B.L.U.F. I need another image with a cheerleader for courts that get it right. After fighting my way through the monstrosity from yesterday, this Memorandum and Order is great news for the Second Amendment community. This is (hopefully?) a short article, I might write something longer about our win in the future.

My wife read yesterday’s article and was upset about the Court’s opinion Herrera v. Raoul Illinois AWB/LCM ban. Later in the day, I was watching Guns and Gadgets on YouTube talking about Barnett v Raoul and she got the cases mixed up. Understandable.

What I told her was that in Barnett v. Raoul the state was going to appeal, and it would make its way to the Seventh Circuit court. I predict that all of these cases from the district level will be consolidated. This case is already a consolidation of four cases.

I was right. The stated did file for an appeal the same day the order came down and has also filed a motion for this Court to stay the injunction pending appeal.

The state argues that since this court didn’t go along with the other court’s opinion, that this court should stay its injunction. “For consistency”, don’t you know. The state is also claiming that since the Seventh Circuit did not choose to grant a preliminary injunction in those other cases, this court is going against the wishes of the Seventh Circuit.

I hope that his court stands its ground and makes the state get an injunction from the Circuit Court of Appeals.

The question

Are assault weapons band and large capacity magazine bans constitutional?



Ok, maybe a bit more

Definition of Protected Arm under The Second Amendment

As we have seen in many other cases, the state will constantly argue about what is protected under the Second Amendment. The gist of their arguments are:

  • It is not really an arm
  • It is in a class of arms that are not protected
  • It is dangerous

The first one is anger inducing sophistry. This is the state arguing that a magazine isn’t really an arm, even though it is needed for a firearm to function. It is the state arguing that a collapsible stock can be banned because it is not an arm, but a bump stock is a machine gun.

All these arguments have been shot down at the Supreme Court level at some point or another. The state keeps trying.

The second set of arguments is attempting to place the arms in question into a class that is not protected. At the current time, the NFA still exists and is still “good law”. This means that there are a few classes of arms that currently have restrictions on them because the Supreme Court says they fall outside the protection of the Second Amendment.

The class most interesting to us is the class of “machine guns”. If something is a machine gun, then presumptively it can be regulated. If the state can get an arm moved into one of these unprotected classes, then it can be regulated.

The last argument is that something is especially dangerous. This doesn’t make it “not an arm” but instead moves it to a place where the state can make claims of historical regulation matches that aren’t really similar.

The state tries to hide one big thing. That is, that the Supreme Court has ruled that if an arm is in common use for lawful purposes, then it is protected under the Second Amendment. If you see the state or the court talking about “in common user for self-defense” you know that they are being disingenuous.

Surprisingly good faith background

On June 23, 2022, the United States Supreme Court issued its opinion in N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111 (2022). …

Less than two weeks later, family and friends gathered in Highland Park, Illinois to enjoy one of the mainstay festivities of this nation’s Independence Day celebration, a parade. They gathered to salute our Country, our liberty, and our freedoms. During the parade, a senseless tragedy occurred involving firearms and multiple parade[ ]goers were killed and wounded.
Barnett v. Raoul, 3:23-cv-00209, (S.D. Ill. Apr 28, 2023) ECF No. 101 at 3

senseless tragedy occurred involving firearms, what a fantastic statement. No emotional blackmail. A statement of facts, acknowledging that something tragic happened but now focused on the weapon, but instead on the evil.

Can the senseless crimes of a relative few be so despicable to justify the infringement of the constitutional rights of law-abiding individuals in hopes that such crimes will then abate or, at least, not be as horrific?Id., maybe we can get this Judge to write for the blog. He is saying what all of us have been saying.

[C]an PICA be harmonized with the Second Amendment of the United States Constitution and with Bruen? That is the issue before this Court. The simple answer at this stage in the proceedings is “likely no.”Id. He gets it.

PICA seems to be written in spite of the clear directives in Bruen and Heller, not in conformity with them.Id.

For the reasons fully set out below, the overly broad reach of PICA commands that the injunctive relief requested by Plaintiffs be granted.Id.. That is powerfully stated. “Commands” is forceful wording from a Court.

Even a cursory review of the named Plaintiffs [standing] satisfies the three requisite elements. Furthermore, a plaintiff who wishes to engage in conduct that is arguably protected by the Constitution, but criminalized by a statute, successfully demonstrates an immediate risk of injury. Bell v. Keating, 697 F.3d 445, 451 (7th Cir. 2012). In this case, Plaintiffs face criminal sanctions were they to sell or purchase any of the items banned by PICA, unless preliminary injunction issues.
Id. At 4-5

Translation, the Second Amendment is not a second class right, if the regulation infringes, then it is an injury. FULL STOP.

One of the things that the states have done in their Bruen tantrums, is to make large regulations and then slap a severability clause on the end. The goal being to make it expensive and painful to overturn the law. It requires a separate suit for each part of the law. It requires establishing standing for each challenge.

Even the good Judges Suddaby, and Sinatra, Jr. allowed the state to maintain that severability.

“Whether invalid provisions in a state law can be severed from the whole to preserve the rest is a question of state law.” However, “[i]n a facial challenge, lex ipsa loquitur: the law speaks for itself.” Meaning that “[o]nce standing is established” the Court must weigh “the applicable constitutional doctrine without reference to the facts or circumstances of particular applications.” A “facial challenge directs the judicial scrutiny to the terms of the statute itself, and demonstrates that those terms, measured against the relevant constitutional doctrine, and independent of particular applications, contains a constitutional infirmity that invalidates the statute in its entirety.” Therefore, because this Court finds a likelihood of facial unconstitutionality on the merits, the entirety of PICA as codified will be enjoined. It is important to note that the Court has not found that PICA, or any provision, is in fact unconstitutional,
only that there is a likelihood that it will be.
Id. At 5-6, (internal citation omitted)

This Court has said that he is going to look at the entire law banning assault weapons and LCM. The entire law is in question, not just the single piece being challenged. This is fantastic for us.

This is an interesting turn of events. Patrick Kenneally, State’s Attorney for McHenry County and Sheriff Robb Tadelman are defendants (the state) in this case. Kenneally is also a plaintiff (good guy) in a different case that also challenges PICA.
Both had their own lawyers to argue against the state.

One of the arguments made by the state is that you are only being raped a little bit. That because you are allowed to have some arms, they are not required to allow you to have the arms you want. This Court stated this concept much better: It is true that not all items are banned under PICA; however, if a lawful citizen only possesses items that are banned under PICA, he or she would have to purchase a non-banned firearm in order to legally defend oneself under the Second Amendment.Id. At 10

One of the standards for granting a preliminary injunction is if there is an adequate remedy at law. Simply stated, this means that if a person can be made whole at the end of the case by some legal remedy, there is no need for a preliminary injunction.

Consider a case where the state is holding $5000 of your money. You sue. The court is not going to grant an injunction requiring the state to hand that money over now. At the end of the trial, the state can make you whole. It might cost the state a heck of a lot more than $5000. For example, if you lost your house because of it, you could still be made whole by a bigger payment from the state.

But for PICA, Barnett and Norman would purchase additional banned firearms and magazines.5 Should either one attempt to do so, he could face criminal penalties. There is no monetary award that can compensate for such an injury and make them whole.
Id. At 10

The Court is saying that no amount of money will make you whole from the injury of having your right to keep and bear arms infringed.

… Defendants contend that such items are not necessary to the functioning of a firearm and are thus not “arms” and therefore not protected by the Second Amendment. (Doc. 37, p. 17).

Defendants’ argument is not persuasive. The Seventh Circuit has recognized the Second Amendment as extending to “corollar[ies] to the meaningful exercise of the core right to possess firearms for self-defense.” See Wilson v. Cook County, 937 F.3d 1028, 1032 (7th Cir. 2019) (quoting Ezell, 651 F.3d at 708). It is hard to imagine something more closely correlated to the right to use a firearm in self-defense than the ability to effectively load ammunition into the firearm. The Third Circuit recognized the importance of this corollary and held that “a magazine is an arm under the Second Amendment.” See Ass’n of N.J. Rifle & Pistol Clubs, Inc. v. Att’y Gen. of New Jersey, 910 F.3d 106, 116 (3d Cir. 2018). Further, Defendants’ own expert defined “high-capacity firearms” as “hand-held arms with a capacity greater than ten rounds, recognizing that Illinois’s statute allows up to 15 rounds for handguns.” (Doc. 37-13, p. 2). Defendants’ expert is clearly referencing magazines and incorporating such into his definition of a “firearm[].” Id. This Court agrees that magazines are “arms” as used in the plain text of the Second Amendment. Plaintiffs are correct that “[t]his is not even a close call.” (Doc. 10, p. 16). If Defendants’ own expert incorporates magazine capacity into his definition of a firearm, given his level of expertise, it would be unreasonable to expect the original public meaning of the plain text to not reflect a similar understanding.
Id. At 18-19

I was going to just show to you “Defendants’ argument is not persuasive” but this paragraph is another exemplary passage. This paragraph guts the state’s argument that “large capacity magazines” are not arms.

There is a section in the opinion slamming the ATF over the stabilizing brace rule. This Court finds that the new ATF regulation is unconstitutional if there are no exceptions.

Therefore, because the “meaningful exercise” of the right to armed self-defense is wholly dependent on the ability of citizens to utilize their arms and hit their intended target, items that aid in accuracy may be considered “arms” and are presumptively protected by the Second Amendment.Id. At 20-21 puts to rest any argument that the state has about limiting ammunition purchases. It might even shutdown the state infringing by requiring background checks to purchase ammunition.

In discussing history and tradition, the Court had this to say:

… Therefore, to bear its burden, Defendants must: (1) demonstrate that the “arms” PICA bans are not in “common use;” and (2) “identify a well-established and representative historical analogue” to PICA.

Defendants first argued that PICA is consistent with historical tradition because “[n]either large capacity magazines nor assault weapons were in common use when the Second and Fourteenth Amendments were ratified.” (Doc. 37, p. 22). This argument is “bordering on the frivolous” because “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.” Heller, 554 U.S. at 582. Defendants also argued that “[t]he Act restricts weapons and accessories not commonly used for self-defense today.” (Doc. 37, p. 26). Similarly, this argument is misplaced. Bruen clearly holds that the Second Amendment protects “possession and use” of weapons “in common use” not just weapons in common use for self-defense as Defendants’ argued. 142 S. Ct. at 2128. Even if there was a requirement that the “common use” of an “arm” be self-defense, AR-15 style rifles would meet such a test considering that 34.6% of owners utilize these rifles for self-defense outside of their home and 61.9% utilize them for self-defense at home. (Doc. 39-11, p. 34).
Id. At 21-22

… The other side is less clear – there is no evidence as to how PICA will actually help Illinois Communities. It is also not lost on this Court that the Illinois Sheriff’s Association and some Illinois States Attorneys believe PICA unconstitutional and cannot, in good conscience, enforce the law as written and honor their sworn oath to uphold the Constitution.
Id. At 28

Courts Conclusion

Plaintiffs have satisfied their burden for a preliminary injunction. They have shown irreparable harm with no adequate remedy at law, a reasonable likelihood of success on the merits, that the public interest is in favor of the relief, and the balance of harm weighs in their favor. Therefore, the Plaintiffs’ motions for preliminary injunction are GRANTED. Defendants are ENJOINED from enforcing Illinois statutes 720 ILCS 5/24-1.9(b) and (c), and 720 ILCS 5/24-1.10, along with the PICA amended provisions set forth in 720 ILCS 5/24-1(a), including subparagraphs (11), (14), (15), and (16), statewide during the pendency of this litigation until the Court can address the merits.

The Court recognizes that the issues with which it is confronted are highly contentious and provoke strong emotions. Again, the Court’s ruling today is not a final resolution of the merits of the cases. Nothing in this order prevents the State from confronting firearm-related violence. There is a wide array of civil and criminal laws that permit the commitment and prosecution of those who use or may use firearms to commit crimes. Law enforcement and prosecutors should take their obligations to enforce these laws seriously. Families and the public at large should report concerning behavior. Judges should exercise their prudent judgment in committing individuals that pose a threat to the public and imposing sentences that punish, not just lightly inconvenience, those guilty of firearm-related crimes.

/s Stephen P. McGlynn U.S. District Judge
Id. At 28-30

Thank you, if you made it all the way to the end. Nope, it wasn’t a quick article. It also wasn’t as difficult. At nearly 2500 words long, most of those words are quotes from the Court.

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By awa

One thought on “<i>Barnett v Raoul</i> Illinois AWB/LCM bans Good news”
  1. “Nope, it wasn’t a quick article.”
    Yup. 🙂 But mostly good news and worth the read.
    The severability angle is indeed worrisome, and I suspect the attempts at infringements and other new tactics won’t stop until the lawmakers who pass these laws, are held accountable personally in some fashion.

Only one rule: Don't be a dick.

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