Illinois House passes shall-issue bill, 85-30

[Haides]

You need to stop talking before you convince us to move on to box four too early....

 

[JD-IAFF]

You need to stop talking before you convince us to move on to box four too early....

One of the downsides of being an attorney is that you often get stuck being the deliverer of bad news. I try to walk a fine line between being a realist and being a raincloud, but in the end I think it's more of a service to you guys to present as much of a realistic picture of the situation (with the caveat that while informed supposition, it remains supposition) as I can.

I don't like the state of affairs any more than the next guy, but pretending that it doesn't exist doesn't really serve anybody's best interest.

 

[swinokur]

I completely agree and appreciate your willingness to realistically inform us of what we might expect. Sugar coating anything this serious would be a disservice to us IMO.

Thanks for your expertise, as well as Esqappellate, Patrick, Krucam et al and other legal eagles here.

 

[kcbrown]

It's not an unequivocal right. Like pretty much every right, it can be limited and regulated. Scalia went out of his way to make that point in Heller as well.

You misunderstand my meaning.

If the Supreme Court's argument as regards a particular liberty is that the only recourse of the people in the face of destruction of the liberty (either directly, or through unbridled discretion of government actors, or through any other treatment that is unsuited to a right) is for them to elect different representatives, then that amounts to an argument that the liberty in question is not a right at all, for a right is something that can be exercised despite the wishes of the legislature or, indeed, of the people in aggregate.

The question becomes one of "to what extent"? We simply have a more constrictive view of the limits of that extent which the appellate circuits disagree with, and SCOTUS hasn't / won't (IMO) step in to upend that applecart.

This isn't merely a question of "to what extent". For a liberty to really be a right, it has to be treated a certain way by government. When the government doesn't treat it that way, it means either that the liberty in question isn't really a right in the first place, or that the government really is infringing on the right.

If the Supreme Court will not step in when the liberty in question is not being treated as a right, then it follows that it does not in practice regard the liberty in question as being a right in the first place.

I could end up being proven wrong about that one, and no one would be happier about it than I would, but I just don't see them getting involved. They've denied cert in too many post-Heller cases now for me, the unabashed realist, to accept that they're just biding their time.

Oh, I quite agree with you here that SCOTUS does not really regard bear in public as a right, and that is really my only point here. The way a liberty is treated and its status as a right cannot be disjoined, so for SCOTUS to allow the liberty to be treated as something other than a real right must mean that its real view of the liberty is that it's not a right in the first place.

 

[JD-IAFF]

You misunderstand my meaning.

If so, then my apologies. The bottom line is that no right is unequivocal. None. Period. Zippo. We regulate every enumerated right in the Constitution (even the 1st), and the 2A is no exception. SCOTUS has never held, with respect to any right, that it is unequivocal and can never be limited or constrained in any way, and frankly, I agree with that posture.

For example, an unconstrained 1A protects defamation, inciting a riot, etc. Any system of laws devolves at its basis to what degree of constraints may be imposed on the rights and freedoms of those subject to it in the interest of maintaining social order and public safety, among other considerations.

I fully agree that the courts have been more willing to accept constraints with regard to the 2A than I would be, but you can't subsequently take that to the logical conclusion that there can never, ever be constraints of any sort on the 2A. It's a question of to what degree the amendment may be constrained, not one of whether it can be constrained at all.

SCOTUS is never, ever going to sign off on the concept of an unconstrained, unequivocal 2A right. It's just never going to happen. Ever. Cold hard truth.

 

[swinokur]

Well, even with constraints, how can a completely arbitrary standard be applied even with legal restrictions? What hapened to equal protection?

 

[JD-IAFF]

Well, even with constraints, how can a completely arbitrary standard be applied even with legal restrictions? What hapened to equal protection?

And therein lies the rub that I have problems with. May issue, as constructed in Maryland anyway (I don't live in NY and can't speak to the situation there) is entirely arbitrary. It's capricious.

Not because there are no standards specified by the statutes for making the determination; there are. Because those standards are subject to subjective determination in practice and therefore vary in how they are applied from individual applicant to individual applicant.

I don't see a court taking the position that standards may never be employed, but I do see them eventually taking the position that employing those standards in an arbitrary way is problematic. One of the problems that we've had to date is that the plethora of suits that have been brought, at least to the extent that I have read them and therefore can formulate an opinion on them, is that they are bringing challenges in the context of the former. They aren't arguing "the way that the state is administering these statutes is problematic." They're arguing that "the state can't ever impose conditions on the carrying of weapons in public."

That's a hail mary position that even SCOTUS doesn't agree with, and that's why (IMO) they keep failing. They're bringing the wrong challenges.

 

[swinokur]

From SAF:

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[FONT=&quot]
SAF LAUDS ILLINOIS LAWMAKERS ON CCW [/FONT]​

[FONT=&quot]BILL FORCED BY LANDMARK LAWSUIT[/FONT]​

[FONT=&quot]

[/FONT]

[FONT=&quot] [/FONT][FONT=&quot]BELLEVUE, WA — The Second Amendment Foundation said Friday evening that adoption by Illinois lawmakers of the state Firearm Concealed Carry Act is a “good step” toward bringing the Prairie State in line with the rest of the nation, and that it “would not have happened without our federal lawsuit in Moore v. Madigan.”[/FONT]

[FONT=&quot]“It is a shame that this had to go right down to the wire,” said SAF founder and Executive Vice President Alan M. Gottlieb, “but the important thing is that Illinois citizens will now have a law that makes it possible for them to exercise their right to bear arms outside the home for personal protection. This is why we went to court in the first place; to secure for Illinois residents the same rights enjoyed by citizens in the other 49 states.”[/FONT]

[FONT=&quot]Under the new law, both residents and non-residents may apply for Illinois carry licenses. The new license will be valid for a period of five years. There are provisions that do allow law enforcement agencies to object to the issuance of a license, but there is also a mechanism by which those objections are reviewed by a Concealed Carry Licensing Review Board.[/FONT]

[FONT=&quot]The new law has a 16-hour training requirement for new license applications, and a three-hour refresher for license renewals. There are also prohibitions on carry into certain locations.[/FONT]

[FONT=&quot]“While this new law is not perfect,” he said, “it’s one giant step protecting the human right of self-defense.”[/FONT]

[FONT=&quot]“This Act will give Illinois citizens a great opportunity to demonstrate to reluctant lawmakers that concealed carry can work as it has been working in other states,” Gottlieb observed. “A bright new day is dawning for the good people of Illinois who have waited patiently for years to see this happen.”[/FONT]
​

[FONT=&quot]The Second Amendment Foundation (www.saf.org) is the nation’s oldest and largest tax-exempt education, research, publishing and legal action group focusing on the Constitutional right and heritage to privately own and possess firearms. Founded in 1974, The Foundation has grown to more than 650,000 members and supporters and conducts many programs designed to better inform the public about the consequences of gun control. [/FONT]

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[FONT=&quot]< Please e-mail, distribute, and circulate to friends and family >[/FONT]​

Copyright © 2013 Second Amendment Foundation, All Rights Reserved.​

[FONT=&quot]Second Amendment Foundation
James Madison Building
12500 N.E. Tenth Place
Bellevue, WA 98005[/FONT]

[FONT=&quot]Voice: 425-454-7012
Toll Free: 800-426-4302
FAX: 425-451-3959
email: InformationRequest@saf.org[/FONT]​

​

 

[aquaman]

Well, even with constraints, how can a completely arbitrary standard be applied even with legal restrictions? What hapened to equal protection?

There is none. The people who make the laws/policy live in a bubble and there two sets of rules. One for them and one for us, I'll give you an example. Timothy Geithner, read below. He cheated, gets caught blames turbo tax, gets off. Regular Joe does the same thing, uses the same defense but he is in trouble.
http://taxprof.typepad.com/taxprof_blog/2009/08/tax-court-rejects.html

 

[danb]

If so, then my apologies. The bottom line is that no right is unequivocal. None. Period. Zippo. We regulate every enumerated right in the Constitution (even the 1st), and the 2A is no exception. SCOTUS has never held, with respect to any right, that it is unequivocal and can never be limited or constrained in any way, and frankly, I agree with that posture.

For example, an unconstrained 1A protects defamation, inciting a riot, etc. Any system of laws devolves at its basis to what degree of constraints may be imposed on the rights and freedoms of those subject to it in the interest of maintaining social order and public safety, among other considerations.

I fully agree that the courts have been more willing to accept constraints with regard to the 2A than I would be, but you can't subsequently take that to the logical conclusion that there can never, ever be constraints of any sort on the 2A. It's a question of to what degree the amendment may be constrained, not one of whether it can be constrained at all.

SCOTUS is never, ever going to sign off on the concept of an unconstrained, unequivocal 2A right. It's just never going to happen. Ever. Cold hard truth.

No right is unequivocal; On the other hand the right itself needs no further justification. Seems conceivable to me they could thread the needle by just striking G&S and leave the rest.

 

[fightinbluhen51]

^doing so would effectively create an objective criteria and equal portection.

 

[JD-IAFF]

No right is unequivocal; On the other hand the right itself needs no further justification. Seems conceivable to me they could thread the needle by just striking G&S and leave the rest.

The problem I see with that is that there is no inherent right, in the view of the courts, to carry concealed. The laws of this country going back to the early 1800s have a long history, with which the courts have agreed, of constraining the concealed carrying of weapons. SCOTUS agrees with that conclusion, and Scalia said as much in Heller.

The problem comes into play with regard to the assertion which is being made by the suits, namely "the 2A right extends outside the home, so we have an equal right to carry openly or concealed as we choose to exercise it." The courts are never going to buy the concept that open carry and concealed carry are equivalent from the standpoint of public safety. They just aren't going to do it.

It's still, as I see it anyway, a case of making overly broad arguments. Consider:

Under the regulations issued by the MSP covering cause for loss of permit, Maryland effectively bans open carry across the board. What is in theory a permit to carry openly or concealed becomes instead a permit to only carry concealed.

So why not a case challenging Maryland law by asserting open carry as a right? It's far easier to win, and the threat of people walking around willy-nilly openly carrying will scare Annapolis to death. It gives you leverage to get the statutes changed by presenting the threat of an alternative that they hate much, much, much more.

 

[Haides]

Or maybe all rights are unequivocal and people these days are just too scared of freedom to admit it.

 

[RightNYer]

Of course no right is unequivocal

But if the courts grant unlimited discretion to the legislatures, it's not a right at all. A right has to contain some inherent restraints on the government, not subject to popular whims. The 2nd Amendment jurisprudence post Heller and McDonald is that the courts will generally not disturb any gun laws, no matter how silly or irrational. That isn't a "right."

 

[JD-IAFF]

But if the courts grant unlimited discretion to the legislatures, it's not a right at all. A right has to contain some inherent restraints on the government, not subject to popular whims. The 2nd Amendment jurisprudence post Heller and McDonald is that the courts will generally not disturb any gun laws, no matter how silly or irrational. That isn't a "right."

It does. You can't implement statutes which constitute a total ban on the ability to exercise a right. Illinois learned that lesson recently. Beyond that, the line is drawn where the courts say that it is drawn.

The trick is to construct the arguments such that the courts are put into a box between a set of alternatives that they universally dislike. You don't give them the option of saying no by presenting absolutist all-or-nothing arguments. You deprive them of that option by presenting narrow arguments that put them into a box.

 

[RightNYer]

It does. You can't implement statutes which constitute a total ban on the ability to exercise a right. Illinois learned that lesson recently. Beyond that, the line is drawn where the courts say that it is drawn.

The trick is to construct the arguments such that the courts are put into a box between a set of alternatives that they universally dislike. You don't give them the option of saying no by presenting absolutist all-or-nothing arguments. You deprive them of that option by presenting narrow arguments that put them into a box.

Okay, so let's assume the Supreme Court adopts the reasoning in both Moore and Kachalsky. What they'd basically be saying is that, "Yes, it's a right, but the government gets to decide to what extent it applies." NY and MD require a threat beyond that borne by a member of the general public. What if the law said that you only get to carry legally if you face the imminent threat of death every minute of the day you are outside? Even fewer people would qualify under that standard, but under the slightly heightened rational basis scrutiny adopted by Kachalsky and Woolard, even that would pass muster.

No other enumerated Constitutional right has been read out of the Constitution by the courts to the degree that the Second has. I'd personally rather just declare the judiciary illegitimate and hope for a full scale Constitutional crisis. Let the federal government try to enforce gun laws in a state and have that state's police SWAT/militia units fight back.

 

[kcbrown]

It does. You can't implement statutes which constitute a total ban on the ability to exercise a right. Illinois learned that lesson recently. Beyond that, the line is drawn where the courts say that it is drawn.

Which is fine if the courts treat the right as a real right, and not as some privilege to be granted or taken away at the government's whim. To date, all the courts save for the 7th Circuit and the Judge Legg's district court in Maryland have been doing the latter.

The trick is to construct the arguments such that the courts are put into a box between a set of alternatives that they universally dislike. You don't give them the option of saying no by presenting absolutist all-or-nothing arguments. You deprive them of that option by presenting narrow arguments that put them into a box.

There is no such thing. The courts have the power (whether Constitutional or not) to rule as they please. They are under no real constraints to do anything. You can present the most logical, airtight argument ever seen by man and they can still say "no" to it. And courts are very, very skilled at crafting lofty-sounding prose to support their unfounded stances.

So while it might be nice to believe that you can construct an argument that places the judiciary in a box, the reality is that you can't, precisely because the judiciary is not actually constrained by anything.

 

[05FLHT]

Madigan Seeks Delay on Concealed Carry Mandate

Pardon the interruption.

Link

The roller coaster ride continues...

 

[CrueChief]

 

[fjm0008]

What are her chances on getting this? We screwed around for 170 days and now we need more time? Ridiculous.