New Chicago Gun Laws and New Lawsuit

[publius42]

Thanks, Spats. I found it here.

Chapter 8-20: Weapons

Definitions...

“Home” means the inside of a person's dwelling unit which is traditionally used for living purposes, including the basement and attic. A “home” does not include: (i) any garage, including an attached garage, on the lot; (ii) any space outside the dwelling unit, including any stairs, porches, back, side or front yard space, or common areas; or (iii) any dormitory, hotel, or group living, as that term is defined in section 17-17-0102-A.

...

Unlawful possession of handguns.

(a) It is unlawful for any person to carry or possess a handgun, except when in the person's home.

 

[Al Norris]

Meanwhile, there's some significant movement in this case (thanks to krucam for this):

2012-11-30 202 0 NOTICE of Motion by Andrew W Worseck for presentment of motion for miscellaneous relief 201 before Honorable Edmond E. Chang on 12/5/2012 at 09:45 AM. (Worseck, Andrew) (Entered: 11/30/2012)

2012-12-04 203 0 MINUTE entry before Honorable Edmond E. Changefendant's motion to cite 201 additional authority is granted. Plaintiffs may, if they choose, file a concise response to the two additional cases. No reply is needed. Status hearing of 12/05/12 is reset to 02/07/13 at 9:00 a.m., as the summary judgment motions are still under consideration. Mailed notice (slb, ) (Entered: 12/04/2012)

2012-12-10 204 0 RESPONSE by Plaintiffs Michael Hall, Illinois Association of Firearms Retailers, Kenneth Pacholski, Kathryn Tyler to order on motion for miscellaneous relief, set/reset hearings,, 203 (Cooper, Charles) (Entered: 12/10/2012)

2012-12-18 205 0 MINUTE entry before Honorable Edmond E. Chang: On or before 01/04/13, the parties may each file a supplemental memorandum addressing Moore v. Madigan, USCA Nos. 12-1269, 12-1788 (7th Cir. Dec. 11, 2012). The parties may file cross-responses on or before 01/15/13. (Assume, just for purposes of analysis, that rehearing en banc will not be granted.) Mailed notice (slb, ) (Entered: 12/18/2012)

2013-01-04 206 0 MEMORANDUM text entry, 205 by Michael Hall, Illinois Association of Firearms Retailers, Kenneth Pacholski, Kathryn Tyler Supplemental Memorandum Addressing Moore v. Madigan, USCA Nos. 12-1269, 12-1788 (7th Cir. Dec. 11, 2012) (Attachments: # 1 Exhibit Moore v. Madigan Slip Op.)(Cooper, Charles) (Entered: 01/04/2013)

2013-01-04 207 0 MEMORANDUM by Richard M Daley, The City of Chicago (Worseck, Andrew) (Entered: 01/04/2013)

What does the above mean? Back on Dec. 11th, The defendants motioned the court to present additional (Supplemental) authority. The court agreed with two stipulations. First, that both sides submit supplemental briefs addressing Moore v. Madigan. The second being that they were to treat the briefs as if the en banc hearing would not be granted.

A hat tip to NRA Attorney, Charles Cooper. His brief is excellent and tracks Moore completely.
http://www.archive.org/download/gov.uscourts.ilnd.245065/gov.uscourts.ilnd.245065.206.0.pdf (14 pdf pages)

Chicago's brief tries to get the court to recognize that Chicago is just plain different than anywhere else in the country, let alone the State. Chicago is basically saying, "Ignore the man behind the curtain" (Judge Posner).
http://www.archive.org/download/gov.uscourts.ilnd.245065/gov.uscourts.ilnd.245065.207.0.pdf (10 pdf pages)

So what is going to happen next?

I suspect the Judge Chang will wait and see if the en banc request is granted. If it is, Benson will likely be stayed. If not, the decision for the MSJ will be rather easy, as Moore controls.

 

[Luger_carbine]

Judge Chang finds for Plaintiffs in Benson v Chicago

Now known as Illinois Association of Firearms Retailers v The City of Chicago and Rahm Emanuel, ) Mayor of the City of Chicago

Chicago does all this in the name of reducing gun violence. That is one of the fundamental duties of government: to protect its citizens. [sic] on the other side of this case is another feature of government: certain fundamental rights are protected by the Constitution, put outside government’s reach, including the right to keep and bear arms for self-defense under the Second Amendment. This right must also include the right to acquire a firearm. For the specific reasons explained later in this opinion, the ordinances are declared unconstitutional.

 

[Luger_carbine]

Judge Chang's opinion reads like a laundry list of Illinois and Chicago's legal defeats, and not because this is a Chicago case, but because Illinois and Chicago continued to keep unconstitutional laws on the books after Heller. Judge Chang cites Heller, McDonald, Ezell, and Moore v Madigan.

 

[Luger_carbine]

Also, Judge Chang addresses level of scrutiny, citing Ezell:

one thing is sure: the standard of judicial review is always stricter than rational basis review

and citing Moore:

The Seventh Circuit then went on to assess the State’s public-safety rationales for banning public gun carriage, concluding that the State’s empirical evidence did not provide a justification for a complete public-carriage ban. Because the State thus failed to “provide [the court] with more than merely a rational basis for believing that its uniquely sweeping ban is justified by an increase in public safety,” the Seventh Circuit remanded to the respective district courts for the entry of declarations of unconstitutionality

If only King and Davis would have done their jobs, gone by the clear meaning of the law instead of jerrymandering word meanings to cook up an opinion to keep society the way they personally think it should be in regards to people carrying firearms.

Well, no use dwelling on the negative - this is a positive for Illinois and people in Chicago.

Chicago loses again.

 

[BillCA]

I really like the wording Chang used...

...certain fundamental rights are protected by the Constitution, put outside government’s reach, including the right to keep and bear arms for self-defense under the Second Amendment.

"outside the government's reach"... it doesn't get too much plainer than that.

 

[Luger_carbine]

Chicago Tribune article on outcome of Benson:


Chicago Loses on Guns Again

http://www.chicagotribune.com/news/...hicago-chapman-stev-20140109,0,1919558.column



So many good quotes:

Since the death of communism in most of the places where it once prevailed, North Korea and Cuba function mainly as educational exhibits for an irrelevant and unsuccessful ideology. When it comes to the Second Amendment right to keep and bear arms, the city of Chicago fills a similar role.

I have read that a lot of Chicago's legal staff are political hires and generally speaking they're incompetent.

You would have thought that after Heller there wouldn't have had to be a McDonald case. What legal genius thought that Chicago could win that? Or maybe the mayor at the time didn't care?

They sure are on a losing streak, and an expensive one.

 

[Lt. Skrumpledonk Ret]

Chicago is re-wording regs on selling guns.

I thought the train-wreck Illinois legislature put in a clause that dictates that ONLY the legislature can enact changes to gun laws....or was that specifically for carrying weapons?

Now Chicago's ban on selling guns is gone, but the city can side-step that and come up with other infringements. It would be nice if all home-rule gun ordinances flew out the window.

 

[Luger_carbine]

I guess they're getting ready to write more laws that will generate more lawsuits.

 

[BillCA]

This just in....

Emanuel asks for time to regulate gun sales in Chicago

Mayor Rahm Emanuel all but acknowledged that people will be able to legally buy guns in Chicago later this year, announcing Thursday that he has chosen not to fight a federal court ruling that struck down the city's gun shop ban.

10:1 odds that they get their "toughest city rules" wrong and are forced to rewrite them at least once.

Emanuel said he had instructed the city Law Department “to work with public safety experts and community leaders to create a comprehensive set of restrictions on the sale of firearms to ensure that illegal guns don't find their way into the hands of criminals or straw purchasers.”

1. Illinois already requires you to have a FOID card to buy a gun. Criminals can't get a FOID Card but could still possess one after it was revoked or cancelled. Gun sales are subject to a background check, of course. But I can see no way to actually prevent a straw purchase if the straw-buyer is properly coached on which gun to buy and turns it over away from the shop.

2. Emanuel could try to implement a "gun tax" to discourage gun shops, but he'd once again run afoul of the courts. Rights cannot be licensed or taxed -- i.e. your right to vote or to free speech may not be subject to a tax, fee or surcharge nor dependent upon issuance of a license.

[Begin rant]
My question is ... how many more constitutional violations will it take before the politicians can be charged with conspiracy to violate the constitutional rights of the citizens of Chicago? It's one thing to make a law that goes just a tad too far (e.g requiring a permit to play a [flute/guitar/etc] in a public park) versus making a law that any law school graduate would believe violates civil rights (i.e. taxing gun shops, gun sales, gun ownership, etc).

Oh yes, I'm sure they'll claim they're not taxing your right to acquire a gun, just taxing "a" commercial enterprise to help pay for the extra policing and oversight. But the city's history is clear. Aldermen have been recorded as saying "We want to make it as difficult as possible to have a gun" in Chicago. Now the mayor is saying he wants it to be as expensive as we can get away with to open a gun shop in the city.

That's a direct statement they want to prevent the exercise of a civil right. It is also an abuse of the taxation authority.
[/end rant]

 

[scpapa]

"We want to make it as difficult as possible to have a gun" in Chicago. Now the mayor is saying he wants it to be as expensive as we can get away with to open a gun shop in the city.

He's just thinking ahead about how they are going to pay for the extra city workers to clean up all the blood in the streets if they have gun shops in the city. /sarcasm off

Rick

 

[Lt. Skrumpledonk Ret]

Rham's antigun agenda hindered by laws and rights and such.

“We're going to think about it in a way that while we have to abide by the straitjacket the court put us under. In my view that's a straitjacket. Access, it's not like a shortage of guns. People get access to guns,” Emanuel said as police Superintendent Garry McCarthy looked on


Straitjacket---Bill of Rights. What's the difference Rham?

Chicago Tribune.

http://www.chicagotribune.com/news/...gun-sales-in-chicago-20140109,0,3010693.story

 

[44 AMP]

Clearly obvious they don't want legal ownership and sale of guns in their realm. Sad for them, the courts have finally said they cannot do that legally.

So they are going to look for a "legal" way to make it as onerous and expensive as possible. And apparently asking for a year in which to plan.

Truly intelligent people would have prepared a fall back position, in advance, but then, we aren't dealing with those people, are we?

That much, at least, is clear.

 

[NukemJim]

2 points;

1) "but could still possess one after it was revoked or cancelled."

A person could possess the FOID but when they ran the sale through the ISP the FOID # would come back as expired and the sale would not go through.

2) " Emanuel could try to implement a "gun tax" to discourage gun shops, but he'd once again run afoul of the courts. Rights cannot be licensed or taxed -- i.e. your right to vote or to free speech may not be subject to a tax, fee or surcharge nor dependent upon issuance of a license. "

You may not be aware but Cook County (where Chicago is located) already has a $25.00 tax on all firearms sales from gun stores. Since that is legal why can't the city add another tax?

NukemJim

 

[Luger_carbine]

Any gun control measure that ever succeeds - like Kwong, becomes the new avenue for gun control.

If NYC is able to get away with their fee structures, Chicago will put similar fees in place, on top of a firearm tax and ammo tax. Next year all those fees and taxes will go up.

If capacity restrictions are successful, places like New York and California will pass a new round of restrictions after the next shooting to reduce capacity to 5 rounds, then 4 rounds.

They'll keep it up until the Supreme Court stops them.

 

[BillCA]

You may not be aware but Cook County (where Chicago is located) already has a $25.00 tax on all firearms sales from gun stores. Since that is legal why can't the city add another tax?

Is it really legal though?
I will argue that it is not constitutional. The courts have long held that rights may not be licensed or taxed. They have even drawn the line at "tests" to determine if one is "qualified" -- i.e. "intelligence" tests to vote.

A tax specifically on firearms transactions would fall into the same unconstitutional regulatory scheme as found in Minneapolis Star & Tribune Co. v. Minnesota Commissioner of Revenue (501 U.S. 663,111 S. Ct. 2513,115 L. Ed. 2d 586,1991 U.S). Minnesota created a use tax specifically on newsprint and ink. The newspaper claimed it violated their 1st Amendment free press rights.

The danger of a specific use-tax separate from the general sales tax is that it is focused on one specific industry or area (here, it's the press). Such a tax may be changed to be punitively expensive without directly impacting other areas of society. It could also be used to run small or large operations out of business at the whim of the State.

HELD:

Differential treatment, unless justified by some special characteristic of the press, suggests that the goal of regulation is related to suppression of expression and such a goal is presumptively unconstitutional. Differential taxation on the press places such a burden on the interests protected by the First Amendment of the Constitution that the Supreme Court cannot countenance such treatment unless the state asserts a counterbalancing interest of compelling importance, which it cannot achieve without differential taxation.

(emphasis added)

A State may claim their interest in "public safety" is compelling enough to enact a tax on firearm sales or transactions, including ammunition. If that tax is applied in lieu of sales tax it might work if the differences are small. The call-out to the state is for them to show that the use of the tax dollars will be applied to program(s) that foster measurable improvements in public safety as it relates to firearms.

 

[Armed_Chicagoan]

There's a group of gun stores sing over the Cook County tax in state court, the legal strategy is that it violates state law wrt regulating firearms. Per the new concealed carry law the state has sole power to regulate firearms (with the exception of long gun "assault weapons" regs passed no later than 10 days after the concealed carry law), and Cook County has already admitted in depositions the tax is a regulation. I'd bet it gets tossed on those grounds.

 

[Luger_carbine]

Looked like the best place to put this since this is going to be a new Chicago law

Plan for city gun shops would limit sites, require sales be taped

http://politics.suntimes.com/articl...es-require-sales-be-taped/tue-05272014-1201am

I personally think mandated video taping will pass constitutional muster - although I seem to remember an Honorable Judge Bork being torpedoed by political opponents over the issue of "privacy" in the constitution.

I wonder though, if limiting sites will survive a constitutional challenge - this is after the city's outright prohibition on gun shops was overturned in Ezell.

 

[44 AMP]

I wonder though, if limiting sites will survive a constitutional challenge -

On the face of it, I'd say sure. Cities limit and restrict where all kinds of businesses can operate, everywhere I know of.

Zoning, ordnances, etc. Done all the time. And as far as crying "gun business" singled out, they won't be any more singled out than other "unsavory" (in their view) but legal businesses.

If they have the legal right to tell you that you cannot have a (tattoo parlor or a bar, or a toxic waste storage facility within XXX feet of a school or whatever), they can say no gunshop there.

The can't say no gunshop anywhere (like they were), but they can say no to certain places.

 

[Armed_Chicagoan]

There are some parts of the law (like the one handgun per month per person limit) that may not survive a state court challenge since state law now preempts local handgun laws.