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Today a 3 Judge panel in the 7th called for expedited briefing on all the AWB cases including the Naperville one.
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DILLIGAF
"Never attribute to malice that which can be adequately explained by stupidity, but don't rule out malice"
"Once is Happenstance, Twice is Coincidence, Thrice is Enemy Action"
"The flak is always heaviest, when you're over the target" -
According the the video, the three judge panel includes Easterbrook,, notoriously anti-2a, as well as another reliably anti judge. I don't know about McGlynn. Argument is supposed to be by the end of June. But we already know the result, and that it probably will be written by Easterbrook, who is still smarting after having his seminal anti-2A cases reversed by SCOTUS. Plus, the schedule is significantly accelerated, the prior schedule having the last brief filed in August, with an order for argument to be issued after that.Last edited by TruOil; 05-15-2023, 2:43 PM.Comment
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45 minutes for each side? 45 minutes? For arguments over an enumerated Right that has already been addressed, recently, by The Court???
Really?! I really hope ACB (if not the entire Court) has something to say to all thisWhen seconds count 1911 > 911 is correct numerically as well
"Sometimes I wonder whether the world is being run by smart people who are putting us on, or by imbeciles who really mean it."
-Mark TwainComment
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DILLIGAF
"Never attribute to malice that which can be adequately explained by stupidity, but don't rule out malice"
"Once is Happenstance, Twice is Coincidence, Thrice is Enemy Action"
"The flak is always heaviest, when you're over the target"Comment
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True enough. The judges have usually made up their minds before orals, and it is rare when an argument is so good the judges are persuaded to change them. Instead, orals are a show that allow judges to poke holes in an argument with which they disagree, or support an argument with which they agree. The orals are often a pretty accurate guide to how the court will rule.Comment
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State Supreme Court weighs assault weapons ban
For all the non-legal 'experts' out there, could someone explain why McDonald allows for a State to view the 2nd Amendment as 'non-fundamental' given that McDonald purportedly incorporated Heller to the States. I'm thinking such an 'explanation,' from an actual attorney, might be useful and enlightening given the portion of the above quote I placed in bold. Is it as 'simple' as a 2nd Amendment claim not having been 'made' or is more 'nuanced' than that?The Illinois Supreme Court is now deciding whether the state's recently enacted assault weapons ban violates certain provisions of the Illinois Constitution.
In March, a circuit court judge in Macon County sided with a group of plaintiffs led by state Rep. Dan Caulkins, R-Decatur, and declared the law unconstitutional. The state appealed directly to the Supreme Court, which put a hold on the Macon County decision and put the case on an expedited schedule.
The court heard oral arguments Tuesday in the case. They argued that the law is unfair because it allows certain people, but not others, to continue buying and selling a category of firearms defined as "assault weapons."...
The Second Amendment to the U.S. Constitution and Article 1, Section 22 of the Illinois Constitution both deal with the right to bear arms. But the state constitution's language is different because it says the right is subject to the police power of the state, meaning it can be regulated to protect public health and safety or law and order.
That distinction is important because in federal law, the right to bear arms is considered a "fundamental right," and any limitations on it are subject to "strict scrutiny." That means the government has to show there is a compelling state interest that makes limiting the right necessary and that the law is narrowly tailored to achieve that interest.
In Illinois state constitutional law, however, the right to bear arms is not a fundamental right, and the government is authorized under the state constitution to put limits on it. That means the government only needs to show the limitations have a "rational basis" behind them...
But Stocks argued that in more recent case dealing with the Second Amendment, the U.S. Supreme Court has moved beyond the rational basis vs. strict scrutiny question. In a decision last summer, the U.S. Supreme Court began using a new standard that requires the state to show that a regulation is consistent with the nation?s "historical tradition of firearm regulation."
The state, however, argued that the federal standard for judging Second Amendment issues should not apply in the Illinois case because the plaintiffs did not make a Second Amendment claim in their initial suit. And Chief Justice Mary Jane Theis appeared to agree...
On April 28, a federal judge in East St. Louis issued a temporary order blocking enforcement of the weapons ban while three cases consolidated in the Southern District of Illinois was being heard. But federal judges in the Northern District that were hearing similar challenges have declined to issue injunctions.
A week after the Southern District judge's order, the Seventh Circuit Court of Appeals put a hold on it. The appellate court has since said it will hear a consolidated appeal in five cases dealing with the Illinois law, and it will do so on an expedited schedule.
Oral arguments before the Seventh Circuit are scheduled for June 29.
In the meantime, plaintiffs in the Southern District cases have filed an application with U.S. Supreme Court Justice Amy Coney Barrett for an emergency injunction to block enforcement of the law while the appeals are being heard. Barrett has not yet ruled on that application.Comment
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This case is being heard in the Supreme Court of Illinois, not the Federal judicial system.
Therefore, the law being applied is the Illinois state constitution, which has a very weak right to keep and bear arms that is explicitly subject to the "police powers" of the state. The plaintiffs likely deliberately chose to attack the legislation through the more strongly-worded equal protection clause within the Illinois state constitution.
The consolidated case being heard in the United States Court of Appeals for the Seventh Circuit is the one that deals with NYSRPA v. Bruen and the Second Amendment of the United States Constitution.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.
The Second Amendment makes us citizens, not subjects. All other enumerated rights are meaningless without gun rights.Comment
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Just so we're all familiar with the State of Illinois' Constitution in that regard...
Here is a 2018 piece that provides a certain amount of background and insight... An Illusory Right? Revisiting Illinois' Right to Keep and Bear Arms...Bill of Rights. Preserves individual rights set out in the 1870 Constitution - freedom of speech and religion, protection against self-incrimination, etc., and guarantees freedom from discrimination on the basis of race, color, creed, national ancestry and sex in the hiring and promotion practices of an employer or in the sale or rental of property. Other provisions guarantee women the equal protection of the laws and prohibit discrimination based solely on physical or mental disabilities...
Section 2. Due Process and Equal Protection
No person shall be deprived of life, liberty or property without due process of law nor be denied the equal protection of the laws...
Section 18. No Discrimination on the Basis of Sex
The equal protection of the laws shall not be denied or abridged on account of sex by the State or its units of local government and school districts...
Section 22. Right to Arms
Subject only to the police power, the right of the individual citizen to keep and bear arms shall not be infringed...
For those who think this runs directly contrary to Heller, in my opinion, it runs contrary to Scalia's logic in Heller......[T]he police power of the state is an absolute right of the state to pass reasonable regulations dealing with the public health, safety, welfare and morals. These must be reasonable. They cannot be capricious and arbitrary. In general, the committee feels that the state has the right to ... regulate firearms; that is to say, to determine who can have them and under what circumstances. It would have the right to make the owner of a firearm identify himself and get a card, as is required now under state law. ... [T]he state would have the right, as has been exercised by the city of Chicago, to require the registration of firearms?if necessary, every one by serial number. And finally, we feel that under this provision, the state would have the right to prohibit some classes of firearms, such as war weapons, handguns, or some other category...
But, that seems to be the point of the piece......Besides ignoring the historical reality that the Second Amendment was not intended to lay down a "novel principl[e]" but rather codified a right "inherited from our English ancestors," Robertson v. Baldwin, 165 U. S. 275, 281 (1897), petitioners' interpretation does not even achieve the narrower purpose that prompted codification of the right. If, as they believe, the Second Amendment right is no more than the right to keep and use weapons as a member of an organized militia, see Brief for Petitioners 8 - if, that is, the organized militia is the sole institutional beneficiary of the Second Amendment's guarantee - it does not assure the existence of a "citizens' militia" as a safeguard against tyranny. For Congress retains plenary authority to organize the militia, which must include the authority to say who will belong to the organized force. That is why the first Militia Act's requirement that only whites enroll caused States to amend their militia laws to exclude free blacks. See Siegel, The Federal Government's Power to Enact Color-Conscious Laws, 92 Nw. U. L. Rev. 477, 521?525 (1998). Thus, if petitioners are correct, the Second Amendment protects citizens' right to use a gun in an organization from which Congress has plenary authority to exclude them. It guarantees a select militia of the sort the Stuart kings found useful, but not the people's militia that was the concern of the founding generation...
Remember, that piece was written 4 years prior to Bruen and while it may be in the State's court system, the Federal Constitution trumps State Constitutions. So, again, is it simply due to the idea of it being in the State system and not the Federal System? Couldn't it be said that McDonald 'occupied the field' in that......This Article approaches these questions by first reviewing Section 22's history and then exploring the fundamental nature of the states' police power. Ultimately, the provision's history and text, as well as the proper limits of the states' police power, compel the conclusion that Section 22, while perhaps inartfully drafted, is not without force. While the courts continue to battle over the scope of the federal Second Amendment in the wake of District of Columbia v. Heller and McDonald v. Chicago, the time has also come to reevaluate Illinois' own constitutional limits on the General Assembly's ability to regulate firearms...
Commonly understood today, the police power is the inherent authority of a state to regulate for the good of the health, safety, and (perhaps more controversially) the morals of its citizens. This power derives from a state's sovereign authority over all areas of the law not delegated to the federal government. Under the Tenth Amendment, what is not forbidden of the states under the federal Constitution is permissible under the inherent power of the state (its police power). The Constitution imposes a number of limits on the states throughout Article I and the amendments. But these are not the only limits; state constitutions, too, are self-imposed restrictions on the police power...
As noted above, some Con Con delegates viewed absolute firearm prohibition as the only type of regulation that would be "unreasonable" under the police power. But Professor Cook argued that one could not avoid mention of federal protections when discussing the state police power because a state has no legitimate police power which is denied to it by the federal Constitution. Accordingly, arguments that a ban on handguns - "the quintessential self-defense weapon" - constitutes an unreasonable regulation on an explicit constitutional right to keep and bear arms may have more force today than at the Con Con, in light of recent Supreme Court precedent. Heller rejected both rational-basis review and the proposition that a right to own arms was not infringed as long as there was some available alternative...
The question remains: What standard should courts apply, if not rational-basis review? Federal courts, though far from unified, have largely applied some form of intermediate scrutiny to Second Amendment challenges. But this Author suggests that this approach, too, is improper. Rather, courts should apply the very test used in Heller itself: one based in text, history, and tradition...
...The right to keep and bear arms must be regarded as a substantive guarantee, not a prohibition that could be ignored so long as the States legislated in an evenhanded manner...
Municipal respondents' remaining arguments are rejected because they are at war with Heller's central holding. In effect, they ask the Court to hold the right to keep and bear arms as subject to a different body of rules for incorporation than the other Bill of Rights guarantees. Pp. 780?787.
(c) The dissents' objections are addressed and rejected...
Justice Thomas agreed that the Fourteenth Amendment makes the Second Amendment right to keep and bear arms that was recognized in District of Columbia v. Heller, 554 U. S. 570, fully applicable to the States. However, he asserted, there is a path to this conclusion that is more straightforward and more faithful to the Second Amendment's text and history... Rather, the right to keep and bear arms is enforceable against the States because it is a privilege of American citizenship recognized by ? 1 of the Fourteenth Amendment, which provides, inter alia: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States."...Comment
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That last line right there says all that needs to be said. The right to bear arms precedes the Constitution and the very existence of 37 states. And as the Ninth Amendment states: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." The Second Amendment refers to rights retained by the People, so it perforce should not lie within the power of the States to deny them.Comment
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^^^^^^^^^
4 Justices used Due Process to decide Chicago v McDonald. In his concurrence, Justice Thomas used the Privileges or Immunities Clause.sigpic
DILLIGAF
"Never attribute to malice that which can be adequately explained by stupidity, but don't rule out malice"
"Once is Happenstance, Twice is Coincidence, Thrice is Enemy Action"
"The flak is always heaviest, when you're over the target"Comment
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Here is the oral argument from today in the 7th Circuit on whether to allow or continue to stay the preliminary injunction on Illinois' assault weapon and magazine bans. http://media.ca7.uscourts.gov/sound/...06_29_2023.mp3Comment
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