Capitol Fax.com - Your Illinois News Radar

A vintage Posner take-down

Posted in:

Illinois

* The 7th US Circuit Court of Appeals was not all that kind to the lawyers for Mary Shepherd yesterday. The attorneys are seeking an injunction against state unlawful use of a weapon and aggravated unlawful use of a weapon statutes so that FOID-card holders can begin carrying concealed, loaded firearms immediately while the state implements its regulations of the new state concealed carry law.

Listen to the whole thing. It’s a thorough smack-down by Judge Richard Posner…

Click to listen

* Some Posner quotes, whose main point was that the plaintiffs ought to file a separate lawsuit if they want to compel anything…

* There is nothing in our opinion about how long the state can take to implement whatever new law it adopts.

* The only thing that we did was set a deadline for a new law. We didn’t say anything about a period of implementation.

* There’s no basis for seeking an injunction because they haven’t disobeyed our decision. The basis of your seeking an injunction has to be that they’re not carrying out our decision. But they’re not violating anything in our opinion.

* You want to let people without training to start carrying guns in public. That’s extremely dangerous and there are loads of gun accidents, and the Constitution doesn’t require untrained people being allowed to carry guns in public.

* When the plaintiff’s attorney claimed “We agree that safety is important,” Posner responded…

“No you don’t, because you don’t understand anything about the importance of training for people allowed to carry guns.”

Ouch!

Keep in mind that this is the same Judge Posner who wrote the decision declaring unconstitutional Illinois’ complete ban on concealed carry.

* From a poster on the Illinois Carry bulletin board who was at the hearing…

Posner basically kept asking for a compelling reason of what immediate injunction should be made and why any current complaints should not be handled in a separate lawsuit. Brown v. Board of Education was brought up repeatedly by Posner, wherein a law was found unconstitutional, but implementation of the new law happened at a slower pace. The judges did not seem convinced that the State be required to “immediately come in compliance” with the constitution, and that future complaints should be handled as separate lawsuits, which is apparently similar to what happened in Brown v. Board of Ed.

His logic seems pretty reasonable IMHO, based on my very limited knowledge of how the law should work. They are asking us how they can implement injunctions without creating some pretty sweeping precedents.

posted by Rich Miller
Friday, Oct 4, 13 @ 11:44 am

Comments

Wasting the court’s time, and their own money, on these gambits.

Maybe it maintains a steady stream of revenue for pro-carry organizations, to be continually fighting in court.

Comment by walkinfool Friday, Oct 4, 13 @ 11:52 am
Posner was posner yesterday.
The interesting thing to me was While I completely understand his reasoning and pointing out the Brown vs board of ed ruling and timeline to implement…

Why even allow the appeal then? If you listen to the audio the lawyer got exactly 6 words in before Posner went ballistic on him. Basically seems to me they had made up their minds already that this was a done deal.

Fine, I get it. Then why allow the appeal, and discussions, and schedule orals? Why not deny the appeal and its over? confusing.

Comment by RonOglesby Friday, Oct 4, 13 @ 11:55 am
I never understood the appeal. The law that was in question no longer exists. There’s your relief.

As to immediacy, the 7th left a law that it had ruled unconstitutional in effect for six months. That should have been a pretty clear indication as to their concern about instant implementation.

Maybe the NRA lawyers thought they would get lucky and it would be a shortcut, taking less time than filing a new suit.

I think they got their answer.

Comment by wordslinger Friday, Oct 4, 13 @ 12:02 pm
I could see a justification for this had there been no movement on the enactment of the law. There has been. One should be patient while being vigilant. To do otherwise is to invite a “Posner”.

Comment by dupage dan Friday, Oct 4, 13 @ 12:08 pm
Predictable reaction by a court to overreach by zealots. Good for Posner.

Comment by phocion Friday, Oct 4, 13 @ 12:12 pm
Ahhh “zealots.” the name calling begins. If you are strongly pro choice or pro SSM you are a civil rights and women’s right supporter. If you are strongly 2A you are a zealot.

Got it.

Comment by RonOglesby Friday, Oct 4, 13 @ 12:15 pm
Great entertainment. Goofy appeal. Get on with the implementation of the law.

Comment by Norseman Friday, Oct 4, 13 @ 12:18 pm
By the way, the Brown vs. Board of Education decision came down in down in 1954, ordering desegregation “with all deliberate speed.”

In 1957, a Little Rock School Board plan to desegregate Central High was sabotaged by mobs that prevented nine black children from going to school. Gov. Faubus sided with the mob and refused to protect the children.

Pres. Eisenhower sent in the 101st Airborne to occupy Little Rock and nationalized the Arkansas Guard. Soldiers with fixed bayonets held back the mob and escorted the children into school.

In 1963, Gov. Wallace employed the Georgia National Guard to prevent the integration of the University of Alabama. Pres. Kennedy nationalized the guard and two black students were enrolled.

And that was “with all deliberate speed.”

Comment by wordslinger Friday, Oct 4, 13 @ 12:19 pm
I’m guessing the NRA raised enough money in donations off this to have made it all very worthwhile.

The continued effort to put off the inevitable is bizarre, but certainly not unique.

Comment by otoh Friday, Oct 4, 13 @ 12:43 pm
Posner’s logic is weak. He upheld a fundamental right. Speech can be dangerous, but we don’t require training before you can exercise your right to free speech. If your reckless or unlawfully use the weapon punish that but not the carrying of the weapon.

Comment by Anon2 Friday, Oct 4, 13 @ 12:53 pm
===He upheld a fundamental right.===

Yeah, the right to carry with reasonable regulations.

Comment by Rich Miller Friday, Oct 4, 13 @ 12:54 pm
Alas. Reasonable people can differ. Sometimes arrogant judges forget that lesson from first year law.

Comment by Anon2 Friday, Oct 4, 13 @ 12:59 pm
It should be noted that no federal court as yet has ruled specifically on “concealed” carry. The rulings have dealt with carrying in public.

The GA chose to pass concealed carry. That’s something they could have always done without any court rulings.

Can we expect a lawsuit in the future on the open-carry ban? Stands to reason, doesn’t it?

Comment by wordslinger Friday, Oct 4, 13 @ 1:02 pm
–Reasonable people can differ. Sometimes arrogant judges forget that lesson from first year law.–

LOL. Posner wrote the decision. How is it reasonable to disagree with Posner’s interpretation of his own decision?

Comment by wordslinger Friday, Oct 4, 13 @ 1:08 pm
“The judges did not seem convinced that the State be required to ‘immediately come in compliance’ with the constitution”

I have to say that this statement is disheartening. Regardless of the issue, the State should have never be non-compliant with the U.S. Constitution. These are natural rights of every citizen regardless of religion, race, or anything else including state of residence. When the court declared the state to be enforcing an unconstitutional law, that law should be null and void and without enforceability. Again, I believe this regardless of the issue, this could have just as easily been applied to a 1st amendment argument.

Comment by Realist Friday, Oct 4, 13 @ 1:11 pm
Let’s see, the judge ordered the state to enable concealed carry. While some may disagree with some facets of the new bill, and be frustrated by the time it takes to implement it, the state complied with his order, before his deadline. Anybody who expected Illinois to enact wide open gun carry must be from Uranus. The anti-gunners are just too strong.
My guess is that Posner got a gun bill similar to what he actually expected from the state.
Why would anyone actually expect him to tamper with the bill, by voiding the training requirements? A wasted effort that doesn’t help further efforts to liberalize gun carry more.

Comment by downstate commissioner Friday, Oct 4, 13 @ 1:13 pm
- forget that lesson from first year law. -

In what year did you forget it?

Comment by Small Town Liberal Friday, Oct 4, 13 @ 1:14 pm
Realist, I agree with you, but it is what it is, arguing against it won’t speed the process up.

Comment by downstate commissioner Friday, Oct 4, 13 @ 1:16 pm
Word- simple fact is Posner got called on writing a sloppy opinion by not including guidance on implementation. So he resorts to being a bully to cover for himself. Compliance with constitution should be immediate absent a compelling reason for delay. Posner can’t simply assert lack of state approved training automatically means you are unsafe. I am a gulf war veteran, I can safely handle a weapon. The states regulations must be the minimum necessary to achieve a compelling state interest. A one size fits all training regimine hardly meets that test.

Comment by Anon2 Friday, Oct 4, 13 @ 1:20 pm
–Let’s see, the judge ordered the state to enable concealed carry–

No, he didn’t. The ruling is easy to find on google.

Comment by wordslinger Friday, Oct 4, 13 @ 1:33 pm
–Word- simple fact is Posner got called on writing a sloppy opinion by not including guidance on implementation.–

Implementation of what?

Read the decision. The ruling was that the state’s blanket carry ban was unconstitutional. There was a six-month stay to give the state the opportunity to pass a new law, but no requirement to do anything.

Comment by wordslinger Friday, Oct 4, 13 @ 1:36 pm
–Compliance with constitution should be immediate absent a compelling reason for delay–

Sounds like you need another lawsuit.

When you choose to get caught up in the courts, you operate by their rules and their timelines.

Comment by wordslinger Friday, Oct 4, 13 @ 1:38 pm
-Sounds like you need another lawsuit -

Which is exactly what Posner is saying in the oral argument. Anon2, whatever else you think of Posner, he does not write sloppy opinions. The court ruled on the issue before it at the time.

Comment by Archiesmom Friday, Oct 4, 13 @ 1:44 pm
Some people feel the Second Amendment is the poor first cousin of the First Amendment.

Comment by Steve Friday, Oct 4, 13 @ 2:11 pm
===Compliance with constitution should be immediate absent a compelling reason for delay.===

Yes, and here is the compelling reason:

“You want to let people without training to start carrying guns in public. That’s extremely dangerous and there are loads of gun accidents, and the Constitution doesn’t require untrained people being allowed to carry guns in public.”

Allowing untrained people to carry firearms is a threat to public safety, and thus a compelling argument for a delay.

It really isn’t that hard to understand.

Comment by 47th Ward Friday, Oct 4, 13 @ 2:12 pm
===Allowing untrained people to carry firearms is a threat to public safety, and thus a compelling argument for a delay. ===

Exactly.

Comment by Rich Miller Friday, Oct 4, 13 @ 2:17 pm
==When the court declared the state to be enforcing an unconstitutional law, that law should be null and void and without enforceability.==

Well, since the law is now null and void you don’t have a problem. Apparently you can’t read. He said that they didn’t have an opinion on how long it would take to implement. The law that was unconstitutional doesn’t exist anymore.

Comment by Demoralized Friday, Oct 4, 13 @ 2:41 pm
==Some people feel the Second Amendment is the poor first cousin of the First Amendment. ==

I have no idea what you mean by that statement. Some people also believe that the 2nd Amendment holds some holy status in the Constitution above all others. They are all important. I don’t understand why people like to pick and choose which ones are “more important” than others.

And, by the way, I don’t know what the issue is. The law was declared unconstitutional. But that doesn’t seem to be enough.

Keep up the lawsuits though. This one didn’t get very far (and I didn’t think it would because it was ridiculous to begin with).

I have zero problem with guns. I have zero problem with CC. I have a problem with the continued hysteria and lawsuits over this because things aren’t moving fast enough for some of you. Take a chill pill.

Comment by Demoralized Friday, Oct 4, 13 @ 2:44 pm
Oh, and one more thing. Some of you need to get off of this First Amendment kick. There are plenty of restrictions on the First Amendment. There are restrictions of some sort on a lot of things in the Constitution. But some of you seem to think the Second Amendment is exempt from anything.

Comment by Demoralized Friday, Oct 4, 13 @ 2:47 pm
One difference between the Court’s jurisprudence on the First Amendment and the Second Amendment is that harsh language doesn’t have the risk of accidentally killing or maiming people who just happen to be walking nearby down the public street.

If the Constitution can’t permit that kind of common sense distinction, we need to liberate ourselves from the Constitution, because it’s a seriously warped set of bylaws.

Comment by ZC Friday, Oct 4, 13 @ 3:02 pm
The lawsuit was wise and it puts the state on notice that endless delays will not be tolerated. It lays the ground work for the additional lawsuit that Posner discussed. Hopefully the new concealed carry law will be implemented in a reasonable time frame and any additional litigation will not be needed. But this is after all Illinois, where every legal and administrative means has been used to block the 2nd amendment rights of citizens so anticipating delay tactics is prudent on the part of the State Rifle Association.

Comment by Rod Friday, Oct 4, 13 @ 4:09 pm
–The lawsuit was wise and it puts the state on notice that endless delays will not be tolerated. It lays the ground work for the additional lawsuit that Posner discussed. –

How do you figure? The NRA attorney said repeatedly that they were not challenging the current law.

Comment by wordslinger Friday, Oct 4, 13 @ 4:18 pm
===Allowing untrained people to carry firearms is a threat to public safety, and thus a compelling argument for a delay. ===

Exactly.

What exactly is enough training? We have 15 or more counties allowing carry with a FOID card. Haven’t heard of a single problem in any of those counties. Several states have pemitless carry with no training, not seeing any rash of problems.

Many of us are vets and have plenty of experiance with weapons and carrying guns.

And yes I know there are limitations put on other constitutional rights but I think they should be in perspective. Would we accept a mandatory voter education class before one can vote? Should only those “approved” journalists get protections for not outing sources?

If the legislature and certain city councils treated it more like a right, you’d probably have less complaining.

And as for Open carry, go loot at State v Nunn as cited in Heller, not gonna happen.

Comment by Todd Friday, Oct 4, 13 @ 4:51 pm