfurter and now between Scalia and Breyer. “Strict scrutiny” isn't the magical answer – and Ezell hardly established that strict applied even in the instant case. Besides, tiered scrutiny is balancing, and Scalia (via Heller) hates balancing.

hoffmang
07-08-2011, 6:31 PM
I still think you and Don are overreading the split.

Simple is powerful.

Nordyke:

Likewise, the Supreme Court recently held that a ban on one particular method of performing an abortion did not constitute an “undue burden” on the right to an abortion in part because “[a]lternatives [were] available to the prohibited procedure.” Carhart, 550 U.S. at 164; see also id. at 165 (“[T]he Act allows . . . a commonly used and generally accepted [abortion] method, so it does not construct a substantial obstacle to the abortion right.”). [6]

Following this lead, when deciding whether a restriction on gun sales substantially burdens Second Amendment rights, we should ask whether the restriction leaves law abiding citizens with reasonable alternative means for obtain ing firearms sufficient for self-defense purposes.

Ezell:

“The City urges us to import the ‘undue burden’ test from the Court’s abortion cases...but we decline the invitation.

Add in the footnote that questions Nordyke in Ezell and you can't get much stronger a split.

Also, where is CA-9's analysis that shows that possession of firearms on public open forum property for sale wasn't part of the 2A at 1789 and 1868?

It's a split.

-Gene

rocketsci
07-08-2011, 11:19 PM
Simple is powerful.

Nordyke:


Ezell:


Add in the footnote that questions Nordyke in Ezell and you can't get much stronger a split.

Also, where is CA-9's analysis that shows that possession of firearms on public open forum property for sale wasn't part of the 2A at 1789 and 1868?

It's a split.

-Gene

So, just so I have this clear:

This is a 7-9 split?

:43:

socalblue
07-09-2011, 2:14 AM
So, just so I have this clear:

This is a 7-9 split?

:43:

Yes. Chicagi used almost the exact same old regurgitated` arguments (why not, they have been worked for years) & 7th specifically declined to bite that apple.

OleCuss
07-09-2011, 4:51 AM
Sometimes it takes me a while. . .

My only slightly informed opinion and speculation makes me think that at present the best informed and important opinion on whether there is a 9th/7th split is Lex Arma's.

But I hope FGG keeps arguing because I both enjoy it (and learn from it) and because I think it improves our understanding of the language and issues.

sighere
07-09-2011, 5:46 AM
Great ruling! Kudos to SAF on this one! It took 4 days for Chicago to write this piece of crap law after McDonald. I wonder what the next 4 days will bring this time....

Lex Arma
07-09-2011, 6:01 AM
Sometimes it takes me a while. . .

My only slightly informed opinion and speculation makes me think that at present the best informed and important opinion on whether there is a 9th/7th split is Lex Arma's.

But I hope FGG keeps arguing because I both enjoy it (and learn from it) and because I think it improves our understanding of the language and issues.

Thanks for the sentiment Cuss, but lawyers (including me) and judges aren't endowed with any special legal wisdom or profound legal reasoning by virtue of their bar cards or their black robes. Many people posting comments on this forum display better legal reasoning than I see/hear in courtrooms everyday.

There are Calgunners who IMO should be allowed to practice law without having to jump through the dreary hoops of law school and bar exams (you know who you are) and then there are bar carded lawyers who shouldn't be allowed to represent a potted plant.

I keep chiding FGG about his anonymity, but one virtue of his decision to engage in the discussion from a position cover/concealment is that we must judge ONLY his arguments without being influenced by his credentials/office.

Some of FGG's arguments are reasonable. Some are even powerfully persuasive. Some are not.

FABIO GETS GOOSED!!!
07-09-2011, 6:56 AM
Point out that a concurring federal judge disagrees with someone and all you get is snark that avoids the federal judge in question :rolleyes:

Do you really think the majority reflexively applied strict scrutiny because it found that training was core? The majority opinion, which is the opinion that counts, is crystal clear how it arrived at "not quite strict" scrutiny and it was anything but the reflexive application that you're being so intransigent about. But anyways let's have a look at how the concurring judge is (mis)reading the majority opinion:

Although the majority characterizes this aspect of the ordinance as a complete ban on an activity “implicating the core of the Second Amendment right,” a more accurate characterization would be a regulation in training, an area ancillary to a core right.

Which is not what the majority opinion actually says:

Intermediate scrutiny was appropriate in Skoien because the claim was not made by a “law‐abiding, responsible citizen” as in Heller, 554 U.S. at 635; nor did the case involve the central self‐defense component of the right, Skoien, 614 F.3d at 645.

Here, in contrast [to Skoein], the plaintiffs are the “law‐abiding, responsible citizens” whose Second Amendment rights are entitled to full solicitude under Heller, and their claim comes much closer to implicating the core of the Second Amendment right.

The "core" that the majority is referring to is, obviously, the "central self-defense component of the right" mentioned in the immediately preceding paragraph. The concurring judge seems to think she's disagreeing with the majority opinion when she writes that training is "ancillary to the core" but (I'm repeating myself here) the majority opinion never characterized it as anything but ancillary (corollary to, corresponding to, etc.). If training were itself core, the majority would never have employed any level of scrutiny in the first place, it would have ruled that the prohibitive, severely burdensome range ban was categorically unconstitutional a la Heller and McDonald.

Lex Arma
07-09-2011, 7:19 AM
If training were core, the majority would never have employed any level of scrutiny in the first place, it would have ruled that the prohibitive, severely burdensome range ban was categorically unconstitutional a la Heller and McDonald.

Unless the Ezell majority was picking up on the task implicitly assigned by SCOTUS to the intermediate courts to sort out scrutiny.

ldsnet
07-09-2011, 7:22 AM
I feel the majority applied strict scrutiny to the range because training IS core to exercising the right to keep and bear arms. The same as bogus restrictions on ammo would inhibit the right to bear arms.

Being "new" territory, the third justice didn't feel comfortable applying that level of scrutiny to all the elements of the right.

Now if we can get the Ninth court to read and understand this ruling it would go a long way here in CA and HI.

FABIO GETS GOOSED!!!
07-09-2011, 7:26 AM
Unless the Ezell majority was picking up on the task implicitly assigned by SCOTUS to the intermediate courts to sort out scrutiny.

That's what it was doing, sorting out scrutiny for "all other cases" (http://www.calguns.net/calgunforum/showpost.php?p=6729628&postcount=150) that do not involve broadly prohibitory laws restricting the core right:

Both Heller and McDonald suggest that broadly prohibitory laws restricting the core Second Amendment right—like the handgun bans at issue in those cases, which prohibited handgun possession even in the home—are categorically unconstitutional. Heller, 554 U.S. at 628‐35 (“We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding ‘interest‐balancing’ approach.”); McDonald, 130 S. Ct. at 3047‐48. For all other cases, however, we are left to choose an appropriate standard of review from among the heightened standards of scrutiny the Court applies to governmental actions alleged to infringe enumerated constitutional rights; the answer to the Second Amendment “infringement” question depends on the government’s ability to satisfy whatever standard of means‐end scrutiny is held to apply.

taperxz
07-09-2011, 7:44 AM
FGG, For some of us lay people here on CG, It would certainly help if you could tell us your personal opinion on the 2A.

Core right? or NOT? An answer would help some of us to understand if you enjoy playing devils advocate or in simple opposition of CGF. thanks

Lex Arma
07-09-2011, 7:54 AM
FGG - let me see if I follow the implications of your argument:

Traditional scrutiny analysis is that there are three forms. Superficially:

1. Strict - historically associated with First Amendment and Equal Protection. Gov't bears near impossible burden to justify restriction on the right.

2. Intermediate - historically associated with "lesser" rights. Gov't bears initial burden to prove law/policy will actually address an important public (safety?) policy.

3. Rational - no fundamental rights at stake, deference to legislature.

Does your theory of Ezell imply new categories of scrutiny? New ways of categorizing fundamental rights? Both? None of the above?

Maestro Pistolero
07-09-2011, 7:57 AM
That's what it was doing, sorting out scrutiny for "all other cases (http://www.calguns.net/calgunforum/showpost.php?p=6729628&postcount=150)" that do not involve broadly prohibitory laws restricting the core right:

This makes sense. Unlike Nordyke, the scrutiny chosen is sufficient to support the exercise of the right. It seems like the 9th understands the task that Heller proffered.

moleculo
07-09-2011, 8:17 AM
FGG,

One comment on your analysis. You said:

the majority opinion never characterized it as anything but ancillary (corollary to, corresponding to, etc.).

The concurring judge uses the word "ancillary", but your synonyms on what the word "ancillary" means are slightly inaccurate. "Subsidiary" is a better definition. The difference is subtle but significant. Subsidiary by definition is more inclusive of the "thing" that it is ancillary to. The words "Corollary" or "corresponding" are more associative and less inclusive than the word "subsidiary". It could be reasoned (by an English professor, I suppose, lol) that by using the word "ancillary" in the wording, the concurring justice is acknowledging that training is a subsidiary or subset of the core right.

eaglemike
07-09-2011, 8:17 AM
Isn't the right to " keep and bear" (for all lawful purposes). The then common use of "well regulated" included well equipped and trained, correct? :)

OleCuss
07-09-2011, 8:18 AM
Thanks for the sentiment Cuss, but lawyers (including me) and judges aren't endowed with any special legal wisdom or profound legal reasoning by virtue of their bar cards or their black robes. Many people posting comments on this forum display better legal reasoning than I see/hear in courtrooms everyday.

There are Calgunners who IMO should be allowed to practice law without having to jump through the dreary hoops of law school and bar exams (you know who you are) and then there are bar carded lawyers who shouldn't be allowed to represent a potted plant.

I keep chiding FGG about his anonymity, but one virtue of his decision to engage in the discussion from a position cover/concealment is that we must judge ONLY his arguments without being influenced by his credentials/office.

Some of FGG's arguments are reasonable. Some are even powerfully persuasive. Some are not.

I really appreciate your reasoned approach and your modesty.

However, there were a number of facets to what I was saying and at this point I seriously doubt there is anyone better informed on this particular issue - for a number of reasons.

Part of what I said also had to do with at least a little of what I suspect/speculate will happen in part to exploit/consolidate the good from Ezell. At this time I don't consider Ezell to be a durable decision but I expect some maneuver(s) to make it somewhat more durable than Chicago wants it to be.

And yeah, I'm thoroughly impressed by a few of the non-lawyers and their ability to sort things out and argue them through with good logic and savvy. I also acknowledge that I'm not one of them. Oh, I think I've got the ability (I've had a lawyer or two tell me that I thought like a lawyer - couldn't decide whether or not to be offended. . .), but I've not studied any part of the law to the extent necessary to believe I'm even close to conversant.

FABIO GETS GOOSED!!!
07-09-2011, 8:45 AM
Does your theory of Ezell imply new categories of scrutiny? New ways of categorizing fundamental rights? Both? None of the above?

Ezell did not use one of the three traditional forms of scrutiny, and I wouldn't label the scrutiny it did use a "category." What I'm seeing in Ezell is more a fluid method of evaluation responsive to the various factors discussed in the majority opinion (proximity to the core right, severity of the burden, prohibitory versus regulatory, law-abiding versus not law-abiding). I'm probably not being as precise or careful as I could be with that description but I wanted to give a quick response before moving on to the rest of my Saturday.

FABIO GETS GOOSED!!!
07-09-2011, 8:55 AM
The concurring judge uses the word "ancillary", but your synonyms on what the word "ancillary" means are slightly inaccurate. "Subsidiary" is a better definition. The difference is subtle but significant. Subsidiary by definition is more inclusive of the "thing" that it is ancillary to. The words "Corollary" or "corresponding" are more associative and less inclusive than the word "subsidiary". It could be reasoned (by an English professor, I suppose, lol) that by using the word "ancillary" in the wording, the concurring justice is acknowledging that training is a subsidiary or subset of the core right.

Corollary and corresponding are the majority's words so if we want to be precise about it which I think we should those are the words that matter. The concurrence is peculiar in how it misreads the majority opinion and its word choice (Dave Kopel describes training as "ancillary" as well), something to chew on for sure.

FABIO GETS GOOSED!!!
07-09-2011, 9:07 AM
FGG, For some of us lay people here on CG, It would certainly help if you could tell us your personal opinion on the 2A.

What I think is that the 2A cause is better served at this early stage by the extreme cases such as Heller, McDonald, the Illinois carry case, and Ezell. Cases with weak facts are less effective, and the academic debate about liberty and presumptions and what not will not have much practical significance as far as the end result in those cases is concerned (see navyinrwanda's assessment earlier in this thread).

tonelar
07-09-2011, 9:09 AM
I'm hopeful that this means that it'll be possible to open a gun store w/ indoor range in SF one day.

Maestro Pistolero
07-09-2011, 9:11 AM
What I think is that the 2A cause is better served at this early stage by the extreme cases such as Heller, McDonald, the Illinois carry case, and Ezell. Cases with weak facts are less effective, and the academic debate about liberty and presumptions and what not will not have much practical significance as far as the end result in those cases is concerned (see navyinrwanda's assessment earlier in this thread).

I believe he was asking whether or not you are an advocate for the amendment, not what you thought about 2A jurisprudence in general.

Mulay El Raisuli
07-09-2011, 9:35 AM
The whole core vs non-core controversy is as old as political philosophy itself. It was resolved under our Bill of Rights by Amendments 9 and 10.

Alexander Hamilton made the argument during the ratification debates that a 'bill of rights' was dangerous precisely because the process of listing rights was bound to be underinclusive and thus would give an overreaching government a justification for tyranny by saying - we aren't touching the 'core' or enumerated right.

Madison's answer was the 9 and 10 Amendments, or as called by one of my favorite authors - the presumption of liberty. Though not cited in the Ezell opinion, this was the approach taken by that panel - almost by judicial instinct based on what I have read of the other opinions written by this judge.

There certainly are analogous and ancillary rights associated with all of the enumerated rights listed in the Bill of Rights. (might be a fun game to try and list them)

What the Ezell Court got right, and what the Nordyke Court got wrong, was to make a finding that a particular activity is (or is not) an ancillary right. Keeping and bearing arms for self-defense requires the acquisition of arms. (or self-manufacturing. Anyone want to take a run at challenging the Gov't requirement to be licensed in order to make, sell and repair guns? Can you imagine the Gov't telling the NY Times they need a license to print and sell newspapers? But I digress.) Keeping and bearing arms also strongly implies obtaining the necessary training to use them, just as 'freedom of the press' implies the right to learn how to read.

The Ezell Court said training is one of these ancillary rights bundled with, AND THEREFORE RETAINED BY THE PEOPLE (i.e., the presumption of liberty) in connection with their enumerated Second Amendment Rights of keeping and bearing arms. Once this threshold finding was made, the burden of producing evidence and of advancing the case then shifted to the Gov't to justify the burden on the ancillary right.

In contrast, the Nordyke Court rejected the presumption of liberty and shifted the burden on to the plaintiff to prove whether the burden on the ancillary right (acquiring arms) would unduly burden the enumerated right before it would even consider any form of scrutiny of the Gov't's law/regulation which admittedly burdened the ancillary right.

Properly understood, the 9th and 10th Amendments resolve the sophistry of the arguments that try to distinguish core from non-core rights. Apply the presumption of liberty, and the fog begins to lift.


Agree completely. Just wanted to say that the biggest problem, & so the biggest threat to freedom is that so few courts "properly" understand the 9th & the 10th.


The Raisuli

Mulay El Raisuli
07-09-2011, 9:38 AM
Which means either that training isn't a necessary prerequisite to exercise of the core right, or the court erred in treating training with any strength less than that of the core right itself.

Again, if the core right is dependent upon something else for its exercise, that something else has to be treated as if it were the core right itself, else government could seriously reduce or eliminate entirely the exercise of the core right through sufficient regulation of everything the core right depends upon.


Exactly the effect on newspapers if the gummint regulated ink.


Perhaps we might look at this in a slightly different perspective:

While only an injunction, the wording of this decision is what matters. The 7th has now strictly complied with SCOTUS (with a great quote by the 3rd judge) and has applied strict scrutiny as the standard.


Yes, completely agree. Further, the 7th didn't just slap down the trial judge. They *****slapped her. Notable because the kind of 'logic' used by her would have (indeed, did) carry the day pre-Heller & pre-McDonald. Plus, what Patrick-2 said.


This is the part that I really found interesting, from the bottom of page 19:

"This reasoning assumes that the harm to a constitutional right is measured by the extent to which it can be exercised in another jurisdiction. That’s a profoundly mistaken assumption. In the First Amendment context, the Supreme Court long ago made it clear that “ ‘one is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place.’” Schad v. Borough of Mt. Ephraim, 452 U.S. 61, 76‐77 (1981) (quoting Schneider v. State of New Jersey, 308 U.S. 147, 163 (1939)). The same principle applies here. It’s hard to imagine anyone suggesting that Chicago may prohibit the exercise of a free‐speech or religious‐liberty right within its borders on the rationale that those rights may be freely enjoyed in the suburbs. That sort of argument should be no less unimaginable in the Second Amendment context."


Applicability re: roster & AWB?


I wonder the same thing. Especially given that we're talking about a Federal Right. The City of Chicago banned ranges & claimed this was "justifed" on the basis that such is available in other jurisdictions. The PRK bans certain types of guns, & claims this is "justified" on the basis that other guns are allowed. The "logic" is basically the same. If one is FAIL, shouldn't the other be as well?


So, just so I have this clear:

This is a 7-9 split?

:43:


GROAN!!!!!


The Raisuli

Maestro Pistolero
07-09-2011, 9:53 AM
"This reasoning assumes that the harm to a constitutional right is measured by the extent to which it can be exercised in another jurisdiction. That’s a profoundly mistaken assumption. In the First Amendment context, the Supreme Court long ago made it clear that “ ‘one is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place.’” Schad v. Borough of Mt. Ephraim, 452 U.S. 61, 76‐77 (1981) (quoting Schneider v. State of New Jersey, 308 U.S. 147, 163 (1939)). The same principle applies here. It’s hard to imagine anyone suggesting that Chicago may prohibit the exercise of a free‐speech or religious‐liberty right within its borders on the rationale that those rights may be freely enjoyed in the suburbs. That sort of argument should be no less unimaginable in the Second Amendment context."


Applicability re: roster & AWB?Applicability, Nordyke? Didn't the 9th use the availability of guns elsewhere as evidence that the right was not unduly burdened?

FABIO GETS GOOSED!!!
07-09-2011, 10:57 AM
Let me throw this out just for fun: other than the result, Ezell isn't much to cheer about. The opinion could have and should have gone further than it did. The plaintiffs argued that the range ban was as extreme as Heller's "functional firearms ban" but the court declined to do what the plaintiffs really wanted, strike the range ban down "without more." What Ezell does instead is articulate an amorphous, "fluctuating" standard of review that is very useful for result-oriented lower courts. "Modest" regulation of corollary right? Slight burden on the core of the right? Closer to the margins of the 2A right? Lots of wiggle room there.

hoffmang
07-09-2011, 11:19 AM
Let me throw this out just for fun: other than the result, Ezell isn't much to cheer about. The opinion could have and should have gone further than it did. The plaintiffs argued that the range ban was as extreme as Heller's "functional firearms ban" but the court declined to do what the plaintiffs really wanted, strike the range ban down "without more." What Ezell does instead is articulate an amorphous, "fluctuating" standard of review that is very useful for result-oriented lower courts. "Modest" regulation of corollary right? Slight burden on the core of the right? Closer to the margins of the 2A right? Lots of wiggle room there.

Let me counter - just for fun. Who knew that gun ranges would get 2A protection!

Forest, trees man.

-Gene

FABIO GETS GOOSED!!!
07-09-2011, 11:27 AM
Let me counter - just for fun. Who knew that gun ranges would get 2A protection!

Forest, trees man.

Good result. We'll see soon enough how the less than extreme cases are handled.

hoffmang
07-09-2011, 11:51 AM
Good result. We'll see soon enough how the less than extreme cases are handled.

And what's great is that the Alderman are going to turn this case into that.

-Gene

Lex Arma
07-09-2011, 3:08 PM
Good result. We'll see soon enough how the less than extreme cases are handled.

FGG, in case you didn't notice, 2A rights do not exist in isolation. All of our liberties in this country have been under assault by some faction or another of do-gooders, nose-pickers and bed-wetters since 1789/1791.

2A rights are either the canary in the the coal mine (a warning) or embody the practical philosophy for restoring liberty (taking it back from a tyrant by force if necessary).

Having some hypothetically pure right to keep and bear crew served weapons by felons while they work as elementary school teachers is not the objective.

The objective is to push back against Levithan on all fronts to stave off a collapse into another Dark Ages until the philosophy of liberty becomes the predominant currency of political discourse in this country again, instead of the welfare/nanny statism we have today.

The greatness of Heller, McDonald and Ezell (and hopefully Nordyke, Enos, Haynie and Richards) is that the courts are speaking in terms that expand our current liberties.

Eternal vigilance (incremental litigation strategy by good lawyers) rather than some magic, single kill-shot judicial decision is the path to both recovering the philosophy of liberty AND keeping the tyrants at bay while we re-educate the masses.

Your criticism of Ezell for not meeting your standards says more about your standards than it does about the outcome of that case.

Is it your standard of perfection what keeps you in the role of anonymous commentator, instead of rolling up your sleeves and putting your name on some pleadings, or signing some checks if you do not have a bar card?

Californio
07-09-2011, 4:47 PM
FGG, in case you didn't notice, 2A rights do not exist in isolation. All of our liberties in this country have been under assault by some faction or another of do-gooders, nose-pickers and bed-wetters since 1789/1791.

2A rights are either the canary in the the coal mine (a warning) or embody the practical philosophy for restoring liberty (taking it back from a tyrant by force if necessary).

Having some hypothetically pure right to keep and bear crew served weapons by felons while they work as elementary school teachers is not the objective.

The objective is to push back against Levithan on all fronts to stave off a collapse into another Dark Ages until the philosophy of liberty becomes the predominant currency of political discourse in this country again, instead of the welfare/nanny statism we have today.

The greatness of Heller, McDonald and Ezell (and hopefully Nordyke, Enos, Haynie and Richards) is that the courts are speaking in terms that expand our current liberties.

Eternal vigilance (incremental litigation strategy by good lawyers) rather than some magic, single kill-shot judicial decision is the path to both recovering the philosophy of liberty AND keeping the tyrants at bay while we re-educate the masses.?

I sure like that plan:)

wash
07-09-2011, 6:38 PM
I think all of the I Can't Believe it's not Butter has gone to Fabio's head.

It doesn't matter how good or bad both decisions are because if cert. is granted, we'll know exactly what Heller and McDonald protect because SCOTUS will tell us.

It makes more sense to speculate about how SCOTUS will decide than about how a seventh circuit decision will effect ninth circuit cases.

hill billy
07-09-2011, 7:35 PM
FGG, in case you didn't notice, 2A rights do not exist in isolation. All of our liberties in this country have been under assault by some faction or another of do-gooders, nose-pickers and bed-wetters since 1789/1791.

2A rights are either the canary in the the coal mine (a warning) or embody the practical philosophy for restoring liberty (taking it back from a tyrant by force if necessary).

Having some hypothetically pure right to keep and bear crew served weapons by felons while they work as elementary school teachers is not the objective.

The objective is to push back against Levithan on all fronts to stave off a collapse into another Dark Ages until the philosophy of liberty becomes the predominant currency of political discourse in this country again, instead of the welfare/nanny statism we have today.

The greatness of Heller, McDonald and Ezell (and hopefully Nordyke, Enos, Haynie and Richards) is that the courts are speaking in terms that expand our current liberties.

Eternal vigilance (incremental litigation strategy by good lawyers) rather than some magic, single kill-shot judicial decision is the path to both recovering the philosophy of liberty AND keeping the tyrants at bay while we re-educate the masses.

Your criticism of Ezell for not meeting your standards says more about your standards than it does about the outcome of that case.

Is it your standard of perfection what keeps you in the role of anonymous commentator, instead of rolling up your sleeves and putting your name on some pleadings, or signing some checks if you do not have a bar card?

:like: Great post.


Was it not surmised somewhere in the past that FGG might be Paul Helmke? I wouldn't be surprised at all...

OleCuss
07-09-2011, 9:55 PM
FGG is far too smart to be Helmke. I also think FGG is pro-liberty - just inclined to think that we're doing worse than I think.

But it is still possible that he is an anti-liberty type who is trying out arguments on these threads in order to see just how badly our rights can be abused.

But what I really think is that he/she is in an environment where it is costly to be pro-liberty. He can be anonymous here and contribute without significant penalty. If this is the case, however, it would be nice if he someday met with Jason Davis, Chuck Michel, Sean Brady, etc. and let them check out his bona fides for the sake of the forum - there should be little to no cost or risk to him/her from doing this.

Southwest Chuck
07-10-2011, 1:27 PM
FGG is far too smart to be Helmke. Yup
....I also think FGG is pro-liberty .... Hard to tell
....still possible that he is an anti-liberty type.... More probable IMO based on the totality of his posts
I really think is that he/she is in an environment where it is costly to be pro-liberty. If he indeed is an anti-liberty type, then there would be no place more hostile than Calguns, thus his/her anonymity.


...

jdberger
07-10-2011, 1:55 PM
FGG is Hoffmang's Mary Rosh.

wildhawker
07-10-2011, 1:59 PM
LOL!

hoffmang
07-10-2011, 2:01 PM
FGG is Hoffmang's Mary Rosh.

I wish I had that kind of spare time...

-Gene

press1280
07-10-2011, 4:23 PM
What's to stop a different panel from the 7th from overturning/undercutting the framework laid out in Ezell(like what happened to Chester by Masciandaro in the 4th Circuit)?

hoffmang
07-10-2011, 4:34 PM
What's to stop a different panel from the 7th from overturning/undercutting the framework laid out in Ezell(like what happened to Chester by Masciandaro in the 4th Circuit)?

The rules of court - which you can see potentially violated in the 4th. That protocol error leads to more likelihood of Supreme Court review.

-Gene

navyinrwanda
07-10-2011, 5:51 PM
Unless the Ezell majority was picking up on the task implicitly assigned by SCOTUS to the intermediate courts to sort out scrutiny.
But isn't scrutiny balancing? And didn't Heller specifically reject balancing?

kcbrown
07-10-2011, 6:29 PM
But isn't scrutiny balancing? And didn't Heller specifically reject balancing?

Yep. Exactly.

More to the point, scrutiny is a test that allows the court to decide whether or not the right really is worth insisting upon in the case before the court. But Heller explicitly stated that the enumeration of the right explicitly takes that decision out of the hands of the judiciary.

Hence, one cannot conclude anything other than that any law that infringes the Second Amendment is invalid on its face, and that scrutiny is irrelevant at that point.

hoffmang
07-10-2011, 7:10 PM
But isn't scrutiny balancing? And didn't Heller specifically reject balancing?

Strict scrutiny isn't balancing. Intermediate is and you should look at the dissents and notice that they site intermediate scrutiny voting cases as "balancing."

A general note. The protection of the right to arms is not going to be stronger than speech. Speech is subject to strict scrutiny in most cases and something higher than intermediate in most of the rest.

-Gene

kcbrown
07-10-2011, 7:19 PM
Strict scrutiny isn't balancing.


Please explain this. How is it not balancing?



A general note. The protection of the right to arms is not going to be stronger than speech. Speech is subject to strict scrutiny in most cases and something higher than intermediate in most of the rest.


Sad but probably true. The right to arms should be more strongly protected than the right to speech, because while the right to speech is necessary for proper political discourse, the right to arms is necessary to preserve existence.

wildhawker
07-10-2011, 8:14 PM
If you believe that judicial outcomes (especially in constitutional matters) are not pure byproducts of logic, constraints, clear definitions, and facts, (not necessarily predictable or repeatable, but more-so over time presuming a strong influence by stare decisis), then it becomes rational to also believe all forms of scrutiny, as applied, to be interest-balancing of some form or another.

kcbrown
07-10-2011, 8:33 PM
If you believe that judicial outcomes (especially in constitutional matters) are not pure byproducts of logic, constraints, clear definitions, and facts, (not necessarily predictable or repeatable, but more-so over time presuming a strong influence by stare decisis), then it becomes rational to also believe all forms of scrutiny, as applied, to be interest-balancing of some form or another.

Actually, as correct as you are in the above, it's not necessary to believe any of that at all.

All that's necessary is to note that the very application of scrutiny means that there is the possibility that the right will not, in that case, be insisted upon. In the event the right is not insisted upon, there must be some reason for it, some interest on the part of the government.

There is one, and only one, exception to that: when rights are being balanced directly against each other. But no level of scrutiny does that, for the very first requirement of even strict scrutiny is the existence of a government interest (which, in the case of strict scrutiny, must be "compelling"). Indeed, the very mention of a government interest as a critical component of scrutiny makes it clear that the scrutiny in question is an interest-balancing test.

Manic Moran
07-11-2011, 8:06 AM
I wonder the same thing. Especially given that we're talking about a Federal Right. The City of Chicago banned ranges & claimed this was "justifed" on the basis that such is available in other jurisdictions. The PRK bans certain types of guns, & claims this is "justified" on the basis that other guns are allowed. The "logic" is basically the same. If one is FAIL, shouldn't the other be as well?

Much tougher sell. There is nothing in California law preventing the average person buying a handgun, ammo, and keeping it in a functional condition for the use of defending yourself. (excepting carry restrictions, which don't care about model).

Even if you are unable to purchase the specific two-tone 1911 variant you want, for practical purposes if you want a semi-automatic handgun, you can get one and thus exercise the right. Now, the handgun roster as it stands will fail because it bans too much, but it should still be quite possible to rewrite a new one which passes judicial muster.

NTM

choprzrul
07-11-2011, 9:06 AM
Much tougher sell. There is nothing in California law preventing the average person buying a handgun, ammo, and keeping it in a functional condition for the use of defending yourself. (excepting carry restrictions, which don't care about model).

Even if you are unable to purchase the specific two-tone 1911 variant you want, for practical purposes if you want a semi-automatic handgun, you can get one and thus exercise the right. Now, the handgun roster as it stands will fail because it bans too much, but it should still be quite possible to rewrite a new one which passes judicial muster.

NTM

Can you show me a path by which a non-gun-owner can visit his local gun shop this morning and be able to exercise his civil rights to Keep, Bear, and Self-Defense by noon?

.

Maestro Pistolero
07-11-2011, 9:21 AM
Now, the handgun roster as it stands will fail because it bans too much, but it should still be quite possible to rewrite a new one which passes judicial muster.
No. In the same way range bans do not become constitutional because there are ranges in other towns, laws that forbid one protected firearm because another is available will fail.

Dick Heller's revolver, the only individual firearm in the country specifically protected in Heller is not on the safe gun roster in CA, and there is no means to add it.

In a facial challenge, either the item or behavior is protected, or it isn't.

You can't ban one church because another nearly identical one exists right next door. You can't ban the Koran because New Testaments are permitted, or vice versa. Etc. etc. etc.

When we get in to the area of fundamental rights, things change.

dantodd
07-11-2011, 10:26 AM
Even if you are unable to purchase the specific two-tone 1911 variant you want, for practical purposes if you want a semi-automatic handgun, you can get one and thus exercise the right. Now, the handgun roster as it stands will fail because it bans too much, but it should still be quite possible to rewrite a new one which passes judicial muster.


So would having a "contempt of cop" law be perfectly acceptable in your world? After all you can express the same ideas using proper grammar so your first amendment rights aren't being violated by making it a felony to speak to a police officer in a rude fashion.

Patrick-2
07-11-2011, 11:22 AM
Can you show me a path by which a non-gun-owner can visit his local gun shop this morning and be able to exercise his civil rights to Keep, Bear, and Self-Defense by noon?


Literally, the Fundamental problem.

I expect shades of this to be an issue when it comes to permitting for Shall-Issue. If a permit requires a delay in the exercise of a fundamental right - and any delay constitutes 'irreparable harm' - then does the permit process itself represent an irreparable harm if the permit is not issued instantly for all lawful people? And if it is instantaneous for every lawful person who applies- even though the permit instantly (magically) fails once you become 'unlawful'...why have permits? Is it not the case that every person reasonably suspected of being unlawful and in possession of arms is going to pay the price if he truly is unlawful? Will the permit save him from the wrath of law by virtue of having permission prior to the unlawful activity?

So if the permit really means nothing at the point of inquest...does it mean anything before that point?

Also, does the price of a permit represent a restriction on the right?

Not asking for answers in this thread (most of us all think the same, anyway...so no need for a group hug), but these are going to be problems for the government if the Ezell/Heller line of thinking prevails.

No. In the same way range bans do not become constitutional because there are ranges in other towns, laws that forbid one protected firearm because another is available will fail.

Dick Heller's revolver, the only individual firearm in the country specifically protected in Heller is not on the safe gun roster in CA, and there is no means to add it.

In a facial challenge, either the item or behavior is protected, or it isn't.

You can't ban one church because another nearly identical one exists right next door. You can't ban the Koran because New Testaments are permitted, or vice versa. Etc. etc. etc.

When we get in to the area of fundamental rights, things change.

This.

Everyone needs to read this. Twice.

newbee1111
07-11-2011, 11:40 AM
Literally, the Fundamental problem.

I expect shades of this to be an issue when it comes to permitting for Shall-Issue. If a permit requires a delay in the exercise of a fundamental right - and any delay constitutes 'irreparable harm' - then does the permit process itself represent an irreparable harm if the permit is not issued instantly for all lawful people? And if it is instantaneous for every lawful person who applies- even though the permit instantly (magically) fails once you become 'unlawful'...why have permits? Is it not the case that every person reasonably suspected of being unlawful and in possession of arms is going to pay the price if he truly is unlawful? Will the permit save him from the wrath of law by virtue of having permission prior to the unlawful activity?

So if the permit really means nothing at the point of inquest...does it mean anything before that point?

Also, does the price of a permit represent a restriction on the right?

Not asking for answers in this thread (most of us all think the same, anyway...so no need for a group hug), but these are going to be problems for the government if the Ezell/Heller line of thinking prevails.



This.

Everyone needs to read this. Twice.

Isn't there still the problem that the Ezell decision doesn't mean anything to California until something gets pushed higher up to SCOTUS?

Maestro Pistolero
07-11-2011, 12:21 PM
Isn't there still the problem that the Ezell decision doesn't mean anything to California until something gets pushed higher up to SCOTUS?Yes, but the principles and the way in which scrutiny was employed will come up again and again until resolved by the high court. Even if Ezell never leaves Illinois, we can be certain other cases will soon give the high court the opportunity to "say so more plainly", if I may borrow the phrase.

The chance that Ezell won't looked to again and again in upcoming 2A cases is approximately zero.

OleCuss
07-11-2011, 12:29 PM
Isn't there still the problem that the Ezell decision doesn't mean anything to California until something gets pushed higher up to SCOTUS?

At the moment it means relatively little - but it may or may not mean a lot in the future.

Since we are in the 9th Circuit, a 7th Circuit decision is not a controlling opinion. That means that the courts in the 9th Circuit can nearly ignore the Ezell decision.

But since the decision has been published, it can be cited as an influential decision in other somewhat related cases. It can also be used to argue for a writ of certiorari so that the case will be heard by the SCOTUS.

If I were Chicago I'd seriously consider asking the 7th to take the case en banc which would have the short- or long-term effect of de-publishing the Ezell decision. This might result in a delay in the implementation of the decision or (if the full 7th Circuit disagrees with the 3-judge panel) result in a modification or reversal of the current Ezell decision.

But, if one already had a case which was a candidate for review by the SCOTUS and were to request a writ of certiorari using the current Ezell decision to make the case that there is a circuit split - then it is my understanding that since the Ezell decision has already been cited in the request for the writ, that the Ezell decision will still be valid for the purposes of requesting that particular writ.

But IANAL and I'm not even qualified to portray one on TV.

Edit: But do note that Don Kilmer got the 2A incorporated against the states before Gura did? The problem was that the 9th Circuit took the case en banc - effectively de-publishing the decision. Then the 9th just sort of sat on the decision until after McDonald before sending it back to the three-judge panel. Games are played.

Untamed1972
07-11-2011, 1:51 PM
I finally got a chance to read the ruling and it was a great read.

The City as well as the District court judge should both feel pretty ashamed and stupid right about now. After reading the rebuking of the district judge.....one almost has to wonder if that person is really qualified to be on the bench at all?

I think one of the best lines was the part (in the dissent I believe) about the City's ordanance amounting to a "municipal thumbing of the nose at SCOTUS".

It sounds to me like this panel was strongly sending the message that the City better get on board and start seriously playing by the rules because any further shennanigans will not be looked upon favorably. I also liked the response to the "if you can't the injuction shooting ranges will be everywhere w/o restriction" argument by the City. The court basically said "Pffft.....you guys passed your current firearms regs in 4 days after the McDonanld decision, so we are confident you can handle this too." Glad to see the courts handing out an actual smackdown with some "hey listen up you d-bags" language in it.

I do have a question though...the ruling also included in the injuction the ban on posession outside the home. Was there provision in the City ordinance for transportation say from point of purchase to the home, or transportation for use outside the city?

Manic Moran
07-11-2011, 2:12 PM
Can you show me a path by which a non-gun-owner can visit his local gun shop this morning and be able to exercise his civil rights to Keep, Bear, and Self-Defense by noon?


Nope, and I don't need to for two reasons.
1) How quickly you can obtain a firearm has no relation to the type of firearm you are permitted to buy.
2) I didn't say "Immediately." The argument is unrealistic to begin with. Can you show me a path wherein I, as a Kentucky resident, can walk into a gun shop at 1155 and walk out with a gun by 1200? It didn't take too long last time I tried it, maybe 20 minutes for all the paperwork to be concluded and the telephone background check completed, but you will find it very hard to argue that the delay is unreasonable. A level of regulation is going to be permitted. Where exactly that level of regulation can be drawn before it becomes exessive has not yet been ascertained, but I'll happily lay money that the courts will not mandate that it be as easy and quick as buying a packet of peanuts.


Dick Heller's revolver, the only individual firearm in the country specifically protected in Heller is not on the safe gun roster in CA, and there is no means to add it.

In a facial challenge, either the item or behavior is protected, or it isn't.

False conclusion from true facts. The reason that Heller was allowed to have that particular revolver was that once the categorical ban was removed, there was no further legislation such as regulation to consider. His handgun wasn't declared Constututionally Protected because it was a Ruger .22 Kill-o-zap revolver with blued finish and wooden grips (Or whatever). He wanted a handgun, his was a handgun, the handgun ban was removed as having a functional handgun was deemed protected, nothing else to talk about.

No court case to date, and I'm including Heller, MacDonald, and any other case you care to mention, has stated that regulation is inherently unConstitutional. If DC had had, in addition to the blanket ban, also on the books legislation decreeing that for a valid reason (eg the model has a documented history of blowing up) Heller's Ruger specifically wasn't authorised but there were plenty of other revolvers to choose from to do the same job, there is no guarantee that SCOTUS would have struck down the regulation even once the outright ban was dealt with. Of course, with the ban in place, DC never bothered to place a regulation as to model in the law, so SCOTUS never had to consider the question. With no further restrictions to consider, Heller got his gun.

California's law is capracious and will (hopefully) fall as a result. That is not to say that any model restrictions at all must also fail automatically.

NTM

Untamed1972
07-11-2011, 2:15 PM
Let me throw this out just for fun: other than the result, Ezell isn't much to cheer about. The opinion could have and should have gone further than it did. The plaintiffs argued that the range ban was as extreme as Heller's "functional firearms ban" but the court declined to do what the plaintiffs really wanted, strike the range ban down "without more." What Ezell does instead is articulate an amorphous, "fluctuating" standard of review that is very useful for result-oriented lower courts. "Modest" regulation of corollary right? Slight burden on the core of the right? Closer to the margins of the 2A right? Lots of wiggle room there.


Since this was an appeal on the denial of a preliminary injuction, could the court of struck down the law? Cant they only rule on the request that was made...which was for an injuction against enforcement of the law, while the rest of the case is pending?

wash
07-11-2011, 2:15 PM
SAF just filed a carry case in Illinois, so the effects of Ezell might be applied to carry very soon.

I don't know the legal strategy, but I kind of don't think it relies as much on Ezell as straight historical understanding of the second amendment at the time of fourteenth amendment ratification.

Maestro Pistolero
07-11-2011, 3:00 PM
False conclusion from true facts.The reason that Heller was allowed to have that particular revolver was that once the categorical ban was removed, there was no further legislation such as regulation to consider. His handgun wasn't declared Constututionally Protected because it was a Ruger .22 Kill-o-zap revolver with blued finish and wooden grips (Or whatever). He wanted a handgun, his was a handgun, the handgun ban was removed as having a functional handgun was deemed protected, nothing else to talk about.
You misunderstand. I know there's nothing more protected about that revolver than any other firearm in common use for traditionally lawful purposes.

The point is that it's poignant, ironic, and notable, that the one gun ever specifically called out by the High Court as protected couldn't even make the roster in CA.

FABIO GETS GOOSED!!!
07-11-2011, 4:01 PM
Since this was an appeal on the denial of a preliminary injuction, could the court of struck down the law? Cant they only rule on the request that was made...which was for an injuction against enforcement of the law, while the rest of the case is pending?

Very good question. I'm going to be a little sloppy here cause I'm in a rush but the plaintiffs asked the trial court to treat the preliminary injunction as a trial on the merits, basically saying the record was as developed as it was going to be so just decide the case once and for all. The trial court declined to do that, and denied the preliminary injunction. The plaintiffs made a similar argument on appeal (which was technically an appeal of the denial of the preliminary injunction and not expressly an appeal of the court's refusal to treat the preliminary injunction as a trial, under the federal rule cited by the plaintiffs as authority for doing that). Again I'm being a little loosey-goosey here on the terminology. But the plaintiffs directly asked the court of appeals to just decide the case based on the record, reverse, remand and order the trial court to enter permanent injunctive relief, which would end the case with the trial court entering a final judgment including a permanent injunction. What the court did instead is say that on the record, there was a strong likelihood of success on the merits after the trial court does the not-quite-strict means-end scrutiny, giving the city opportunity to present empirical evidence to try to meet its burden of justifying the range ban (the court was skeptical the city could meet its burden which is why the likelihood of success was strong). The court of appeals could have said, the range severely burdens a core 2A right and is categorically unconstitutional, which would have obviated the need for a trial (i.e. because city would not have the opportunity to try to justify the range ban with empirical evidence under some form of heightened scrutiny), and if the court of appeals had said that it could have done what the plaintiffs asked for which is reverse, remand, with instruction to enter permanent injunction, effectively striking down the ordinance. The court of appeals could have also considered the record complete and done its own means end scrutiny and made a similar decision after finding the government justficiation inadequate.

Funtimes
07-11-2011, 4:26 PM
Can you show me a path by which a non-gun-owner can visit his local gun shop this morning and be able to exercise his civil rights to Keep, Bear, and Self-Defense by noon?

.

I think in the end we will see the framework on permit schemes change to something more in line with 1A permits. In the 9th circuit Food Not Bombs and Long Beach Area peace network there are a couple relative quotes that essentially say "Days not weeks" and "No permits for spontaneous protest."

I feel that if the courts can follow that logic, no matter the situation, one could possibly have a handgun in 2-5 days. I think that if a person showed up with a documented threat against them (TRO, crazy boss, assaulted etc.) that we could probably see instant issuing of firearms.

OleCuss
07-11-2011, 4:38 PM
FGG:

Thank you for that explanation. Really helped this non-lawyerly type to understand the sequencing and some of the nuances.

FABIO GETS GOOSED!!!
07-11-2011, 5:30 PM
FGG:

Thank you for that explanation. Really helped this non-lawyerly type to understand the sequencing and some of the nuances.

You're welcome, it was a great question that gave me an "oh crap" moment of panic haha.:D

bwiese
07-11-2011, 6:30 PM
Now, the handgun roster as it stands will fail because it bans too much, but it should still be quite possible to rewrite a new one which passes judicial muster.


A CA handgun Rostering scheme variant that COULD possibly survive is a "negative Roster"... that is, the DOJ purchases guns and tests them for major safety issues/failure, gives them an 'administrative trial' (i.e, where mfgr can contest findings or say it was just a repair or ammo issue) and then ban them until design is fixed. However that would require money and staff not from industry :)

You're also forgetting that the current handgun Roster creates a monopoly market on warranty replacement parts: put a basic Ed Brown trigger in your (Rostered) Colt 1911 and you lose Roster status.

Untamed1972
07-11-2011, 6:41 PM
You're welcome, it was a great question that gave me an "oh crap" moment of panic haha.:D


Thanks for the clarification. I was not aware that the full case had already been heard at the trial court, I was thinking only the injuction had been dealt with so far.

Good info to know.

FABIO GETS GOOSED!!!
07-11-2011, 7:55 PM
Thanks for the clarification. I was not aware that the full case had already been heard at the trial court, I was thinking only the injuction had been dealt with so far.

Good info to know.

The full case hasn't been heard already; the plaintiffs asked both the trial court and court of appeals to cut to the chase and make a final decision but both declined. The court of appeal sent the case back, ordering the trial court to issue a preliminary injunction and then proceed with the rest of the case. If the court of appeals in the course of deciding the appeal of the denial of the preliminary injunction had said the the range ban was categorically unconstitutional (the plaintiffs asked the court to do this), there would have been nothing left for the trial court to do except enter final judgment including a permanent injunction (the likelihood of success on the merits would have been a certainty). Similarly, the court of appeals could have ruled, in the course of deciding the appeal of the denial of the preliminary injunction, that the range ban could not survive "not quite strict" scrutiny; same thing, nothing left for the trial court to do.

Patrick-2
07-12-2011, 5:11 AM
A CA handgun Rostering scheme variant that COULD possibly survive is a "negative Roster"... that is, the DOJ purchases guns and tests them for major safety issues/failure, gives them an 'administrative trial' (i.e, where mfgr can contest findings or say it was just a repair or ammo issue) and then ban them until design is fixed. However that would require money and staff not from industry :)

You're also forgetting that the current handgun Roster creates a monopoly market on warranty replacement parts: put a basic Ed Brown trigger in your (Rostered) Colt 1911 and you lose Roster status.

To conceptualize this concept further, you can say that the state does have a role in preventing the sale of dangerous guns that are of such poor manufacture as to render them untrustworthy. Same goes for cars, hair dryers and alarm clocks (bad wiring starts fires). Both California and Maryland deny all sales of all models until they have proven their utility (and in California, some other nebulous things that prevent all but a few from getting on the list). Hair dryers are generally sold with a UL listing, but this is not law. It is a voluntary industry standard. Me thinks we need one of those, even if it is not constitutionally required.

As it stands, I think the constitution would easily accommodate California rendering a specific model of handgun unsaleable if the safety did not function correctly. Or if the barrel had a tendency to shred the hands of those who fired it. Or even if (in a case more specific to California) they could demonstrate that it started fires due to unburned powder spraying everywhere. But a "default deny" list is a failure under Heller/Ezell's logic. Not Nordyke, because Nordyke says you can get 'some guns, somewhere'. Ergo, no serious burden.


In larger terms, Heller already created the "common use" test: they said that "handguns" are commonly used for personal defense, and as such they are protected (though they glossed over that protection). We can assume that Evil Black Rifles would fall into a similar category given their great penetration into the US population (I have several and so do many of you).

The next piece is getting a finding that commerce in arms (Nordyke-esqe inquiries) is protected as ancillary to the second amendment. Ezell's logic plays into this a few ways, not the least of which being that 'irreparable harm' exists when the right is delayed or obstructed, even when not completely denied. Remember, most of the Ezell plaintiffs actually got their training outside the city and got their permits. They were not denied - they were annoyed.

So if this delay/encumbrance constitutes irreparable harm, then other delays and encumbrances could also be challenged, at least to the extent they prevent the exercise of a core holding.

Purchasing a weapon is an activity core to the right - you cannot defend your home if you do not have arms. Roster lists can be attacked by defiining the purchase of arms as ancillary to the core of the right itself (liek ranges in Ezell). One chance for this that I think is an easier attack is the current legal reasoning that you require a "cooling off period" before you take possession of your gun. I would say this logic is now pretty much a dead letter if you accept that denial of the right constitutes an irreparable harm. The state can claim a compelling interest in doing a background check, but if I were them I would not stake their case on waiting periods in the age of instant checks.

The Ninth is not the best place to challenge these. The Seventh is the best place. I'd like to see the NRA or SAF create a limited, targeted assault on waiting periods (or delays in general). IL FOID permits, anyone?

If the right to bear arms is fundamental, then the arms required to exercise that right are protected. If government processes delay my exercise without strong empirical evidence that the delays actually prevent true societal harm...then they will fall.

Ezell is not the law of the land, but it falls closest to the line of thinking we all saw from the Supreme Court in Heller. I think many of us expect that if the court looked at Ezell, they would make few if any changes. They might even strengthen some portions of it.

We have all focused on carry so much that we sometimes miss that this whole area of jurisprudence is also critical and necessary to exercise our right. I think we have a strong possibility that the RKBA in public question will be answered this time next year. But that is hardly the end.

The next fights over sensitive places, commerce and licensing have already begun. And so far, we are coming out strong.

yellowfin
07-12-2011, 5:24 AM
I wonder how long until we can go after ATF's legislation from the clipboard. It sure doesn't measure up to much of strict scrutiny's criteria in terms of being necessary or compelling.

Maestro Pistolero
07-12-2011, 8:56 AM
I wonder how long until we can go after ATF's legislation from the clipboard.I would imagine the reporting requirement amounts to lawmaking by a regulatory agency. I would think an injunction preventing implementation could be had pretty quickly.
One chance for this that I think is an easier attack is the current legal reasoning that you require a "cooling off period" before you take possession of your gun. I would say this logic is now pretty much a dead letter if you accept that denial of the right constitutes an irreparable harm.Two points here:
1. The government is going to need considerable empirical evidence that murders are committed because an otherwise un-prohibited person could buy a gun and take delivery the same day. Then they have to prove it happens with sufficient predictability to deny a core fundamental right. That's a steep hill to climb, because buying one's first gun is the direct pre-requisite to the core of the right, if not the actual core.

2. A 10 day delay on taking delivery of subsequent firearms cannot be argued to function as a cooling-off period and wouldn't even pass a rational basis test.

navyinrwanda
07-12-2011, 5:46 PM
Add in the footnote that questions Nordyke in Ezell and you can't get much stronger a split.

Also, where is CA-9's analysis that shows that possession of firearms on public open forum property for sale wasn't part of the 2A at 1789 and 1868?

It's a split.

-Gene

Eugene Volokh's opinion re: Ezell vs. Nordyke circuit split:
I don’t see this as much of a split, and not enough for cert. A split for cert purposes is generally one under which Circuit A’s precedents would yield one result, and Circuit B’s the opposite result. Here, the differences between Ezell and Nordyke would be unlikely to affect the result, I think.

OleCuss
07-12-2011, 6:18 PM
Hmm. . . Competing opinions?

But isn't the question just a little too simple? Isn't the question as to whether one gets their case to SCOTUS more complex than whether there is a circuit split?

IIRC, Heller wasn't really taken because there was a circuit split. In fact, couldn't there even have been a stare decisis argument for SCOTUS not to take Heller (not sure about exactly how that works)?

I don't think McDonald was a circuit split, either? If there was a split, I get the impression that it was more where the Circuit split with SCOTUS?

From what I've gathered, SCOTUS doesn't like a clearly articulated circuit split and such a split will increase the probability that SCOTUS will take a case. But they may take a case which does not at all have a circuit split.

As I see it (and IANAL and will appreciate correction) we're kind of getting stuck on an argument which may not matter. To whit, "Do the three-judge opinions rendered in the cases of Nordyke and Ezell create a circuit split?"

The way I see it, the current Ezell opinion may soon be going en banc. If it goes en banc then that opinion is de-published. So any split which currently exists will cease to exist (for most purposes).

For that matter, if Nordyke is taken en banc the split may effectively go away.

The current situation is not durable.

But if the Nordykes can (and do) drop the rehearing and/or en banc request and appeal to SCOTUS while citing Ezell, then even if Ezell is de-published then the split may still exist for the purposes of that appeal to SCOTUS.

Either way, it seems to me that SCOTUS decided Heller and McDonald with a clear expectation that the relevant issues would be explored by the lower courts and appealed up to them. So as I see it, the question is not so much a matter of SCOTUS deciding whether or not there is a "split" as it is a matter of SCOTUS deciding whether or not the issue of what is "core", whether or not "scrutiny" has been adequately examined, etc. and whether the case(s) will lend itself to a decision which is either as narrow or as broad as they want at this time.

Another way of saying it is that our opinions really don't count for all that much. SCOTUS will take whatever cases it pleases - and not what pleases us.

Personally, my impression is that you have four or five SCOTUS justices who are very interested in exploring the issues. So if the case looks like it hits the points they want to decide and they think they can get five votes to go their way - they'll take the case.

FWIW

Patrick-2
07-13-2011, 2:43 AM
Eugene Volokh's opinion re: Ezell vs. Nordyke circuit split:
I don’t see this as much of a split, and not enough for cert. A split for cert purposes is generally one under which Circuit A’s precedents would yield one result, and Circuit B’s the opposite result. Here, the differences between Ezell and Nordyke would be unlikely to affect the result, I think.

Volokh has a point, but I think the "split" is more to the ideological evaluation side and prescient of opinions to come.

The Ninth and the Seventh each posted "frameworks" that courts in their circuit should use to evaluate 2A claims. Those two frameworks are radically different in the way they identify and treat 2A claims. The Ninth uses an interest-balancing test (though they would disagree with that summary), whereas the Seventh uses a (mostly) categorical approach that tries to comport the claim with historical understanding at the time of ratification.

If you ask the same question to both courts you are almost surely going to get a different answer. That is the "split".

True, I think we are looking ahead. There is certainly not enough there for cert today and I don't think anyone here suggested that was possible by virtue of Ezell alone. If Nordyke wants to request cert, they certainly did not need Ezell to do it. But it adds weight even when the original questions differed.

We saw in the Masciandaro petition - and to some extent Williams - the plethora of courts out there outright asking for SCOTUS intervention and guidance, and these petitions both openly admit that they give the court the chance to reinforce certain Heller holdings.

Nordyke/Ezell's "split" is going to help without either case asking for cert. The court is not blind to the framework issues, and to the extent they are also not deaf they have plenty of opportunity and cause to move this coming session.

So when I think of this "split" helping our cause, I am thinking of how the big court is going to view these framework issues. The differences are manifest, and they are going to cause problems. Assuming that one of the cases out of the mid-Atlantic get cert, the court has ample opportunity to settle a few issues and further develop the framework we saw in Heller. I don't see how they can avoid some of it, because merely answering the RKBA question in those petitions is going to entangle a rash of logic used by both the 7th and 9th in Ezell and Nordyke. And if they also tackle the secondary issues in either or both of those cases (permits and/or sensitive places), it only gets more interesting.

Will they define the framework completely? Heck no. But their analysis of whether public RKBA is "core" to the right or not is going to directly impact the types of analysis used by lower courts from that point forward. Again.

dantodd
07-13-2011, 9:46 AM
I can see the CA Roster surviving in light of Ezell. (We'll leave Nordyke alone for the time being as it is fundamentally a 1st and 14th amendment case ATM with the 2A question remanded.)

In order for the State to retain the roster I think they would have to prove that all of the features, LCI, mag disconnect etc. are effective ways to prevent NDs and ADs. I don't see how they could prove such a thing but if they could develop the data through researching NDs and ADs in the police depts., CHP, hospital reports, etc. they might be able to defend it.

Maestro Pistolero
07-13-2011, 10:16 AM
I can see the CA Roster surviving in light of Ezell. (We'll leave Nordyke alone for the time being as it is fundamentally a 1st and 14th amendment case ATM with the 2A question remanded.)

In order for the State to retain the roster I think they would have to prove that all of the features, LCI, mag disconnect etc. are effective ways to prevent NDs and ADs. I don't see how they could prove such a thing but if they could develop the data through researching NDs and ADs in the police depts., CHP, hospital reports, etc. they might be able to defend it.

Your reasoning doesn't consider the common use test, nor that any safety test for a product that's inherently dangerous is extremely problematic and highly debatable. It is impossible to quantify the number of AD's that DIDN'T happen because of a safety feature. And it's almost as impossible to track the number of lives lost from that same feature.

But none of that matters, as the core-protected item would be completely out of reach of scrutiny. If the gun is in common use for traditionally lawful purposes, it is protected at the very core of the right, and no scrutiny need apply unless dangerous AND unusual. Not just dangerous, they're ALL dangerous. It must be both.

Under this reasoning the roster is facially unconstitutional, therefore out of reach of scrutiny. Just as Heller didn't need to decide scrutiny for the plaintiff's revolver because it was of a type and category of firearm in common use, neither would any scrutiny be required to find the roster unconstitutional. All of the firearms it excludes (which are commonly legal, available and in use in the rest of the country, indeed the world) are clearly protected arms under the Heller criteria. Remeber, Heller didn't need to establish a level of scrutiny to arrive at that ruling.