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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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MOORE V MADIGAN DECISION (IL, 7th Circuit, Dec 2012)
Looks like I'm first with the news. Just check CA7 website and the decision is out!! On my phone but thought I should update.
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"Extremism in the defense of liberty is no vice, but let me remind you also that moderation in the persuit of justice is no virtue" -Barry Goldwater “Remember that a government big enough to give you everything you want is also big enough to take away everything you have.” -Gerald Ford ^ Last edited by Librarian; 12-12-2012 at 1:26 AM.. |
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Looks like a victory to me.
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Matthew D. Van Norman Dancing Giant Sales | Licensed Firearms Dealer | Rainier, WA |
#4
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Code:
Both Heller and McDonald do say that “the need for defense of self, family, and property is most acute” in the home, id. at 3036 (emphasis added); 554 U.S. at 628, but that doesn’t mean it is not acute outside the home. Heller repeatedly invokes a broader Second Amendment right than the right to have a gun in one’s home, as when it says that the amendment “guarantee[s] the individual right to possess and carry weapons in case of confrontation.” 554 U.S. at 592. Confrontations are not limited to the home. The Second Amendment states in its entirety that “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” (emphasis added). The right to “bear” as distinct from the right to “keep” arms is unlikely to refer to the home. To speak of “bearing” arms within one’s home would at all times have been an awkward usage. A right to bear arms thus implies a right to carry a loaded gun outside the home.
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#6
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Code:
Twenty-first century Illinois has no hostile Indians. But a Chicagoan is a good deal more likely to be attacked on a sidewalk in a rough neighborhood than in his apartment on the 35th floor of the Park Tower. A woman who is being stalked or has obtained a protective order against a violent ex-husband is more vulnerable to being attacked while walking to or from her home than when inside. She has a stronger self-defense claim to be allowed to carry a gun in public than the resident of a fancy apartment building (complete with doorman) has a claim to sleep with a loaded gun under her mattress. But Illinois wants to deny the former claim, while compelled by McDonald to honor the latter. That creates an arbitrary difference. To confine the right to be armed to the home is to divorce the Second Amendment from the right of self-defense described in Heller and McDonald. It is not a property right—a right to kill a houseguest who in a fit of aesthetic fury tries to slash your copy of Norman Rockwell’s painting Santa with Elves. That is not self-defense, and this case like Heller and McDonald is just about self-defense. A gun is a potential danger to more people if carried
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#7
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Oh woopsy bad. Pay no attention to my initial analysis that was based on reading a little a bit of the first and last few sentences. When I saw that they said they left the decision with illinois I thought all hope was lost.
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#9
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Code:
In any event the court in Kachalsky used the distinction between self-protection inside and outside the home mainly to suggest that a standard less demanding than “strict scrutiny” should govern the constitutionality of laws limiting the carrying of guns outside the home; 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.
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#10
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It looks like a smack down to me. They followed Heller and actually minded the portions about self-defense and noted that a right most acutely applying to the home doesn't mean it doesn't apply outside the home.
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#12
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DP.
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Do what all great men would do: Tuck your head between your legs and kiss your *** goodbye. -Jake71 There's lots of players on the team. Not everyone gets to play "Quarterback". -CEDaytonaRydr |
#13
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A win?! Against CHICAGO no less?!
There was probably a magic mushroom or two in that omelette I had for breakfast this morning! (PS: I'm joking, but seriously, I'm surprised).
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Do what all great men would do: Tuck your head between your legs and kiss your *** goodbye. -Jake71 There's lots of players on the team. Not everyone gets to play "Quarterback". -CEDaytonaRydr |
#14
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#16
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Clear win.
Illinois, unfortunately, is going to respond with an extremely restrictive may-issue law, and round-and-round it'll go. Seems like not enough of a split against Kachalsky or Masciandaro to force supreme court review. ETA: kalchasky/masciandaro summary is on page 17-19. Main holding P.20-21. Dissent starts on 21. I mostly skimmed before about 15, but it's basically heller-style historical analysis, as is the dissent. Last edited by mdimeo; 12-11-2012 at 8:46 AM.. |
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YES. A citable decision for all pending carry cases. And just in time for Christmas!
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www.christopherjhoffman.com The Second Amendment is the one right that is so fundamental that the inability to exercise it, should the need arise, would render all other rights null and void. Dead people have no rights. Magna est veritas et praevalebit |
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The Legally Ignorant want to know:
Does this mean strict scrutiny is up a creek without a paddle? For some reason I have this hierarchy stuck in my head: rational basis on the bottom, intermediate scrutiny in the middle, and strict on top. The quotes: Quote:
Quote:
Nonetheless, seems like a victory to me, and victory == Good Thing
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#19
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That is kind of what I read into it. It appears as if the court gave the state and incomplete and said go rewrite your law and if it isn't as restrictive will let you be like the State of New York and just deny permits except for those who can line the Senior LEO / Legislatures pockets...
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US Navy Retired 1987-2007 |
#20
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It may indeed be a split in that this court has ruled the right exists outside the home. A loss on appeal in one of the other circuits will be based on the only-in-the-home nonsense.
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Matthew D. Van Norman Dancing Giant Sales | Licensed Firearms Dealer | Rainier, WA |
#21
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Generally, the worse the law, the easier the win should be, which is why we had heller in DC and mcdonald in Chicago.
I don't think we've had circuit-level wins on less-than-complete bans yet. Pulling in the other direction is the fact that the worst laws tend to be in places with unfriendly judges, too. |
#22
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Courts generally take the easiest route to a decision. If it's obvious to the court that self defense applies outside the home and the state offered little to no justification for a law barring individuals from carrying outside the home, then the court doesn't even need scrutiny to laugh at the state and toss out the law.
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#23
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Oh, there's a split there. I just don't think it's glaring enough (yet) to force supreme court review if they don't feel like going there.
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#24
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That’s always possible, but those nine wise men and women probably don’t just want to watch things burn.
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Matthew D. Van Norman Dancing Giant Sales | Licensed Firearms Dealer | Rainier, WA |
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From my limited understanding, the court said, "you have a right to carry, but rather than going Vermont-carry right now, we'll give the Illinois legislature 180 days to come up with an orderly way to have shall-issue LTCs". Is that right?
If so that's a major victory for Chicago, which clearly needs it. It will lower crime on the streets and give Illinois Democratic senators a way to avoid going to prison for carrying guns. And a circuit split will be lovely.
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"Weakness is provocative." Senator Tom Cotton, president in 2024 Victoria "Tori" Rose Smith's life mattered. |
#27
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It certainly has shall issue language I there talking about how merely walking the streets hou have more reason for being ready in case of confrontation than you do in you home on the 37th floor.
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#28
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OK, it finally came up:
Quote:
Erik. |
#29
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Is this decision possible to be cited in California counties or is the scope limited to Illinois state? My initial impression was this could only be cited in Illinois... Huge victory tho and really shows the impact of the Heller decision!
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#33
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Sooo without jumping the gun, does this have bearing on the cases in the 9th? Also don't want to give up our game plan to the enemy.
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NRA Endowment Member SAF Defender's Club |
#35
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How does this work in practice... 180 day stay...
If one carries concealed in Il and gets busted by the cops, what are they going to charge them with? A law already declared unconstitutional? In effect doesn't this grant residents of Il Vermont style CCW until whatever new law is passed in 180 days? Not sure how you declare something unconstitutional and then prosecute someone under the statute? Thoughts? |
#36
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Last year, we were about 3 votes short of having a SUPERMAJORITY to pass a shall-issue carry law with full pre-emption of local laws. I think we can rally enough votes to defeat and watered-down may-issue law.
As to level of scrutiny, we may get a few hints here: Quote:
I think this may equate to Heller's level of scrutiny. Last edited by FrankW438; 12-11-2012 at 9:37 AM.. |
#37
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And I applaud the judges for finally having some judicial and intellectual integrity to give the Heller & McD the weight they deserve! Listen up CA......your time is coming! Do you see the handwriting on the wall yet?
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#39
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#40
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So this was another SAF/NRA joint case? (NRA-ILA?)
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