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October 8, 2010, 08:32 PM | #26 | |
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While we are waiting for Judge Virginia M. Kendall on the Motion for Preliminary Injunction, Chicago has filed a Motion to Dismiss. You're going to get a kick out of this (this is item #67 on the docket)! I originally was only going to include of couple of the most hilarious statements by Chicago, until I found myself laughing all the way through it. It's very short as these things usually go, so enjoy... The laugh is on me tonight!!
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Alan Gura should have a virtual field day with his response. |
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October 12, 2010, 09:54 PM | #27 |
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Today, Judge Kendall has denied the preliminary injunction. Method of scrutiny was rational basis on a "sliding scale." Disappointing, but not unexpected.
Remembering that in Heller, reiterated in McDonald, that the Court held that rational basis analysis was "off the table," it seems logic also flew out the window when Judge Kendall made an analysis of both the witnesses and the likelihood of success on the merits of the suit. The Judge, it is plain to see, is afraid of treating the 2A as the fundamental right the Supreme Court has declared it to be. Should you decide to read the Judges denial, as referenced above, please reread Chicago's MTD. You might see the Judge has just set up the reasons for her to grant the MTD. |
October 13, 2010, 01:08 AM | #28 |
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I do have to wonder what happened to this judge in the weeks that passed since the first motion for preliminary injunction. It's as if it's not even the same judge.
She went from cautioning the defendants that in the "very very near future" that injury could occur, etc.. . . to this. I smell a rat. Either someone's had a talk with her, or she is setting up the case to fail in a higher court. As of now, my money's on the former. Perhaps I should have expected this, but I am disappointed. When does the amendment finally mean what the frig it says? Rant over. |
October 13, 2010, 07:39 AM | #29 |
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District judges do not become appellate judges without political support. District judges who make the "right" rulings and are reversed can still become appellate judges.
Before we engage in too much hand-wringing over this ruling, we should remember that the only way to establish binding precedent is for cases to go to the appellate courts. |
October 13, 2010, 10:28 AM | #30 |
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TROs are always hard to get. The standard of showing irreparable harm is hard to meet in any case, so this result is frankly what I had expected. In a nutshell, the judge found that the City's interest in regulating firing ranges, balanced against the "inconvenience" of having to go outside the City for training, tipped in favor of the City.
I think the fact that the record showed people were still able to get their training (abeit outside the City) made it virtually impossible to show irreparable harm. Furthermore, I think this judge did not feel able (or willing) to create a new precedent in terms of extending the bare holding of Heller to this new situation, particularly in the TRO context. DD |
November 1, 2010, 07:14 AM | #31 | |
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Quote:
Making this a big zoning fight concedes the real argument: should training be required before exercising your right to keep arms? The answer we're hoping for is, "yes, as long as it's not too inconvenient." Like millions of Floridians, I have unregistered guns, and the only government-required training I have ever had was for my concealed weapons permit years ago, and could hardly be called training. (We were asked to fire one round from a loaded revolver and then set it down.) If this has resulted in some problem relative to places that do require training, I have not seen it. Requiring training infringes on the 2A right, so the question is, can that infringement meet court scrutiny? To me, millions of untrained gun owners here and across the country causing few problems indicates it should not. |
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November 1, 2010, 08:09 AM | #32 | |
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Publius, what the City is arguing (and the Judge is agreeing) is that just because they require training before issuing their permit, they don't have to provide any place or even allow the means to train.
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Alan Guras brief in Opposition to the Motion to Dismiss, contains point by point, attacks on both the Cities position and that of the Judge (in her ruling in denying the TRO). The City has until Thursday, the 4th to reply to this brief. This is not breaking new ground. It is cementing what flows naturally from Heller. Alan Gura is not making the argument that the training requirement itself is unconstitutional (that argument is being made by the NRA in its suit - Benson v. Chicago - Alan is wisely staying away from those issues, so as not to have his case consolidated). |
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November 1, 2010, 06:18 PM | #33 |
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Got it, Al, thanks. Go the NRA!
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November 3, 2010, 09:13 AM | #34 | |
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Some thoughts on the issue of training
A couple of things occurred to me on the issue of training. Let's see if I can lay this out with some clarity in what little time I have this morning. As I understand the matter (I admit that I haven't read the briefs and someone please correct me if I'm wrong), the City of Chicago requires range training as a prerequisite to a handgun permit, but bans the operation of ranges inside its corporate boundaries. The Plaintiffs are arguing that the the right to train at a range is guaranteed by the 2A.
Hmmmm. . . Let's look at the text: Quote:
I think the more effective argument, and one closer to what Gura is saying (from what I've read here) is that the ban on ranges, coupled with a range training requirement, works an effective denial of the RKBA. When you require a license to do something, but set the standards so high that nobody can reach them, you've effectively banned it. On another note, I wonder what the regulations are for range operations in the suburbs are like, things like possible hours of operation (if they're permitted at all), business licenses, fees, etc. The reason that I wonder about these things is that there may be an Equal Protection claim buried in all of this. If the suburbs ban ranges, or have really high fees and limited hours of operation, and if Gura can find the right Potential Plaintiff, there may be a way to bring a claim that all of those factors, taken in conjunction, work an effective denial of the 2A right to the lower economic classes. I know that's a lot of ifs, but surely there's one indigent, upstanding citizen in the greater Chicago metro area who wants to carry a gun for self-protection, but can't afford the range time or the time off from work to go train . . . |
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November 3, 2010, 08:21 PM | #35 |
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The second amendment rational for ranges is the parallel to the 1st. If books are protected then book stores are as well. There was a lot of cases, I think in the 70s where cities were banning adult bookstores and movie houses. In the end the courts said they could zone where in the city the bookstores/movies could be located but could not ban them. So a city can zone where gun ranges and stores are allowed and regulated them with safety regulations and the like, but can not ban them, or make regulations so difficult to fulfill as to effectively ban them.
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November 4, 2010, 07:11 PM | #36 |
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Spats, I do not believe that an Equal Protection claim can succeed. Those with money will always be able to purchase things that those without money cannot. Courts usually accept that as a truism. The part that the City controls -- the license fee -- is the same for all. Making an argument that a facially neutral law adversely affects minorities because they cannot afford training costs is likely to fail.
Wally's argument bears close scrutiny. I haven't reviewed those "indecency" cases for many years, but I think they focused on the denial of the store owners' 1st Amendment right of self-expression, not the right of the purchasers to buy pornography. In the present case, the range owner cannot claim that his 2nd Amendment rights to keep and bear arms have been tampered with. So, I don't think the argument is effective, but I'd like to research it a bit. I'm a retired lawyer. I still love an intellectual challenge and I have the time to poke around in the dark corners of American jurisprudence. |
November 4, 2010, 11:12 PM | #37 | |
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Quote:
And that's ALL it was about. There has been so much judicial activism surrounding the 1st Amendment that most people have no idea what it really stood for. Personally, I think the Founders would be aghast that the 1st Amendment has been used to protect the distribution of pornography. |
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November 5, 2010, 12:58 AM | #38 |
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The First amendment secures several different, but related, rights:
Congress shall make no law... 1) respecting an establishment of religion, or prohibiting the free exercise thereof; What I underlined, above, is the right to read and publish. |
November 5, 2010, 02:20 AM | #39 |
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I stand corrected. The 1st does, indeed, mention the press.
It does not, however, mention bookstores, or pornography. I remain of the opinion that the original intent of the 1st Amendment was to prevent the government from restricting criticism of the government. |
November 5, 2010, 10:27 AM | #40 |
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CapeCodShooter, you may well be right about the EP claim. It was just a thought that I'd had on the training issue. I guess I had disparate impact in mind, but I haven't researched the issue.
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November 5, 2010, 06:12 PM | #41 | |
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Quote:
2A, for example, is a right to a functional firearm, which obviously includes possession of ammo, and I would posit gun oil, cleaning patches, rods and brushes. Without those things, no gun remains functional. |
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November 5, 2010, 06:31 PM | #42 |
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Now you all know why I always loved Con Law cases. There's as much unanimity among lawyers about the meanings of the Bill of Rights as there is among shooters about which ammo is best for killing a bear.
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July 2, 2011, 04:20 PM | #43 | |
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As we know (or should know), Ezell is before the 7th Circuit, awaiting a decision on the merits of its injunction against Chicago.
A new wrinkle has just appeared. Rham Emanual (the new Mayor of Chicago), is proposing an ordinance that will allow gun ranges in Chicago: http://www.suntimes.com/news/politic...-proposal.html He is not dumb. He has seen the writing on the wall and is taking whatever steps to preserve as much power as he can. If the ordinance is passed, it would moot Ezell v. Chicago, currently before the 7th Circuit. Donald Kilmer, over at CalGuns, says: Quote:
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July 2, 2011, 04:30 PM | #44 |
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Maybe the new mayor is pro gun, pro self defense and has genuine concerns for his populace to be able to live without fear of being gunned down by a felon gang banger thug...
Or maybe not... Brent |
July 2, 2011, 08:26 PM | #45 |
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Listened to the oral arguements a little while ago, should be interesting to see how this all turns out. From the responses and questions the judges were giving, it seemed hopeful
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July 6, 2011, 12:10 PM | #46 |
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__________________
Mark C. DFW, TX |
July 6, 2011, 01:05 PM | #47 |
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As a Chicago resident and 2A supporter...HOORAY!
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July 6, 2011, 01:23 PM | #48 | |
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WOW! A no holds barred reversal! The District Judge did not get a favorable mention here on page 3 of the document:
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July 6, 2011, 02:25 PM | #49 |
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While I am not a Chicago resident, . . . SWEET!
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July 6, 2011, 03:01 PM | #50 |
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The court's decision makes a very nice read. Chicago gets a well deserved spanking. May there be many more!
Here's the new Chicago ordinance which allows ranges under many onerous restrictions: http://onlygunsandmoney.blogspot.com...ordinance.html Last edited by ming; July 6, 2011 at 04:12 PM. |
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alan gura , chicago , ezell v. chicago , rkba , saf , second amendment |
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