Illinois Ban on Carry Ruled Unconstitutional (See Page 7) - Page 15

Luger_carbine · January 9, 2013, 03:53 PM

Request for an answer

Alan Gura has until the 24th...

Al Norris · January 9, 2013, 05:48 PM

Gura's answer may very well tell us if the circuit will take the en banc route.

I kind of hope they will not rehear the case. This will force Madigan to file for cert (she will have nothing to lose at that point). If that happens, I suspect that the SCOTUS will hold Kachalsky and grant cert in Moore.

This may in fact be what Alan Gura wants.

Oh, and the date for response is the 23rd of Jan.

Luger_carbine · January 9, 2013, 06:27 PM

Whoops

9+14=23

When Gura argued before the court originaly, he really didn't get to talk, and of course there was all that time wasted dancing around firearms in places that server alcohol - yada yada...

When the court does an en banc review does counsel get to talk more?

I'd actually like to hear Gura make the case against Illinois without getting interrupted.

Al Norris · January 9, 2013, 06:37 PM

At the en banc panel, Gura will have 3 times as many judges to face... And 3 possibly times as many interruptions!

esqappellate · January 9, 2013, 08:08 PM

The purpose of oral argument is to respond to the court's concerns and questions. It is not to give a speech. I have had several en banc arguments and they are just plain fun with all those judges asking questions. You really got to be on your toes as the questions come fast and overlap and are often utterly unconnected with each other. This favors Gura, who is very good on his feet. Short of a SCT argument, en banc arguments are an appellate lawyer's dream. They are extremely rare.

+1k ammo · January 17, 2013, 11:20 AM

Will any of the new Obama gun control rules affect the right to carry that is currently being panned out here in IL?

I still hope the carry will proceed, even if it is along with a limited round count. Most of the smaller carry semi-autos only have 6-8 magazine capacity anyway.

Or do we just have to wait to see how the courts are deciding on the repeal from the District Attorney?

Al Norris · January 17, 2013, 11:25 AM

No. None of the proposed legislation, by the President, will affect this lawsuit.

hoffmang · January 20, 2013, 04:07 PM

That a reply was requested doesn't mean that this is going en-banc or will be orally argued.

-Gene

Al Norris · January 20, 2013, 04:59 PM

Welcome to our little corner of the internet Gene.

(For those unaware, Gene Hoffman is the Chairman of the Board of Directors of the CalGuns Foundation)

However, the problem as I see it is that a major IL law has been struck down and Courts always take this as serious business. Because of this the court is more likely to grant a rehearing than not.

Best case scenario is that the Court will not grant the request and Judge Posner's decision will stand (until Madigan files for cert).

maestro pistolero · January 20, 2013, 06:34 PM

Welcome, Gene.

It seems this is as close to a direct split as we've had to date with regard to Kachalsky (NY).

I'm hopeful about a cert grant (should we reach the petition stage) but I am pessimistic about a possible bad en banc decision. The Supreme Court MUST realize that, eventually, 'bear outside the home' must be answered more plainly than it was in Heller.

Luger_carbine · January 21, 2013, 06:15 PM

I thought all the documents would be kept together on the same website, but I'm not sure.

When I go to the CA7 website and click on Opinions I get an error message
http://www.ca7.uscourts.gov/

Where will Gura's answer be posted?

Al Norris · January 21, 2013, 08:39 PM

Quote:

Originally Posted by Luger_carbine

Where will Gura's answer be posted?

If you open the 2A Cases Thread and scroll down to Item #44, you will see the Moore case and among the links, you will find, Justia Summary at 7th Circuit.

If you click on that link, you will find a legal synopsis of the case. Along with Judge Posner's decision. Just below this, you will see a link to access additional information through the courts PACER system: Access this case on the U.S. Court of Appeals, Seventh Circuit's Electronic Court Filings (ECF) System.

Now, please go back and re-read the very first post of the 2A Cases Thread. That explains what these links are for and what they do.

Basically, for everything on PACER, that you might see posted here, it has cost someone some money. The only thing that is free, are the actual decisions themselves.

Finally, to answer your question: When Alan Gura (and NRA attorney, Charles Cooper) files the response(s), it will be posted on the 7th Circuits ECF page and accessible through PACER. Either one could be filed as early as tomorrow or as late as midnight CDT, Wednesday... Assuming I have the filing date calculated correctly.

Luger_carbine · January 21, 2013, 09:20 PM

OK thanks.

That's a bummer it's not just placed with the oral arguments and opinion.

Luger_carbine · January 22, 2013, 09:00 AM

Alan Gura may have already submitted his answer but being the weekend and yesterday a holiday the clerk may not have filed it yet...

EDIT: Or not...

Uncle Buck · January 22, 2013, 01:59 PM

Quote:

It's almost a course in how the courts operate and what the various filings mean in plain language.

I have learned a lot from reading what you post.... But I still get a headache thinking about it all. Thanks for all you are doing by keeping us informed.

Luger_carbine · January 23, 2013, 07:31 PM

http://www.sj-r.com/breaking/x157891...e-be-dismissed

It will be interesting how this plays out - it could set the tone for other counties and the IL AG could see the state's gun ordinance fall apart for lack of prosecution, even as she deals with CA7's ruling.

Al Norris · January 23, 2013, 09:16 PM

As of 5 minutes ago, Alan Gura had not filed. He has until midnight.

Quote:

01/23/2013 62 Filed Response in Opposition by Appellants Illinois State Rifle Association and Mary E. Shepard in 12-1788 Attorney Charles J. Cooper to DEFENDANTS-APPELLEES' PETITION FOR REHEARING EN BANC. [62][6458851] [12-1788, 12-1269] (Cooper, Charles)

I'm reading it now. Here's a look at the TOC:

Quote:

I. THE PANEL DECISION’S HISTORICAL ANALYSIS ACCORDS WITH HELLER AND SEVENTH CIRCUIT PRECEDENT AND DOES NOT CONFLICT WITH DECISIONS OF OTHER CIRCUITS.

A. The Panel Decision Comports with Circuit Doctrine.
B. The Panel Decision Does Not Conflict with Decisions from Other Circuits.

II. THE SCRUTINY APPLIED BY THE PANEL DOES NOT CONFLICT WITH SEVENTH CIRCUIT PRECEDENT OR THE DECISIONS OF OTHER CIRCUITS

A. The Panel Decision Comports with Circuit Doctrine.
B. The State Bears the Burden of Proof.
C. No Remand for a Trial on Legislative Facts Is Needed.

CONCLUSION

The PDF is 18 pages.

Al Norris · January 23, 2013, 11:17 PM

The brief by Cooper was very good ... Until he hit upon the point that undermines Gura's point in Kachalsky.

I'm not sure, but perhaps this is why we don't see a response for Moore. Alan Gura may be rewriting his response or he may not file one altogether (can't imagine that, but...).

What I do know is that Cooper is not stupid. He had to have known that this would mess with the cert petition in Kachalsky.

Al Norris · January 24, 2013, 01:05 AM

Alan Gura's response in Moore is in. It was a rewrite.

Without calling Cooper a lier, Gura's brief goes into quite the detail of why the 2nd was wrong. Never once does Gura say there is a split in circuits, but he all but lays out the roadmap.

All the while doing this, Gura doesn't hold back in blasting the State for its stance that the right is not worth protecting or even having, if the IL legislature thinks its "safer" for citizens to suffer threats of criminal action, instead of being able to defend herself in the face of violence.

+1k ammo · January 24, 2013, 12:29 PM

Quote:

Best case scenario is that the Court will not grant the request and Judge Posner's decision will stand (until Madigan files for cert).

So the case has not been remanded back to the lower courts.

Then what is next - cert?

Luger_carbine · January 24, 2013, 01:04 PM

It hasn't been remanded to the lower courts - the court is in the process of responding to a petition by the defendant (Illinois) to re-hear the case en banc. What's next is waiting to see if a judge will call for a vote on whether or not to hear the case en banc (someone probably will).

I see Cooper & Gura addressing two different aspects of Kachalsky that aren't necesarily in conflict with each other. My interpretation of what Cooper is saying is that Kachalsky supports the decision in Moore/Shepard because CA2 judges said that “New York’s proper cause requirement does not operate as a complete ban on the possession of handguns in public.” which Cooper is using to say that If New York did have a complete ban on the possession of all firearms in public, it's law would have been ruled unconstitutional by the CA2 judges in Kachalsky - Illinois does have a ban on the possession of firearms in public - so even CA2 with their comments in Kachalsky are indicating that it would be unconstitutional. - No conflict.

Gura says the CA7 panel rejected Kachalsky, and CA2 got it wrong anyway. Gura points out that the court in Kachalsky never dealt with what it means to "Bear Arms". And also that the court in Kachalsky dismisses the whole issue of self defense being an enumerated right in the constitution in the Second Amendment. Heller says that the Second Amendment spells out a right to self defense - CA2 in Kachalsky ignores that.

I don't see Cooper & Gura in direct conflict - just addressing different things.

Scimmia · February 2, 2013, 03:59 AM

Question, if a judge calls for a vote on the petition, would we know about it?
Sounds like it has to happen by Wednesday or the petition is automatically denied, but if it's an internal thing, would we know if it happens or would we have to wait until there is some sort of notification to the AG's office?

Al Norris · February 2, 2013, 08:37 AM

If no vote is called for, we could know, as soon as Wed.

If the vote is called for, it can take up to 14 more days. Should the majority decided against rehearing the case, any judge with a strong feeling can write a dissenting opinion on why the court should have taken the case. That takes time. So it could be weeks, before we know.

If there is to be a rehearing, there is no certain date by which the Court must notice the parties. We will certainly know, before the 180 day stay is withdrawn.

Scimmia · February 2, 2013, 08:49 PM

Al Norris, thanks for the answer, but I don't mean "would we know" the final outcome, I simply mean would we know that a vote has been called for? If some judge called for a vote on the 24th, would we even know that it happened?

Al Norris · February 3, 2013, 12:21 AM

Sorry... I do get long winded, don't I?

For all practical purposes, we can make an intelligent guess, when we read the results.

January 22, 2013, 09:00 AM	#364
Luger_carbine Senior Member Join Date: June 18, 2012 Posts: 389	Alan Gura may have already submitted his answer but being the weekend and yesterday a holiday the clerk may not have filed it yet... EDIT: Or not... Last edited by Luger_carbine; January 23, 2013 at 01:09 PM. Reason: Because I was obviously wrong...

January 23, 2013, 07:31 PM	#366
Luger_carbine Senior Member Join Date: June 18, 2012 Posts: 389	Man asks IL AUUW charge be dimissed http://www.sj-r.com/breaking/x157891...e-be-dismissed It will be interesting how this plays out - it could set the tone for other counties and the IL AG could see the state's gun ordinance fall apart for lack of prosecution, even as she deals with CA7's ruling.

January 24, 2013, 01:04 PM	#371
Luger_carbine Senior Member Join Date: June 18, 2012 Posts: 389	It hasn't been remanded to the lower courts - the court is in the process of responding to a petition by the defendant (Illinois) to re-hear the case en banc. What's next is waiting to see if a judge will call for a vote on whether or not to hear the case en banc (someone probably will). I see Cooper & Gura addressing two different aspects of Kachalsky that aren't necesarily in conflict with each other. My interpretation of what Cooper is saying is that Kachalsky supports the decision in Moore/Shepard because CA2 judges said that “New York’s proper cause requirement does not operate as a complete ban on the possession of handguns in public.” which Cooper is using to say that If New York did have a complete ban on the possession of all firearms in public, it's law would have been ruled unconstitutional by the CA2 judges in Kachalsky - Illinois does have a ban on the possession of firearms in public - so even CA2 with their comments in Kachalsky are indicating that it would be unconstitutional. - No conflict. Gura says the CA7 panel rejected Kachalsky, and CA2 got it wrong anyway. Gura points out that the court in Kachalsky never dealt with what it means to "Bear Arms". And also that the court in Kachalsky dismisses the whole issue of self defense being an enumerated right in the constitution in the Second Amendment. Heller says that the Second Amendment spells out a right to self defense - CA2 in Kachalsky ignores that. I don't see Cooper & Gura in direct conflict - just addressing different things. Last edited by Luger_carbine; January 24, 2013 at 01:10 PM.

January 9, 2013, 03:53 PM	#351
Luger_carbine Senior Member Join Date: June 18, 2012 Posts: 389	Request for an answer Alan Gura has until the 24th...

January 9, 2013, 06:27 PM	#353
Luger_carbine Senior Member Join Date: June 18, 2012 Posts: 389	Whoops 9+14=23 When Gura argued before the court originaly, he really didn't get to talk, and of course there was all that time wasted dancing around firearms in places that server alcohol - yada yada... When the court does an en banc review does counsel get to talk more? I'd actually like to hear Gura make the case against Illinois without getting interrupted.

January 9, 2013, 06:37 PM	#354
Al Norris Moderator Emeritus Join Date: June 29, 2000 Location: Rupert, Idaho Posts: 9,660	At the en banc panel, Gura will have 3 times as many judges to face... And 3 possibly times as many interruptions!

January 9, 2013, 08:08 PM	#355
esqappellate Member Join Date: October 16, 2012 Posts: 69	The purpose of oral argument is to respond to the court's concerns and questions. It is not to give a speech. I have had several en banc arguments and they are just plain fun with all those judges asking questions. You really got to be on your toes as the questions come fast and overlap and are often utterly unconnected with each other. This favors Gura, who is very good on his feet. Short of a SCT argument, en banc arguments are an appellate lawyer's dream. They are extremely rare.

January 17, 2013, 11:20 AM	#356
+1k ammo Senior Member Join Date: January 9, 2013 Posts: 235	Will any of the new Obama gun control rules affect the right to carry that is currently being panned out here in IL? I still hope the carry will proceed, even if it is along with a limited round count. Most of the smaller carry semi-autos only have 6-8 magazine capacity anyway. Or do we just have to wait to see how the courts are deciding on the repeal from the District Attorney?

January 17, 2013, 11:25 AM	#357
Al Norris Moderator Emeritus Join Date: June 29, 2000 Location: Rupert, Idaho Posts: 9,660	No. None of the proposed legislation, by the President, will affect this lawsuit.

January 20, 2013, 04:07 PM	#358
hoffmang Junior Member Join Date: February 1, 2012 Posts: 1	That a reply was requested doesn't mean that this is going en-banc or will be orally argued. -Gene

January 20, 2013, 04:59 PM	#359
Al Norris Moderator Emeritus Join Date: June 29, 2000 Location: Rupert, Idaho Posts: 9,660	Welcome to our little corner of the internet Gene. (For those unaware, Gene Hoffman is the Chairman of the Board of Directors of the CalGuns Foundation) However, the problem as I see it is that a major IL law has been struck down and Courts always take this as serious business. Because of this the court is more likely to grant a rehearing than not. Best case scenario is that the Court will not grant the request and Judge Posner's decision will stand (until Madigan files for cert).

January 20, 2013, 06:34 PM	#360
maestro pistolero Senior Member Join Date: August 16, 2007 Posts: 2,153	Welcome, Gene. It seems this is as close to a direct split as we've had to date with regard to Kachalsky (NY). I'm hopeful about a cert grant (should we reach the petition stage) but I am pessimistic about a possible bad en banc decision. The Supreme Court MUST realize that, eventually, 'bear outside the home' must be answered more plainly than it was in Heller.

January 21, 2013, 06:15 PM	#361
Luger_carbine Senior Member Join Date: June 18, 2012 Posts: 389	I thought all the documents would be kept together on the same website, but I'm not sure. When I go to the CA7 website and click on Opinions I get an error message http://www.ca7.uscourts.gov/ Where will Gura's answer be posted?

January 21, 2013, 09:20 PM	#363
Luger_carbine Senior Member Join Date: June 18, 2012 Posts: 389	OK thanks. That's a bummer it's not just placed with the oral arguments and opinion.

January 23, 2013, 11:17 PM	#368
Al Norris Moderator Emeritus Join Date: June 29, 2000 Location: Rupert, Idaho Posts: 9,660	The brief by Cooper was very good ... Until he hit upon the point that undermines Gura's point in Kachalsky. I'm not sure, but perhaps this is why we don't see a response for Moore. Alan Gura may be rewriting his response or he may not file one altogether (can't imagine that, but...). What I do know is that Cooper is not stupid. He had to have known that this would mess with the cert petition in Kachalsky.

February 2, 2013, 03:59 AM	#372
Scimmia Senior Member Join Date: May 19, 2011 Location: Eastern IA Posts: 428	Question, if a judge calls for a vote on the petition, would we know about it? Sounds like it has to happen by Wednesday or the petition is automatically denied, but if it's an internal thing, would we know if it happens or would we have to wait until there is some sort of notification to the AG's office?

February 2, 2013, 08:37 AM	#373
Al Norris Moderator Emeritus Join Date: June 29, 2000 Location: Rupert, Idaho Posts: 9,660	If no vote is called for, we could know, as soon as Wed. If the vote is called for, it can take up to 14 more days. Should the majority decided against rehearing the case, any judge with a strong feeling can write a dissenting opinion on why the court should have taken the case. That takes time. So it could be weeks, before we know. If there is to be a rehearing, there is no certain date by which the Court must notice the parties. We will certainly know, before the 180 day stay is withdrawn.

February 2, 2013, 08:49 PM	#374
Scimmia Senior Member Join Date: May 19, 2011 Location: Eastern IA Posts: 428	Al Norris, thanks for the answer, but I don't mean "would we know" the final outcome, I simply mean would we know that a vote has been called for? If some judge called for a vote on the 24th, would we even know that it happened?

February 3, 2013, 12:21 AM	#375
Al Norris Moderator Emeritus Join Date: June 29, 2000 Location: Rupert, Idaho Posts: 9,660	Sorry... I do get long winded, don't I? For all practical purposes, we can make an intelligent guess, when we read the results.