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*** UPDATED x1 *** Divided Downstate appellate court narrowly upholds limited TRO on assault weapons ban case

Tuesday, Jan 31, 2023 - Posted by Rich Miller

*** UPDATE *** Annie Thompson from the attorney general’s office…

The Protect Illinois Communities Act is an important tool in what must be a comprehensive approach to addressing gun violence throughout Illinois, and we remain committed to defending the statute’s constitutionality. We are reviewing the 5th District’s decision, and we will seek its review by the Illinois Supreme Court, and we will ask the court for an expedited schedule.

[ *** End Of Update *** ]

* Fifth Illinois Appellate Court

The narrow issue before us in this case is whether the circuit court of Effingham County properly granted a temporary restraining order (TRO) in favor of plaintiffs under Illinois law. In counts I, II, and III of plaintiffs’ verified complaint, plaintiffs alleged that the procedure by which Public Act 102-1116 (eff. Jan. 10, 2023) (Act or Protect Illinois Communities Act) became law violated the Illinois Constitution and therefore denied them due process of law. In count IV, plaintiffs alleged that the exemptions provided for in the Act violate the equal protection clause of the Illinois Constitution based on their right to keep and bear arms. […]

In order to obtain a TRO, plaintiffs are required to demonstrate the following elements: “(1) a clearly ascertained right in need of protection, (2) irreparable injury in the absence of an injunction, (3) no adequate remedy at law, and (4) a likelihood of success on the merits of the case.” … Once the plaintiff establishes a fair question that his or her rights were violated, the plaintiff has also established a fair question that he or she would likely prevail on his claim. […]

With regard to count I, plaintiffs alleged that the Act violated the “single subject rule” and therefore should be declared unconstitutional. … The Illinois Supreme Court enunciated a two-tier test to determine whether an act runs afoul of the single subject rule. … The court determines first whether the act involves a legitimate single subject and then whether the various provisions within an act all relate to the proper subject at issue. … Thus, in light of the test before the court, and the liberal construction afforded to the single subject rule (Cutinello, 161 Ill. 2d at 423), we cannot conclude that inclusion of these clarifications offends the subject matter so much as to violate the single subject rule. […]

We turn now to count II of the complaint, which alleged the Act violated the three-readings rule found in article IV, section 8 of the Illinois Constitution. … Plaintiffs acknowledged the enrolled-bill doctrine before the circuit court, and that the legislation at issue was certified pursuant to the doctrine. However, plaintiffs asserted the enrolled- bill doctrine should be abandoned and/or abrogated. The circuit court agreed, specifically stating that “the time to revisit this practice is now.” … We cannot agree. … Accordingly, in this case, the circuit court did not have the authority to decide if or when the Illinois Supreme Court should revisit the issue raised by the plaintiffs in count II, and this court does not have that authority either. […]

With regard to count III, plaintiffs alleged that the manner in which the Act was passed violated due process as required by article I, section 2 of the Illinois Constitution, and that accordingly the Act should be declared unconstitutional. Specifically, plaintiffs alleged they “were denied any meaningful opportunity to participate in the passage of [the Act] which attempts to materially impair their fundamental rights to bear arms.” As further explanation, plaintiffs alleged that the “due process violation being complained of herein is the complete and total failure of the [d]efendants to comply with express constitutional procedural guarantees afforded the [p]laintiffs under Ill. Const. 1970, art. IV, § 8(d).” In the response filed with this court, plaintiffs stated that the crux of count III is that plaintiffs “demand the legislative process comply with the procedural requirements of the Illinois Constitution, particularly the single subject rule and the three-readings rule.” However, because we have found there is no likelihood of success on the merits with regard to counts I and II, we must likewise conclude there is no likelihood of success on the merits of count III, because by its plain language it is contingent upon the existence of potentially meritorious claims on counts I and II. As such, we find the trial court erred in granting a TRO on this basis.

With regard to count IV, plaintiffs present an equal protection claim, based not upon the process by which the Act was passed, but upon the groups created by the enumerated exemptions found in the Act. … Defendants claim there is no fundamental right at issue here and so the level of scrutiny is rational basis. This standard requires the court to determine whether the statute bears a rational relationship to a legitimate government purpose. […]

[In Guns Save Life, Inc. v. Ali, the Illinois Supreme Court stated] “We agree that the ordinances impose a burden on the exercise of a fundamental right protected by the second amendment. At its core, the second amendment protects the right of law-abiding citizens to keep and bear arms for self-defense in the home.” […]

While there is no dispute that the Illinois Supreme Court did not find the right to bear arms under the Illinois Constitution was a fundamental right in 1984 when deciding Kalodimos, it is equally undisputable that the Illinois Supreme Court now accepts the second amendment as a “fundamental right” guaranteed by the United States Constitution and the fourteenth amendment. […]

Under the strict scrutiny analysis, legislation that significantly interferes with the exercise of a fundamental right will be upheld only if it is “necessary to serve a compelling state interest” and is “narrowly tailored” to effectuate that purpose. … Defendants have argued that plaintiffs have no right in need of protection and are unlikely to succeed on the merits; however, defendants’ arguments were based on an erroneous perception that plaintiffs’ right to keep and bear arms was not a fundamental right. As such, we find that plaintiffs’ allegation that the Act infringes on their rights as Illinois citizens to keep and bear arms is a sufficiently alleged right in need of protection. Here, plaintiffs’ complaint alleged that the legislation’s exemption of seven categories of persons from the now prohibited purchase and/or possession of assault weapons, assault weapons attachments, .50-caliber rifles, and .50-caliber cartridges had no basis and therefore violated equal protection guarantees.

In response, defendants claimed the purpose of the Act was to reduce firearm deaths and mass shooting casualties and the exempted categories were based on employment and/or training. We note, however, that no such purpose or basis for the exempted categories is found in the record. The closest this record comes is the naming of the Act as the Protect Illinois Communities Act. While intent of legislation can be found by reviewing the legislative history, based on the legislative procedures utilized for this Act, there is no legislative history. We only have post- enactment statements. Comments issued after legislation is passed is “subsequent legislative history,” not “legislative history,” and is entitled to little, if any, weight. … Accordingly, we find that plaintiffs alleged sufficient facts for a TRO to issue on count IV. […]

We hold no crystal ball allowing us to determine the likelihood of potential harm if the TRO is granted, but we temper our lack of prescience with recognition that both interests—whether through the regulation of firearms or through the fundamental right to keep and bear arms—are based on the increased desire to protect and defend loved ones in light of these horrifying and devastating shootings.

Here, we find it extremely relevant that no opportunity for discourse was provided to the citizens of this state that would allow for recognition of the competing interests in accomplishing what we believe is likely a common goal. Nor does it appear that the legislative process allowed for even a moment of debate between the lawmakers to ensure that the enactment of this law was “narrowly tailored” to effectuate the Act’s purpose in any manner that would allow a larger exempted group to retain their fundamental rights. For these reasons, we find that balancing the equities favors the issuance of a TRO for count IV, and therefore, we affirm the trial court’s order granting the TRO for count IV.

* From Justice James Moore’s dissent

I begin by stressing that in my view, this appeal does not allow us to address whether Public Act 102-1116 (eff. Jan. 10, 2023) (Act) infringes upon any rights granted by the United States Constitution, specifically the second amendment. This significant point was expressly stated to the circuit court by counsel for the plaintiffs during the hearing on the emergency motion for a temporary restraining order (TRO) when he stated, “We are not making second amendment constitutional arguments here because those are for a different day and a different court ***.” Because no issues related to the second amendment of the United States Constitution are before us, as they were not pleaded and were notably disclaimed by counsel for the plaintiffs, I believe our ruling on the grant of the TRO should in no way be interpreted as instruction or guidance as to any issues that may in the future be raised under the second amendment of the United States Constitution. […]

Turning to count IV, as noted by the majority, in this count the plaintiffs present an equal protection claim, based not upon the process by which the Act was passed, but upon the group created by the enumerated exemptions found in the Act. However, I believe the majority has failed to adequately address a crucial threshold matter relating to count IV. As the Illinois Supreme Court has stated, “it is axiomatic that an equal protection claim requires a showing that the individual raising it is similarly situated to the comparison group.” People v. Masterson, 2011 IL 110072, ¶ 25. If a party fails to show that he is similarly situated to the comparison group, his equal protection challenge fails. Id. The plaintiffs’ complaint failed to allege how each, or even any, of the plaintiffs are similarly situated to the exempted group set forth in the Act. The plaintiffs’ complaint and arguments point to a hypothetical Navy SEAL, but failed to allege this scenario was applicable to the plaintiffs. As set forth above, “to be considered ‘well-pleaded,’ a party’s factual allegations must be supported by allegations of specific facts.” Allegations that are “cursory,” or “inexplicably lacking in specifics,” are not sufficient to support the granting of a TRO. This is true because “the standard for injunctive relief is far too high for a court to rely solely on the moving party’s innuendo.” … Therefore, because the plaintiffs have failed to allege facts demonstrating that they are similarly situated to the exempt group complained of, their equal protection challenge fails, and the circuit court’s granting of the TRO must be reversed in its entirety.

I also cannot agree with the majority that if we were to further analyze count IV, strict scrutiny would apply. … As a factual matter, Ali involved a claim under, inter alia, both the second amendment to the United States Constitution and the Illinois constitutional provisions regarding the right to bear arms. Accordingly, it is not surprising that the court would mention “a fundamental right protected by the second amendment.” At no point did the court state that Kalodimos was no longer good law, or in any other way imply that the right to bear arms is now a fundamental right under the Illinois Constitution. Thus, I cannot attribute to Ali the significance the plaintiffs desire.

Accordingly, in light of the only extant precedent on this question, the only way this court could find that a fair question existed that the plaintiffs had a likelihood of success on the merits of this claim under a strict scrutiny equal protection analysis would be to find that Kalodimos has been overruled by a case or cases other than Ali. There is no evidence to support such a conclusion, and as explained above with regard to the other counts before us in this appeal, the circuit and appellate courts of the State of Illinois are required to apply binding precedent from the Illinois Supreme Court to the facts of the cases before the circuit and appellate courts. […]

Put another way, only the Illinois Supreme Court could rule that in a case such as this one—where the plaintiffs pointedly do not invoke the protections of the second amendment to the United States Constitution, and in fact pointedly disclaimed, in the circuit court, “making second amendment constitutional arguments [in this case]”—the development of federal precedent related to the second amendment to the United States Constitution nevertheless has rendered untenable the Illinois Supreme Court’s previous holding that the right to bear arms under our state constitution is not a fundamental right. […]

(I)n this case the plaintiffs have stated emphatically that they are not proceeding under the United States Constitution, and thus have clearly and unequivocally chosen not to avail themselves of the level of protection offered by the second amendment. That leaves only the protection offered by the Illinois Constitution, which pursuant to Kalodimos does not afford to the plaintiffs a fundamental right and does not entitle them to strict scrutiny analysis of their count IV equal protection claim.

       

50 Comments
  1. - JB13 - Tuesday, Jan 31, 23 @ 1:13 pm:

    Downstate judges strike again (banned punctuation)


  2. - James - Tuesday, Jan 31, 23 @ 1:22 pm:

    Apparently there are more bumps in this road for JB and Raoul than previously predicted.


  3. - TheInvisibleMan - Tuesday, Jan 31, 23 @ 1:23 pm:

    I hope nobody is missing the at least to me hilarious irony of all these people upset about having to register their guns, now having their names registered with the state and displayed quite publicly in court records.

    It’s basically a list of houses to rob when all these people are out of the house and at work.

    And for those who think having a gun protects you from being robbed, there were a few guys in central IL last year who went on a string of stealing guns - out of cop cars.


  4. - Norseman - Tuesday, Jan 31, 23 @ 1:25 pm:

    All the procedural arguments we knew was banana stuff was accurately ruled as being banana stuff. So right-wing Illinois judges pretend to be applying federal law instead of the state law they are bound by to rule against the ban.

    This is a joke and I’m expecting a smash down by the IL Supreme Court. If this ban is going to die, it’s going die in federal court, ajudicated by diehard members of the death cult.


  5. - RNUG - Tuesday, Jan 31, 23 @ 1:29 pm:

    Counts 1-3 were never going to hold up, and the court recognized that.

    Count 4 showed a divided court. On the narrow interpretation cited, the dissent may well be correct.

    However, the majority looked beyond that to the Federal issues that would eventually be raised, and decided this specific limited TRO was probably better left in place,in effect kicking the issue of count 4 up to the IL SC. Since it is highly likely both parties would have appealed a decision against them, the appellate court took the easiest path of letting the (very) limited TRO to stand for now.


  6. - Rich Miller - Tuesday, Jan 31, 23 @ 1:36 pm:

    ===than previously predicted. ===

    LOL

    Like the 5th was gonna go against gun owners. Right.


  7. - fs - Tuesday, Jan 31, 23 @ 1:39 pm:

    The only question now is how quickly will the Illinois Supreme Court rule on this, dispose of Devores one argument left hanging by a thread even by his favorable judges, and stop his grift on this issue. All his cases are, besides being a financial windfall funded by suckers, is a distraction from the cases that will actually decide what needs to be decided.


  8. - Flat Bed Ford - Tuesday, Jan 31, 23 @ 1:44 pm:

    Hot take: None of this matters until federal cases are run through. How the federales adjudicate this is all that matters as impingement on the 2nd Amendment is about as federal of an issue as it gets.


  9. - walker - Tuesday, Jan 31, 23 @ 1:44 pm:

    “”Nor does it appear that the legislative process allowed for even a moment of debate between the lawmakers to ensure that the enactment of this law was “narrowly tailored” to effectuate the Act’s purpose in any manner that would allow a larger exempted group to retain their fundamental rights”"

    Really? Not allowed during Committee and House debates which included multiple lawmakers opposed to the bill?


  10. - H-W - Tuesday, Jan 31, 23 @ 1:44 pm:

    I see this different.

    If we are talking about the 2nd Amendment (which the majority of the court does), then there must be an argument that the plaintiffs right to bear arms is potentially infringed by this legislation. But it is not infringed. Rather, the state is placing limits on what sort of arms may be possessed.

    That is a different argument from what the majority of the court seems to be ruling. Thus, the dissenting judge makes a strong argument. No right to bear arms issue has been brought forth. No evidence is given to suggest equality between the plaintiffs and the exempted categories of people allowed to bear certain categories of arms.

    Had there been no provision for sheriffs to keep their otherwise illegal weapons for personal use, the whole argument might have collapsed.


  11. - Rich Miller - Tuesday, Jan 31, 23 @ 1:45 pm:

    ===Really?===

    Forget it. They’re rolling.


  12. - Oswego Willy - Tuesday, Jan 31, 23 @ 1:49 pm:

    The continued TRO that’s so narrow, it feels, for me, like punt more than any upholding or justified agreement, let alone a split court (majority)

    “It’s a process”


  13. - Red Ketcher - Tuesday, Jan 31, 23 @ 1:53 pm:

    RNUG’s dissection appears on target and is appreciated. ” easiest path ” & safest path in 5th


  14. - Donnie Elgin - Tuesday, Jan 31, 23 @ 2:00 pm:

    “Narrowly upholds”

    Better to uphold count IV the equal protection claim/2A claim than the more procedural counts. It may finally force the IL supremes to get on the record about 2A issues.


  15. - Chicago Cynic - Tuesday, Jan 31, 23 @ 2:01 pm:

    I’m really glad the court threw out counts 1-3 which were absurd on their face. Everyone with an ounce of experience in the legislative process laughed when they read the complaint. I completely agree with the dissent on Count 4 and suspect the IL Supremes will as well, but of course it’s all a moot point since the real action is with the Feds and, sadly, we know how that’s likely to end.


  16. - Jerry - Tuesday, Jan 31, 23 @ 2:01 pm:

    Folks have a right to own a gun, as part of a militia. Republicans constantly lecture us on the Constitution. It’s right there in black and white.


  17. - Oswego Willy - Tuesday, Jan 31, 23 @ 2:09 pm:

    ===It may finally force the IL supremes to get on the record about 2A issues.===

    What will that show? You suspect any surprises to your thoughts?


  18. - fs - Tuesday, Jan 31, 23 @ 2:14 pm:

    ==It may finally force the IL supremes to get on the record about 2A issues.==

    They will not even broach the second amendment if there is an avenue where they can dispose of the case otherwise. The esteemed counselor Devores own words an argument, that he is not arguing the second amendment, gives the Supremes that out if they want to take it (they usually do).


  19. - TheInvisibleMan - Tuesday, Jan 31, 23 @ 2:19 pm:

    I never noticed Devores middle name before.

    Does he pronounce it ‘gee’ or ‘guy’?


  20. - Todd - Tuesday, Jan 31, 23 @ 2:27 pm:

    ==If we are talking about the 2nd Amendment (which the majority of the court does), then there must be an argument that the plaintiffs right to bear arms is potentially infringed by this legislation. But it is not infringed. Rather, the state is placing limits on what sort of arms may be possessed.==

    HW New York said if the text of the 2A covered it, the conduct was protected. here people are prevented from acquiring new models of firearms, or finishing ones they were intending to build. The right to acquire and a corresponding right to sell has been adjudiucated already as being part of the 2A — I point you to Ezell I & II and Illinois firearm retailers assn v Chicago.

    So a 2A right is implicated.


  21. - James - Tuesday, Jan 31, 23 @ 2:28 pm:

    As I commented previously, this all may be moot once it’s settled at the highest courts. But for the time being, can we agree the “grifting” nonsense for Devore and making fun of him may not be warranted? Again he is succeeding on his cases for his plaintiffs. Doing his job.


  22. - H-W - Tuesday, Jan 31, 23 @ 2:32 pm:

    @ Jerry

    == Folks have a right to own a gun, as part of a militia. ==

    Do folks who are not part of a militia have that same right? For example, I am too old, too overweight, etc. to ever be considered even an potential member of a militia group.

    Alternatively, I am a veteran, but now a pacifist. If I refuse to serve in a militia, would I be allowed to own a weapon?

    Your argument (which you have made repeatedly), it high flawed. This is not about the presumed existence of a well-regulated militia of able-bodied citizens (or do you just mean men?). Nor is it about the presumed need for a militia in the future.

    The issue is about the right to own a weapon. And as long as the State of Illinois does not infringe upon the rights of citizens to own weapons, there is no clear violation of the Constitutional provisions regarding such a right.

    At issue is what sorts of weapons may be owned, not, whether or not citizens are allowed to own weapons.


  23. - Big Dipper - Tuesday, Jan 31, 23 @ 2:52 pm:

    ==So a 2A right is implicated.==

    But Devore in his usual brilliance disavowed any reliance on the federal constitution so the only issue before the court is whether in Illinois gun ownership is a fundamental right. And unless the Court radically changes course — which is unlikely when judges actually respect stare decisis — the TRO is doomed.


  24. - Big Dipper - Tuesday, Jan 31, 23 @ 2:55 pm:

    Regarding the enrolled-bill doctrine, someone needs to explain to this freshly-minted circuit court judge that lower courts don’t get to disregard controlling authority just because they don’t agree with it. They are supposed to just say we are compelled to follow controlling precedent and let the plaintiffs try to get the Illinois Supreme Court to reconsider if and when they get there as the losing party below.


  25. - Demoralized - Tuesday, Jan 31, 23 @ 2:58 pm:

    Granting a TRO on the basis that there was not a sufficient opportunity to debate the law puts a whole lot of legislation in jeopardy if that is the new standard a court is going to use. I’m not sure why the courts feel that it is their place to intervene in how debate occurs (or does not occur) in the legislative branch.


  26. - Back to the Future - Tuesday, Jan 31, 23 @ 3:12 pm:

    Have to admit Mr. Devore’s argument is not one I would have thought up, but he is winning so far.
    His clients are probably thinking they got their $200 worth.
    Devore 2-Pritzker 0.
    Thinking that the score might change, but so far Devore’s investors are ahead. Practicing law is a tough game and have to admit I appreciate a fighter in the court room even if I am not personally a fan.


  27. - fs - Tuesday, Jan 31, 23 @ 3:13 pm:

    ==But for the time being, can we agree the “grifting” nonsense for Devore and making fun of him may not be warranted? ==

    We cannot agree. He’s making terrible arguments that even a first year law student would tell you are the wrong arguments in the wrong venue and his clients will ultimately not only lose but be out a lot of money due to the drawn out nature of the appeals process. The judges (and I use that term loosely here) in friendly venues going along with are equally terrible. That is not faithfully and honestly representing the best interests of your client, or the law, that is grifting to benefit yourself. It’s his mo.


  28. - Lincoln Lad - Tuesday, Jan 31, 23 @ 3:13 pm:

    I’m daydreaming of seceding from the downstate counties and judges… rather than the other way around.


  29. - Rich Miller - Tuesday, Jan 31, 23 @ 3:14 pm:

    ===so far Devore’s investors are ahead===

    FTX investors were way ahead a year ago /s


  30. - Oswego Willy - Tuesday, Jan 31, 23 @ 3:17 pm:

    ===so far Devore’s investors are ahead===

    The mark of a good grift is to show a winning… before the bottom falls out and everyone loses, less the grifter.

    If the measure is “who is ahead”, then the reality of this being about the grift and not the law is only lost on the marks.


  31. - H-W - Tuesday, Jan 31, 23 @ 3:17 pm:

    DeVore’s facebook page suggests he won.


  32. - Jerry - Tuesday, Jan 31, 23 @ 3:20 pm:

    @H-W (233p)

    “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

    What part is unclear? That is the Constitution. I have family who fought in WW2 to defend it. This what you served to defend. A well regulated militia.


  33. - Back to the Future - Tuesday, Jan 31, 23 @ 3:32 pm:

    Agree that Mr. Devore’s overall record of wins vs. losses should be a concern for his investor/angry gun folks, but he is ahead - not as ahead as the FTX investors a year ago, but he is winning.
    While it may end badly for the Devore plaintiffs keep in mind they will only be out of pocket a few hundred dollars and they are ahead so far.


  34. - Big Dipper - Tuesday, Jan 31, 23 @ 3:32 pm:

    ==DeVore’s facebook page suggests he won.==

    If rejecting three out of four of your counts is winning.


  35. - H-W - Tuesday, Jan 31, 23 @ 3:36 pm:

    No Jerry. That is not what I served to defend. I did not serve in order to defend militias, nor did I serve in order to defend the Constitution.

    Do not attempt to speak for me on the basis of an abstract oath, in order to make your unintelligent claims seem invariant and essential.


  36. - Shytown - Tuesday, Jan 31, 23 @ 3:47 pm:

    == His clients are probably thinking they got their $200 worth. ==

    Not for long. Devore will lose at the IL supreme court.


  37. - RNUG - Tuesday, Jan 31, 23 @ 3:52 pm:

    == Folks have a right to own a gun, as part of a militia. Republicans constantly lecture us on the Constitution. It’s right there in black and white. ==

    -Jerry-, yes it is … very black and white.

    From the Illinois Constitution, Article 12:

    “The State militia consists of all able-bodied persons residing in the State except those exempted by law.”

    So basically EVERY citizen of Illinois has a right to own a firearm regardless of how people want to parse the ‘militia’ part of the US 2nd Amendment.


  38. - RNUG - Tuesday, Jan 31, 23 @ 3:54 pm:

    To the update … no surprise.


  39. - JS Mill - Tuesday, Jan 31, 23 @ 4:19 pm:

    =So a 2A right is implicated.=

    So that is all you have to do, I mean speaking as a Second Amendment scholar?

    I am pretty sure you have to more than “implicate” it.

    =From the Illinois Constitution, Article 12:

    “The State militia consists of all able-bodied persons residing in the State except those exempted by law.”

    So basically EVERY citizen of Illinois has a right to own a firearm regardless of how people want to parse the ‘militia’ part of the US 2nd Amendment.=

    Just a few Second Amendment restrictions- age, legal standing as a felon, mental health restrictions.

    So not EVERY citizen.

    And, either the state caan place conditions on the Second Amendment, or it cannot and I say that with regard to your cite on the state militia.

    SO many want to ignore the first 10 words of the amendment, it begs the question of what other parts of amendments are rendered nonsense based on the political leanings of the court. nI am not a con law attorney or a jurist, but I can read history and know that the founding fathers never wanted some of their words to be dismissed.


  40. - CJA - Tuesday, Jan 31, 23 @ 4:27 pm:

    JS,

    The clause that the first 10 words make up have been settled in case law as not to limit the rest of the Amemdment. Todd has commented on this and cited it. So, I am not sure why you are saying it has been ignored. It has been addressed.


  41. - 47th Ward - Tuesday, Jan 31, 23 @ 4:38 pm:

    ===The clause that the first 10 words make up have been settled in case law as not to limit the rest of the Amemdment.===

    Roe was settled law too. Scalia’s decision was flawed, to put it mildly. I don’t know how long it will take, or how many more preventable shootings will happen, before a future court connects the clauses of the 2nd Amendment in a way the founders would recognize and support.

    True fact, there weren’t a lot of school shootings in the 1780s. Times change, courts change. Laws can change too, as we’ve seen with Dobbs.


  42. - RNUG - Tuesday, Jan 31, 23 @ 4:59 pm:

    == Roe was settled law too. =

    Roe was the law of the land, but there was an asterisk on the decision that a lot of people overlooked. Ginsburg expressed concerns it was decided on improper grounds (privacy) and might someday be overturned.


  43. - Jocko - Tuesday, Jan 31, 23 @ 4:59 pm:

    ==the right of the people to keep and bear Arms, shall not be infringed.==

    Show me where in the 2A I’m allowed to have a magazine that can hold 30 rounds.

    As Roe has shown, ’settled law’ is whatever the Supremes decide it should be.


  44. - SKI - Tuesday, Jan 31, 23 @ 5:13 pm:

    ==Show me where in the 2A I’m allowed to have a magazine that can hold 30 rounds.==

    Right about where internet platforms & skewed newspapers (paging Mr Profit) are mentioned in the 1st Amendment.

    Changes in technology don’t change the rights enumerated via constitutional amendment.


  45. - Jocko - Tuesday, Jan 31, 23 @ 5:22 pm:

    ==Changes in technology don’t change the rights enumerated via constitutional amendment.==

    Nice try. Look up Section 230(c)(2). Even then, it’s not unlimited free speech.


  46. - Norseman - Tuesday, Jan 31, 23 @ 5:26 pm:

    === have been settled in case law ===

    We’ve now learned there is no such thing as settled case law. It’s a meaningless ruse right wing judicial nominees use during confirmation hearings.


  47. - Todd - Tuesday, Jan 31, 23 @ 5:28 pm:

    I know this is about state court but with the 2A issues, maybe some of you should give a listen

    https://www.youtube.com/watch?v=O7CAMr2nvxw

    Three wins in front of 3 federal judges 2 appointed by dems


  48. - FormerParatrooper - Tuesday, Jan 31, 23 @ 5:35 pm:

    Jocko, my two cents…
    The 2A’s meaning should be anchored in the spirit of the debates that ratified it. Remember Thomas Jefferson’s arguments about debating the construction of the Constitution.

    The use of “Arms” is not just firearms, it includes powder and ball for the weapons of the time. It also includes bayonets, swords, knives and the other weapons of the soldier. There were not restrictions on how much ammunition you could have, nor on the amount of weapons you could own from the knife to the canon.

    Understanding the 1A is not unlimited as we have laws against libel, common sense. The 2A may not be unlimited as well as it does not give me the right to murder or harm others without justification and that justification is more strict than the definitions of libel. Nothing in the debates over the 2A ever suggest limiting powder or ball, or even restricting the more accurate or superior rifled flintlocks that civilians owned over the basic issue muskets of the standing Army.


  49. - Jocko - Tuesday, Jan 31, 23 @ 5:51 pm:

    Others can speak to the topic far better than me, but to progress from a six-shot revolver and pump action shotgun to the weapons we see in active use today is a stretch. For gun advocates to shrug at mass shootings and imply “That’s the price of progress.” is, to me, a bridge too far.


  50. - thisjustinagain - Tuesday, Jan 31, 23 @ 7:00 pm:

    Gun-banners need to understand there’s no ‘need’ requirement in the 2nd Amendment, and SCOTUS ruled more than once that the right to keep and bear arms is totally separate from militia service. The old reasoning and lower legal standards are history since 2008 in Heller. Time to face the facts, and stop demanding illegal bans and restrictions.


Sorry, comments for this post are now closed.


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