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The Illinois Supreme Court has reinstated a challenge to the 1993 Cook County (IL) ordinance that bans its citizens from buying, selling, owning or thinking about “assault weapons.” [Click here for the original ordinance. Click here for the Illinois Supreme Court ruling.] The Court’s decision reanimates a 2007 lawsuit filed by three residents. Matthew Wilson, Troy Edhlund, Joseph Messineo and gun rights activists in the Land of Lincoln are calling the ruling a victory—and cautioning that it will be another two years or more before the judicial branch could overturn the ban. That’s could. Mind you . . .
Lawyer Alan Gura threw fully automatic weapons—and thus “assault weapons”—under the bus in the U.S. Supreme Court’s Heller case (which struck down D.C.’s handgun ban). Gura accepted the High Court’s supposition that the Second Amendment didn’t cover machine guns because they aren’t in popular use (hence applicable to a citizen “militia”). And that’s because . . . they’re banned.
See the problem?
No wonder that the executive director of the Illinois State Rifle Association claims that the Cook County Assault Weapons ordinance “bans the most popular hunting rifles . . . that there are in the country.” Hunting. Right.
Remember that it was George W. Bush’s Solicitor General – now-NRA attorney Paul Clement – who did the “Machine gun! Machine gun! Intermediate scrutiny!” handwaving (throwing machine guns under the bus) that caused the Court to stutter. Alan had only one option to preserve the focus of the case and keep things as narrow as possible, thereby maximizing the potential for the Heller case.
If and when we are able to make a Second Amendment argument to address the infringing aspects of NFA, Alan Gura is exactly who will be leading the case.
-Brandon
Just a note that the picture shown next to my name is not mine. Odd default avatar.
The IL supreme court did reverse the dismissal of the case, but from their reasoning, the lower courts will quickly make the findings necessary to dismiss the claim again.
One key bit: paragraph 49: “Plaintiffs seek to present evidence to support their allegation that this particular Ordinance encompasses a myriad of weaons that are typically possessed by law-abiding citizens for lawful purposes and fall outside the scope of the dangers sought to be protected under the Ordinance. … This question requires us to engage in an empirical inquiry beyond the scope of the record…”
Once it is remanded to the lower court, that court will easily make the necessary findings to support dismissal. For example, they could find that the banned attributes (high capacity mags, barrel shrouds, etc.) are not necessary for sporting or defensive weapons, and that their benefit to hunting is outweighed by the mayhem they could be used to produce.
A common thread: The courts that are anti-gun are going absolutely no further than required by Heller/McDonald cases. And the actual holdings in Heller/McDonald were fairly narrow (e.g., they didn’t explicitly address carrying a gun outside the home).
Unless the Supreme Court takes up more of these cases and is very clear about what is protected under the 2A, then lower courts will have leeway to accept laws that are very restrictive of gun rights.
The key is electing state legislators who won’t pass such laws in the first place.
Perh,
So what?
The lower courts are not the target venue. We’ve seen what most lower courts are going to do with “scary gun cases”, and it doesn’t matter. The worst thing they could do is to sit on them (see, Palmer v. D.C., http://wiki.calgunsfoundation.org/index.php/Palmer_v._District_of_Columbia). The best thing for us, in many cases, would be a fast loss in the lower district/superior and courts of appeal.
-Brandon
Not sure why a loss in lower courts is good. It means (1) plaintiff has to spend lots more money to exercise their right (because they have to appeal, or let the bad decision stand), and (2) delay in exercising the right, at the very least (as the appeals process plays out).
My point was that many of these courts are unfriendly to 2A rights, and will put their “OK” on any laws state legislators pass restricting gun rights. Rather than rely on courts to invalidate these laws (which is expensive, uncertain, and which they’re not doing anyway), it is better to elect representatives who will repeal the laws, or not pass them in the first place. This strategy can work, because the public (at least in my state, and elsewhere it seems from polls) is largely in favor of access to guns.
Perh,
Good strategic civil rights cases are designed to be heard by the Supreme Court, or at least a court of appeal and (hopefully) setup for a future split. See, e.g., SAF/CGF/Gura “bear” cases filed throughout the U.S. (CGF’s here in California, currently at CA9).
No sane plaintiff that files a strategic civil rights case thinks it’s cheap or quick. That’s why we say that Freedom Isn’t Free, so often – it’s not. It costs hundreds of thousands of dollars per year, some of which we’ll never get back.
It would be nice if California, for example, didn’t have the strong anti-gun majority in the Legislature it does, or the Brady-best oppression scheme already in place. (We also don’t have a state const. 2A analogue.) But, we have what we have, and the road to the Second Amendment will be paved with litigation from places like California, Illinois, New York, New Jersey, Hawaii, and many other state and local governments (not to mention Fed.). It’s unavoidable, and we have to get good civil cases up to SCOTUS before U.S. v. Crackhead (I, II, III, ad nauseam) undermines our 2A and the security of the Republic.
-Brandon
Hunting. Right.
Well, you’ve put your finger on a real issue. First some state DEMs pass a rule prohibiting hunting with ARs. The the state’s gungrabbers ban ARs because they’re not hunting rifles. See how that works?
It’s sad how easily the incrimentalism flies past a lot of otherwise fully pro-2A folks. Like the frog in the pot of water over a flame, they’ll all go “ohhhhhhh…. well, SH**” when they see the bubbles rise about them.
I fail to see this as a “win”. Even if the Illinois SC had reversed the lower court’s ruling and thereby forced the issue up the chain, I wouldn’t necessarily see it as a “win”. SCOTUS is only 5-4 in our favor at the moment. If Scalia or Kennedy decide to retire, the balance could very well tip out of our favor.
I agree. But I would also say that having the Supremes review and decide more cases in favor of expanding 2A rights will set precedent. Even justices who disagree with a law are reluctant to overturn precedent, especially recent precedent. If we get 2 or 3 more cases decided by The Platonic Nine, which definitively hold (for example) that the 2A applies to carry outside the home, and that strict scrutiny should be applied (I’m dreaming now), this would be very good–lower courts would have greatly reduced room to maneuver if they wante to uphold state laws restricting guns.
So I’d like to see them accept cert on more cases before the composition of the court changes.
The fact the state supreme court is looking at it is a win. Really we need to get it over turned at some point. Someone help us in CA please!!
At least there is a change for you folks.
Sanchanim,
We have 2 federal (now consolidated) cases vs. California AW ban. See: http://wiki.calgunsfoundation.org/Richards_v._Harris.
-Brandon
Looks like SCOTUS will be dealing with this one as well. These gun grabbers will do anything, and I mean anything to keep citizens from utilizing their second amendment rights.
Read again. They sent it back down to the lower court. SCOTUS won’t see this case for years, if at all.
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