The Judge Said What?

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.

In response to widespread mass shootings nationally, including the mass shooting in Highland Park, Illinois on July 4, 2022, the State of Illinois passed the “Protect Illinois Communities Act,” HB 5471 (“the Illinois Act”). Ill. Pub. Act 102-1116, § 1; …
Herrera v. Raoul, in his official capacity as Attorney General for the State of Illinois, 1:23-cv-00532, (N.D. Ill. Apr 25, 2023) ECF No. 75

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?

Finally, Herrera contends that the Illinois Act “will soon prohibit [him] from possessing his AR-15 rifles anywhere in Illinois, even far away from [his] home, unless he complies with its intrusive and ahistorical registration requirement.” [Id. at ¶ 103]. Herrera fears that the Illinois Act’s requirement is but a “prelude to gun confiscation” and risks exposing his personal information in the event of a data breach. [Id. at ¶ 103].
Id. at 7

This is the plaintiff saying what we all know, registration leads to confiscation. Maybe not today, but tomorrow or sometime in the future. Just ask the British.

I also approve of the plaintiff bringing up his fears of a data breach. It is remarkable how often there are data breaches that expose the personal information about conservatives and gun owners, and nothing ever seems to happen to stop the next breach.

Legal Standards

This is the part where the Court determines if everybody has standing and that the court can make the ruling.

In this case, the plaintiffs asked for a temporary restraining order, a preliminary injunction and declaratory judgement at the same time. The Court isn’t going to do both a TRO and a preliminary injunction. They say that since the legal standards for the TRO are almost the same as for the preliminary injunction, the Court is going to issue an order for both at once.

As a refresher, a Temporary Restraining Order (TRO) is used to stop an action for a short period of time until the Court can gather enough facts to have an opinion regarding a preliminary injunction. The preliminary injunction lasts until the end of the trial, at which point the Court will issue an opinion and order regarding an injunction. An injunction lasts until a higher court vacates it.

Part of the problem that is happening is that the infringing approving courts are looking at the request for a TRO and preliminary injunction and asking, “If it is so important to have this in place now, why didn’t you file for it back when the law was first passed?” This, of course, ignores things like the law being passed in 2006, years before Heller.

Why would anybody spend the money for something they knew wasn’t going to make it to the Supreme Court?

What Bruen accomplished, more than anything else, is it gave the Second Amendment community hope. The hope that was dashed with the two-step shuffle is back. We are making inroads. We will win.

The Court’s Analysis

The first requirement to receive a TRO or Preliminary Injunction is to have a likelihood of success on the merits. The court correctly points out that this has to be better than some chance, and that it is an early measurement of the quality of the underlying lawsuit.

The Court looked at everything and decided that the plaintiffs are unlikely to succeed on the merits.

Having considered the preliminary record at this stage, the Court concludes that Herrera is unlikely to succeed on the merits of his claim. Doe, 43 F.4th at 791. The challenged restrictions on semiautomatic weapons and large-capacity magazines in the City Code, County Code, and Illinois Act are consistent with “the Nation’s historical tradition of firearm regulation,” namely the history and tradition of regulating particularly “dangerous” weapons. New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111, 2130 (2022); District of Columbia v. Heller, 554 U.S. 570, 627 (2008).
Id. at 8

The Court, again correctly, notes that there are other cases in play in IL. regarding the AWB and LCM ban, both at the local level and at the state level. Most recently, the Bevis Court denied a motion for preliminary injunction of the Illinois Act and a Naperville City ordinance, both restricting the sale of certain semiautomatic rifles and large-capacity magazines.Id. at 9 We wrote about the dunce Judge in Bevis previously: Dunce in Judicial Robes Fails to Understand Bruen – Updated Bevis is the case where the judge wrote The muzzle velocity of an assault weapon is four times higher than a high-powered semiautomatic firearm.Bevis v. City of Naperville, Illinois, 1:22-cv-04775, (N.D. Ill. Feb 17, 2023) ECF No. 63

It never ceases to amaze me how the dunces all seem to find the other dunces. It is almost as if they are all working together behind the scenes.

This Court is also relying on the right does not extend to “weapons not typically possessed by law-abiding citizens for lawful purposes.”Id. at 10 quoting Miller. What the Court ignores is Caetano v. Massachusetts where Justice Alito with Justice Thomas wrote that stun guns were arms in common use protected by the Second Amendment because The more relevant statistic is that “[h]undreds of thousands of Tasers and stun guns have been sold to private citizens,” who it appears may lawfully possess them in 45 States.Caetano v. Massachusetts, 136 S. Ct. 1027 – Supreme Court 2016 at 1032

This means that 200,000 is the minimum number that defines “in common use”

Two years later, in McDonald v. City of Chicago, the Court incorporated this right against the states through the Fourteenth Amendment. 561 U.S. 742, 767 (2010). In that vein, the Court noted that “[f]rom the early days of the Republic, through the Reconstruction era, to the present day, States and municipalities … banned altogether the possession of especially dangerous weapons.” Id. at 899–900. The Court remarked that “[t]his history of intrusive regulation is not surprising given that the very text of the Second Amendment calls out for regulation, and the ability to respond to the social ills associated with dangerous weapons goes to the very core of the States’ police powers.” Id. at 900–01.
Herrera v. Raoul at 11
This judge is being very disingenuous in this paragraph. Three times, the Court calls out Justice Kavanaugh’s dissent. In most citations to a dissenting opinion, the person citing the dissent identifies it as dissent. In a court opinion, there is the holding, this is the thing that is the actual ruling, dicta which is important but not as important as dicta. Finally, there are dissenting dicta, which don’t count as being anything the superior court held.

This quote from McDonald is from the dissent. It is just dicta, and it is dicta from the losing side. According to my sources, this does happen, but it is not normal for the Court to leave off that the quotation came from the dissent.

The Test

Heller established and Bruen confirmed that the test is not up to the state if something is particularly dangerous. That is up to The People. If an arm is in common use, then it is presumptively protected by the Second Amendment. All the plaintiff needs to do, is to show that an arm is in common use for lawful purposes.

The state is doing everything in its power to change that to “in common use for self-defense” and from there to “in fired commonly in self-defense”.

By ignoring “in common use for lawful purposes” the Court can claim that the arm is not protected.

To reach this conclusion, the Bevis Court detailed the regulatory history of “Bowie kni[ves],” clubs, trap guns, and gun silencers. Id. at *10–14. The Court utilized over fifty examples, ranging from the Colonial Era to the early 20th century, showing a clear trend that when weapons became “prevalent,” so too would “the laws governing the most dangerous of them.” Id. at *10. The Court noted that as firearms proved more reliable, states similarly regulated them, including “gun silencers” and “semiautomatic weapons.” Id. at *12. As to the latter, the Court noted that “semiautomatic weapons themselves, which assault weapons fall under, were directly controlled in the early 20th century.” Id. From this body of evidence, the Court concluded that “[t]he history of firearm regulation … establishes that governments enjoy the ability to regulate highly dangerous arms (and related dangerous accessories).” Id. at *14–16.
Id. at 14

This is good lawyering on the part of the Court, they are not saying this, they are saying that this other judge said all of this, and we are just going to agree with them and use their research and opinions. This allows the judge to keep his hands from being slapped because he was just following that other court.

The Experts

Wikipedia has a requirement that they not be a primary source. They are always articles that have references to some other source, either primary or secondary.

Courts are similar regarding everything except the law. A Judge should not allow into evidence an expert’s opinion about the law. This means that if Gifford, or Brady published a book about gun regulations in America, that could not be used because it is telling the Judge how to interpret the law. They can provide that book to the state, which then extracts cases from that reference and cite those regulations in their filings.

The difference is that in the first case, the “expert” is giving their opinion on the law to the court “Your Honor, we find that there is a long-standing history and tradition of banning everything gun related”. Vs. “Here are a number of policies, regulations and rules that we found that support our position.” One is the Judge doing his job, the other is the Judge delegating.

The problem with experts is that they are all biased. Even ours. When you allow “experts” to enter the equation, what happens is that you end up with dueling experts. The parties aren’t arguing their position, instead they are arguing for their expert to be the expert because their expert has the same opinion as they do.

Having concluded that Defendants demonstrated a tradition of regulating “particularly dangerous weapons,” Id. at *9, the Bevis Court next considered “whether assault weapons and large-capacity magazines fall under this category” of “highly dangerous arms (and related dangerous accessories),” and answered with a resounding yes. Id. at *14. The Court considered ample record evidence of the vastly destructive injuries that semiautomatic weapons cause and their “disproportionate[]” use in “mass shootings, police killings, and gang activity. Id. at *14–15. The Court observed that large-capacity magazines “share similar dangers,” with studies showing that the use of such magazines lead to an increased number of fatalities in mass-shooting scenarios. Id. at *15 (“[R]esearchers examining almost thirty years of mass-shooting data [have] determined that high-capacity magazines resulted in a 62 percent higher death toll.”). The Court rejected any argument that regulations on semiautomatic weapons and large-capacity magazines are not “unusual,” given the ten-year federal ban on assault weapons and eight bans on semiautomatic weapons and large-capacity magazines in jurisdictions such as Illinois. Id. at *16. As such, the Court concluded that “[b]ecause assault weapons are particularly dangerous weapons and high-capacity magazines are particularly dangerous weapon accessories, their regulation accords with history and tradition.” Id.
Id at 16

The court says that there is a history and tradition of regulating particularly dangerous weapons. This ignores that the Court doesn’t get to determine if a weapon is particularly dangerous. In addition, they had to have a “Nuanced approach” to get their similar match. These are all techniques and arguments that have been discussed. Nothing new here.

In the same way, when the court moves to analyze the registration requirement, they start with 1631 regulations. It also looks like they are assuming that a mandatory muster law is, in fact, a registration requirement. “To account for their arms and ammunition”

I’m sorry, but “account for” means to show up with the arms you are using to muster. If you don’t show up with your arms, you have to account for your arms.

Having used this logic to deny the TRO and Preliminary Injunction, the court then went on to say that even if the plaintiffs were going to succeed on the merits, they were not suffering irreparable harm.

The Supreme Court has said, “The Second Amendment is not a second class right”. This court relies on While the Seventh Circuit in Ezell likened the plaintiff’s alleged Second Amendment harm to a First Amendment challenge, where harm can be presumed, the Seventh Circuit declined to create such a wide-ranging presumption for Second Amendment cases.</>— Id at 26 According to this District Court, since the Seventh Circuit court hasn’t ruled that the Second Amendment is a real constitutional right, you suffer no harm if you are denied your right to keep and bear arms.

One of the things that was struck down in Bruen was the idea that you could infringe a little bit as long as you didn’t infringe completely. As long as the plaintiffs have access to other means to protect themselves, they are not actually being infringed enough for it to be harmful.

Or to put it differently, “Just how much were you raped, Mrs. Jones? It sounds like it was just a little bit, we aren’t going to treat it like a rape, rape. Instead, it will be simply a simple assault.”.


This judge, Lindsay C Jenkins, wanted a particular outcome and was willing to find ways to get there.

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By awa

2 thoughts on “<i>Herrera v. Raoul</i> Illinois AWB/LCM ban”
  1. “It is almost as if they are all working together behind the scenes.”

    Because they are. They all get their talking points from the same anti-gun groups and lobbyists.

    I’m sure you’re aware, but the IL AWB was stayed by a different federal court w/ a separate case yesterday.

  2. The stacked deck can only go so far before someone gets called out. This rule by the bench fiat is pants on head crazy.

Only one rule: Don't be a dick.

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