The Next Chicago Gun Case Is Filed

The suit: http://www.snowflakesinhell.com/wp-content/uploads/2010/07/Benson_v_Chicago_Complaint.pdf

The NRA:


Tuesday, July 06, 2010

Fairfax, Va. -- The National Rifle Association is supporting a lawsuit against Mayor Richard Daley and the City of Chicago's newly adopted gun control ordinance, which violates the U.S. Supreme Court's recent ruling in McDonald v. City of Chicago. Last Friday, the City Council rushed through passage of this ordinance in response to the Court's June 28th decision rendering Chicago’s draconian handgun ban unconstitutional.

“The Supreme Court has now said the Second Amendment is an individual freedom for all. And that must have meaning,” said Wayne LaPierre, executive vice president of the National Rifle Association. “This decision cannot lead to different measures of freedom, depending on what part of the country you live in. City by city, person by person, this decision must be more than a philosophical victory. An individual right is no right at all if individuals can’t access it.”

Just four days after the Court struck down the nearly 30 year-long handgun bans in Chicago and Oak Park, Mayor Daley and the City of Chicago enacted the most restrictive anti-gun ordinance in the United States. In the words of Corporation Counsel Mara Georges, the top attorney for the City: “We've gone farther than anyone else ever has.”

The so-called “Responsible Gun Ownership Ordinance” provisions include: a prohibition on all gun sales inside the City; a prohibition on possession of firearms for self-defense outside the “home” -- even on a patio or in an attached garage; a prohibition on more than one assembled and operable firearm in the home; and a training requirement to obtain a Chicago Firearm Permit. However, range training would be impossible since it will now be unlawful to operate a shooting range inside city limits.

“The Supreme Court told Mayor Daley and the City of Chicago that it has to respect the Second Amendment. By enacting this ordinance, their response is 'Make Us',” said Chris W. Cox, NRA chief lobbyist. “The NRA will not rest until Chicago's law-abiding residents can exercise the same freedoms that our Founding Fathers intended all Americans to have.”

Recent statements from some of Chicago's city officials reflect their complete lack of respect for the Supreme Court decision. Alderman Daniel Solis stated, “the decision made by the Supreme Court is not really in the best interests of our citizens.” Alderman Sharon Denise Dixon denounced what she called the Court’s “blatant… misreading of the law.” And another city council member even went so far as to say, “[w]e’re here today because of their poor judgment."

The case is Benson v. City of Chicago.

http://www.nraila.org/News/Read/NewsReleases.aspx?ID=13996

So now the supreme court has to provide a definition of "home" and how many handguns one is allowed to own. I would guess atleast one for use and one for a backup, or maybe it could be based on the size of your home or the number of points of entry.

That sure didn't take long! The "anti's" prediction of lots of litigation following McDonald was dead on...

Fuggem...

Ok, someone please read and report. One more thing to put on the radar.

montoya32 said:

So now the supreme court has to provide a definition of "home" and how many handguns one is allowed to own. I would guess atleast one for use and one for a backup, or maybe it could be based on the size of your home or the number of points of entry.

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"...to keep and bear arms" is plural, and unspecified. "bear" doesn't say "just inside the house." "...shall not be infringed" is pretty unambiguous.

looks like another smackdown to me.

Taking the opposite side for a second, One could probably successfully argue that the plural 'arms' is related to the term 'people' which is also plural. But I also think there was never an intention that a quantity be limited in 2A, otherwise it would have spoken to that issue, ie each person can keep and bear one arm. Not having explicitly state a number means that (to me it) doesn't provide a limit. Now given the recent SCOTUS, is controlling the number one of those restrictions that the state can enact? Also as others have stated, where you keep and bear them has not been stated. In my opinion, the states shouldn't have the right to prevent the right to keep and carry, but could limit potentially limit the how many you could carry and how (open or concealed) and exclude specific places to carry with the places that you can carry been a far greater percentage than the places you can't carry. In other words, you should be able to carry most places (maybe limits on open vs concealed, but at least one), limits on how many you can carry, but not how many you can keep, and they can probably place a restriction as they do know on full auto on handguns (but I really don't see the need to restrict fully auto on rifles if you take the argument that part of the 2a is to protect against government tyranny)

This is a straight-up Civil Rights case seeking declaratory judgment that basically all of Chicago's new gun ordinance is unconstitutional. It does not seek to define a right to "bear" or "carry" outside the home in the traditional sense, but it hints at it. This case is about specific issues with the new law, which of course does not have any language about carry permits.

The case is Benson v. City of Chicago. It asks the court to nullify eight things:

1) Definition of the "home" as not including your garage, porch, etc.

2) Age restrictions. The law says you must be 21 or older, or if from 18-21 you must get mommy's permission first.

3) Prohibition on any transfer of a firearm within the city for any reason other than inheritance.

4) The requirement for a certified firearms instruction certificate...in a city that disallows the discharge of guns for any purpose other than in defense of your life (so no ranges to get certified at).

5) The "one operable gun" clause that requires a second gun to be disassembled in the home.

6) Restrictions on "unsafe handguns" that are to be posted on a list. The definition of "unsafe" handgun could include literally anything they want, but "concealability" and "size" are specifically mentioned.

7) Restrictions on "laser light accessory". The law specifically makes laser aiming devices contraband.

8) Restriction on carrying a gun anywhere but in your own home. Specifically they attack sections saying you cannot take a handgun to another home (a family member, for instance) or to your place of business.

FWIW, violations of the law are subject to a $10,000 fine and 6 months in jail. Each day that you are found not in compliance is an "additional charge". The idea there appears to be able to stack as many consecutive charges as possible on you so that they could put you away for a long, long time (or fine you $10K per day).

The suit asks for simple redress in the way of striking all of these provisions, plus attorney fees, blah, blah, blah.

In addition to injunctive relief, they are specifically asking for a "declaratory judgment", which is a nice way of saying they want not only the laws stricken, but they want the Federal Court to specifically declare them unconstitutional.


Hopefully it gets heard fast. It probably will, considering it is requesting an injunction on a new law that could cause harm to citizens as enacted.

And FWIW, I cannot see the NRA anywhere in here. I noticed the NRA-ILA on their page mentions they "support" the lawsuit. Does this mean they are helping somehow?

The cynic in me wonders if the NRA is yet again riding coat-tails and claiming involvement in a pro-2A case even though they did nothing to assist. Something tells me they will use this to ask for yet more money.

But I'd like to be wrong. Anyone here know if he NRA is doing more than cheer-leading and fund-raising in Chicago?

IF it gets to SCOTUS and they deal with this one favorably, it could have great results for the whole country and 2A rights. If not, then we could be in for some tough times.

A lot of these cases won't make it to the top (SCOTUS). One or two might, but at some point there will be enough jurisprudence (read: precedent) to rule at ever lower levels. And several cases are likely to be combined into one question for SCOTUS, for instance carry in Sykes and Palmer.

Thanks for the summation Patrick.

I hope courts retaliate against Daley’s thumbing his nose at them.

Also anyone on the SCOTUS, please do not die or retire.

I'd like to see that $10K a day turned on them: if Chicago thinks it is a fair number, then those who win declaratory judgments for the unconstitutional law should get attorney's fees and $10K a day.

Hell, they picked number. Might as well put it to good use.

Patrick said:

I'd like to see that $10K a day turned on them: if Chicago thinks it is a fair number, then those who win declaratory judgments for the unconstitutional law should get attorney's fees and $10K a day.

Hell, they picked number. Might as well put it to good use.

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Amen and yea verily. Put a little aikido hurt on them.

I hate to be the pessimist, but it likely won't make it to SCOTUS...it'll be ruled in a federal district court...possibly appealed. But we've already seen based on the original (pre-SCOTUS) McDonald ruling that the federal courts have no respect for the 2nd Amendment. Anything short of total ban will probably fly with Chicago's district.

You'd think it'd be smarter for them to try to get some gun ownership in Chicago, build some sentiment for 2A-support, and try to change the culture from within...rather than trying to sue everyone in the world using McDonald as precedent.

And FWIW, I cannot see the NRA anywhere in here. I noticed the NRA-ILA on their page mentions they "support" the lawsuit. Does this mean they are helping somehow?

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Sorry it is not spelled out for you but who do you think is paying their retainer? Say the letters, N R A.

Charles J. Cooper*
David H. Thompson*
Jesse Panuccio*
COOPER & KIRK, PLLC
1523 New Hampshire Ave., NW
Washington, D.C. 20036
Tel: (202) 220-9600
Fax: (202) 220-9601
Email: ccooper@cooperkirk.com

I'm also sure they will have Stephen P Halbrook consulting on the case. When it comes to the 2A, everybody rides Halbrook's coat tails, including the SAF. Checkout his website.

http://www.stephenhalbrook.com/

Huckleberry said:

Sorry it is not spelled out for you but who do you think is paying their retainer? Say the letters, N R A.

...<snip for space>

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Thank you. I couldn't find anywhere a reference to the NRA paying the bills. Still cannot, but not challenging your statement.

I'm just glad to see them stepping into the fray a bit more. We need them working for us.

There has been some activity here and I'm updating the Internet Archive Docket also available at the 2A Summary Page in my Sig...

Benson v Chicago is one of the broad based suits, ala Heller II, supported by the NRA (thanks) which encompasses all of the revised Chicago statutes instituted post-McDonald. This includes private gun ranges within city limits among other issues ie registration, etc, etc, etc...

Ezell v. Chicago is the OTHER one challenging only gun ranges within city limits, supported by SAF/Gura.

Yes, the same issue (gun ranges) is being brought up in 2 suits that the City of Chicago must defend. Imagine yourself as Mayor Daley and the City...what would be the easier to provide a defense against? A single issue case arguing ranges when you already have non-public ranges in the city? Or...kill that suit and lump it in a broader based suit (Benson) that would kill all of your recently enacted laws post-McDonald and may be more defensible vs the surgical/single-issue case (Ezell)?

Items 26 and 32 in the Docket pertain...26 is Chicago's recommendation to Reassign the Case, 32 is Benson's response (with help from Gura, representing Ezell). Great read!

From the City, Doc 26:

blah, blah, blah...
the same issues of fact or law; (3) the cases grow out of the same transaction or occurrence; or (4) in class action suits, one or more of the classes involved in the cases is or are the same.” N.D. Ill. Local Rule 40.4(a). Second, each of the criteria for reassignment set forth in Local Rule 40.4(b) must be met. Those criteria are that: “(1) both cases are pending in this Court; (2) the handling of both cases by the same judge is likely to result in a substantial saving of judicial time and effort; (3) the earlier case has not progressed to the point where designating a later filed case as related would
be likely to delay the proceedings in the earlier case substantially; and (4) the cases are susceptible of disposition in a single proceeding.” Id. at 40.4(b).
4. The City respectfully submits that Ezell should be reassigned to this calendar as related to the instant case pursuant to Local Rule 40.4. As to the criteria of Local Rule 40.4(a), common issues of fact or law pervade both suits. In particular, both suits challenge whether the City’s prohibition against shooting/training ranges within the City violates the Second and
Fourteenth Amendments. Although Ezell also brings a challenge to that ban under the First Amendment, that is merely a different theory of relief; the claim remains, at base, a challenge to the limitation on shooting/training ranges within the City. As a result, Ezell challenges a prohibition at issue in this case, and the relatedness requirement of Local Rule 40.4(a) is therefore easily satisfied.

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I hope the Internet Archive updates with the full content of item 26 shortly (32 is already there), but just in case I'm attaching the City's motion item 26. It includes a reply from Ezell as well...in addition to the one in Doc 32 available on the Archive link provided above


Hmm....

I think the thing getting in the way of the relatedness claim is timing: the SAF asked for a TRO and is pushing to have the case heard and acted on prior to the law going into effect. That judge agreed.

Benson is not on the same timeline and a reassignment of the case would pretty much let the SAF go for another TRO based on the irreparable harm the law would cause while waiting on Benson to be heard.

I doubt Chicago wants to tangle with Gura again. I suspect the Benson judge is also viewed more favorably by Chicago than the Ezell judge, who made it somewhat clear she thinks Chicago has an uphill climb.

Gura pretty much ripped him in his response, Item 32 of the Benson Docket

It will be very interesting to see how the Judge in this case answers this one. Chicago is stalling and throwing procedural rules out there because they have nothing else. As Gura mentioned in his reply:

Defendants’ suggestion that they might have to respond to discovery twice is baseless. Plaintiffs believe discovery is a waste of time, since theirs is a narrow challenge on a question of law.

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Also, here is Gura's schedule from Doc 32:

(1) September 3, reply brief, Dearth v. Holder, D.C. Cir. No. 10-5062;
(2) September 7, status conference, White Plains, N.Y., Kachalsky v. Cacase, U.S.
Dist. Ct. S.D.N.Y. No. 10-CV-5413-CS;
(3) September 7, opposition to two motions to dismiss, Bateman v. Perdue, U.S. Dist.
Ct. E.D.N.C. No. 10-CV-265-H;
(4) September 9, Rosh Hashana holiday;
(5) September 10, opposition to a third motion to dismiss in Bateman (counsel is
seeking to have all three Bateman deadlines moved to September 10);
(6) September 10, cross-motion for summary judgment, Bateman;
(7) September 15, opposition to Defendants’ motion in this case;
(8) September 16, opening brief and joint appendix, Oberwetter v. Hilliard, D.C. Cir. No. 10-5078;
(9) September 16, Constitution Day CLE speaking engagement, Washington, D.C., presenting article for Cato Supreme Court Law Review;
(10) September 17, amicus brief, Schwarzenegger v. Entertainment Merchants Ass’n, U.S. Supreme Court No. 08-1448;
(11) September 18, Yom Kippur holiday;
(12) September 24-26, attendance and speaking event at client conference, San Francisco, Calif. Gura Decl.,

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Spending some time on his NY and NC cases and a swing over to San Fran on the 24th...

Damn. You are making for some heavy reading tonight. Thanks again.