Firearm Laws |
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Search & Seizure |
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Hiland v. Trent, 868 N.E. 2d 396, Third District
Appellate Court (5/16/07).
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People v. Williams, 858 N.E. 2nd 606. Illinois Appellate Court, Ist District.
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United States v. Cherry, 436 F. 3d 769 ( C.A. 7, Ill., 2006)
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People v. Miller, 824 N.E. 2d 1080 ,
Illinois 1st District Appellate Court (2-7-05).
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HUDSON v. MICHIGAN. United States Supreme Court, June 2006. 126 S. Ct. 2159
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People v. Dieppa, 357 Ill.
App. 3d 847
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ILLINOIS v. CABALLES. U.S.
Supreme Court (1/25/05)
on
writ of certiorari to the Supreme Court of Illinois. 03-923
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DEVENPECK et al. v. ALFORD No.
03-710
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People v. Parra, 352 Ill. App.
3d 584, 817 N.E. 2d 141 ( 2d Dist., 10/12/04)
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People v. Travis Smith, 346
Ill. App. 3d 146, 803 N.E. 2d 1074
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People v. Starbuck, 358 Ill
App. 3d 234 (3rd Dist. 2005)
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People v. Mendoza, 846 N.E. 2d 169 (2d Dist App. Ct.,
March 2006)
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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)
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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).
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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.
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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 (5th
Circuit, 2001), that is—the 2nd 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.
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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 (7th 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.”
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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.)
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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).
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Outline Highlights of
Petitioners’ arguments to the
U.S.
Supreme Court:
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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.) |
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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.
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“. . . 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.
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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.’”
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“. . .Because the Appeals Court’s decision drastically departs from the
mainstream of the American Jurisprudence, it warrants review.”
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Outline Highlights of
Response to Petition for Certiorari:
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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:
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“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.) |
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The following are highlights from Respondents’ “Summary of Argument” with some
omissions not noted in the quoted text.:
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“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.’”
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“. . . [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
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“ . . . 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
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“. . . 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.”
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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).
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Outline Highlights of Cross-Petitioners’ arguments to U.S. Supreme Court:
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The Parker cross- petitioners’ brief captions state:
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“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.) |
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The question presented stated:
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“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’”
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Outline Highlights of Response to Cross-Petition:
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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).”
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“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…”
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“Peoples Rights Organization, Inc., v. City of Columbus, 152 F. 3d 522(6thCir.
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 6th 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. . . .”
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“ 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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