The Question

Does an ordinance that prohibits possession of assault weapons or large-capacity magazines violate the Second Amendment protections?

The City of Highland Park, IL, has an ordinance that does just that. Arie Friedman filed a lawsuit challenging the ordinance in state court in 2013. The city had it removed to the District Court of Northern Illinois. This isn’t uncommon.

There the District Court heard arguments and in September 2014, Judge John W. Darrah granted Summary Judgement to the city (bad guys). From there it was appealed to the Seventh Circuit Court.

The District Court followed the presidents provided to them by the Seventh Circuit court. The gist of which was to use the two-step shuffle and to consider anything that wasn’t a handgun used in self-defense outside the core protections of the Second Amendment.

The Analysis

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B.L.U.F. Judges have history, and it is important to understand their history. We explore a series of opinions issued by one Judge that are consistently anti-Second Amendment, even though the Supreme Court has told him he is wrong.

National Rifle Ass’n of Amer., Inc. v. City of Chicago, 567 F.3d 856 (7th Cir. 2009)

Back in 2009, the NRA et al. challenged the City of Chicago’s ban on the possession of most handguns. This was after District of Columbia v. Heller, 467 U.S. 837 (2008). In an opinion, written by Chief Judge Easterbrook, the Seventh Circuit court affirmed a lower court finding that such a ban was constitutional.

He begins with:

Here the judge is saying that district courts were dismissed because the Second Amendment didn’t apply to the state nor to subordinate bodies of a state. He goes on to say that three cases from the 1800s support this because the Supreme court did not take up such cases.

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For the last couple of weeks, I’ve been working with a great group of people at the CourtListener site. They are one of a number of projects that are supported by the Free Law Project.

All of this started because I asked for help uploading a document I had paid for. The project lead helped and asked for an error report. I gave it and in the midst of that asked, “How do you do X?” His reply was geek to geek. “That is a feature people have been asking for. Feel free to write it.”

I did.

Since then, I’ve been contributing little bits and pieces, but that is not the point of this article…

I asked for a simple link I could press to get proper citations. Citations that I can use here. They didn’t have one. Worse, they explained to me how I’m wrong…

It took me a week of being told wrong before somebody actually bothered to say what I was doing wrong. Part of that is because they have their own use cases, and we do not fit into their world view.

Most of the time, what I get is a short screenshot with the YouTuber, maybe giving me a little more context.

If I am a bit luckier, I might get something like this:

From this, I need or want to find the actual case. That should be pretty easy, right? Not so much.

The header on this document indicates that it came from PACER. That is not enough to actually locate this particular document.

To locate this document, you have to find it. The case number, 3:23-cv-00209-SPM, is not unique. I’m not sure what the leading three means. “23” means that this case was filed in 2023. “cv” means that it is a civil case and not a criminal case. It is case “00209” in this court. “SPM” are the initials of the judge hearing the case.

There is not enough information to find the actual case. For that, you need to the actual court, which is under the header. “In the United States District Court for The Southern District of Illinois.” That is a mouth full. You need to look that up in “Table T9 and T12” WTF? Yeah, that is what I said.

The answer is that “Tables” are published in The BlueBook. It is one of those textbooks that every lawyer has. It is also expensive as heck, and the online version is only available as a subscription.

Within those tables, you find that “Southern District” is abbreviated “S.D.” and that “Illinois” is abbreviated as “Ill.”

Thus, you are looking for case 23-cv-00209 in S.D. Ill. in 2023.

Unfortunately, that isn’t a very useful citation. Nobody remembers numbers like that.

If you look that case up, you will find a more formal citation Barnett v. Raoul, 3:23-cv-00209, (S.D. Ill.).

This is a bad citation. It looks good, but it is not. It is not a good citation because legal people don’t cite to cases. Instead, they cite to documents within a case.

A more correct citation to the document I show above would be the following:

Order Mot. for Prelim. Inj. at 5, Barnett v. Raoul, No. 23-cv-00209 (S.D. Ill. Apr. 28, 2023), ECF No. 99

And that would tell a lawyer type person exactly where to find that document. For you, I link to it. There is no reason to make you do the search.

But let’s say you aren’t trying to reference a document from a pending or undecided case, but instead wanted a document from a decided case.

First, lawyer type people don’t really seem to care about the documents filed, they care about the final decision. This is the “Opinion” or “Order” or both.

These are either published or unpublished. If they are published, they are published in a “reporter”. Each reporter has a unique name and a unique abbreviation.

In the lawyering world (sort of like the wizarding world but not nearly as much fun to visit) they might say something like “410 U.S. 113” or, if they are researching from a different source, “98 S. Ct. 705” or even “35 L. Ed. 2d 147”. These all mean the same thing. Roe v. Wade

“U.S.”, “S. Ct.” and “L. Ed. 2d” are reporters. The leading numbers indicate the volume, and the trailing number is the page number which starts the decision.

A citation into this opinion would look something like:

To do that citation, I had to find an actual PDF of the opinion from one of the reporters to have good page numbers. Often there are text versions of the opinion with the page numbers stripped off or, worse, with the page numbers not matching the citation. In other words, you might click on 410 U.S. 113 and the site you are visiting my take you to the 98 S.Ct. 705 version. The only differences being the page numbers. And since the reporters can use different font choices, the page numbers might not match with a constant offset.

What all of this means is that I’m working with the people that truly care about doing this correctly. I’ve got a couple of subject-matter experts working with me to figure out the best way to automate the citation process to give the best results.

Meanwhile, I’m trying to figure out if our readers would prefer to see: Order Caleb Barnett v. Kwame Raoul, 23-1825, (7th Cir. May 04, 2023) ECF No. 9 OR Order Barnett v. Raoul (7th Cir.)?

Back in December 2022, I posted NY CCIA challenge at SCOTUS. The GOA challenged the Second Circuit Court’s stay regarding an injunction from Judge Suddaby.

Judge Suddaby enjoined the state from enforcing parts of the CCIA. The state ran to the Second Circuit Court, which heard the request for an emergency stay on an expedited schedule. Of course, the Second Circuit issued the stay.

The stay was just a single sentence, it was not particularly enlightening as to why the stay was granted.

GOA then took the stay to SCOTUS, alleging that the Second Circuit Court had not given them anything to argue and requesting that SCOTUS vacate the Second Circuit Court’s stay. Justice Sotoymyer did something that shocked me. She told the state to file an argument with her within the week, over Christmas.

In early January, SCOTUS denied overturning the stay, but in an unusual turn of events, Justice Alito(?) and Justice Thomas issued a concurring opinion. In that opinion, they said that the reason they believed the court denied the motion was for procedural reasons.

In the state’s filings, they claimed that the case was on an expedited schedule for the appeal to be heard. This was false. Only the request for the stay was expedited. Alito and Thomas said that if the Second Circuit Court didn’t hear the case and provide good justification for the stay, that GOA should come back to SCOTUS.

This put the Second Circuit Court on notice that they could not just let the case sit there for an extended length of time. Oral arguments were heard by the Second Circuit Court on March 20th, 2023.

We are waiting for the results of that hearing.

GOOD NEWS

Over in the Seventh Circuit Court, they are hearing Robert Bevis v. City of Naperville, 23-1353, (7th Cir.) which is the City of Naperville’s AWB/LCM ban.

The Seventh Circuit denied the plaintiffs (good guys) Motion for Injunction Pending Appeal Mot. for Inj. Pending Appeal, Robert Bevis v. City of Naperville, No. 23-1353 (7th Cir. Mar. 7, 2023), ECF No. 8.

Following in the steps of the Second Circuit Court, their order is well-thought-out and extensive:

Unhappy with this result, the National Association for Gun Rights; Robert C. Bevis; and Law Weapons, Inc. filed an Emergency Application for Injunction Pending Appellate Review.

They are asking the Supreme Court to grant an injunction pending the Seventh Circuit Court issuing an opinion on the appeal.

And here is the great news:

The Supreme Court is watching these gun control cases moving forward. Maybe this is a chance for them to tell the inferior courts to “do the right thing”.

In Chevron v. Natural Resources Defense Council I discussed a little about Chevron deference. This is the case law that allows the federal government to say “We are the experts, our interpretation of the law is always correct.”

I am not qualified to know whether the original decision was a good decision or not, I believe it was not. Regardless, it has been abused for decades at this point.

Today, the Supreme Court granted certiorari in Loper Bright Enterprises, Inc v. Gina Raimondo, 21-5166 (D.C. Cir. 2022). This case has nothing to do with the Second Amendment directly, but it holds a great deal of potential for reigning in the ATF and other federal agencies.

The gist of the case is that congress passed the Magnuson-Stevens Act (MSA) in 1976. The MSA extended the regulatory reach of the “National Marine Fisheries Service”. It was passed to to conserve and manage the fishery resources…of the United States — 16 U.S.C. § 1801 (b)(1).

This is the law that is designed to stop overfishing of territorial waters of the US.

In September 2018, the NMFS submitted the Omnibus Amendment to the Service. This opened a commenting period. The commenting period ended and the Omnibus Amendment to the Service was approved. The Final Rule was published in February 2020.

Sort of like the ATF did bump stocks and pistol braces. They publish the proposed rule. Open for comments, then do whatever they wanted to do in the first place.

At issue in the Omnibus Amendment is that the NMFS decided that they were going to make the fishing boats pay to have an inspector on board and to force the fishing boats to accept an inspector. Space is at a premium aboard ships, so having a deadhead onboard worsens it for everyone. In addition, the government man isn’t actually doing any work. All he does is run his clipboard looking for ways to ding the boat.

This inspector is paid a percentage of the value of the catch.

In other words, the government gets to force a fishing boat to take an inspector onboard and the fishing boat has the pleasure of paying that inspector to eat their food, take up space, and in general to be a government busybody.

The Question

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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?

Conclusion

No.

Ok, maybe a bit more

Definition of Protected Arm under The Second Amendment

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B.L.U.F. The Court found that the country has a history and tradition from pre-founding through the modern day of banning dangerous weapons.

The plaintiffs (good guys) have requested a Temporary and Preliminary Injunction to enjoy the state from enforcing the Illinois assault weapon ban as well as the large capacity magazine bans. This is a Second Amendment Challenge

The Court’s statement regarding the factual background

The factual background is whatever the Court decides it is. This is part of the task of a Judge. They decide what the facts of the case are when there is no jury involved. We can learn significant information about the leaning of the Court just from their statement of facts.

Here the Court gives its first glimpse of their bias via the implied facts. “[W]idespread mass shootings nationally” is certainly a loaded phrase. It has the implied fact that there are widespread mass shootings. A fact that is not in evidence.

They move on to give a pretty standard definition of “assault weapon” to include many semi-automatic rifles. It is important to note that this is a ban on possessing an assault weapon as well. The exception being that you have to register the firearm with an “endorsement affidavit”. The same affidavit is required for all LCMs.

The court points out that the new ban is no big deal because the county and city have had bans since 2006 and 2013. No big deal to have the state do it too.

The Question

Is the plaintiff’s right to self-defense threatened by his inability to keep his rifle and pistol and magazines in his home?
Is the “endorsement affidavit” a forced registration, threatening his right to keep and bear arms?

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