Join Date: August 2, 2010
Location: Not far enough from Chicago
Part 2 of Don Gwinn's update of Thursday's hearing...
When Jensen had finished answering the judge's questions, it was time for Illinois' attorneys to present their case. They split the case, with Mr. Simpson presenting the historical argument and Mr. Corrigan presenting the legal arguments. Simpson began by stating that, more or less, "This case is not about whether gun regulations are a good idea or a bad idea, whether they're good policy or bad policy." This turned out to be the beginning of a pattern of contradiction, as he and Mr. Corrigan then proceeded to argue largely that Illinois' gun "regulation" (remember that they need to establish that Illinois doesn't actually prohibit carry, but only "regulates the place, times and manner" in which weapons can be carried) is a good idea and that striking it down would have bad social consequences.
Anyway, Simpson argued essentially that Heller's consideration of the intent and public understanding of the 19th century (when the 14th Amendment was written) was misplaced, as SCOTUS should instead have considered the intent and public understanding at the time of the founding. Since that understanding would have come from English common law, and since the British government recognized a right to keep firearms in the home but not a right to be armed in public (Britain had prohibitions on "riding or going armed in public places") the right to keep and bear arms can only be a right to own firearms in the home. Obviously, this seems to play to Jensen's argument--Simpson didn't use the words "right to keep and bear arms," but notice how jarring it is when I write it there? The right to keep and bear arms was intended only to protect a right in the home? That's hard to resolve. Simpson further pointed out that there were conflicting cases and even regulations prohibiting carry in various states and territories in the late 19th century, and therefore nothing was done which "changes the founders' intent." Simpson did not explain what that intent was, and the judge asked him no questions, but he strongly implied that "the founders' intent" was to prohibit the carrying of arms. That seemed like a tough sell. Simpson also repeated the argument that Illinois allows citizens to carry firearms outside the home "under certain circumstances."
It was hard to tell what Myerscough thought of these arguments, and she asked no questions.
Next, Mr. Corrigan presented the state's legal case. Mr. Corrigan stated that he would show that the plaintiffs had not met their burden (remember, this was a hearing for a preliminary injunction, so the burden is higher--the plaintiffs have to show that they're very likely to win on the merits, that they would be done "irreparable harm" if the right in question were denied, and that the injunction would not cause serious harms or that the harms balance.) Obviously, Mr. Jensen was arguing that the plaintiffs are likely to prevail because, well, "because 'bear arms'" to quote Jalopnik. And he argues that irreparable harm is a given when a constitutional right is denied . . . and that 49 other states already allow carry with no serious problems, so harm caused by allowing carry is unlikely. For his part, Corrigan then needed to show either that those aren't the important questions, or that there's no right to carry that's being denied, or that there's no irreparable harm caused by denying the right, or that harm would likely be done if the court overturned the ban. This is where Mr. Corrigan started to wander a little; he didn't seem sure of his ground and jumped around quite a bit.
Corrigan argued that "plaintiffs want injunctive relief that would apply beyond the plaintiffs themselves" and "the court is not authorized to grant relief beyond the plaintiffs." Presumably this means that since an injunction against the ban would benefit you and me, not just Mr. Moore, or perhaps even because wouldn't benefit only SAF or Illinois Carry members, the scope would be too broad. I don't see how that can be, and in any case, the injunction in Ezell did exactly that, overturning the ban on ranges for everyone in Chicago, not just for the plaintiffs. Maybe there's a legal rationale for that, but I can't figure out the logic in arguing that someone is not entitled to relief if someone else would benefit from it as well.
Corrigan further argued that no irreparable harm is caused by the ban on carrying firearms, and went on to argue that Ezell actually held that ranges are necessary only because the lack of ranges "impinges" (he chose that word carefully, taking back the word "burdens" to use it instead) the "right to use firearms in the home." (Notice that once again his entire argument hinges on the premise that Heller and MacDonald limited the right to keep and bear arms to a right to keep arms in the home.) Remember that Jensen had argued that irreparable harm is to be assumed if a right is actually denied.
Corrigan tried to distance this case from Ezell by saying that Ezell dealt with a "facial challenge" to the ban on ranges in Chicago, while Moore consists of an "as applied" challenge. I'm no expert and not qualified to evaluate that, but it seems to me that Jensen had made the argument that since Illinois' ban completely bans carry aside from hunting, it's unconstitutional on its face.
This where Corrigan went off the rails a little in my opinion. The judge wasn't asking questions or really giving him a lot of cues or even eye contact, and he floundered a little and seemed to reach for something to say. He argued that the plaintiffs "ignore balancing by saying that there is no harm" in striking down the ban because 49 other states allow carry, but that "repudiates federalism by saying that the legislature in one state must follow the legislatures of all the others." If you're thinking that this is way off, as saying that the court wouldn't likely cause harm by doing X is clearly NOT the same as arguing that the legislature must do X, well, I agree. It's not the weirdest thing he said, though.
Forgetting that he and his co-counsel had actually stated that "this case is not about whether any gun regulation is good or bad," he proceeded to make a series of arguments that Illinois' ban is good for society and striking it would result in bad consequences. The plaintiffs, he noted, had written in our brief that the question is purely legal--is there a right to carry arms, and is it being infringed in Illinois?--and that there was no need to argue about the "consequences to society" either way.
"In other words," he translated, "to hell with with the public, they're entitled to their guns, no matter how much death and bloodshed results." It's a good thing the case wasn't about good or bad policy results, because otherwise some appeals to emotion might have snuck in there. . . .
In the same vein, Corrigan continued with the argument that Ezell had balanced the harms better: "Ezell didn't find that residents could just go out and set up targets in their back yards and start blasting away. That's the equivalent of what the plaintiffs want!" This was part of his argument that since the state does not have a statute to regulate carry (because carry is banned--an odd thing to bring up if you're trying to argue that the state is only regulating carry, not banning it) the statute cannot be overturned, or anarchy will reign supreme. I'm not going to bother explaining what I thought of that line to Illinois Carry members; I'm sure you all know. Corrigan further argued that striking down the ban would mean that anyone with a FOID card could "carry at any time, in any place, and in any manner that they choose, without regard to age, mental illness, etc." He pointed out that there have been cases in which people who have been convicted of federal violations have had FOID cards issued (a reference to some people with domestic violence convictions who had rights restored and the like.) This was the context in which Corrigan stated that all firearms in Illinois are obtained through interstate commerce, since there are no firearms manufacturers in the state. I pride myself on not being that yokel rolling his eyes and snorting in a courtroom, but I think I let a little air out when he said that. We all did, and in the near-empty courtroom I'm sure the judge noticed. . . . hope we didn't annoy her, but it was a surprise.
Corrigan claimed to have evidence that violent crime and deaths would increase if people were allowed to carry firearms in Illinois, especially if the ban were struck down and anyone with a FOID card could carry anywhere, any time, any way. "The plaintiffs talk about 49 other states, but no other state allows that." Obviously he missed Vermont, Wyoming, Alaska and Arizona, as well as states where permits are about as easy to get as a FOID, such as Indiana and Pennsylvania.
Like Simpson, Mr. Corrigan finished by trailing off and trying to elicit questions from the judge. I don't have notes on any questions she asked him, and I don't believe she did ask any, but don't quote me on that. Once he was done, the judge asked Jensen to rebut. Jensen reiterated his basic argument--Heller found a right to keep and bear arms, Heller did NOT limit that right to the home, that right is being denied in Illinois, and thus an injunction is appropriate. Then he turned to Corrigan's argument that striking down the statute would result in children and madmen shooting it out in the streets. DC responded to Heller with a new ordinance, he pointed out, and Chicago made the same "regulatory vacuum" argument in MacDonald, but then passed a new ordinance within four days. In the Ezell case, they did it again, then passed a new ordinance a day before the decision. Besides, Jensen argued, there is always a regulatory vacuum where a right has been denied. By that logic, the schools in Topeka would still be segregated, because Brown vs. Board of Education couldn't have ordered desegregation--the district would simply have argued that integrating the races in their schools would be complicated, that they didn't have regulations in place, and could have kept arguing that indefinitely. At some point the court has to tell the state that they have to stop denying a constitutional right even if that means that they will need to pass a new law to regulate the practice of that right, and of course, the court would not be telling the legislature that it couldn't pass a new carry law, only that it couldn't be another outright ban.
The judge was complimentary to both sides, at one point telling Jensen, "I only wish the 2nd Amendment and the Supreme Court had been as explicit and concise as you have been." (As a thoroughly biased gun nut, of course, I think "the right to keep and bear arms shall not be infringed" is both explicit and concise, but judges are still apparently allowed to argue that it's all so murky and imprecise that it's hard to tell what vague words like "keep" and "bear" mean.)
The judge noted that there's a lot to read and that much of it had come in late, and she said that the attorneys had introduced new information in their oral arguments that she would need to consider. She warned that she might not have a decision by Friday the 5th as expected. I consider that good news for us; if she's being honest, then her mind was not made up when she walked into the courtroom--and if her mind had been made up at that point, it would have been against us.
Obviously, if she refuses to grant the injunction, we will appeal to the 7th. And if she grants the injunction, the state will appeal. In that sense, it doesn't matter much what she does because she knows that the 7th will decide the issue anyway. But Molly opined, and I think she may be right, "It seemed like she wanted to be careful and make sure she got it right. She gave the impression that she knows she might be overruled, but she doesn't want to know she made a mistake."
Man, I can't believe it took that long to write those two dinky posts. . . . but it did make my shift fly by. I'm going to head off to bed, folks. Goodnight.
By the way, the Channel 3 piece about Mr. Moore was very positive. Good job!