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View Full Version : Shepard v. Madigan oral arguments


Window_Seat
10-03-2013, 8:08 PM
Listening to the arguments now, and Judge Posner is hammering the appellant Counsel for bringing an action against the State (to bring an injunction enjoining the same law) for continuing to deprive Mary Shepard of her right.

He says that there is nothing in the Moore opinion that gives the state a period of implementation of the new law.

Shepard v. Madigan orals (http://media.ca7.uscourts.gov/sound/external/sp.13-2661.13-2661_10_03_2013.mp3)

***Edit***

Posner brings Brown v. Board of Education into the discussion, and that as far as remedies (under Brown) are concerned, they would decide it during the next term. The next term comes along, and the Court said that "compliance would have to be with all deliberate speed." He said that "noone could have sought an injunction on the basis that the states did not instantaneously comply when they had not been ordered" in the Brown opinion that "instantaneous compliance didn't exist". (Posner, J., 2013). Posner is apparently using that basis for his argument that Shepard doesn't have a case (thus far into the argument). I haven't listened to the whole thing just yet, but Posner's discussion is interesting to me for other reasons.

***Another Edit***

Might be worth noting that Judge Posner is also a Senior Law Professor (http://www.law.uchicago.edu/faculty/posner-r) at the University of Chicago, and he gives podcasted lectures once in a while.

Erik.

press1280
10-04-2013, 2:17 AM
It sounds as if Posner really didn't want to rule as he did and has serious reservations about public carry. But, he knows if he doesn't apply Heller faithfully then his pal Scalia will be happy to slap his ruling in his face.

Window_Seat
10-04-2013, 10:07 AM
It sounds as if Posner really didn't want to rule as he did and has serious reservations about public carry. But, he knows if he doesn't apply Heller faithfully then his pal Scalia will be happy to slap his ruling in his face.

Didn't he already do that in Moore, which is why they were talking about how implementation took effect in 210 days, or should we be retracting all those big steak dinner offers? I don't get it (but I'm not a Lawyer or legal expert, so... :()

Erik.

Al Norris
10-04-2013, 5:06 PM
Here's the long and short of it: No one in IL can be prosecuted, at this time, because of the UUW or the AUUW laws. The IL Supreme Court ruled that the law was unconstitutional (State v. Aguilae) and could not be applied.

This and this alone moots the Sheppard case. Posner knows this (contrary to popular belief, Judges do not operate in a vacuum), hence his sideways reference to that case.

All else being equal, Posner shredded the NRA attorney.... And their case.

Paladin
10-04-2013, 6:44 PM
Here's the long and short of it: No one in IL can be prosecuted, at this time, because of the UUW or the AUUW laws. The IL Supreme Court ruled that the law was unconstitutional (State v. Aguilae) and could not be applied.

This and this alone moots the Sheppard case. Posner knows this (contrary to popular belief, Judges do not operate in a vacuum), hence his sideways reference to that case.

All else being equal, Posner shredded the NRA attorney.... And their case.It came down to what I had posted some time ago, back in July IIRC, when the state first said they won't accept apps until Jan and might not issue permits for 90 days after that. I said our side thought CA7 gave IL 180 + 30 days to issue permits, when in fact they gave IL that time to pass a law legalizing some form of carry -- big difference. The problem is, assuming the NRA's lawyer/s caught that difference, I don't know if the NRA could appeal (to that panel? the 7th en banc? SCOTUS?) that remedy because they actually won the appeal.

Posner seemed to allude to that fact that the NRA didn't complain about the remedy until AFTER the 180 + 30 and the passage of a law. I infer from that there may have been a way for the NRA to "appeal" the remedy DURING the 180 + 30, but the NRA failed to do that. Any FRAP experts around???

Regardless, we should not be too upset even if this attempt fails since IL will be Shall Issue in less than 90 days and permits will be issued within 180 days or there will be new legal fireworks.

And I am sure that the NRA will learn from their mistakes, something we all need to do all our lives.... :o

ToldYouSo
10-05-2013, 1:40 AM
Here's the long and short of it: No one in IL can be prosecuted, at this time, because of the UUW or the AUUW laws. The IL Supreme Court ruled that the law was unconstitutional (State v. Aguilae) and could not be applied.


The old law cannot be applied. The new law amended the old law to require a permit to carry. The government is free to prosecute anyone who is violation of the new law who carries a loaded or unloaded firearm without a permit.

Hence Posner's frequent admonition that the NRA should file a new case.

Al Norris
10-05-2013, 5:18 AM
The old law cannot be applied. The new law amended the old law to require a permit to carry. The government is free to prosecute anyone who is violation of the new law who carries a loaded or unloaded firearm without a permit.

Hence Posner's frequent admonition that the NRA should file a new case.

The UUW and AUUW laws cannot be applied. That is correct as both a Federal Court and the IL Supreme Court found that they are unconstitutional.

Those laws have not been amended. They still stand as they were before the litigation started. A new law was added to explicitly make an exception to enforcement of the older laws.

The problem of course, is that the exception cannot yet be implemented. Does this mean that you can still be prosecuted under the old, but unconstitutional, law? That is the legal quagmire that the people of IL find themselves in.

Understand, I'm not saying Judge Posner is wrong. Nor am I saying that you cannot be prosecuted under the old, but unconstitutional, statutes. What I am saying is that the new law was built upon a law that has been found to be unconstitutional. It is a faulty premise.

Window_Seat
10-05-2013, 10:29 AM
The UUW and AUUW laws cannot be applied. That is correct as both a Federal Court and the IL Supreme Court found that they are unconstitutional.

Those laws have not been amended. They still stand as they were before the litigation started. A new law was added to explicitly make an exception to enforcement of the older laws.

The problem of course, is that the exception cannot yet be implemented. Does this mean that you can still be prosecuted under the old, but unconstitutional, law? That is the legal quagmire that the people of IL find themselves in.

Understand, I'm not saying Judge Posner is wrong. Nor am I saying that you cannot be prosecuted under the old, but unconstitutional, statutes. What I am saying is that the new law was built upon a law that has been found to be unconstitutional. It is a faulty premise.

So was 18 USC § 922 (q)(2)(A).

No?

Erik.

ziegenbock
10-05-2013, 4:52 PM
Here's the long and short of it: No one in IL can be prosecuted, at this time, because of the UUW or the AUUW laws. The IL Supreme Court ruled that the law was unconstitutional (State v. Aguilae) and could not be applied.

This and this alone moots the Sheppard case. Posner knows this (contrary to popular belief, Judges do not operate in a vacuum), hence his sideways reference to that case.

All else being equal, Posner shredded the NRA attorney.... And their case.

Dam....wouldn't let the guy speak. Go file your new case today and don't even wait for the opinion to come out. They need to get off this FOID carry.

Al Norris
10-06-2013, 8:06 AM
So was 18 USC § 922 (q)(2)(A).

No?

And until the Court sees fit to reign in the expansive Commerce Clause, we will get more of this: (paraphrased) "Let's just call the penalty, a tax and be done with it."

Doesn't make it any less a faulty premise.

Dam....wouldn't let the guy speak.

One of the hallmarks of a good appellate attorney is to know the Judges you are going before and to tailor your arguments accordingly. What you heard was Judge Posner's style. The NRA attorney was unprepared.

ToldYouSo
10-06-2013, 3:34 PM
Those laws have not been amended. They still stand as they were before the litigation started. A new law was added to explicitly make an exception to enforcement of the older laws.

According to the NRA's own brief on appeal, the law was amended.

"Later that day, Illinois enacted the Firearm Concealed Carry Act (“FCCA”), Pub. Act 098-0063 (Ill.).2 The FCCA does not repeal the Illinois Gun Carry Ban but rather amends Illinois law to provide that the ban shall not apply to an individual who has been issued a license under the FCCA.

In particular, Section 155 of the FCCA enacts a new provision of law that provides that the challenged provisions of the UUW (720 ILCS 5/24-1(a)(4)&(10)) “do not apply to or affect any person carrying a concealed pistol, revolver, or handgun and the person has been issued a currently valid license under the Firearm Concealed Carry Act at the time of the commission of the offense.” Section 155 also amends the challenged provisions of the AUUW (720 ILCS 5-24-1.6(a)(3)(A)-(B)) to similar effect."

Here is a link to the brief -> http://ia600901.us.archive.org/26/items/gov.uscourts.ca7.13-2661/gov.uscourts.ca7.13-2661.13.3.pdf

Here is a link to the enacted law which amends the old law -> http://www.ilga.gov/legislation/publicacts/98/PDF/098-0063.pdf