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Updated: 01-07-16

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Firearm Laws

  Victor D. Quilici
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Firearm Laws
	United States v. Mixon, C.A. 7 (Wis.) , 457 F. 3d 615 (6/12//06) People v. Price. Ill. App. 1st District. ____N.E. 2d ____, 2007 WL 2163997 UPDATE: U.S. Supreme Court Accepts D.C. Gun Ban Appeal SMALL v. UNITED STATES People v. Collins, 824 N.E. 2d 268 The City of Chicago et al., vs. Beretta U.S.A Corporation, et al. DOJ Opinion: The Second Amendment secures a right of individuals generally. People vs. Smythe, 352 I11. App. 3d 1056. People v. Cameron, 336 Ill. App. 3d 548. People v. Watkins, 361 Ill. App. 3d 498 (3rd Dist 2005)
Search & Seizure
	Hiland v. Trent, 868 N.E. 2d 396, Third District Appellate Court (5/16/07). People v. Williams, 858 N.E. 2nd 606. Illinois Appellate Court, Ist District. United States v. Cherry, 436 F. 3d 769 ( C.A. 7, Ill., 2006) People v. Miller, 824 N.E. 2d 1080 , Illinois 1st District Appellate Court (2-7-05). HUDSON v. MICHIGAN. United States Supreme Court, June 2006. 126 S. Ct. 2159 People v. Dieppa, 357 Ill. App. 3d 847 ILLINOIS v. CABALLES. U.S. Supreme Court (1/25/05) on writ of certiorari to the Supreme Court of Illinois. 03-923 DEVENPECK et al. v. ALFORD No. 03-710 People v. Parra, 352 Ill. App. 3d 584, 817 N.E. 2d 141 ( 2d Dist., 10/12/04) People v. Travis Smith, 346 Ill. App. 3d 146, 803 N.E. 2d 1074 People v. Starbuck, 358 Ill App. 3d 234 (3rd Dist. 2005) People v. Mendoza, 846 N.E. 2d 169 (2d Dist App. Ct., March 2006) People v. Frederick Hampton, 358 Ill App. 3d 1029 (2d Dist 2005) and People v. Shinara Mathews, 357 Ill App. 3d 1062 (3rd Dist. 2005)

UPDATE: U.S. Supreme Court Accepts D.C. Gun Ban Appeal

Parker, et al. v. District of Columbia & Mayor Adrian M. Fenty 478 F. 3d 370 (D.C. Cir. 2007 ( pending appeal as District of Columbia & Adrian M. Fenty v. Heller and Shelly Parker, et al v. District of Columbia and Adrian M. Fenty).

On 11/20/07 the Unites States Supreme Court accepted the District of Columbia’s appeal of its now infamous gun ban case. Our highest court granted certiorari regarding the District’s case against the one Plaintiff (Dick Anthony Heller) who survived the initial appeal to the D.C. Appellate Court.

The Supreme Court took no action on a cross-appeal filed by five of the original Plaintiffs in the lower district court—that is, Parker et al. v. D.C. and Mayor Adrian Fenty. That appeal remains open for further action by the Court, and determination as to whether that matter may be accepted by the High Court is expected soon.

On March 9, 2007 the United States Court of Appeals for the District of Columbia rendered a milestone decision striking parts of the District of Columbia “Firearms Control Regulations Act “ which had been on the books since 1975, thereby becoming the very first federal court of appeals in the U.S. to render a decision holding a gun control law to be unconstitutional while relying on the Second Amendment of the United States Constitution. This decision gives credence to and strengthens the interpretation of the 2nd Amendment as stated in United States v. Emerson, 270 F. 3d 203 (5^th Circuit, 2001), that is—the 2^nd Amendment applies to and protects individual Americans in their right to keep and bear arms whether or not they are members of a select militia or performing active military service or training. The Appeals Court reversed the District Court decision granting the defendants’ motion to dismiss the Complaint, the lower Court having relied upon United States v. Miller, 307 U.S. 174, 178, where the U.S. Supreme Court, dealing with a criminal case involving a sawed-off shotgun, held that the Second Amendment applied only to that use in connection with service in a state-regulated militia.

The.1975 law had been passed pursuant to the District of Columbia’s “home rule” powers similar to those exercised later by Morton Grove, Illinois, in 1981, when it enacted the infamous handgun ban that prohibited the possession of a handgun within one’s home. Quilici v. Morton Grove, 695 F. 2d 261 (7^th Cir. 1982). The D.C. ordinance banned owning or possessing handguns and required rifles and shotguns to be kept “unloaded, disassembled , or bound by a trigger lock.”

In summation, the D.C. Court of Appeals stated: “[W]e conclude that the Second Amendment protects an individual right to keep and bear arms. That right existed prior to formation of the new government under the Constitution and was premised on the private use of arms for activities such as hunting and self-defense, the latter being understood assistance to either private lawlessness or the depredations of a tyrannical government ( a threat from abroad). In additions, the right to keep and bear arms had the important and salutary civic purpose of helping to preserve the citizen militia. The civic purpose was also a political expedient for the Federalists in the First Congress as it served, in part, to placate their anti-federalist opponents. The individual right facilitated militia service by ensuring that citizens would not be barred from keeping the arms they would need when called forth for militia duty. Despite the importance of the Second Amendment’s civic purpose, however, the activities it protects are not limited to militia service, nor is an individual’s enjoyment of the right contingent upon his or her continued or intermittent enrollment in the militia.” (Emphasis added.)

A petition by defendants-appellees for rehearing before the full court of appeals (en banc) was denied on May 8, 2007, and defendants then appealed to the United States Supreme Court. Five of the original plaintiffs whom the Appeals Court found did not to have jurisdictional standing to challenge the law prior to its enforcement then cross-appealed for reinstatement of their claims. Highlights of the various contentions of the parties to the petitions asking the

U.S.

Supreme Court to hear the case, and highlights of the positions in response to the petitions, are outlined below.

Petition for Writ of Certiorari to the U.S. Court of Appeals for the District of Columbia .District of Columbia and Mayor AdrianM. Fenty v. Dick Anthony Heller (No. 07-280).

Outline Highlights of Petitioners’ arguments to the U.S. Supreme Court:

The brief in support of the Petition for Certiorari states that “the decision of the Appellate Court is wrong in three respects” and captions them as follows:

“A.	The right protected by the Second Amendment is limited to weapons possession and use in connection with service in state-regulated militias;
B.	Laws limited to the District of Columbia do not violate the Second Amendment;
C.	Under any view of the Second Amendment the District’s law, which permits ownership of rifles and shotguns but bans handguns, does not infringe the right to keep and bear arms.” (Some capitalization removed.)

The Petitioner District and mayor Fenty, Appellees below, open their pleadings with the observation that “the decision below directly conflicts with the rulings of nine Circuits and the highest courts of the District and numerous states.

“. . . The majority acknowledged that its decision was in direct conflict with the holdings of the First, Third, Fourth, Sixth Seventh, Eighth, Ninth, Ten and Eleventh Circuits and the District of Columbia Court of Appeals.

Petitioners further allege that the Appeals Court erred when it “adopted a categorical rule that any prohibition on the possession of any type of protected ‘Arm’ is per se unconstitutional, without regard to the reasonableness of the regulatory scheme as a whole: ‘Once it is determined . . .that handguns are ‘arms’ referred to in the Second Amendment, it is not open to the District to ban them.’”

“. . .Because the Appeals Court’s decision drastically departs from the mainstream of the American Jurisprudence, it warrants review.”

Outline Highlights of Response to Petition for Certiorari:

Respondent Heller’s brief initially focuses on “[w]hether the Second Amendment guarantees law-abiding adult individuals a right to keep ordinary, functional firearms, including handguns in their homes”. Heller’s summary of argument sets forth the following:

“I.	The Court should provide essential guidance to courts that misconstrue the Second Amendment;
II.	The question presented by petitioners misconstrues the Court of Appeals’ holding and the central issue in the case;
III.	Whether the second amendment forbids handgun prohibition is a discrete Constitutional question that must be answered on its own terms;
IV.	The City’s policy and the social science arguments are irrelevant and factually . baseless;.
V.	Citizens under criminal attack are not required to stand by and die awaiting police protection.” (Some capitalization removed.)

The following are highlights from Respondents’ “Summary of Argument” with some omissions not noted in the quoted text.:

“This case presents the Court a unique opportunity to correct a persistent misconception that the people do not actually enjoy a right that is specifically enumerated in the Constitution. ‘The People”—individuals in our country—retain the right to keep and bear arms.’”

“. . . [T]he question presented by this case is whether the Second Amendment secures an individual right to keep basic functional firearms, including ordinary handguns, within the home

“ . . . The question in this case is not merely whether the City may ban handguns as a subclass of firearm; the question is whether a law that prevents people from keeping functional firearms—of any kind—in their homes violate the ‘right to keep and bear arms’ recognized by the Second Amendment. Thus, unlike Petitioner’s formulation, the question presented by Respondents fairly and accurately reflects all the laws adjudicated by the Courts below

“. . . Respondents are constrained to respond to the remarkable declaration that ‘[w]hatever right the Second Amendment guarantees, it does not require the District to stand by while its citizens die.’[citing Petitioners’ brief] The statement suggests, contrary to Petitioners’ consistent litigating position in other cases, that citizens are generally entitled to rely upon the city for police protection.”

Cross-Petition for Writ of Certiorari to the U.S. Court of Appeals of the District of Columbia . Shelley Parker et al. v. District of Columbia and Mayor Adrian M. Fenty
(07-335).

Outline Highlights of Cross-Petitioners’ arguments to U.S. Supreme Court:

The Parker cross- petitioners’ brief captions state:

“I.	On the issue of standing, the opinion below admittedly contradicts this Court’s settled precedent;
2.	On the issue of standing, the opinion below conflicts with other federal courts of appeals;
3.	The D.C. Circuit’s erroneous standing doctrine renders the declaratory judgment act a dead letter in the nation’s Capital.” (Some capitalization removed.)

The question presented stated:

“Whether the Court of Appeals erred in holding, in acknowledged conflict with this Court’s decisions in Babbitt v. United Farm Workers National Union, 442 U.S. 289 (198=79) and Virginia v. American Booksellers Ass’n, 484 U.S. 383 (1989), that cross-petitioners cannot maintain a pre-enforcement constitutional challenge to a criminal law without showing that they ‘have been singled out or uniquely targeted by the D.C. government for prosecution’”

Outline Highlights of Response to Cross-Petition:

The District of Columbia and Fenty note that the Supreme Court “has on more than one occasion noted that it is unnecessary for it to consider whether other plaintiffs have standing, [citing] Babbitt v. United Farm Workers National Union, 442 U.S. at 299; Buckely v. Valeo, 424 U.S. 1, 12 (1976).”

“	“Because respondent Heller was held to have standing, the cross-petitioners have little if anything to gain from their submission. Any judgment by this Court in No. 07-280 will bind the District as against all of its citizens, including cross- petitioners…”
	“Peoples Rights Organization, Inc., v. City of Columbus, 152 F. 3d 522(6^thCir. 1998) cited by Cross-Petitioners “is distinguishable. . . . The fact that the plaintiffs owned guns that became unlawful was the critical factor in finding standing and was the reason the 6^th Circuit in PRO distinguished its earlier decision in Magaw [National Rifle Ass’n v. Magaw, 132 F. 3d 272] See PRO, 152 F. 3d at 530. . . .”
	“ Granting the cross-petition would unnecessarily complicate the pending litigation on the meaning of the Second Amendment. Indeed, given the D.C Circuit’s holding that Heller has standing, the District would have little interest in defending the decision of the court of appeals that cross-petitioners lacked standing even if the cross-petition were granted.”

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