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California 2nd Amend. Political Discussion & Activism Discuss gun rights activism and 2A related political topics here. All advice given is NOT legal counsel.

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  #161  
Old 12-11-2012, 4:36 PM
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Someone asked if Chicago could create its own prohibition.

I don't think so.

The original complaint asked for
Quote:
1. This action for deprivation of civil rights under color of law challenges Illinois’ statutory prohibitions on “Unlawful Use of Weapons” (720 ILCS 5/24-1) and “Aggravated Unlawful Use of Weapons” (720 ILCS 5/24-1.6) to the extent that they prohibit otherwise qualified private citizens from carrying handguns for the purpose of self-defense.
Presuming later proceedings did not substantially modify that request (haven't read the whole set), todays's opinion would include two significant parts of Illinois Compiled Statutes 720 ILCS 5/Art. 24
Quote:
Sec. 24-1.6. Aggravated unlawful use of a weapon.
(a) A person commits the offense of aggravated unlawful use of a weapon when he or she knowingly:

(1) Carries on or about his or her person or in any
vehicle or concealed on or about his or her person except when on his or her land or in his or her abode, legal dwelling, or fixed place of business, or on the land or in the legal dwelling of another person as an invitee with that person's permission, any pistol, revolver, stun gun or taser or other firearm; or

(2) Carries or possesses on or about his or her
person, upon any public street, alley, or other public lands within the corporate limits of a city, village or incorporated town, except when an invitee thereon or therein, for the purpose of the display of such weapon or the lawful commerce in weapons, or except when on his or her own land or in his or her own abode, legal dwelling, or fixed place of business, or on the land or in the legal dwelling of another person as an invitee with that person's permission, any pistol, revolver, stun gun or taser or other firearm; and
(3) One of the following factors is present:
(A) the firearm possessed was uncased, loaded and immediately accessible at the time of the offense; or
(B) the firearm possessed was uncased, unloaded and the ammunition for the weapon was immediately accessible at the time of the offense; or
...
The very specific and inclusive language of (2) suggests that this is assumed by the legislature to be a state-law issue; I don't see anything like 'the Legislature intends to occupy the whole field of the regulation of the carry of weapons' so I can't be more assertive on the point. (Such language might be somewhere, but I don't see it; IL law is not my specialty.)
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  #162  
Old 12-11-2012, 4:43 PM
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Default Volokh Analysis

David Kopel over at the Volokh Conspiracy (a blog for law professors) has a few interesting observations.

http://www.volokh.com/2012/12/11/moo...an-key-points/
Quote:
Judge Posner’s opinion for a 2-1 panel of the 7th Circuit. Illinois is the only state which forbids gun carrying in public as a matter of law. There is no provision for the issuance of licenses for concealed carry, or for open carry. Both are banned. There are some exceptions for particular activities (e.g., while hunting), and for persons with a special occupational status (e.g., licensed security guard, some government officials).

According to the Supreme Court, 1791 (year of ratification) is the crucial year for the Second Amendment’s original meaning. The usual suspects (Saul Cornell, etc.) claim that there was no generally recognized right to carry in 1791. But the “Supreme Court rejected the argument. The appellees ask us to repudiate the Court’s historical analysis. That we can’t do. Nor can we ignore the implication of the analysis that the constitutional right of armed self defense is broader than the right to have a gun in one’s home. . . .A right to bear arms thus implies a right to carry a loaded gun outside the home.”
Quote:
Moreover, Posner writes, the main purpose of Kachalsky’s inside/outside distinction was to justify intermediate scrutiny for restrictions on guns outside the home. In Madigan, “our analysis is not based on degrees of scrutiny, but on Illinois’s failure to justify the most restrictive gun law of any of the 50 states.” [Study tip for law students: 3-tier scrutiny doesn't explain everything. If a government prohibited everyone from speaking out loud in public places, a court does not need to use strict or intermediate scrutiny to decide if the ban is constitutional. Blanket bans on speaking in public places are per se void, and so are blanket bans on bearing arms in public places.]
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  #163  
Old 12-11-2012, 4:53 PM
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Quote:
Originally Posted by Librarian View Post
Someone asked if Chicago could create its own prohibition.

I don't think so.

The original complaint asked for
Presuming later proceedings did not substantially modify that request (haven't read the whole set), todays's opinion would include two significant parts of Illinois Compiled Statutes 720 ILCS 5/Art. 24
The very specific and inclusive language of (2) suggests that this is assumed by the legislature to be a state-law issue; I don't see anything like 'the Legislature intends to occupy the whole field of the regulation of the carry of weapons' so I can't be more assertive on the point. (Such language might be somewhere, but I don't see it; IL law is not my specialty.)
If you were talking about my comment, I was more thinking they could come up with their own CCW system while banning carry within city limits to those without a permit. They claim it to be shall issue in compliance, but then they try various shenanigans to keep it curtailed like not issuing to non-Chicago residents, not issuing to anyone with even a traffic ticket, not issuing to anyone who can't make one hole groups at 25 yards with their subcompact pistol, etc.

What's your opinion on that?

That's why I was thinking we actually don't want the clock to run out, because IL gunnies need a shall issue law that also has language preventing additional carry licensing schemes by major cities.
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  #164  
Old 12-11-2012, 4:58 PM
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clearest path for IL would be to follow the CA/NY "May Issue" model.

I'd prefer they went Constitutional Carry, but it won't be that easy.
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  #165  
Old 12-11-2012, 5:00 PM
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So...someone explain to me how it is that Illinois gets the honest judges, when you consider the pool from which they're selected?
It might have to do with the fact that Posner and Flaum were appointed by Reagan. Williams was appointed by Clinton.

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  #166  
Old 12-11-2012, 5:36 PM
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Default Get ready for a dose of cold water.

The state (IL) waits the entire 180 days and then appeals. They'll drag their feet and invent a barrage of delaying tactics until BHO appoints his next closet Marxist to the SCOTUS and its game over.
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  #167  
Old 12-11-2012, 5:46 PM
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Don't we have a rule hereabouts against posting photos of ugly and/or stupid people?
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  #168  
Old 12-11-2012, 6:54 PM
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Should be interesting to see what happens next. Almost certainly going to expect some "reasonable" California style 'regulation' (aka Infringements) with discretionary CCW Issue ala Baca. IOW, delaying tactics. Appeal to SCOTUS raises the stakes but probably gets them a stay while they pursue and hope Barry can get another appointment to replace one of the Heller 5.
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  #169  
Old 12-11-2012, 7:13 PM
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So, if I'm correct, unless the IL legislature comes up with a carry law, IL goes Con. carry?

In 180 days?

My inner Saul Alinsky is dancing.....
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  #170  
Old 12-11-2012, 7:15 PM
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Originally Posted by jdberger View Post
So, if I'm correct, unless the IL legislature comes up with a carry law, IL goes Con. carry?

In 180 days?

My inner Saul Alinsky is dancing.....

It appears so
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  #171  
Old 12-11-2012, 7:19 PM
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Originally Posted by Uxi View Post
Should be interesting to see what happens next. Almost certainly going to expect some "reasonable" California style 'regulation' (aka Infringements) with discretionary CCW Issue ala Baca. IOW, delaying tactics. Appeal to SCOTUS raises the stakes but probably gets them a stay while they pursue and hope Barry can get another appointment to replace one of the Heller 5.
Legislative games and delaying tactics are great! Remember, 6 months without a bill and IL residents get virtual constitutional carry, and pro-gun forces have a majority in the legislature…

What incentive would we have to let them pass a bill that gives us less that what we're already going to get automatically?

That's where we are right now. We have a VERY large bargaining chip we can use to bludgeon our political opponents with, and we need to make use of it!
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  #172  
Old 12-11-2012, 7:25 PM
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Originally Posted by pointedstick View Post
Legislative games and delaying tactics are great! Remember, 6 months without a bill and IL residents get virtual constitutional carry, and pro-gun forces have a majority in the legislature…

What incentive would we have to let them pass a bill that gives us less that what we're already going to get automatically?

That's where we are right now. We have a VERY large bargaining chip we can use to bludgeon our political opponents with, and we need to make use of it!
Great point. That pro-gun majority is great. I gotta imagine there's gonna be some serious demagoguery coming up, though and would be surprised if there's NO bill at all. The trick is how many 'moderates' they can get to buy into 'reasonable' regulation.
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  #173  
Old 12-11-2012, 7:50 PM
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Won't defendants just request en banc or appeal to SCOTUS and then get a stay on the decision pending the outcome of one of those actions?
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  #174  
Old 12-11-2012, 7:52 PM
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Originally Posted by pointedstick View Post
Legislative games and delaying tactics are great! Remember, 6 months without a bill and IL residents get virtual constitutional carry, and pro-gun forces have a majority in the legislature…

What incentive would we have to let them pass a bill that gives us less that what we're already going to get automatically?

That's where we are right now. We have a VERY large bargaining chip we can use to bludgeon our political opponents with, and we need to make use of it!
I would assume that if the legislature does not act that the cities and counties will pass their own laws. In other words LTCs that are only good for one city or county and subject to wherever restrictions Chicago thinks they can buy time with.
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  #175  
Old 12-11-2012, 7:55 PM
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Originally Posted by Kid Stanislaus View Post
The state (IL) waits the entire 180 days and then appeals. They'll drag their feet and invent a barrage of delaying tactics until BHO appoints his next closet Marxist to the SCOTUS and its game over.
There're time limits on filing appeals.
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  #176  
Old 12-11-2012, 8:22 PM
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Correct me if I am wrong, but SCOTUS is currently reviewing cases to take until January(?) and they will be argued starting in March(?)...... Is there any chance an appeal would be filed in that time frame(it would likely be a long shot for the judges to even accept it) or are we looking at next session(or sometime thereafter).
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  #177  
Old 12-11-2012, 8:31 PM
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Correct me if I am wrong, but SCOTUS is currently reviewing cases to take until January(?) and they will be argued starting in March(?)...... Is there any chance an appeal would be filed in that time frame(it would likely be a long shot for the judges to even accept it) or are we looking at next session(or sometime thereafter).
Well in Kachalsky Cert has been filed, we pretty much have a circuit split with this decision and Illinois could file a petition for cert. Supreme court might very well grant Cert for one of the cases and it's better to have it sooner rather than later.
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  #178  
Old 12-11-2012, 8:31 PM
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  #179  
Old 12-11-2012, 8:36 PM
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That this decision only strikes state law does not leave room for counties to violate it. The opinion makes it pretty clear that even NY's may issue probably doesn't pass constitutional muster. IL could wat 181 and then Cook County could pass it's own carry scheme, but it would be bound by this opinion. That's unlikely.

However, en-banc is a possibility to try to delay and get out of the political pickle that the anti crowd in IL finds themselves currently in. That, however, looks only like a delay at best for the antis...

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  #180  
Old 12-11-2012, 8:48 PM
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Originally Posted by hoffmang View Post
That this decision only strikes state law does not leave room for counties to violate it. The opinion makes it pretty clear that even NY's may issue probably doesn't pass constitutional muster. IL could wat 181 and then Cook County could pass it's own carry scheme, but it would be bound by this opinion. That's unlikely.

However, en-banc is a possibility to try to delay and get out of the political pickle that the anti crowd in IL finds themselves currently in. That, however, looks only like a delay at best for the antis...

-Gene
Hasn't that cost Chicago/DC enough money to delay the process of law?
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  #181  
Old 12-11-2012, 8:57 PM
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Which is scarier?

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or



Has anybody seen Feinstein eat garlic?
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  #182  
Old 12-11-2012, 8:57 PM
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Originally Posted by hoffmang View Post
That this decision only strikes state law does not leave room for counties to violate it. The opinion makes it pretty clear that even NY's may issue probably doesn't pass constitutional muster. IL could wat 181 and then Cook County could pass it's own carry scheme, but it would be bound by this opinion. That's unlikely.

However, en-banc is a possibility to try to delay and get out of the political pickle that the anti crowd in IL finds themselves currently in. That, however, looks only like a delay at best for the antis...

-Gene
Why is it unlikely that Cook passes it's own carry provisions if the state decides to wait out the 181 days? They could go shall issue but include so many fees and "sensitive places" that it would be practically impossible anyways and it would start litigation all over again. I hope they just pass the legislation quickly with state preemption attached to fix that problem.
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  #183  
Old 12-11-2012, 8:58 PM
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Hasn't that cost Chicago/DC enough money to delay the process of law?
It's not the politicians' money, so why should they care? Just tax the peasants more.
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  #184  
Old 12-11-2012, 9:05 PM
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Does this case help defeat California's open carry ban law?
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  #185  
Old 12-11-2012, 9:08 PM
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Originally Posted by hoffmang View Post
That this decision only strikes state law does not leave room for counties to violate it. The opinion makes it pretty clear that even NY's may issue probably doesn't pass constitutional muster. IL could wat 181 and then Cook County could pass it's own carry scheme, but it would be bound by this opinion. That's unlikely.

However, en-banc is a possibility to try to delay and get out of the political pickle that the anti crowd in IL finds themselves currently in. That, however, looks only like a delay at best for the antis...

-Gene
Chicago or Cook County can pass its own carry scheme with the knowledge that the lower courts will let them get by with the same games they've been using to foot-drag McDonald. They could for example open with may-issue and only city issued LTCs valid in town and only for 12 months and only after 40 hours of formal annual training and buy themselves 12-18 months before the court gives them a do-over. Then they can come back with shall-issue but not valid with 2500 feet of a school, church, day car facility, or city building and buy another 12-18 months before that's sent back for another do-over. Then they can come back yet again with something else and buy yet another 12-18 months. If statewide LTC with preemption isn't passed that's exactly what they will try to do because the courts have let them get away with with post McDonald roadblocks on possession in the home. Of course the court could put its foot down and declare constitutional carry the law of the land (like they could have declared non-permitted/unregistered possession in the home) but they are likely to take their time and let local governments experiment and see how far they can push the limits. Hopefully I'm wrong but the surest bet for fully functional statewide carry before the end of Hilary's 1st term is the state passing shall-issue with preemption.
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  #186  
Old 12-11-2012, 9:08 PM
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  #187  
Old 12-11-2012, 9:21 PM
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Chicago or Cook County can pass its own carry scheme with the knowledge that the lower courts will let them get by with the same games they've been using to foot-drag McDonald.
No, that would end up creating the next Ezell, but instead on carry. I for one have loved the implications of Ezell around the country and would love for Chicago to speed up cleaning that stuff up. Anyone else starting to notice that the 7th Circuit is pretty darn good for us?

I'm not the only one that can do that math (aka, Rham can count.)

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  #188  
Old 12-11-2012, 9:28 PM
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Its a good day but these legislatures could really screw up a law for example
1 million insurance for all CCW's
Yearly proficiency test proctored by LEO and costly record check
Only one bullet magazines are allowed
Cannot carry while riding in a vehicle due to vibrations,and road rage
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  #189  
Old 12-11-2012, 9:33 PM
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Originally Posted by hoffmang View Post
No, that would end up creating the next Ezell, but instead on carry. I for one have loved the implications of Ezell around the country and would love for Chicago to speed up cleaning that stuff up. Anyone else starting to notice that the 7th Circuit is pretty darn good for us?
And Ezell has done what, exactly, for keep and bear in Chicago so far?

Seems to me that turning it into another Ezell is exactly what we do not want.

Maybe I'm just missing the overall strategic value of it...
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  #190  
Old 12-11-2012, 9:41 PM
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And Ezell has done what, exactly, for keep and bear in Chicago so far?

Seems to me that turning it into another Ezell is exactly what we do not want.

Maybe I'm just missing the overall strategic value of it...
In California it allows us to challenge Alameda County's denial of a gun shop. In California it allowed Paul Clement to say that a court of appeals had applied the right to keep and bear arms outside the home. In Illinois it allowed the Moore panel to cite it for all sorts of good reasons.

It's has and will continue to be very handy.

-Gene
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  #191  
Old 12-11-2012, 9:42 PM
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Originally Posted by todd2968 View Post
Its a good day but these legislatures could really screw up a law for example
1 million insurance for all CCW's
Yearly proficiency test proctored by LEO and costly record check
Only one bullet magazines are allowed
Cannot carry while riding in a vehicle due to vibrations,and road rage
I have this fantasy where officials clearly acting in bad faith and contrary to the court's published opinion wind up being held in contempt...

(sigh)

-- Michael
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  #192  
Old 12-11-2012, 9:49 PM
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By the way, this is a HUGE, HUGE win for us. Staggering. I was concerned that the 7th was holding back on us with respect to the timing of the ruling, but I was flat out wrong to have that particular concern -- them waiting until Kachalsky was issued has been VERY, VERY good for us.

I have adjusted my overall outlook accordingly.
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The Constitution is not "the Supreme Law of the Land, except in the face of contradicting law which has not yet been overturned by the courts". It is THE SUPREME LAW OF THE LAND, PERIOD. Your oath to uphold the Constitution is a joke unless you refuse to enforce unadjudicated laws you believe are Unconstitutional.

The real world laughs at optimism. And here's why.

I hope I end up having to donate another $1000 to CGF... However, this $500 is one I hope to not have to donate...
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  #193  
Old 12-11-2012, 9:51 PM
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Originally Posted by hoffmang View Post
In California it allows us to challenge Alameda County's denial of a gun shop. In California it allowed Paul Clement to say that a court of appeals had applied the right to keep and bear arms outside the home. In Illinois it allowed the Moore panel to cite it for all sorts of good reasons.

It's has and will continue to be very handy.
Oh, you'll get no argument from me on any of that!

But what has it done for people in Chicago?
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The Constitution is not "the Supreme Law of the Land, except in the face of contradicting law which has not yet been overturned by the courts". It is THE SUPREME LAW OF THE LAND, PERIOD. Your oath to uphold the Constitution is a joke unless you refuse to enforce unadjudicated laws you believe are Unconstitutional.

The real world laughs at optimism. And here's why.

I hope I end up having to donate another $1000 to CGF... However, this $500 is one I hope to not have to donate...
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  #194  
Old 12-11-2012, 9:58 PM
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Originally Posted by kcbrown View Post
And Ezell has done what, exactly, for keep and bear in Chicago so far?

Seems to me that turning it into another Ezell is exactly what we do not want.

Maybe I'm just missing the overall strategic value of it...
Ezell cabined the Moore panel in re intermediate scrutiny.
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  #195  
Old 12-11-2012, 9:59 PM
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Oh, you'll get no argument from me on any of that!

But what has it done for people in Chicago?
A layup win for that guy who had a misdemeanor firearms possession charge (where he was simply violating the unconstitutional ban, nothing more) when Chicago denied his possession permit shortly before the Ezell decision.

PS. You kind of skipped over how it helped get them on the road to shall issue carry faster than us

-Gene
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  #196  
Old 12-11-2012, 10:06 PM
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Originally Posted by hoffmang View Post
No, that would end up creating the next Ezell, but instead on carry. I for one have loved the implications of Ezell around the country and would love for Chicago to speed up cleaning that stuff up. Anyone else starting to notice that the 7th Circuit is pretty darn good for us?

I'm not the only one that can do that math (aka, Rham can count.)

-Gene
Yup, note to future litigants for 2A cases. File them in Chicago.
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  #197  
Old 12-11-2012, 10:08 PM
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Originally Posted by hoffmang View Post
A layup win for that guy who had a misdemeanor firearms possession charge (where he was simply violating the unconstitutional ban, nothing more) when Chicago denied his possession permit shortly before the Ezell decision.
Ah, I wasn't aware of that one at all. Consider me schooled.


Quote:
PS. You kind of skipped over how it helped get them on the road to shall issue carry faster than us
Well, it did, but recall that the original context of the question to which you responded is with regards to what happens if the 180 day clock runs out, with the exchange being:

Quote:
Originally Posted by hoffmang
IL could wat 181 and then Cook County could pass it's own carry scheme, but it would be bound by this opinion. That's unlikely.
Quote:
Originally Posted by sholling
Chicago or Cook County can pass its own carry scheme with the knowledge that the lower courts will let them get by with the same games they've been using to foot-drag McDonald.

The scenario under discussion is the one where IL has not preempted Chicago as regards the public carry field. Moore will simply have the effect of erasing the challenged statute.

Useful as it may have been thus far, Ezell has turned into a quagmire. That is something we can do without in the face of Chicago playing games with carry in public, which is precisely the context of the discussion here.

However, if you say what we'll get is another Moore, well, that's very different.
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The Constitution is not "the Supreme Law of the Land, except in the face of contradicting law which has not yet been overturned by the courts". It is THE SUPREME LAW OF THE LAND, PERIOD. Your oath to uphold the Constitution is a joke unless you refuse to enforce unadjudicated laws you believe are Unconstitutional.

The real world laughs at optimism. And here's why.

I hope I end up having to donate another $1000 to CGF... However, this $500 is one I hope to not have to donate...
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  #198  
Old 12-11-2012, 10:25 PM
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By the way, as a decision, this one isn't all roses. The panel quite clearly likes competency tests:

Quote:
Originally Posted by Moore v Madigan decision, 2nd Circuit
Apart from the usual prohibitions of gun ownership by children, felons, illegal aliens, lunatics, and in sensitive places such as public schools, the propriety of which was not questioned in Heller (“nothing in this opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings,” 554 U.S. at 626), some states sensibly require that an applicant for a handgun permit establish his competence in handling firearms. A person who carries a gun in public but is not well trained in the use of firearms is a menace to himself and others. See Massad Ayoob, “The Subtleties of Safe Firearms Handling,” Backwoods Home Magazine, Jan./Feb. 2007, p.30;
(emphasis mine)


That, of course, leaves a lot of room for abuse...
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The Constitution is not "the Supreme Law of the Land, except in the face of contradicting law which has not yet been overturned by the courts". It is THE SUPREME LAW OF THE LAND, PERIOD. Your oath to uphold the Constitution is a joke unless you refuse to enforce unadjudicated laws you believe are Unconstitutional.

The real world laughs at optimism. And here's why.

I hope I end up having to donate another $1000 to CGF... However, this $500 is one I hope to not have to donate...
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  #199  
Old 12-11-2012, 10:28 PM
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Originally Posted by kcbrown View Post
That, of course, leaves a lot of room for abuse...
Uhm, by citing Mas, he's saying that people need to know the 4 rules. That's pretty darn pro gun.

-Gene
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  #200  
Old 12-11-2012, 10:54 PM
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KC is sounding pretty optimistic. Maybe the Mayan Calendar thing has some legitimacy.
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