MOORE V MADIGAN DECISION (IL, 7th Circuit, Dec 2012)

[Paladin]

Originally Posted by FastFinger

It might have to do with the fact that Posner and Flaum were appointed by Reagan. Williams was appointed by Clinton.

Our votes matter.

True, and unlike some here enamored with law and legal reasoning, politics matter even in judge's chambers....

IL needs to use the "carry cliff" to bargain to get the NRA's Model Castle Doctrine law which includes, among other things, "stand your ground" and bars the BG and/or his survivors from suing the LTC/CCWer if there is no criminal conviction for the shooting.

[The Shadow]

Originally Posted by fizux

I would swap 5 with 6, and add #8: D.C. (albeit not a state).

The thing is, Congress has the last say on laws in D.C.. In reality, D.C. is just a city, and not a state.

[Mulay El Raisuli]

Originally Posted by Untamed1972

Because perhaps without the legislated protection of a CCW there would be things like a rash of "disturbing the peace" arrests by Chicago PD as retribution. Just a thought. Do you really trust them to respect the right when it's now just in a completely undefined, nebulous state?

"Trust" them? Not even a little bit. But, I see this as opportunity for lots & lots of civil suits.

Originally Posted by FastFinger

It might have to do with the fact that Posner and Flaum were appointed by Reagan. Williams was appointed by Clinton.

Our votes matter.

QFT.

Originally Posted by Kid Stanislaus

The state (IL) waits the entire 180 days and then appeals. They'll drag their feet and invent a barrage of delaying tactics until BHO appoints his next closet Marxist to the SCOTUS and its game over.

With Rahm making the decision, absolutely. Still, the Ruling DOES have value. While not binding anywhere, it IS persuasive. And can be quoted in the Supplemental Briefings that I'm sure are being written as we speak, & to SCOTUS in re the other carry cases even if it it does get delayed.

Originally Posted by dave_cg

This is politics. Everybody in the Il legislature has their own little chess game going, and guns are only one little piece of that. To the legislators, this ruling is a big pile of trading stock, and they are working up their letters to Santa right now.

What I'm saying is a legislator is going to get more of what *he* wants by horsetrading a little while assembling a bill.

IF (and it is a BIG "if") Rahm doesn't appeal, there will be some "horse trading."

Originally Posted by Luieburger

No gunnie wants less than that, but Chicago will likely make their own carry laws if they aren't preempted by the state. Chicago could end up being almost may-issue, and a big chunk of the Illinois population is in Chicago. Illinois could have passed shall-issue long ago if they didn't care about Chicago.

Gene covered this pretty well. I'll just add that I'm not seeing just how Chicago could exempt itself from a Ruling that started out applying specifically to them.


Presuming that nothing gets done & Cont. Carry (for FOID card holders) becomes the law of the land, aren't FOID cards basically "shall-issue"?


The Raisuli

[The Shadow]

Originally Posted by Python2

How about Hawaii?

I forgot Hawaii which isn't difficult. However, I think that Hawaii will get "Shall Issue" before California.

[Mulay El Raisuli]

Originally Posted by Paladin

True, and unlike some here enamored with law and legal reasoning, politics matter even in judge's chambers....

IL needs to use the "carry cliff" to bargain to get the NRA's Model Castle Doctrine law which includes, among other things, "stand your ground" and bars the BG and/or his survivors from suing the LTC/CCWer if there is no criminal conviction for the shooting.

And this is all a pretty good reason for Ill. gunnies to NOT sit on their duffs. Const. Carry is nice, but clearing away all the rest of the crap is a solid goal.


The Raisuli

[M. D. Van Norman]

Originally Posted by Regulus

The map was symbolic.…

Point taken.

I wish that the prohibitionists would just recognize defeat and come to the table. Working together, we could wrap up some reasonable legislation in a matter of weeks and be done with all this nonsense.

[dave_cg]

Originally Posted by kcbrown

I have adjusted my overall outlook accordingly.

PorkAir flight 101, cleared for take-off.

[FastFinger]

Originally Posted by M. D. Van Norman

Point taken.

I wish that the prohibitionists would just recognize defeat and come to the table. Working together, we could wrap up some reasonable legislation in a matter of weeks and be done with all this nonsense.

"Reasonable" by OUR definition.

[M. D. Van Norman]

Exactly. If the prohibitionists were actually interested in reasonable gun-control laws, we could have them.

[Untamed1972]

Originally Posted by hoffmang

Or the three judges on the panel in Ezell. Wait, isn't that 5 of 10 active justices on the 7th Circuit?

Math, like Science - it works b--ches.

-Gene

[Untamed1972]

Originally Posted by Mulay El Raisuli

"Trust" them? Not even a little bit. But, I see this as opportunity for lots & lots of civil suits.

Or alot of citizens dead at the hands of itchy CPD trigger fingers.

[sholling]

Originally Posted by 1JimMarch

Here's how it will go...gunnies to grabbers:

"You guys want at least training in place before 180 days are up? Fine. Please us! We want no more FOID. We want Chicago permanently out of the gun control biz (strong preemption). We want unlimited cutlery carry to go with our CCWs. We want full reciprocity with anything that even smells like another CCW permit. We want lock-boxes for our boomthings at any of the few places we'll let you disarm us. We want you all to do the Funky Chicken Dance in Daley Plaza. You think we're kidding? You're going to have to give us a LOT before we'll concede to training requirements and costs over $10. Because all we have to do is sit here, twiddle our thumbs and fart in your general direction and in 180 days we get constitutional carry and one hell of a party in downtown Chi-town baby. Leave your gangbanger friends behind if you know what's good for 'em."

THAT is where we're at here.

That is the best possible scenario and I really hope you're right.

Originally Posted by Al Norris

Not going to happen.

IL has 90 days to appeal to SCOTUS. IIRC, they have 14 days to motion for an en banc hearing. The clock is running.

If they are going to stall, they will make the en banc motion, shortly. Since this is a matter of striking a State law (a serious matter, for the courts), I suspect they will be granted that motion.

Should the CA7 take up the case en banc, the panel's decision will be removed. I'm assuming that a new briefing schedule will be issued... That will take up another 6 months or so. Then we will wait for a decision from the CA7. Could be another year from now.

Then, should this decision affirm the panels original decision, IL could stall further by appealing to the SCOTUS. That's another year to year and a half wait... June of 2015.

All during this time, the Law will remain in effect, as a stay will be granted at each and every step of the way.

I have no doubt that this is how it will play out unless SCOTUS takes a case before then. In other words carry in Chicago is likely to be a minimum of 2-1/2 years away - assuming good health for the Heller 5. What's sort of scary is that the case is so perfect that SCOTUS may elect to reject any of the appeals currently working the system while they watch how this one plays out.

Of course the legislature could moot the need for an appeal by passing Jim's proposal before the state files for en banc but that would require lightening fast movement.

[LYU370]

Originally Posted by Paladin

True, and unlike some here enamored with law and legal reasoning, politics matter even in judge's chambers....

IL needs to use the "carry cliff" to bargain to get the NRA's Model Castle Doctrine law which includes, among other things, "stand your ground" and bars the BG and/or his survivors from suing the LTC/CCWer if there is no criminal conviction for the shooting.

Actually, Illinois already has one of the better justifiable use of force laws on the books:

Sec. 7-1. Use of force in defense of person.
(a) A person is justified in the use of force against another when and to the extent that he reasonably believes that such conduct is necessary to defend himself or another against such other's imminent use of unlawful force. However, he is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another, or the commission of a forcible felony.
(b) In no case shall any act involving the use of force justified under this Section give rise to any claim or liability brought by or on behalf of any person acting within the definition of "aggressor" set forth in Section 7-4 of this Article, or the estate, spouse, or other family member of such a person, against the person or estate of the person using such justified force, unless the use of force involves willful or wanton misconduct.

[OleCuss]

A surprising amount of pessimism? After all, I'm not sure that CA-7 actually has to grant the en banc? Given that the opinion is so strong and there appear to be about 1/2 the full panel already likely to agree with the current opinion - not so sure there will be an en banc request or that it will be granted if it is requested.

Not so sure they really want to appeal this to SCOTUS. . . After all, if you are an anti-liberty type, do you really, really want to have SCOTUS directly affirm the language that is in Moore? Sheesh, all SCOTUS would have to do is to take a quick peek at Moore, say "affirmed" and a huge amount of their battle is lost.

If you are anti-liberty I'm really not sure you want to have this go en banc and have an even more influential affirmation by the full court - and/or have SCOTUS affirm the ruling.

And to complicate things? Gura is already filing supplemental authorities using Moore, so even if you go en banc, Moore is still going to bedevil you in Kachalsky and such should it/they get cert.

I don't think the anti-liberty types should be wanting to ask for en banc or for cert. But I kinda hope that they do. . .

[RKV]

What I was pointing out was that while Ezell won, months have gone by and there are still no public gun ranges in Chicago. And yes these things take time, but nothing has actually improved since the win.

[FastFinger]

en banc?

Banc on this:

[OleCuss]

Originally Posted by FastFinger

en banc?

Banc on this:

LOL!!!

Right on the mark. I don't think they're going to ask for en banc and I could only wish that they would petition for cert!

[kcbrown]

Originally Posted by Apocalypsenerd

Normally I'm a realist as well. I value your input because you're a realist and know a lot more than I do. When I read something like this, I just wait for the other shoe to drop. My guess would be an En Banc hearing that delays this out another couple of years. However, with the optimism being generated by just about everyone including you, I think my skepticism may be unwarranted.

En banc is the only real danger I perceive, but it's quite unclear to me how much of a strategic impact there would be if Moore went en banc. The opinion would be depublished and the current law allowed to stand, but I don't know what other effects that would have strategically.

While going en banc would depublish the opinion, that doesn't erase the fact that the opinion was issued. That alone may have strategic value. Those who are "in the know" will have a better idea of what the real impact of this going en banc would be.

I hadn't considered all the consequences of this going en banc, however, and see it as the most likely possibility because it does the most damage.

Bottom line: now I have to adjust my outlook downwards appropriately, but it's still up relative to what it was before the decision.

[kcbrown]

Originally Posted by FastFinger

en banc?

Banc on this:

Nice. But Rovner is an unknown quantity, methinks. While she concurred in Ezell, it was quite clear she was throwing softballs at Chicago. I expect we should presume her to be against the Moore decision.


Here's the question you should be asking: which of the options presents the greatest chance of successfully delaying the right in Illinois? A cert petition to SCOTUS? Probably not. Letting the clock run out? Definitely not. Compromising under "duress" during the 180 day window? Certainly not. Of all the options, an en banc petition is the most likely, however unlikely it may be, to yield the greatest delay. The question is whether or not an en banc request would foreclose the option of a cert petition. If it wouldn't, then en banc is quite clearly what they'll do because there is no downside to it -- the worst that can happen from our opposition's perspective is that it'll be denied.

[bruss01]

Originally Posted by 1JimMarch

Here's how it will go...gunnies to grabbers:

"You guys want at least training in place before 180 days are up? Fine. Please us! We want no more FOID. We want Chicago permanently out of the gun control biz (strong preemption). We want unlimited cutlery carry to go with our CCWs. We want full reciprocity with anything that even smells like another CCW permit. We want lock-boxes for our boomthings at any of the few places we'll let you disarm us. We want you all to do the Funky Chicken Dance in Daley Plaza. You think we're kidding? You're going to have to give us a LOT before we'll concede to training requirements and costs over $10. Because all we have to do is sit here, twiddle our thumbs and fart in your general direction and in 180 days we get constitutional carry and one hell of a party in downtown Chi-town baby. Leave your gangbanger friends behind if you know what's good for 'em."

THAT is where we're at here.

Sounds like what's going to happen is already decided. The only question is whether they get it with or without lube. Kicking a fuss seems like it would be cutting their nose off to spite their face. If that's the case they'll let it quietly slide into law and then just blame the courts, the NRA, etc etc like always. Frankly I think it may be more complicated than this because politicians have long memories and will turn around and stick it to the pro-gunnies the next time they have the pro-guns over a barrel. Well, it seems like there's been plenty of that water under the bridge already so maybe this is just payback being the beotch she is known to be.

[Claybone]

Originally Posted by FrankW438

I don't think so. The Unlawful Use of Weapons statute still stands. If the state doesn't amend the law to allow for lawful Right-To-Carry,then it will be unconstitutional.

The picture i have in my head and I think it is similar to the question you answered is what charge will you be booked on if the courts are giving 180 to come up with a new law? So is the 180 days a freeze (still in effect) of the old law untill the new one is put into effect? If that is so it would be an illegal arrest beacuse the current law is reconized as flawed and should not be upheld.

Am I seeing the cup half full or half empty/

[OleCuss]

Unfortunately, although the law has been struck down, it is still in effect for the next six months and they can prosecute you under that same old unconstitutional law.

Not sure what would happen, however, if you were actually convicted under the law and appealed that conviction? It might be that you could get your conviction overturned since the law has been found to be unconstitutional? I just don't know.

[kcbrown]

Originally Posted by OleCuss

Unfortunately, although the law has been struck down, it is still in effect for the next six months and they can prosecute you under that same old unconstitutional law.

Not sure what would happen, however, if you were actually convicted under the law and appealed that conviction? It might be that you could get your conviction overturned since the law has been found to be unconstitutional? I just don't know.

Marbury v Madison controls here.

Originally Posted by Marbury v Madison

Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument.

For someone to be prosecutable under a law which has been declared Unconstitutional would render Marbury v Madison itself null and void, and would place the Constitution itself in a role subservient not only to law which is Unconstitutional but has not been determined to be such by the judiciary, but also to law which has been declared Unconstitutional by the judiciary. It would mean the end of the power of judicial review.

On that basis, the 7th Circuit erred in giving the legislature time to craft new legislation, for in doing so it gives validity to a law which is null and void under the Constitution. That, in fact, is Unconstitutional in and of itself.

The Constitutionality of a law, or lack thereof, is a fixed property of that law, and changes only as the Constitution itself changes. Absent changes to the Constitution itself, a given law either has always been Constitutional since its inception, or it has always been Unconstitutional since its inception. It is not a valid power of the judiciary to declare that a law which is repugnant to the Constitution is, nonetheless, valid, even if only for a limited period of time. For the court to do so is for the court to directly contradict Marbury v Madison.

[gunsmith]

the news as reported by gunsmith

Illinois has declared the ban a carrying a gun unconstitutional.
When asked about his home State abiding by the Constitution, Obama replied "Indonesia doesn't have to follow USA's laws"

[OleCuss]

kcbrown:

I agree with you, but I don't think that the courts will.

So far as I am concerned, if the legislature passed an unconstitutional law and the executive signed it, they should fix it before the law is struck down rather than waiting until after.

A stay so that they can write replacement legislation is repugnant to me and to the idea of freedom - but I'm betting that the stay will not be struck down.

[elSquid]

Originally Posted by kcbrown

The Constitutionality of a law, or lack thereof, is a fixed property of that law, and changes only as the Constitution itself changes. Absent changes to the Constitution itself, a given law either has always been Constitutional since its inception, or it has always been Unconstitutional since its inception. It is not a valid power of the judiciary to declare that a law which is repugnant to the Constitution is, nonetheless, valid, even if only for a limited period of time. For the court to do so is for the court to directly contradict Marbury v Madison.

So, what do you think of the time period that exists between the exact moment the court makes an internal decision and the date of publish? There is a time period where opinions/dissents/etc are being written, facts are being checked, whatever banal mechanics of the process are being completed. During this time is the law unconstitutional, even if the only people who realize that are those internal to the court? What about the poor sods who are being arrested and/or convicted during this time period?

Must the court, at the instance of consensus, immediately post to twitter the results of the case? A quick yes or no? If the court takes some months to write a complete decision, are they in effect exercising a power that they shouldn't have...?

-- Michael

[hoffmang]

Originally Posted by kcbrown

Nice. But Rovner is an unknown quantity, methinks. While she concurred in Ezell, it was quite clear she was throwing softballs at Chicago. I expect we should presume her to be against the Moore decision.

For your worried math to work you have to assume the entire rest of the current active aren't supportive and I think that's hard math for your position. It would not surprise me to see them petition of reconsideration and en-banc to stall. What is not very clear is whether it would be granted based on the math above. The wild card would be if someone wanted to dissent to the denial of en-banc - which could add a couple of months to the timeline.

As to all this "California will be last stuff - poppycock. This is going to SCOTUS and the day after the decision is announced all the holdout states and City will be shall issue.

-Gene

[newbee1111]

The pro-gun legislators should start off negotiations with mandatory gun safety and marksmanship classes in public schools and legalizing handgun vending machines just to watch people's heads explode.

[Gray Peterson]

According to local en banc & rehearing petition rules, they have to file for en banc within 14 days of entry of decision. So it's due on December 26 (12/25 doesn't count as it's a holiday).

We'll see. I don't think it'll go anywhere. Easterbrook & Posner are closely allied as well as they come from similar legal backgrounds (Law & Economics).

[Kid Stanislaus]

Originally Posted by M. D. Van Norman

I wish that the prohibitionists would just recognize defeat and come to the table.

BWAHAAAAAAAAAAAAAAAAAAAAAAAAAAAAA!!

[RMP91]

Originally Posted by hoffmang

For your worried math to work you have to assume the entire rest of the current active aren't supportive and I think that's hard math for your position. It would not surprise me to see them petition of reconsideration and en-banc to stall. What is not very clear is whether it would be granted based on the math above. The wild card would be if someone wanted to dissent to the denial of en-banc - which could add a couple of months to the timeline.

As to all this "California will be last stuff - poppycock. This is going to SCOTUS and the day after the decision is announced all the holdout states and City will be shall issue.

-Gene

That's only if the Heller 5 stay on the court by the time this case reaches them (if the antis appeal, which if their "sore loser" attitude is any indication they will)...

The antis could also pull the "delay the case until Obama can appoint one more liberal judge" card... I wouldn't put it past them...

[pbreed]

>The pro-gun legislators should start off negotiations with mandatory gun safety and marksmanship classes in public schools and legalizing handgun vending machines just to watch people's heads explode.

^ This ;-)

[Patrick-2]

Originally Posted by hoffmang

For your worried math to work you have to assume the entire rest of the current active aren't supportive and I think that's hard math for your position. It would not surprise me to see them petition of reconsideration and en-banc to stall. What is not very clear is whether it would be granted based on the math above. The wild card would be if someone wanted to dissent to the denial of en-banc - which could add a couple of months to the timeline.

As to all this "California will be last stuff - poppycock. This is going to SCOTUS and the day after the decision is announced all the holdout states and City will be shall issue.

-Gene

If en banc is denied, Illinois gun control is toast.

We talked it over in Orlando...Maryland was "best of the worst". I will be genuinely happy for the people of Illinois when they beat us to the finish line. But then Illinois will be promoted out of the "worst" category...so I will argue Maryland maintains our position as "Least of the Suck".

You know what need next?

A decision from the 4th in Woollard...before the window on Kachalsky's cert petition expires.

[nicki]

The 7th found the ban to be unconstitutional and gave the state 180 days to come up with a reasonable carry system.

Now considering that 41 other states have workable carry models, it isn't like they have to build a ccw carry law from scratch.

We will find out very shortly if they will appeal, I think the key is what is the time limit for them to do that.

I know that the SCOTUS picks and chooses cases, but how about an en-banc panel, do they have to take the case or can they just say no.

It would seem to me that Judges do not like defendants who are defiant to their rulings, could Illinois really be that stupid?

Nicki

[Paladin]

Originally Posted by SilverBulletZ06

Hawaii dismissed today.

Originally Posted by Kukuforguns

Earlier in the thread someone posted that Hawaii dismissed. But I see some evidence that plaintiff in the Hawaii case has filed supplemental authority citing Moore v. Madigan. So, any confirmation on the dismissal?

The Hawaii case that was dismissed was not Baker, which is before the 9th Circuit Court of Appeals, but a case in federal district (i.e., trial) court.

http://www.staradvertiser.com/s?acti...1&id=182644501

Federal judge dismisses suit over isle gun laws

A federal judge has rejected the latest challenge to Hawaii gun control laws by dismissing a lawsuit filed by a Hawaii island man who claimed the statutes violate his rights under the U.S. Constitution's Second Amendment.

The ruling by Senior U.S. District Judge Helen Gillmor follows a line of Hawaii federal court decisions rejecting similar challenges to state gun laws. Login for more...

[robertmcm]

Originally Posted by Regulus

Wasn't sure if I should go with Green (yet), so I played it safe.

Man that's gotta hurt the anti's.

Thanks to all who made this happen and congratulations to our Illinois brothers and sisters.

Alabama is a may issue state.

[Funtimes]

Originally Posted by The Shadow

So this is the order in which I see the last seven hold out states becoming "Shall Issue".

1. Delaware

2. Rhode Island

3. Maryland

4. Massachusetts

5. New York

6. New Jersey

7. California

If anyone sees this different, chime in.

The heck man do we not even exist out here or what!!!??

See :P this is why HI did it's own thing, no one even knows we are here!

[bwiese]

http://www.thetruthaboutguns.com/201...l-issue-state/

Congrats to ISRA for being a politically-driven organization able to 'exploit their territory' in the background of yesterday's massively important appellate decision (7th Ckt).



------------------------------------------------------------------

After the 7th District Circuit Court of Appeals’ decision striking down Illinois’ blanket ban on concealed carry, the National Rifle Association has vowed that the Land of Lincoln will become a “shall issue” state. According to their man on the ground, the NRA’s working with state legislators to craft a new bill (within the 180-day time limit set by the Court) that will require the state to issue residents a concealed carry permit unless the licensing authority can provide a compelling reason a resident shouldn’t be able to exercise their Constitutionally protected right to keep and bear arms. “Illinois will not be New Jersey,” Todd Vandermyde told TTAG, referring to the Garden’s State’s bureaucratic blockade of its citizens’ gun rights.

What’s more... Vandermyde reckons Illinois’ gun control advocates don’t have a pot to piss in [paraphrasing].


“The anti-gunners have been preparing for this contingency, but we will not have the law that they want: New Jersey on steroids. We have the majority in both chambers. We will have a Tennessee, Kentucky, Florida-style law.”

In fact, there’s only one reason Illinois doesn’t have a concealed carry licensing system already: Chicago. The city’s pro-gun control pols have been suppressing the state’s residents’ rights for decades. No more. Even more heartening . . .

If Vandermyde and his allies get their way—and it looks like they will—the Chicago machine won’t get a “carve-out” either. They won’t have a separate licensing process for Cook County.
http://www.thetruthaboutguns.com/201...ll-issue-state


“A year ago, you would have seen a very different law. After today’s decision there’s no way Chicago will get an exception.”

Vandermyde is lifting a few frosties before settling into the hard work of restoring residents’ Second Amendment right to bear arms; fending off those who would exploit the 7th Circuit court’s acceptance of “reasonable limitations” “consistent with public safety” to curtail Illinois’ gun rights.
“It’s been my experience that rushed legislation is never good legislation. We’re not going to rush anything through. We waited this long. We’re going to take our time and get it right . . .


“The big question now: what will the Governor do?”

[mmayer707]

Progress.

[mikestesting]

Originally Posted by bwiese

“The big question now: what will the Governor do?”

THIS^^

I am smiling from ear to ear awaiting his response.