SAF files Suit in Illinois over Right to Carry

[Kharn]

I'd gladly take a day off from work to get a while-I-wait permit.

 

[GTOGUNNER]

Williams flips this on it's head. The state will presumptively be wrong, by virtue of the fact they cannot prosecute. It will be their job to create a system that meets the constitution, and they are the ones who will need to prove it works. And because we have a ruling that says a permit denied is a permit unneeded, we are open to argue in a direct way that the 90 days between application and acquisition is 90 days of denial, in fact. Williams could eventually result in an insta-check system for permits.

Given the choice, I think Maryland would much rather face the civil medicine than the criminal medicine. The criminal case removes actual enforcement from their hands until they do the right thing. The civil cases leaves enforcement intact and forces us to challenge the criminality of our carry.

Or something like that.

So if SCOTUS rules for Williams, I can carry the next day? At least until they fix the permit process?
I'm game!

 

[Patrick]

So if SCOTUS rules for Williams, I can carry the next day? At least until they fix the permit process?
I'm game!

I would not suggest it, because they will still arrest you and you will still need to fight in court. But someone will - or more accurately - some who has already been busted will use it as a defense.

Maryland could go shall-issue in a day - no legislative action required. The Governor could, by fiat, tell the MSP to consider "self defense" to be good and substantial cause.

My suggestion is that given the choice between maintaining a unconstitutional and unenforceable system, Maryland would move to institute a constitutional and enforceable system. And they would need to do this really fast. Something Williams is unlikely to answer directly, but will address in some regard, is the time it takes to issue a permit. States cannot just ration the right in practical terms by denying it for months while they evaluate your application to exercise a right.

 

[krucam]

I would not suggest it, because they will still arrest you and you will still need to fight in court. But someone will - or more accurately - some who has already been busted will use it as a defense.

Maryland could go shall-issue in a day - no legislative action required. The Governor could, by fiat, tell the MSP to consider "self defense" to be good and substantial cause.

My suggestion is that given the choice between maintaining a unconstitutional and unenforceable system, Maryland would move to institute a constitutional and enforceable system. And they would need to do this really fast. Something Williams is unlikely to answer directly, but will address in some regard, is the time it takes to issue a permit. States cannot just ration the right in practical terms by denying it for months while they evaluate your application to exercise a right.

Justice delayed is justice denied...it won't stand.

 

[ezliving]

Interview with Michael Moore

http://illinoishomepage.net/fulltext/?nxd_id=277077

 

[krucam]

The judge is expected to rule next week.

Maybe a little optimistic, but aren't PI's and TRO's wonderful tools when you can use them?....

 

[annihilation-time]

Interview with Michael Moore

http://illinoishomepage.net/fulltext/?nxd_id=277077

I like this Michael Moore better.

 

[Patrick]

Maybe a little optimistic, but aren't PI's and TRO's wonderful tools when you can use them?....

The seventh is now called the "rocket docket" by many. They could conceivably make it through the circuit in time for the next supreme court term. Thank Gura and Ezell.

 

[press1280]

The seventh is now called the "rocket docket" by many. They could conceivably make it through the circuit in time for the next supreme court term. Thank Gura and Ezell.

This would absolutely be the best scenario-Moore going to SCOTUS, Williams/Masciandaro getting GVR'd. Let's actually hope for quick losses here. You know if we win that IL will pull any delay tactics possible to avoid this getting to SCOTUS this year, including trying to go the slow route through an en banc 7th circuit just to buy a little more time.

 

[press1280]

Respectfully, I disagree.

The two cases up for cert consideration directly attack the constitutionality of criminal convictions. That means success there invalidates all enforcement of the laws in question. In the case of Williams, that means the state would be unable to prosecute any lawful person carrying a firearm in public so long as the state stays in the business of denying or delaying permits. That would be immediate, and also stretch back in time to those formerly convicted of the same.

Contrast that with a civil victory that rules G&S unconstitutional. Still left hanging in the air are questions over permits, restrictions and the like. It leaves the door open to long delays, expensive permits and plenty of games. We would need to again sue to get these fixed. In the meantime, people can be arrested for carrying in public.


Williams would remove the criminality for carry in Maryland. Unlike the civil cases - where we would need to wait for Maryland to create a permit system and process the paperwork - Williams would force shall issue in moments, because the state would have no power to prosecute until they 'fixed' their system to meet constitutional muster.

The outcome of both styles of case are the same. The differences are in the application or the rulings and the onus afterwards. In the civil cases, it will be our job to force Maryland into a system that meets the constitution, and the door is open to interpretation because there has been no ruling in those cases on what happens if a permit is delayed or denied.

Williams flips this on it's head. The state will presumptively be wrong, by virtue of the fact they cannot prosecute. It will be their job to create a system that meets the constitution, and they are the ones who will need to prove it works. And because we have a ruling that says a permit denied is a permit unneeded, we are open to argue in a direct way that the 90 days between application and acquisition is 90 days of denial, in fact. Williams could eventually result in an insta-check system for permits.

Given the choice, I think Maryland would much rather face the civil medicine than the criminal medicine. The criminal case removes actual enforcement from their hands until they do the right thing. The civil cases leaves enforcement intact and forces us to challenge the criminality of our carry.

Or something like that.

But shouldn't Moore also address (maybe indirectly) that the state can't turn around and decide to issue permits with a 1 year wait? Moore will have to go through the 7th, so won't Ezell's "irreperable harm" have to be noted in a SCOTUS decision? I'm wanting Moore because it was groomed from the beginning, has a lower standard to meet, while Williams/Masciandaro have some holes.
Possibility on 3 2A cases in the term?????

 

[Patrick]

Moore is certainly better (I am first in on use of that bad pun, yes?)

Your point on Moore and Ezell are good ones. Woollard would not yet address delays and harm. Moore could directly count on the Seventh Circuit's irreparable harm standard to say a delay is a denial. It does leave open arguments over the difference between regulation and restriction, but the 7th appeared to think ahead on a number of those.

Could Chicago ask for appeal or en banc? They could, but every action they have recently taken suggests they would not. It would continue the case and end debate over whether everything is "moot" enough for them to avoid paying fees to Gura. Again.

And the Ezell decision was a concurrence in outcome, if not framework. It would be hard to get a panel of judges in the circuit to review a case with no dissent even when one of the judges was clearly anti-2A.

I think Ezell stays law of the 7th. And to the extent it is used to support cases at Scotus, it will be extended nationwide. All it takes is the supreme court to properly reference a petioner's citation of Ezell to make irreparable harm our new friend.

 

[press1280]

Moore is certainly better (I am first in on use of that bad pun, yes?)

Your point on Moore and Ezell are good ones. Woollard would not yet address delays and harm. Moore could directly count on the Seventh Circuit's irreparable harm standard to say a delay is a denial. It does leave open arguments over the difference between regulation and restriction, but the 7th appeared to think ahead on a number of those.

Could Chicago ask for appeal or en banc? They could, but every action they have recently taken suggests they would not. It would continue the case and end debate over whether everything is "moot" enough for them to avoid paying fees to Gura. Again.

And the Ezell decision was a concurrence in outcome, if not framework. It would be hard to get a panel of judges in the circuit to review a case with no dissent even when one of the judges was clearly anti-2A.

I think Ezell stays law of the 7th. And to the extent it is used to support cases at Scotus, it will be extended nationwide. All it takes is the supreme court to properly reference a petioner's citation of Ezell to make irreparable harm our new friend.

I'm hoping they do appeal. I want this brought nationwide, not just in the 7th Ciruit. Please IL, stay stubborn just a little longer!

 

[Kharn]

Something Williams is unlikely to answer directly, but will address in some regard, is the time it takes to issue a permit. States cannot just ration the right in practical terms by denying it for months while they evaluate your application to exercise a right.

MD has already shot themselves in the foot with that one:
Special Order 29-01-003: (caps and underlining per the original)

For police officers who are MPTC certified and are in good standing with their department(s), a background investigation will be conducted by a member of the Handgun Permit Unit, which shall include a check of the Federal Bureau of Investigation (FBI), the Criminal Justice Information System (CJIS), and the District and Circuit Court System databases. If there is no indication that the applicant is prohibited based on the background investigation, a handgun permit will be issued as APPROVED PENDING, either immediately at the Licensing Division, or within 48 hours of receipt of the application. The investigation packet, if required, will be forwarded for investigation. If field investigation is not necessary or required, the fingerprint cards will be forwarded to the appropriate agencies for review. Upon receipt of the results, the STATUS of the application will be appropriately updated, i.e., APPROVED, REVOKED, etc.

So, MD already states they have a procedure in place for temporary permits while-you-wait, it is currently restricted to police officers (current, retiring or retired within the last 60 days), death threats, "When the issuance of the permit would be in the best interest of public safety" or "Any other circumstance deemed appropriate by the Commander or Assistant, (or their designee), of the Licensing Division."

The day after Williams, I bet it would be a laugh a minute showing up at the Licensing Division office with Gura in tow and requesting a temporary carry permit.

 

[teratos]

The day after Williams, I bet it would be a laugh a minute showing up at the Licensing Division office with Gura in tow and requesting a temporary carry permit.

I'd bring a lunch for that one.

 

[krucam]

Nothing regarding the 8/4/2011 Preliminary Injunction Hearing, but we do have a Plaintiff Brief in Opposition to Defendants' Motion to Dismiss that was filed today.

I'm really beginning to enjoy Mr Jensen's...umm, briefs. He thoroughly dismissed the Brady's Amicus and "in the Home" nonsense on 8/3.

Today, he reiterates the "in the Home" argument, along with:

I. INTRODUCTION
II. PERTINENT HISTORICAL AUTHORITIES RECOGNIZE THE RIGHT TO CARRY FIREARMS FOR PROTECTION
III. THE SUPREME COURT DID NOT CONFINE THE RIGHT TO KEEP AND BEAR ARMS TO THE HOME
IV. THE ISSUE IS PRECLUSION, NOT REGULATION, AND INTERMEDIATE SCRUTINY DOES NOT APPLY
V. THE BALANCE OF EQUITIES AND PROPER REGULATION
VI. CONCLUSION

I. Introduction

If the right to bear arms exists outside the home, then the State’s motion fails. If the right is homebound, then Plaintiffs are not entitled to relief. Everything turns on this one question.

With that said, all we need is to get the Judge to buy off on the right existing outside the home.

II. Historical Record...
Dismantle the weak Defendant historical arguments that they misquoted (Ezell). This makes it too easy. He continues on with 5 pages of historic state cases and laws. In particular the 1868 Public Understanding of the Right.

III. In the Home...
Spends very little time on this, referring the Court to the Amicus

IV. Preclusion...
Had to skim.

V. Conclusion...

This Court will (apparently) be the first court to rule on the constitutionality of a law that broadly prohibits the carry of firearms in public – as applied to the law-abiding citizens who lie at the heart of the Second Amendment’s protections – since the Supreme Court handed down its
seminal decision in Heller. Apparently recognizing this, the State attempts to confuse the issue by inviting the Court to revisit Heller’s core conclusions, by analogizing the State’s carry ban to restrictions on the concealment of firearms, and by mis-characterizing the showing needed to invalidate a statute. But these are all red herrings.

 

[Srsanbo]

I liked reading that...alot.

 

[Al Norris]

There is much to say about David Jensen's writing. I'm really liking his "let slip the dogs of war" style.

The first paragraph:

If the right to bear arms exists outside the home, then the State’s motion fails. If the right is homebound, then Plaintiffs are not entitled to relief. Everything turns on this one question.

The concluding paragraph:

The only real question is whether the right to possess and carry weapons for confrontation applies outside the home. Plaintiffs submit that after Heller, the answer to this question is “written on the wall.” A law that prohibits conduct that the Constitution affirmatively protects is (by definition) unconstitutional.

David started off (Muller v Maenza) using much of Alan Gura's style of writing. This has evolved into his own "no holds barred" style. I'm liking it a lot.

 

[Patrick]

I agree with you gentlemen. I like the way Mr. Jensen has focused the question to issue, rather than let Illinois diffuse the argument. This brief says quite plainly that if the right to bear arms is indeed limited to the home, the state wins. Period. But if the right is truly not limited, then the state has no chance to prevail.

That stark constrast and simple 'black and white' juxtaposition frames the case succinctly. Nothing is ever so clear, but the original complaint was carefully crafted to get close and this brief reinforces the same.

I also note that the brief identifies this case (and this judge) to be the apparent winner in the "first to rule on the first impression" sweepstakes. I don't know that I would agree in entirety, but I do think the case is a unique one and ahead of others that have asked this question.

Overall, I think the prohibitionists are probably missing the days of old-style NRA lawsuits that were easier to defend through distraction. Gura, Jensen, Kilmer, (hopefully) Levy...and several others all tear the issue down by using a narrow laser to excise the cancer one growth at a time. But even the NRA is learning. As slow as the behemoth may be, it is shifting strategy. If I were Illinois, I would not feel good about the NRA's parallel action in this cause.

 

[05FLHT]

It seems the State of Illinois offered a slight misrepresentation of the full effect of the UUW/Ag UUW statutes in their response to SAF's Motion for a PI. The State now admits there is no exemption for carrying a loaded and accessible firearm in unincorporated areas (in other words, a complete prohibition of the right).


Motion to Clarify-
https://docs.google.com/viewer?a=v&...YTM3ZS00YmM0LWFjNjAtNTlhNjAwMGM4Nzhk&hl=en_US
Response to Motion to Clarify-
https://docs.google.com/viewer?a=v&...OTE1Yi00MmRiLTlmNGEtOGU5N2NhZGExYTc2&hl=en_US

 

[krucam]

It seems the State of Illinois offered a slight misrepresentation of the full effect of the UUW/Ag UUW statutes in their response to SAF's Motion for a PI. The State now admits there is no exemption for carrying a loaded and accessible firearm in unincorporated areas (in other words, a complete prohibition of the right).


Motion to Clarify-
https://docs.google.com/viewer?a=v&...YTM3ZS00YmM0LWFjNjAtNTlhNjAwMGM4Nzhk&hl=en_US
Response to Motion to Clarify-
https://docs.google.com/viewer?a=v&...OTE1Yi00MmRiLTlmNGEtOGU5N2NhZGExYTc2&hl=en_US

They've been Recapped as well: http://ia600603.us.archive.org/14/items/gov.uscourts.ilcd.52015/gov.uscourts.ilcd.52015.docket.html

And for those of us not from Illinois....

* UUW = Unlawful Use of Weapon
* AgUUW = Aggravated Unlawful Use of Weapon

So there was an honest slip on terminoligies by the Defendants in their objection to the PI.

That 'slip' serves as a reminder to the Judge, just in case she wasn't sure, that Defendants do indeed prohibit carrying anything outside of long guns for hunting.

As long as the Judge isn't a Fudd (indications are she owns a handgun) this latest exchange settles nothing and changes even less in the proceedings thus far.