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Old August 5, 2011, 12:09 AM   #32
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Join Date: August 2, 2010
Location: Not far enough from Chicago
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Update by Don Gwinn regarding today's hearing...

Sorry this took so long, everyone. I've been dealing with some of my real-life alter ego's family commitments, I'm on call tonight, and there are news reporters looking for grist for the mill.

By the way, WCIA News Channel 3 out of Champaign says they plan to lead tonight's 10:00 newscast with a story on the hearing, and their reporter is interviewing Illinois Carry's own Michael Moore (No, not THAT Michael Moore.) If you can tune in Channel 3/49, you might want to watch. I can't . . . . but they'll probably have a clip on the web at if you can find it.

So . . . the hearing.

I arrived at the courthouse a little early and surrendered my laptop and cell phone to security. Oops. Luckily I had a pad of post-it notes with me as backup. On the other side of the metal detectors, I found Molly and Mr. Molly, Abolt, and TVandermyde waiting for our attorneys to escort us to the court room. The security staff took pity on us after a few more minutes and gave us directions, which was just as well since the attorneys were busy upstairs. In the courtroom, the state's attorneys and the court workers chatted amiably, but no one seemed to know where the plaintiffs' attorneys were, including us. Once the courtroom staffers had begun looking up phone numbers, someone suggested that they check the attorneys' conference room, and sure enough, there they were.

Judge Sue Myerscough is a familiar name around Springfield. Like a lot of judges, you hear her name but I don't know a whole lot about her. I've never heard her associated with any outright scandals, though she's been nominated to the federal court where she now sits more than once, starting with Bill Clinton, and withdrew her name at least once. Today she did a good job of keeping things moving along and seemed to ask good questions.

David Sigale and David Jensen appeared for Moore/SAF/Illinois Carry; some members will know Sigale from SAFR events and the MacDonald case. Jensen has family in southern Illinois but practices in New York; he's on his way home across country from a western vacation. Jensen presented the arguments; he pointed out to the judge in passing that he has a CCW in New York and that Illinois is the only place that required him to disarm along his entire route across the country and back.

Attorneys Terence Corrigan and a man I believe was named Simpson appeared on behalf of Madigan and Illinois. More on them later.

Mr. Jensen consistently argued that the case has one central issue: is the right to keep and bear arms, as the state has argued, really limited to a citizen's home or private property? Or does it extend out into public? If the right is confined to the home, then Illinois doesn't infringe it by prohibiting carry outside the home. The state has been trying to argue that they only regulate "time, place, or manner" of carry, significant language, but Jensen dismissed that argument. Moreover, he argued, Heller did not limit the right to the home, nor did MacDonald, nor did the 7th Circuit in Ezell. Judge Myerscough let Jensen say his piece, then lobbed questions at him at a leisurely pace. Judge Myerscough did stop Jensen at one point and point out that Illinois must allow carry outside the home because, as she put it:

"I know I've had my gun in the car, broken down, in a case . . . "

This, along with Judge Myerscough's disclosure that she used to be an English teacher, endeared her to me somewhat. Did you notice the inconsequential but interesting detail, there? She says she had her gun broken down and in a case--more than the law requires. Does that mean she's extra careful, or does that mean that even judges born in Illinois aren't really clear on Illinois law when it comes to transporting firearms?

I made notes on four questions Judge Myerscough asked Attorney Jensen. I'll only use quotes where I think I have the question accurately noted, but any errors are mine:

1. "Mr. Jensen, what am I to do in light of Ezell? The panel in Ezell was bound to follow stare decisis and they didn't . . . so what is stare decisis for me in this case?"
Basically, the judge was complaining here that it isn't clear to her whose guidance she should follow. She seems to be saying that the Ezell panel overstepped by deciding which level of scrutiny to use despite the fact that the Supreme Court has not decided that issue (she alludes to SCOTUS more directly later on.) Jensen answered that the Ezell panel decided correctly and that their use of strict scrutiny was appropriate (I'm really paraphrasing from memory here, as I have no notes on that.)

2. "Mr. Jensen, is Peruta your best case?"
Jensen answered that Peruta is "the most on-point of the decisions to come out so far, but not the best case" because the issue is so different. Peruta is discussed here; it's the case in which San Diego was sued over their may-issue CCW requirements, and the court issued a summary judgment that the sheriffs' office had not burdened "the core right to keep a firearm in your own home" by making CCW permits harder to get. Since Jensen is arguing that Illinois completely prohibits carry, there's a clear difference there. The judge accepted his response without argument and moved on . . . hard to say what that meant, at least for a layman like me.

3. "Mr. Jensen, the Supreme Court has not handed down a standard of scrutiny to be applied in a case like this, so what standard do I apply?"
Jensen responded that the judge should look to the Ezell decision, in which the panel used strict scrutiny because they concluded that the "core of the right" was being infringed. However, he added (and it did my heart good to hear it) that NO standard is actually necessary--no scrutiny is necessary at all, because Illinois completely prohibits the practice of the right, and that's forbidden on its face. It's "more than a mere burden" and so scrutiny is unnecessary.

4. "Mr. Jensen, Ezell was decided on strict scrutiny. Skoien wasn't. How do I resolve that? What do I do with that?"
[i]Skoien is discussed here and there's a very good overview here complete with discussion of the levels of scrutiny. Jensen explained that U.S. v Skoien was decided using intermediate scrutiny, but did not establish that level of scrutiny as appropriate for 2nd Amendment cases in general, and certainly not for this case. Skoien was not a law-abiding individual and possession by felons or people convicted of certain crimes is not protected.
In other words, Skoien is not binding precedent in this case . . . . and again, when a right is completely denied, no scrutiny is necessary; the court can simply overturn the statute because it's unconstitutional on its face.
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