Updated: 01-07-16
Posted: 6/15/2015
HENDERSON V. UNITED STATES, 575 US ____ (2015)
Kagan, J., delivered the opinion for a unanimous Court.
No. 13–1487. Argued February 24, 2015—Decided May 18, 2015
SUMMARY OF DECISION:
After pleading guilty to felony distribution of marijuana and thereby prohibited under 18 U.S.C. 922(g) from possessing any firearms, defendant requested that his 19 firearms (voluntarily surrendered to the FBI at the time of his arrest) be transferred to a friend.
A key issue before the Court was that of "constructive possession" vs. "ownership rights.” Defendant argued that it is universally recognized that an individual’s ownership interest in firearms survives the individual’s loss of the right to "possess" the firearms, and that a person prohibited from possession still has the right to transfer the property to another party or to sell it."
[A federal court has equitable authority, even after a criminal proceeding has ended, to order a law enforcement agency to turn over property it has obtained during the case to the rightful owner or his designee. See, e.g.,United States v. Martinez, 241 F. 3d 1329, 1330-1331 (CA11, 2001) (citing numerous appellate decisions to that effect.]
The FBI, which had custody of the firearms refused. Henderson’s motion filed in federal district court for the return of his firearms was denied and the Eleventh Circuit affirmed the district court’s denial , holding that the transfer would give Henderson constructive possession in violation of 922(g), The U.S. Supreme Court in a unanimous decision vacated and remanded, finding that a court-ordered transfer of a felon’s lawfully owned firearms from government custody to a third party is not barred by section 922(g) if the court is satisfied that the recipient will not give the felon control over the firearms, so that he could either use them or direct their use.
The Government argued that §922(g) prevents all transfers to a third party, no matter how independent of the felon’s influence, unless that recipient is a licensed firearms dealer or other third party who will sell the guns on the open market. Rejecting this argument, the Supreme Court stated that “a felon may select a firearms dealer or third party to sell his guns; a court, with proper assurances from the recipient, may also grant a felon’s request to transfer his guns to a person who expects to maintain custody of them.”
The Court also rejected the appellate court’s finding that Henderson's "equitable argument rings hollow" because a convicted felon has "unclean hands to demand return [or transfer] of his firearms."
That view is wrong . . .[t]he unclean hands doctrine proscribes equitable relief when but only when, an individual's misconduct has ‘immediate and necessary relation to the equity that he seeks’ Keystone Driller Co. v. General Excavator Co., 290 U.S.240 245 (1933). The doctrine might apply, for example, if a felon requests the return or transfer of property used in furtherance of his offense. See, e.g., United States v. Kaczynski, 551 F. 3d 1120, 1129-1130 (CA9 2009) (holding that the Unabomber had unclean hands to request the return of bomb-making materials).
“We therefore vacate the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion. “



Posted: 9/4/2014
D.C. DISTRICT COURT RULES TOTAL BAN ON RIGHT TO
CARRY IN PUBLIC FOR SELF-DEFENSE IS UNCONSTITUTIONAL
Palmer et al v. District of Columbia et al. U.S. District Court, District of Columbia. Case No. 1:09-CV-1482
Alan Gura, the plaintiffs’ attorney in the Heller and McDonald cases has done it again, scoring a victory in a federal district court case in the District of Columbia that many Second Amendment scholars see as a milestone for the Second Amendment right to carry handguns outside of the home for self-defense.
The Plaintiff, a D.C. resident was denied a carry license for self-defense outside of the home. D.C. authorities issued him a license to carry only within the confines of his home for self-protection, and he brought suit with several co-plaintiffs, including the Second Amendment Foundation.
Defendants’ attorneys, following a trend among municipal, state and federal counsel, tried to undermine the decisions in both Heller and McDonald by alleging that neither case effectively shut the door on governmental rights to ban carrying in public—be it that the authority cited in support of those purported rights are laden with dicta-ridden, misquoted or out-of-context assertions pirated from the major U.S. Supreme Court decisions.
Judge Frederic J. Sculin, Jr. found the Second Amendment trumped the District’s attempt to totally ban the carrying of handguns in public, and in doing so he effectively silenced the anti-gun advocates’ oft-cited lower level of scrutiny arguments, stating:
“In light of Heller, McDonald, and their progeny, there is no longer any basis on which this Court can conclude that the District of Columbia's total ban on the public carrying of ready-to-use handguns outside the home is constitutional under any level of scrutiny. Therefore, the Court finds that the District of Columbia's complete ban on the carrying of handguns in public is unconstitutional. Accordingly, the Court grants Plaintiffs' motion for summary judgment and enjoins Defendants from enforcing the home limitations of D.C. Code § 7-2502.02(a)(4)[ handgun registration for home use] and enforcing D.C. Code § 22-4504(a) [licensing provisions] unless and until such time as the District of Columbia adopts a licensing mechanism consistent with constitutional standards enabling people to exercise their Second Amendment right to bear arms.”
The injunction also prohibits the District from “completely banning the carrying of handguns in public for self-defense by otherwise qualified non-residents based solely on the fact that they are not residents of the District.”
Peruta v. San Diego was among several cases cited extensively by the Court. [See that decision reported below.]

This case is undoubtedly headed for the federal Court of Appeals.



Posted: 6/1/2014
UNITED STATES V. CASTLEMAN SPINS A LARGE WEB
TO SNARE DOMESTIC VIOLENCE OFFENDERS
None of us want to see any spouse, or significant other suffer the humiliation and/ or injuries resulting from domestic strife, and I would be the last person to make light of matters of domestic violence, but this is a case where no level of tolerance is demonstrated, and the aphorism of “might makes right” rules the day in this Highest Court decision. Even a “pinch” can do you in says the Supreme Court !
Under federal law ( 18 USC Sec. 922(g)(9)) an individual convicted of a misdemeanor domestic violation charge is precluded from owning or possessing a firearm.
In the recent case of United States v. Castlemen, 134 S. Ct. 1405 ( U.S. 2014) the United States Supreme Court gives a novel and overbroad meaning to the phrase “use . . . of physical force” in Section 922(g)(9). The Court held that the phrase includes acts involving any physical force rather than violent force, thereby increasing the scope of misdemeanor domestic violence under Section 922(g)(9). In a unanimous decision the United States Supreme Court overruled the district and circuit courts below, and held that the Defendant’s conviction for having intentionally or knowingly caused bodily injury to the mother of his child constitutes a misdemeanor crime of domestic violence. The defendant argued that his prior conviction for the intentional or knowing infliction of bodily injury to his child's mother did not involve the use or attempted use of physical force. Thus, the alleged battery conviction could not be deemed a domestic violence misdemeanor under Section 922(g)(9).
Writing for the majority, Justice Sotomayor stated that for purposes of the statute, “the requirement of ‘physical force” is satisfied . . . by the degree of force that supports a common-law battery conviction, and although these acts of “violence” may be considered minor and not causing serious injury, such as slapping, shoving, grabbing, pinching, hair pulling, and “a squeeze of the arm that causes a bruise,”. . .any ”act of this nature is easy to describe as ‘domestic violence’ when the accumulation of such acts over time can subject one intimate partner to the other’s control.”1[Underscoring added.] Justice Scalia wrote a concurring opinion as did Justice Alito for himself and Justice Thomas.
However, an Illinois gun owner whose FOID application is denied, or whose card is revoked because of a domestic violence misdemeanor conviction, has the opportunity under Illinois law2 to overcome the disability by demonstrating that the circumstances regarding the conviction, and the party’s criminal history and reputation are such that he or she will not be likely to act in a manner dangerous to public safety. The aggrieved party must petition the Circuit Court for a hearing pursuant to provisions of the FOID Act regarding the denial. Section 10(a) of the FOID Card Act as amended states:
"[T]he aggrieved party may petition the circuit court in writing in the county of his or her residence for a hearing upon such denial, revocation, or seizure." 430 ILCS 65/10(a) (West 2013).
The court must determine whether "substantial justice has not been done," and if not, the court is authorized to order the Department to issue the FOID card. “However, the Court shall not issue the order if the petitioner is otherwise prohibited from obtaining, possessing, or using a firearm under federal law.” 430 ILCS 65/10(b) (West 2013).
While the Castleman decision will certainly lead to an increase in the number of arrests for and convictions of misdemeanor domestic violence, the “catch-all web” it spins should not have any serious impact on the ability to obtain relief where FOID cards have been denied or confiscated and an individual is neither a` recidivist nor likely to act in a manner dangerous to public safety. Of course, the anti-gun advocates have jumped up and down with joy as they do with any court decision that may curtail firearm ownership. However, it appears that Illinois Gun owners still have an avenue open to judicial review via the provisions of 430 ILCS 65/10 (West 2013) and the State Supreme Court precedent in Coram, where the lower court ordered the ISP to issue the petitioner a FOID card notwithstanding the firearm disability of Section 922(g)(9).
That decision was affirmed by a plurality of the Illinois Supreme Court wherein the restrictions under federal statute 18 USC, Sec. 922(g)(9) are removed under the same standard of review Congress has given the states the authority to employ in considering restoration of firearms rights for those who have previously suffered from disabling mental illness. Application of that standard, via section 10(c) of Illinois' FOID Card Act, removed the federal firearm disability and entitled the petitioner to a FOID card.
Because Coram was decided by a plurality, with two Justices dissenting, and two Justices joined in a concurring opinion that was based on their position that the petition filing preceded the incorporation of 922 (g)(9) by amendment to 65/10(b), and therefore not applicable, it has come under attack in current litigation when cited as authority, and its continued precedential position may be in jeopardy. It is of significance that Section 922 (g) (9) was found to be unconstitutional by both the trial court and the court of appeals in Coram, and while that issue was dodged by the State Supreme Court, it may again be subjected to constitutional scrutiny requiring the Higher Court to resolve the issue with finality.

1 Note: The factual basis for a determination that the contact was part of ongoing acts that would “subject one intimate partner to the other’s control” is determined at trial. By then, the FOID revocation has occurred.
2 Coram v. State of Illinois, Illinois State Police, 996 N.E.2d 1057. Sept. 12, 2013 [Previously reported on this Website.]



Posted: 2/18/2014
9TH CIRCUIT RULES FOR PLAINTIFFS IN CHALLENGE TO
“CARRY” LICENSING RESTRICTIONS
PERUTA v. SAN DIEGO COUNTY (Feb. 13, 2014).
Peruta, a Ninth Circuit Court of Appeals case, appears to set the stage for a U.S. Supreme Court decision sometime in the not too distant future. Meanwhile, other circuits will have to take notice of the trend in higher court decisions regarding varied “carry” statutes as they are put under the microscope of Constitutional muster. Those statutes and ordinances that limit “carry” to “may issue” requirements will soon fall under the sword of common sense and “shall issue” standards will become the norm. The right of law-abiding citizens to carry arms for self defense in public, as guaranteed by the Second Amendment, has received another high court acclamation with this decision.
California’s strict anti-gun laws prohibit “carry” without a permit which “may issue” upon a showing of “good cause.” A mixed patchwork of varied requirements in its many counties adds to the “may issue” problems citizens face in their efforts to be armed for self-defense purposes in public.. A journalist, Edward Peruta, applied for a concealed-carry license for the specific purpose of self-defense, and his application was denied by the County of San Diego, “self-defense” not being one of the county’s listed “good causes” to enable one to carry a gun outside of the home. San’ Diego’s interpretation of “good cause” required a showing that the applicant is faced with current specific threats.
Peruta and several members of the California Rifle and Pistol Association Foundation filed suit in the federal district court alleging the “may issue” process violated their Second Amendment rights to keep and bear arms outside of the home for lawful purposes, including the fundamental right of self-defense. The district court ruled for the defendant county and found that the permitting process served a substantial interest in public safety.
The appellate court in a 2-1 decision reversed the district court and ruled that the "good cause" requirement effectively prohibits the "typical responsible, law-abiding citizen" from bearing arms in public for self-defense. Judge Diarmuid O'Scannlain, writing for the majority cited District of Columbia v. Heller, stating:
Heller established that "the keeping and bearing of arms is, and has always been, an individual right," and that "the right is, and has always been, oriented to the end of self-defense.” * * *
“ In California, the only way that the typical responsible, law-abiding citizen can carry a weapon in public for the lawful purpose of self-defense is with a concealed-carry permit. * * * "In San Diego County, that option has been taken off the table. The San Diego County policy specifies that concern for 'one's personal safety alone' does not satisfy the 'good cause' requirement for issuance of a permit. Instead, an applicant must demonstrate that he suffers a unique risk of harm: he must show 'a set of circumstances that distinguish [him] from the mainstream and cause him. . . to be placed in harm's way.' Given this requirement, the 'typical' responsible, law-abiding citizen in San Diego County cannot bear arms in public for self-defense; a typical citizen fearing for his 'personal safety'-by definition-cannot 'distinguish [himself] from the mainstream'."
While the Peruta decision does not find the California carry licensing statute unconstitutional, it does find the “good cause” requirement as interpreted by San Diego County as requiring “specific threats” faced by the applicant to be a clear Second Amendment violation. There is now a split in the Circuits that will most likely lead to a petition for en banc ruling by the Ninth Circuit’s full panel of Justices, and a possible march to the U.S. Supreme Court. Currently, the 7th and 9th Circuit are on one track with holdings pursuant to Heller’s dictates that the individual law-abiding citizen has a fun-damental right of self-defense outside of the home, and the 2nd, 3rd and 4th Circuits are misinterpreting Heller as limiting self-defense to the home.



Posted: 11/04/2013
JERRY W. CORAM, Appellee, v. THE STATE OF ILLINOIS
The Illinois Department of State Police, Appellant.

Docket No. 113867

SUPREME COURT OF ILLINOIS

2013 IL 113867
SUMMARY OF CASE
Facts:
In 1992, Jerry Coram pled guilty to a charge of domestic battery and sentenced to 12 months’ conditional discharge and ordered to pay a $10.00 fine. Subsequent to Coram’s conviction, a 1996 amendment to the federal Gun Control Act of 1968 imposed a firearm disability upon any person convicted of a "misdemeanor crime of domestic violence." 18 U.S.C. 922(g)(9). When Coram applied for a FOID in 2009 his application was denied by the Illinois State Police, and that was premised upon section 8(n) of the FOID Act which prohibits the issuance of a FOID “where the person is "prohibited from acquiring or possessing firearms or firearm ammunition by any Illinois State statute or by federal law." 430 ILCS 65/8(n)” (West 2010).
Circuit Court Decisions:
Coram petitioned the Circuit Court for a hearing pursuant to provisions of the FOID Act regarding the denial. Section 10(a) of the FOID Card Act states:
"[T]he aggrieved party may petition the circuit court in writing in the county of his or her residence for a hearing upon such denial." 430 ILCS 65/10(a) (West 2010).
The court must determine whether "substantial justice has not been done," and if not, the court is authorized to order the Department to issue the FOID card. 430 ILCS 65/10(b) (West 2010). Upon hearing the lower court ordered the ISP to issue Coram a FOID card, noting that:
"[T]he circumstances regarding [Coram's] conviction, Petitioner's criminal history and his reputation are such that he will not be likely to act in a manner dangerous to public safety[,] [t]hat granting the relief requested in the said petition would not be contrary to the public interest."
The Attorney General, acting on behalf of The Illinois State Police, filed a motion to intervene on behalf of the ISP and to vacate the judgment, and the matter proceeded before another Circuit Court Judge. The initial judgment was upheld, the lower court relying upon the case of United States v.Skoien, 614 F. 3d 638 (7th Cir. 2010), noting that Skoien “reserved the question of whether 922(g)(9) could survive a Second Amendment challenge by a 'misdemeanant who has been law abiding for an extended period. Finding that although 18 U.S.C. 922(g)(9) survived a facial challenge, the lower court Judge ruled it was un-constitutional as applied to Coram.
Illinois Supreme Court Decision:
The Court analyzed and commented on a number of federal cases, including the landmark decisions in Heller and McDonald, and Moore [& Shepard] v. Madigan, 702 F.3d 933, 936 (7th Cir. 2012), emphasizing the fundamental right to keep and bear arms and the entitlement of a a 'law-abiding, responsible citizen to “use arms in defense of hearth and home." ISRA was a principal plaintiff in the Moore[Shepard] case.
The majority followed the lead in the recent D.C. decision in Schrader v. Holder, 704 F.3d 980 (D.C. Cir. 2013),where the Court determined “that the wisest course was to leave the resolution of ‘’these difficult constitutional questions’ to a case where the issues were properly raised and briefed. Schrader, 704 F.3d at 991.
The majority concluded that “[t]he individual scrutiny given Coram's circumstances * * * pursuant to the standards for review set forth in Illinois' FOID Card Act ( 430 ILCS 65/10(c) (West 2010)), has resulted in an assessment that Coram "will not be likely to act in a manner dangerous to public safety" and "granting relief would not be contrary to the public interest." That is the same standard of review Congress has given the states the authority to employ in considering restoration of firearms rights for those who have previously suffered from disabling mental illness. That is the same standard Congress has established for use in federal programs for relief from federal firearms disabilities. Application of that standard, via section 10(c) of Illinois' FOID Card Act, removes the federal firearm disability and entitles Coram to a FOID card. Thus construed, there is no need to address the constitutionality of section 922(g)(9).” * * * For the reasons stated, we affirm that part of the circuit court's judgment that upheld the original order of Judge Schuering, directing the issuance of a FOID card to Coram. We vacate that portion of the judgment that held section 922(g)(9) of the federal Act (18 U.S.C. 922(g)(9) (2006)) unconstitutional.
¶ 77 Affirmed in part.
¶ 78 Vacated in part.
¶ 79 JUSTICE BURKE, specially concurring.

NOTE: A BRIEF OF THE CASE FOLLOWS:



Posted: 11/04/2013 - Updated: 11/17/2013
JERRY W. CORAM, Appellee, v. THE STATE OF ILLINOIS
The Illinois Department of State Police, Appellant. (*)

Docket No. 113867

SUPREME COURT OF ILLINOIS

2013 IL 11386
(*) The following contains some omissions noted in the quoted text.)
Facts:
In 1992, Jerry Coram pled guilty to a charge of domestic battery and sentenced to 12 months’ conditional discharge and ordered to pay a $10.00 fine. Subsequent to Coram’s conviction, a 1996 amendment to the federal Gun Control Act of 1968 imposed a firearm disability upon any person convicted of a "misdemeanor crime of domestic violence." 18 U.S.C. 922(g)(9). When Coram applied for a FOID in 2009 his application was denied by the Illinois State Police, and that was premised upon section 8(n) of the FOID Card Act which prohibits the issuance of a FOID “where the person is prohibited from acquiring or possessing firearms or firearm ammunition by any Illinois State statute or by federal law." 430 ILCS 65/8(n).
LOWER COURT PROCEEDINGS:
Coram petitioned the Circuit Court for a hearing regarding the denial. The State’s attorney of Adams County was noticed of the petition filing pursuant to the FOID Card Act (430 ILCS 65/10(b)), but neither appeared nor filed any pleadings in rebuttal.
Section 10(a) of the FOID Card Act states:
***[T]he aggrieved party may petition the circuit court in writing in the county of his or her residence for a hearing upon such denial." 430 ILCS 65/10(a) (West 2010).”
The court must determine whether "substantial justice has not been done," and if not, the court is authorized to order the Department to issue the FOID card. 430 ILCS 65/10(b). Upon hearing the lower court ordered the ISP to issue Coram a FOID card, stating:
***[T]he circumstances regarding [Coram's] conviction, Petitioner's criminal history and his reputation are such that he will not be likely to act in a manner dangerous to public safety[,] [t]hat granting the relief requested in the said petition would not be contrary to the public interest.
Within 30 days after entry of the Order, the Attorney General filed a petition on behalf of the ISP to intervene and to vacate the court order, alleging that both the FOID Act and federal statute provided substantial means for an aggrieved party to obtain a FOID card. Coram’s motion to dismiss the ISP motion to vacate alleged “that the statute which served as the basis for prohibition [18 U.S.C. 922(g)(9)(2006)] was unconstitutional in that it violated his second amendment rights, his right to equal protection, and his substantive due process right to carry a gun.”
Under the federal law (921(a)(33)(B)(ii)) a person who had his conviction expunged, or has been pardoned, or has his civil rights restored after a misdemeanor domestic battery conviction is eligible to possess a firearm. However, the lower Court held that Coram could not avail himself of that provision because his civil rights were never taken away, citing Logan v. United States, 552 U.S. 23 (2007).Further, that section 10 of the FOID Act cannot provide the relief mechanism that Coram deserves.
The matter was heard by another Judge in the lower court who held that while the federal statute survived a facial challenge, section 922(g)(9) was unconstitutional as applied to Coram, relying in part upon United States v.Skoien, 614 F. 3d 638 (7th Cir. 2010). The Court noted that Skoien “reserved the question of whether 922(g)(9) could survive a Second Amendment challenge by a 'misdemeanant who has been law abiding for an extended period. The lower court made the following ruling, inter alia, and ordered the ISP to issue Coram a FOID card:
As set forth in the Order of December 30, 2011, the court finds that the provisions of 18 U.S.C., sec. 922(g)(9), which are incorporated by reference in 430 ILCS 65/8(n) as grounds for denial of a FOID card, are unconstitutional [under the second amendment], as applied to the Plaintiff.
SUPREME COURT PROCEEDINGS (Majority Decision)::
The case was appealed directly to the Illinois Supreme Court pursuant to Supreme Court Rule 302, based on the lower court’s finding that a federal statute was unconstitutional.
The Majority began its analysis of the lower court’s decision by examining relevant gun control legislation and pertinent interpretative case law. The Court referenced several federal cases, including United States Department of the Treasury, Bureau of Alcohol, Tobacco & Firearms v. Galioto, 477 U.S. 556 (1986), where the District Court upheld Galioto’s claim “based upon the disparity of treatment accorded recovered mental patients under section 925(c) of the statute (18 U.S.C 925(c) (1970)), who, unlike convicted felons, were excluded by omission from section 925(c)'s remedial provisions and were thus under a perpetual firearms disability.”
However, by 1992 funding for proceedings pursuant to 925 (c) were depleted and any relief sought thereafter, including that afforded under the Firearm Owners Protection Act, was relegated to State statutory provisions.
The Court analyzed a number of federal decisions, including the landmark decisions in Heller and McDonald, that resolved difficult constitutional issues, and which “ [m]ore than one court has acknowledged that the ground opened by Heller and McDonald is a ‘vast 'terra incognita' that "has troubled courts since Heller was decided." (Internal quotation marks omitted.)
Striking home, the Court addressed Moore [& Shepard] v. Madigan, 702 F.3d 933, 936 (7th Cir. 2012), which announced that a ban on carrying loaded weapons in public ‘as broad as Illinois's can't be upheld merely on the ground that it's not irrational.’ Moore, 702 F.3d at 939. In the court's analysis, considerations of public safety had to yield to second amendment rights.
The majority then followed the lead in the recent D.C. decision in Schrader v. Holder, 704 F.3d 980 (D.C. Cir. 2013), where the Court determined “that the wisest course was to leave the resolution of ‘’these difficult constitutional questions’ to a case where the issues were properly raised and briefed. Schrader, 704 F.3d at 991. The [Schrader] court concluded:
* * * [t]he federal firearms ban will remain vulnerable to a properly raised as applied constitutional challenge brought by an individual who, despite a prior conviction, has become a 'law abiding, responsible citizen[ ]' entitled to 'use arms in defense of hearth and home.' Schrader, 704 F.3d at 992 (quoting in part Heller, 554 U.S. at 635).
The majority addressed the requirements that an aggrieved party must meet thusly:
The standard for relief to be granted by the Department [Illinois State Police], and if need be the circuit court, is, as seen in both federal statutes (18 U.S.C. 925(c) (2006)) and regulations (27 C.F.R. 478.144 (2009)), and throughout Illinois' FOID Card Act, whether "the person will not be likely to act in a manner dangerous To public safety and granting relief would not be contrary to the public interest." 30 ILCS 65/10(f) (West 2010). That inquiry necessarily focuses upon the mental and emotional well-being of the applicant.
In conclusion the Court stated:
[t]he individual scrutiny given Coram's circumstances, by Judge Schuering in the lower court pursuant to the standards for review set forth in Illinois' FOID Card Act (430 ILCS 65/10(c), 2010), has resulted in an assessment that Coram ‘will not be likely to act in a manner dangerous to public safety’ and "granting relief would not be contrary to the public interest.’ That is the same standard of review Congress has given the states the authority to employ in considering restoration of firearms rights for those who have previously suffered from disabling mental illness. That is the same standard Congress has established for use in federal programs for relief from federal firearms disabilities. Application of that standard, via section 10(c) of Illinois' FOID Card Act, removes the federal firearm disability and entitles Coram to a FOID card. Thus construed, there is no need to address the constitutionality of section 922(g)(9)” [Emphasis added.]
* * *
For the reasons stated, we affirm that part of the circuit court's judgment that upheld the original order of Judge Schuering, directing the issuance of a FOID card to Coram. We vacate that portion of the judgment that held section 922(g)(9) of the federal Act (18 U.S.C. 922(g)(9) (2006)) unconstitutional.”
Affirmed in part.

Vacated in part.



Posted: 01/07/2013
7TH CIRCUIT COURT OF APPEALS REVERSES MOORE AND SHEPARD
CASES, DISMISSED BY U.S. DISTRICT COURT, AND ORDERS STATE
LEGISLATORS TO PASS A REASONABLE “CARRY” LAW
United States Court of Appeals,
Seventh Circuit.
Michael Moore, et al., and Mary E. Shepard, et al., Plaintiffs–Appellants,
v. Lisa Madigan, Attorney General of Illinois, et al., Defendants–Appellees, 702 F.3d 933 (C.A. 7, 2012), 2012 WL 615606
The two appeals were consolidated, both challenging denials of declaratory and injunctive relief sought pursuant to our Second Amendment right to keep and bear arms. Both cases attacked the Illinois UUW statutory provisions preventing carrying a firearm outside of the home for self-defense. The Illinois State Rifle Association is one of the plaintiffs in the Shepard case. The Court addressed the Illinois UUW statute’s ban on carrying a gun “ready to use (loaded, immediately accessible—that is, easy to reach—and uncased,” citing People v. Diggins, 235 Ill. 2d 48 (2009), where the Illinois Supreme Court held a center console in a motor vehicle is a “case.”
Early in its decision, the Court noted the statutory exceptions “for a person on his own property (owned or rented), or in his home (but if it's an apartment, only there and not in the apartment building's common areas), or in his fixed place of business, or on the property of someone who has permitted him to be there with a ready-to-use gun. 720 ILCS 5/24–1(a)(4), (10), –1.6(a).”
Following are comments and some highlights from the Court’s decision, with some noted omissions of the quoted text:
The defendants argued that the Court should repudiate the U.S. Supreme Court’s historical analysis declared in District of Columbia v. Heller and McDonald v. City of Chicago. Justice Posner, writing for the majority stated:
“That we can't do. Nor can we ignore the implication of the analysis that the constitutional right of armed self-defense is broader than the right to have a gun in one's home. The first sentence of the McDonald opinion states that “two years ago, in District of Columbia v. Heller, we held that the Second Amendment protects the right to keep and bear arms for the purpose of self-defense,” McDonald v. City of Chicago, . . .130 S.Ct. [3020], 3026, and later in the opinion we read that “ Heller explored the right's origins, noting that the 1689 English Bill of Rights explicitly protected a right to keep arms for self-defense, 554 U.S. at 593, and that by 1765, Blackstone was able to assert that the right to keep and bear arms was ‘one of the fundamental rights of Englishmen,’ id. at 594.130 S.Ct. at 3037. And immediately the Court adds that “Blackstone's assessment was shared by the American colonists.” Id
The Court went on to say that “[b]oth Heller and McDonald do say that “the need for defense of self, family, and property is most acute” in the home, id. at 3036 (emphasis added); 554 U.S. at 628, but that doesn't mean it is not acute outside the home. Heller repeatedly invokes a broader Second Amendment right than the right to have a gun in one's home, as when it says that the amendment “guarantee[s] the individual right to possess and carry weapons in case of confrontation.” 554 U.S. at 592. Confrontations are not limited to the home.”
Other significant findings by the majority regarding the unconstitutionality of the Illinois statutes’ carry ban include the following:
On the “right to bear:”
“The right to “bear” as distinct from the right to “keep” arms is unlikely to refer to the home. To speak of “bearing” arms within one's home would at all times have been an awkward usage. A right to bear arms thus implies a right to carry a loaded gun outside the home.”
Historical application:
“And one doesn't have to be a historian to realize that a right to keep and bear arms for personal self-defense in the eighteenth century could not rationally have been limited to the home. . . .”
“Twenty-first century Illinois has no hostile Indians. But a Chicagoan is a good deal more likely to be attacked on a sidewalk in a rough neighborhood than in his apartment on the 35th floor of the Park Tower. A woman who is being stalked or has obtained a protective order against a violent ex-husband is more vulnerable to being attacked while walking to or from her home than when inside. She has a stronger self-defense claim to be allowed to carry a gun in public than the resident of a fancy apartment building (complete with doorman) has a claim to sleep with a loaded gun under her mattress. “
Self-Defense:
The Court rejected Defendants’ argument that while McDonald mandates that lower Courts honor Heller’s right to self-defense in the home, that there is no correlating right to carrying a firearms for self-defense outside of the home. The Court said:
“To confine the right to be armed to the home is to divorce the Second Amendment from the right of self-defense described in Heller and McDonald. It is not a property right—a right to kill a houseguest who in a fit of aesthetic fury tries to slash your copy of Norman Rockwell's painting Santa with Elves. That is not self-defense, and this case like Heller and McDonald is just about self-defense.”
Uncertainty of Studies:
“A gun is a potential danger to more people if carried in public than just kept in the home. But the other side of this coin is that knowing that many law-abiding citizens are walking the streets armed may make criminals timid. Given that in Chicago, at least, most murders occur outside the home, Chicago Police Dep't, Crime at a Glance: District 1 13 (Jan.-June 2010), the net effect on crime rates in general and murder rates in particular of allowing the carriage of guns in public is uncertain both as a matter of theory and empirically. “Based on findings from national law assessments, cross-national comparisons, and index studies, evidence is insufficient to determine whether the degree or intensity of firearms regulation is associated with decreased (or increased) violence.” [Emphasis added.]
Rational Basis Test Rejected:
The majority also rejected the Defendants’ argument that the ban passed the rational basis test, instead finding that the government had to make a “strong showing that a ban such as that under scrutiny was vital to public safety because it affects the gun rights “of the entire law-abiding adult population of Illinois.” The Court went on to say that “ Illinois has lots of options for protecting its people from being shot without having to eliminate all possibility of self-defense in public.” [Emphasis added.]
The Court closed with a succinct statement regarding the Second Amendment’s fundamental core right of self-defense as articulated In Heller, and emphasized the State’s failure to justify its ban:
“We are disinclined to engage in another round of historical analysis to determine whether eighteenth-century America understood the Second Amendment to include a right to bear guns outside the home. The Supreme Court has decided that the amendment confers a right to bear arms for self-defense, which is as important outside the home as inside. The theoretical and empirical evidence (which overall is inconclusive) is consistent with concluding that a right to carry firearms in public may promote self-defense. Illinois had to provide us with more than merely a rational basis for believing that its uniquely sweeping ban is justified by an increase in public safety. It has failed to meet this burden. The Supreme Court's interpretation of the Second Amendment therefore compels us to reverse the decisions in the two cases before us and remand them to their respective district courts for the entry of declarations of unconstitutionality and permanent injunctions. Nevertheless we order our mandate stayed for 180 days to allow the Illinois legislature to craft a new gun law that will impose reasonable limitations, consistent with the public safety and the Second Amendment as interpreted in this opinion, on the carrying of guns in public.” [Emphasis added.]



Posted: 07/08/2012
(GOWDER vs.. CITY OF CHICAGO , 2012 WL 2325826, N.D.Ill., June 19, 2012
(NO. 11 C 1304)
A Chicago resident’s Second Amendment rights were violated when a provision in the City of Chicago’s amended Ordinance barred his ownership and possession of a firearm in his home because of a prior misdemeanor conviction. So held the United States District Court for the Northern District of Illinois, Eastern Division, in a case that abrogates the City’s continued efforts to side-step the ground-breaking decisions in District of Columbia v. Heller, and McDonald vs. City of Chicago, by amending its firearm ordinance with overly-stringent requirements to obtain a Chicago Firearm Permit as a pre-condition to registration of a firearm. In granting Plaintiff’s summary judgment motion, Judge Samuel Der-Yeghiayan held that “[t]he effect of Section (b)(3)(iii) of the Chicago Firearm Ordinance is to forever strip certain persons residing in Chicago of their constitutional right to protect themselves in their homes, including, for example, a person convicted forty years ago of simply possessing a firearm (and not unlawfully using it against another).”
The Court noted further that the subject provision “directly restricts the core Second Amendment right of armed self-defense in one’s home.” An amicus brief filed on behalf of the Illinois State Rifle Association was referenced several times in the Court’s opinion, including its rebuttal of studies and statistics relied upon by the City of Chicago. The ISRA brief had a chilling effect upon the City’s attempt to steer the Court’s attention to what it deemed credible studies and statistics supporting the outlandish provisions of the Ordinance which prevent an applicant from obtaining a Chicago Firearm Permit which is a prerequisite to registering a firearm. The draconian section held to be unconstitutionally void for vagueness, and in violation of the Second Amendment right to keep and bear arms, bars a person from obtaining the permit if that person has been convicted “in any jurisdiction” of an “unlawful use of a weapon that is a firearm.” Chicago Municipal Code 8-20-110(b)(3)(iii).
The plaintiff, Shawn Gowder, an ISRA member, had a prior conviction under the Illinois Unlawful Use of Weapon statute which was deemed a misdemeanor offense after the Safe Neighborhoods Act was held to be unconstitutional. Under Illinois law, currently under attack in other lawsuits backed by the NRA ( including one in which ISRA is a plaintiff, and another where ISRA has filed an amicus brief) the unlawful use of a weapon statute effectively prohibits mere possession of a firearm, without any attempt to use the firearm against another, as was the case scenario when Gowder was convicted of a first-time UUW offense in 1995 and given 12 months probation.
In the extremely well-written opinion, His Honor, Judge Der-Yeghiayan cited cases that Second Amendment scholars, theorists, and commentators maintain have followed the dictates of Heller and McDonald, and which some courts in other jurisdictions have given a warped interpretation when ruling that no Second Amendment violation occurred. That is not to say that other courts in Illinois have been free of grinding out a decision that upholds an indiscriminate and arbitrary governmental regulation that infringes upon a core right afforded by the Second Amendment, and in doing so seem to have not only misinterpreted Heller and McDonald, but cited and misconstrued cases that are their progeny and somehow found the challenged ordinance or statute does not implicate constitutional protected conduct.
Here, the Judge initially weighed the evidence to determine whether the subject section reached a substantial amount of constitutionally protected conduct, and found that “[s]ection (b)(3)(iii) of the Chicago Firearm Ordinance takes away Gowder’s constitutional right to possess a firearm in his own home for self-defense.” Then, examining the facial vagueness challenge to the Ordinance, the Court stated:
A person of ordinary intelligence, such as Gowder, would not clearly understand who is barred from obtaining a Chicago Firearm Permit under Section (b)(3)(iii) of the Chicago Firearm Ordinance. A person of ordinary intelligence would understand or interpret the term “unlawful use of a weapon that is a firearm” to mean using a firearm for an unlawful purpose, and not mere unlawful possession. In fact, under the plain and ordinary meaning of the term “use,” the phrase “unlawful use of a weapon” would not connote possession. Since the term “unlawful use of a weapon” is not defined in the Chicago Municipal Code, this statutory term must be given its plain and ordinary meaning. [Emphasis added.]
The Court also ruled that Section (b)(3)(iii) of the Chicago Firearm Ordinance fails to provide explicit standards to prevent arbitrary and discriminatory enforcement by those enforcing the ordinance. Finding the challenged section unconstitutionally void for vagueness, the Court then found that under a text, history, and tradition analysis, the subject challenged ordinance section violates plaintiff Gowder’s Second Amendment Constitutional right. Reinforcing the court’s findings, Judge Der-Yeghiayan held that in addition to the text, history, and tradition approach in analyzing the constitutionality of the challenged ordinance section, that under Justice Scalia’s findings in Heller I and McDonald, and those by Justice Kavanaugh, dissenting) in Heller II, the strict scrutiny test1 would produce the same result.
Not to leave things undone, His Honor states that the subject ordinance section does not pass constitutional muster even under an intermediate scrutiny test, 2 which he notes is not the proper test to employ in deciding this case. The failure of the ordinance to distinguish between individuals convicted of firearms that involve violence and those misdemeanants convicted of firearms violations that do not involve violence, such as those convicted for mere possession [such as Gowder], accentuates the City’s failure to make a strong showing that Section (b)(3)(iii) is substantially related to an important government objective.
Although this decision is by a federal district court, and other decisions by appellate tribunals and, of course, the U.S. Supreme Court weigh more heavily as precedent, the well-thought-out findings in this case will go a long way toward countering those adverse to our Second Amendment rights rendered by other courts, and should prove of significant interest to our higher courts.

1The law at issue must be narrowly tailored to serve a compelling governmental interest.
2Regulations affecting 2nd Amendment rights are valid only if they are substantially related to an important government objective.



Posted: 04/14/2012
( WILSON V. COOK COUNTY )
ILLINOIS STATE SUPREME COURT REVERSES LOWER COURTS
ON KEY CLAIMS IN WILSON V. COOK COUNTY
In the wake of a great win in the Illinois State Rifle Association (ISRA) case brought against the ISP to protect the rights of FOID card holders, and disappointing decisions in the Moore v. Madigan and Shepard v. Madigan cases , an important case backed by ISRA was decided favorably for the plaintiffs. Wilson v. Cook Count,y 2012 IL 112026, --- N.E.2d ---- 2012 WL 1136642 (Ill.,2012) was briefed by the author and two co-counsel named below.
As previously reported, in 2010 the State Supreme Court returned the case to the appellate court in the exercise of its judicial authority, and the Appellate Court was ordered to reconsider its prior adverse finding in light of the then recent decision in the landmark case of McDonald v. Chicago. The appellate court again ruled against the plaintiffs, and the case was appealed to the State Supreme Court.
Joining us with the briefs we filed with the State Supreme Court were six amici (friend of the court) briefs. Those briefs were filed on behalf of NRA; National Sport Shooting Foundation; Illinois Firearms Manufacturers Association, Conservation Police Lodge Association; Commonwealth Second Amendment, and Certain Illinois Legislators. Joining our opponents were amici briefs filed on behalf of the Brady Center to Prevent Gun Violence, the City of Chicago, the Major Cities Chiefs Association and the Association of Prosecuting Attorneys.
Attorneys Stephen P. Halbrook ( a hand-picked NRA attorney) and Edward Ronkowski argued points we raised in our briefs, pointing out how the lower court had mishandled procedural matters when striking our amended complaint, incorrectly relying upon stale legislative findings, and denying us the opportunity to deny those findings; the lower courts’ failure to apply the correct standard of review as demonstrated in the Heller and McDonald cases; the lower courts’ failure to recognize that Heller protects the commonly possessed firearms that the County Ordinance bans; the vagueness that permeates the Ordinance language that purportedly defines “assault weapons,” and contains “catch-all” language that traps the unwary law-abiding gun owner, and the Ordinance violation of equal protection in various ways, including its lack of functional distinctions between banned and not banned firearms.
Most importantly, our briefs highlighted the trial court’s obvious erroneous decision to dismiss our Complaint pursuant to the State’s 2-615 motion, finding we had no viable Second Amendment claim.
During oral argument the Justices probed Plaintiffs’ counsel regarding several of the issues raised in the case, and later speculation surrounding their questions ranged from a dismal view of our Second Amendment arguments to grand expectations. None of the attorneys involved lost sight of the importance of our Second Amendment arguments that were smothered and thrown aside in the lower court’s ruling on the 2-615 motion to dismiss. Although the Supreme Court affirmed the appellate tribunal’s adverse decision regarding the amended complaint’s due process and equal protection claims, the Supreme Court justices unanimously ruled that “ plaintiffs have sufficiently pleaded a cause of action to withstand a section 2-615motion to dismiss on their second amendment challenge under count IV of the first amended complaint.”

Following are excerpts of the Court’s findings with some omissions in the quoted text:
“ The County maintains that these assault weapons have particular characteristics that render these weapons more dangerous than ordinary weapons typically possessed by law-abiding citizens for lawful purposes. It asserts that the Ordinance targets semiautomatic firearms that enable shooters to discharge high numbers of shots rapidly and have other features conducive to criminal applications.
Plaintiffs seek to present evidence to support their allegation that this particular Ordinance encompasses a myriad of weapons that are typically possessed by law-abiding citizens for lawful purposes and fall outside the scope of the dangers sought to be protected under the Ordinance. Without a national uniform definition of assault weapons from which to judge these weapons, it cannot be ascertained at this stage of the proceedings whether these arms with these particular attributes as defined in this Ordinance are well suited for self-defense or sport or would be outweighed completely by the collateral damage resulting from their use, making them “dangerous and unusual” as articulated in Heller. This question requires us to engage in an empirical inquiry beyond the scope of the record and beyond the scope of judicial notice about the nature of the weapons that are banned under this Ordinance and the dangers of these particular weapons.”
[ The Court goes on to note that other courts that have addressed the scope issue in relation to assault weapons have taken varying approaches in varying contexts, citing People v. James, 94 Cal. Rptr. 3d 576 (Cal. Ct.App. 2009), and Heller v. D.C.. ( Heller II, 2011 WL 4551558. ]

” In James in the context of a criminal prosecution post-Heller, the California court of appeals held that a particular assault weapon was not protected by the second amendment. Id. at 585. The court’s finding was based upon the legislature’s hearings and codified findings that these weapons were unusual and dangerous”.

“. . . In Heller II, in ruling on a motion for summary judgment, the court found that based upon the record before it, which included legislative findings, it could not ascertain whether the assault weapons as defined by the District of Columbia ordinance were commonly used or were useful for self-defense and, therefore, whether the prohibitions meaningfully affected the right to keep and bear arms. Heller II, 2011 WL 4551558, at *13. Instead, the court of appeals chose to presume a right protected by the second amendment and proceeded to apply intermediate-scrutiny review. Id.
Nevertheless, given the procedural posture of this case, we need not choose either of these approaches at this time. Unlike James and Heller II, we have a minimal legislative record to review and need not make assumptions without first attempting to ascertain relevant facts. Additionally, our deference to a legislative finding is a balancing of competing interests. As the Supreme Court has indicated in the context of fundamental first amendment rights, a legislative declaration does not preclude inquiry by the judiciary into the facts bearing on an issue of constitutional law. Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 843 (1978) (“Deference to a legislative finding cannot limit judicial inquiry when First Amendment rights are at stake.”). We note that unlike Heller II, the County has not had an opportunity to present evidence to justify the nexus between the Ordinance and the governmental interest it seeks to protect. Pursuant to section 2-615 of the Code, we cannot say at this point that it is clearly apparent that no set of facts can be proved that would entitle plaintiffs to relief on count IV. Accordingly, for these reasons, we reverse the trial court’s dismissal of the first amended complaint with respect to count IV and remand to the trial court for further proceedings. (Emphasis added.]
For the foregoing reasons, we hold that the Ordinance does not violate the due process and equal protection clauses of the United States Constitution and therefore affirm the judgment of the appellate court and trial court dismissing count I and count VI of the first amended complaint. Additionally, we hold that plaintiffs have sufficiently pleaded a cause of action to withstand a section 2-615 motion to dismiss on their second amendment challenge under count IV of the first amended complaint. Accordingly, we affirm in part and reverse in part, and remand to the trial court for further proceedings on count IV.”
Affirmed in part and reversed in part.
Cause remanded.



Posted: 04/014/2012

SOUTHERN ILLINOIS DISTRICT COURT RULES AGAINST CARRY CASE
Shepard v. Madigan, 2012 1077146, S.D. Ill., 3/30, 2012 ( No. 11-CY-405-WDS)
Applying intermediate scrutiny as the purported standard of scrutiny in this case, in a decision that shadows that in Moore v.Madigan, 2012 WL 344750 (C.D. Ill., 2012) U.S. District Judge William D. Stiehl, of the District Court for the Southern District of Illinois, dismissed the Plaintiffs’ case in Shepard v. Madigan, concluding that “the bearing of a firearm outside the home is not a core right protected by the Second Amendment.” Mary Shepard, a church treasurer, who was brutally attacked and almost beaten to death, is an Illinois resident and a trained gun owner with no criminal record, who is licensed to carry a concealed handgun in two other states. Joined by ISRA as a plaintiff, a lawsuit attacking the Illinois AUUW and UUW statutes was filed alleging the criminal statutes prevented law-abiding citizens from exercising their right to carry firearms for self-defense, outside of the home, as guaranteed under the Second Amendment.
Judge Stiehl held that the Plaintiffs motions, including that for preliminary injunction, were moot upon granting the state's motion to dismiss the suit pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim, and that the Court agreed with the finding in Moore v. Madigan, ___F. Supp 2d___, 2012 WL 344760, C.D., Il., 2/3/12, No. 11-CV-03134) that the Second Amendment right to bear arms for self-defense does not extend outside of the home. As in Moore, the Court cites the two-pronged test stated in Ezell v. City of Chicago, __ F.34 __, 2011 WL 2623511 ( C.A. 7, Ill.) to determine both the “scope” analysis of the regulated activity, and a second analysis of the strength of the government's justification for restricting or regulating the exercise of Second Amendment rights, if the governmental entity fails to establish that the regulated activity falls outside the scope of the Second Amendment right as it was historically understood.
Although the court notes that it finds the Ezell decision to be in complete harmony with its findings, nothing in the decision appears to demonstrate that the Shepard court did in fact adhere to the guidelines set forth in Ezell. Also, contrary to the court’s assertions, while Ezell did not find a heightened level of scrutiny other than intermediate applied to Second Amendment claims outside of the home, neither did it hold that the standard for 2nd Amendment protections, outside of the home, necessarily warrant intermediate scrutiny. See the latest comments on Shepard by Eugene Volokh.
Unfortunately, it appears that the Court seems to have overlooked the cases distinguished and clarified in Ezell, and erroneously states that the Seventh Circuit is in agreement with its analysis of the government’s justification for its regulated activity. Also, as in Moore, the cases in other jurisdictions upholding the restrictions of Second Amendment rights of individuals who were clearly not law-abiding, and involved criminal conduct, are said to be “instructive” and support the court’s findings that Heller limited the right to keep and bear arms solely to the home for self-protection, and that individuals do not have a Second Amendment right to bear arms outside of the home.
In further agreement with Moore in support of its findings, the Shepard court echoes Moore’s analysis of the application of the Heller decision to Second Amendment rights raised in this case to be persuasive, and “adopts, but does not repeat, that court’s review of the historical approach to the issue of the Second Amendment rights raised here. Thus, the Shepard court, without delving into Heller’s purported approval of 19th century prohibitions on carrying concealed firearms, never clearly articulated by the Heller majority, accepts Moore’s erroneous analysis and conclusions on the historical inquiries of the scope of the Second Amendment, .and goes on to state Heller’s oft-quoted, and misinterpreted caveat concerning laws banning carrying of firearms in sensitive places, such as schools and government buildings.
As expressed in Ezell, deciding whether the government has transgressed the limits imposed by the Second Amendment—that is, whether it has “infringed” the right to keep and bear arms—requires the court to evaluate the regulatory means the government has chosen and the public-benefits end it seeks to achieve. Borrowing from the Court's First Amendment doctrine, the rigor of this judicial review will depend on how close the law comes to the core of the Second Amendment right and the severity of the burden on the right. Employing intermediate scrutiny, the Shepard court notes that the government’s interest need not be compelling [ as required under “strict scrutiny.”](citation omitted). On the issue of the strength of the government's justification for restricting or regulating the exercise of Second Amendment rights, the Court had this to say:
“The defendants assert that the State of Illinois has significant governmental interests in protecting the safety of the public by restricting the availability and use of handguns in public. The Supreme Court has previously recognized that under intermediate scrutiny cases, the government’s interest need not be compelling. Schenck v Pro-Choice Network, 519 U.S. 357, 376 (1997). As the Fourth Circuit noted in United States v. Masciandaro, 638 F.3d 458, 473 (4th Cir. 2011), ‘[l]oaded firearms are surely more dangerous than unloaded firearms, as they could fire accidentally or be fired before a potential victim has the opportunity to flee.’ The State of Illinois has determined that, for purposes of protection of its residents, a citizen’s interest in carrying a firearm in public should be subject to the governmental interest in safeguarding the welfare of the public at large from the inherent dangers in a loaded firearm. This Court FINDS that the state has, therefore, established a substantial interest in the regulations at issue."
"... Accordingly, the Court FINDS that the plaintiffs’ claim that the provisions of the State of Illinois’ Unlawful Use of a Handgun and Aggravated Unlawful Use of a Handgun statutes do not violate the Second Amendment to the United States Constitution because the bearing of a firearm outside the home s not a core right protected by the Second Amendment. Therefore, the Court GRANTS defendants’ motions to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim, and plaintiffs’ complaint is DISMISSED."



Posted: 02/09/2012

MOORE CASE DISMISSED BY UNITED STATES DISTRICT COURT
In a decision that few would argue is as debasing as it is inconsistent with the analysis of the Heller and McDonald cases by our many constitutional experts, and/or theorists, who believe that the Second Amendment guarantees the individual right to bear arms for self-protection, both in and outside of hearth and home. U.S. District Court Judge Sue E Meterscough (Central District of Illinois, Springfield Division) rendered a scathing 48 page opinion in the case of Moore, et al v. Madigan et al., 2012 WL 344760 (C.D. Ill., 2012) wherein she rejected the argument that the Second Amendment guarantees a right to carry outside of the home for self-protection, denied injunctive relief, and dismissed the complaint.
The individual plaintiffs were joined by the Second Amendment Foundation and Illinois Carry in a one-count amended complaint attacking the Illinois Statutory provisions that prohibit the right to carry. Plaintiffs alleged that both the Unlawful Use of Weapon (UUW) and the Aggravated Unlawful use of Weapon (AUUW) statutes prevented the right of law-abiding citizens to carry firearms, outside of the home, for self-protection as guaranteed under the Second Amendment.
In support of its findings, the Court cites Heller’s purported approval of 19th century prohibitions on carrying concealed firearms (554 U.S. 570, 626-27), never clearly articulated by the majority, and Heller’s oft-quoted, and misinterpreted caveat concerning laws banning carrying of firearms in sensitive places, such as schools and government buildings. The Court also cited decisions upholding various federal gun laws banning certain types of firearms and possession by certain types of criminal offenders (including the 7th Circuit’s in U.S. v. Skoien, 614 F. 3d (at 639). and U.S. v. Yancey, 621 F. 3d 681,682). Those cases involved criminal conduct and were not dealing with scenarios involving law-abiding individuals. Although the Court cited People v. Mimes, 953 N.E.2d 55, 73 (Ill.App.Ct.2011) (which held that the Second Amendment right is not limited to the home because the "inherent right to self-defense" that is central to the Heller decision "does not disappear outside the home.") it noted that the challenged Illinois AUUW statute survived intermediate scrutiny in that case and was held not to violate the Second Amendment.
Many of the cases the Court relied on were U.S. District Court post-Heller and McDonald decisions in other jurisdictions, including New Jersey, New York, West Virginia, Massachusetts and Wisconsin, that either interpreted the Supreme Court’s dicta as binding law or otherwise ruled that that Heller limited the right to keep and bear arms solely to the home for self-protection, and that individuals do not have a Second Amendment right to bear arms outside of the home. On this crucial issue of "bearing arms" for self-defense the Court, in summation, stated:
"Because this Court has determined that individuals do not have a Second Amendment right to bear arms outside of the home, this Court finds that the UUW and the AUUW statutes—which only regulate firearms possession outside of the home—do not infringe on the Plaintiffs’ Second Amendment rights. See Heller, 554 U.S. at 535 (holding only that the Second Amendment affords individuals a right to bear arms ‘in the home’ and explaining that the Second Amendment ‘elevates above all other interests the right of . . . Citizens to use arms in defense of hearth and home.’). Therefore, Plaintiffs’ Amended Complaint does not present a viable Second Amendment claim." Alternatively, as discussed earlier in this Opinion, even if this Court were to assume that there is a Second Amendment right to bear arms outside of the home and the challenged statutes interfere with that right, the statutes survive constitutional scrutiny. Consequently, Plaintiffs’ Second Amendment challenge to the UUW and AUUW statutes is not sufficient to state a claim. See Fed. R. Civ. P. 12(b)(6). Plaintiffs’ claim must be dismissed. See Tamayo, 526 F. 3d at 1084.
At a recent seminar held by the Illinois State Rifle Association in conjunction with the Federalist Society chapter at John Marshall Law School, renowned constitutional law professor, Nelson Lund, when speaking, in part, on the issue of lower courts mistakenly relying upon comments made by the Supreme Court that are not necessary to the disposition of the case before it, pointed an accusatory finger at the Heller majority opinion and noted it nonchalantly analyzed the D.C. handgun ban and “compounded this sin with an astonishing series of dubious obiter dicta pronouncing on the constitutionality of a wide range of gun control regulations that were not before the Court. [Example: laws regulating firearms outside of the home.] . . . [L]ower courts routinely treat Supreme Court dicta as though they were holdings, and the Court routinely declines to review such decisions.” Nelson Lund, The Second Amendment, Heller, and Originalist Jurisprudence. UCLA Law Review (Forthcoming, 2012).
This case is on its way to appeal, while several others in different venues are moving forward to decisions regarding similar claims against the state statutes alleged to stand in the way of reasonable carry provisions. Until the issue is resolved favorably, Illinois continues to stand alone as the only state with no carry provisions.



Posted: 08/03/2011

7TH Circuit grants preliminary injunction in Ezell v. City of Chicago Gun Range Case No. 10-3525, 2011 WL 2623511 (7th Cir. 7/6/11)
One day after the Supreme Court decided McDonald vs. City of Chicago, the City explored a legislative response to the decision. Shortly thereafter the ordinance banning handguns was repealed and the City passed its now infamous “Responsible Gun Owners Ordinance.”
Although the new ordinance contained a sweeping array of firearm restrictions, including a ban on firing ranges within the City, it also contained a provision requiring aspiring gun owners to complete one hour of range training as a prerequisite to acquiring a Chicago Firearm Permit mandated for lawful gun ownership in the City.
Immediately, ISRA was joined by three Chicago residents, the Second Amendment foundation, and Action Target Designs, and a lawsuit was filed in the U.S. District Court for the Northern District of Illinois seeking a temporary restraining order (TRO), a preliminary injunction, and a permanent injunction against the City’s firing range ban.
The District Court judge denied the relief sought by the Plaintiffs, and on appeal the appellate court tribunal found that the lower court’s acceptance of the City’s “confused approach to the case” led the District Court to err in failing to recognize “ the scope of the Second Amendment right as recognized in Heller and applied to the states in McDonald, and the standard of review of laws alleged to infringe Second Amendment rights.” The appellate court also noted that the City failed to produce any empirical evidence of any kind, “and rested its entire defense of the range ban on speculation about accidents and theft.”
As the appellate court noted, the lawsuit alleged that the range-ban “impermissibly burdens the core Second Amendment right to possess firearms in the home for self-defense because it prohibits, everywhere in the City, the means of satisfying a condition the City imposes for lawful firearm possession.”
The appeals court concluded by noting that at this stage of the proceedings “the firing range ban is wholly out of proportion to the public interests the City claims it serves.” Thus, the court determined the plaintiffs met the requirements of demonstrating irreparable harm, no adequate remedy at law, and a strong likelihood of success—all prerequisites to obtaining the injunctive relief sought. The District Court’s decision was reversed and the case remanded to the lower court with instructions to enter a preliminary injunction consistent with its decision. A First Amendment violation alleged in the lawsuit was not addressed and considered surplusage because of the court’s findings and its decision based on the Plaintiffs’ Second Amendment claims.



Posted: 04/10/2011

STATE SUPREME COURT RULES BACKSEAT ARMREST IS A “CASE”
People v. Holmes, Ill. Supreme Court, Docket # 109130, Opinion filed 4/7/11. The defendant owner/driver of a motor vehicle, an Indiana resident who had been issued a carry license by his home state, was stopped by Chicago police officers for a traffic violation. Pursuant to a search, a 9 mm handgun was recovered from a backseat armrest of the car. The Court noted that “[t]he armrest separated the two back seats and contained a storage compartment that closed with a latch. The compartment could be folded up into the seat or left in a down position. At the time the gun was recovered, the compartment was closed and latched.” Testimony conflicted as to whether the armrest was folded up (defendant’s testimony) or in the down position (officer’s testimony).
The defendant was charged in count I with aggravated UUW, alleging he carried an “uncased, loaded and immediately accessible” firearm, violating 720 ILCS 5/24—1.6(a) (1)(3)(A), a felony. The second felony count alleged defendant carried in his vehicle a firearm “at a time when he was not on his own land or in his own abode or fixed place of business” and “had not been issued a currently valid FOID card in violation of 720 ILCS 5/24—1.6(a)(1)(3)(C).
In a jury trial, the trial court denied defendant’s counsel attempt to introduce the Indiana gun permit into evidence. The trial judge concluded that as a matter of law the Indiana permit was not a substitute for the FOID card, and therefore irrelevant. Compounding that error, the trial judge also rejected defense argument that the exception contained in the FOID card Act (section 2(b)(10) could not be read into the unlawful use of weapon statute.
On appeal to the State Supreme Court, the Justices reversed the decisions of the trial court and the 1st District Appellate Court, and remanded the case to the trial court for further proceedings consistent with its findings. The Supreme Court relied on its prior decision in People v. Diggins, 235 Ill. 2d 48 (2009). In Diggins, the Supreme Court defined the term “case” as used in the UUW statute, and it held that a center console of a vehicle is a case. In the Holmes case the Court concluded:
“As with the front seat console in Diggins, we conclude that this backseat armrest, which contained a cover and latch, falls within the meaning of a case under section 24--1.6. Moreover, the evidence is undisputed that the armrest was closed and latched. As such, the gun was enclosed in a case.”
Having disposed of the charge under Count I, the Supreme Court also ruled for the defendant as to the charge in Count II., holding that the exception in the FOID Act which states that the provisions of the FOID Act do not apply to “[n]onresidents who are currently licensed or registered to possess a firearm in their resident state,” is applicable as a defense to the second UUW charge. Thus, the State Supreme Court rejected the lower court holding that the exceptions in one [statute] cannot be read into the other.



Posted: 07/03/2010

McDonald v. City of Chicago, 561 U.S. ____ (2010)

In a 5-4 landmark decision, the United States Supreme Court followed its ground-breaking ruling in  District of Columbia v. Heller, 554 U.S. _____, and,  in reversing the Seventh Circuit’s affirmation of a District Court’s holding denying Petitioner’s 2nd Amendment arguments against municipal  firearms bans,  held that the Second Amendment is a fundamental right and  incorporated against the states under the 14th Amendment of the U.S. Constitution. The case has been remanded.     

While the majority of the Court deciding in favor of McDonald held that the 2nd Amendment is incorporated by the Due Process clause of the 14th Amendment, Justice Thomas took one of the roads argued by Petitioners’ counsel, which made some believe that the Court overruled the Slaughterhouse and Cruikshank  decisions, and that the  “privileges and immunities” clause of the Constitution was the basis for Second Amendment  incorporation.  Nevertheless, Justice Thomas’ concurring opinion, together with that of Justice Scalia’s, added to the majority five votes needed to decide favorably for the Petitioners.  Attorney Alan Gura, who was counsel in the Heller case,  successfully represented McDonald, and other individual petitioners as well as the Illinois State Rifle Association and the Second Amendment Foundation.  Attorney Gura has certainly made his mark in history.     

A Supreme Court  5-4 decision  raises a red flag as to why four of the Justices could not see what freedom-loving Americans have believed for centuries, and which the founding fathers of our nation perceived as a fundamental,  inalienable right deeply rooted in our nation’s history, and implicit in the concept of ordered liberty.  That right, most scholars have believed, existed before the passage of the 2nd Amendment.  The majority made frequent references to the pre-existing right of self-defense, which is the back-bone of the Second Amendment, and there is much to be said about the majority’s dissection of the strained arguments posed by Justice Stevens.     

The Majority’s caveat re-affirmation of the position it took in the District of Columbia v. Heller case that  various firearm restrictions, including the prohibition of possession of firearms by felons or the mentally ill, and those laws affecting the commercial sale of firearms, and those imposing restrictions regarding the carrying of firearms in sensitive areas such as government buildings, and the like, still apply, raises another red flag.  Coupled with the fact that four of the Justices, and most assuredly their successors,  will continue to take an opposing stand to applications of the principles set forth by the majority in McDonald, these restrictions can be stretched and broadened to a point where more of our rights are suppressed.  While all agree that keeping firearms out of the hands of felons, the mentally ill, and away from sensitive places such as courtrooms, it is the interprettation of those restrictions that require constant alertness and strict scrutiny to ensure that those restrictions are not employed in an arbitrary and discriminatory manner.      

It will be interesting to learn how anti-gun advocates and some courts will interpret the McDonald majority’s reference that the “fundamental right guarantee is fully binding on the states and thus limits (but by no means eliminates) their ability to devise solutions to social problems that suit local needs and values.”  Also, quoting from the 38 states’and amicus brief of the State of Texas, the Court noted “[s]tate and local experimentation with reasonable firearms regulations will continue under the Second Amendment.”     

Repeatedly, we have seen cases setting forth a basic principle of law abused> by law enforcement authorities and ignored by some courts to a point of ludicrousness.  Classic examples are registration requirements imposed to such a degree  in some anti-gun municipalities and states that the real aim is to defeat the thrust of  2nd and 14th Amendment protections.  Many Courts also have repeatedly ignored the protections afforded under the 4th and 14th amendments by upholding invalid searches and seizures. Fortunately, many of those decisions have been cured on appeal to higher courts, but not always. For some interesting examples of decisions both upholding  constitutional protections and those that appear to have ignored or failed to adhere to them, see current cases reported at “Search & Seizure” and its archives, as well as People v. Diggins ” in this section of  Current Case Review.”




Posted: 06/28/2010

People v. Michael Diggins, 235 Ill. 2d. 48 (Ill 2009)

[ This author wrote the amicus brief submitted  on behalf of the Illinois State Rifle Association which principally addressed legislative intent. regarding the pertinent statutory provisions.] The following are excerpts highlighting the Supreme Court’s decision affirming  that of the Appellate Court, with some omissions not noted in the quoted text:

“Section 24–1.6(c)(iii) of the Criminal Code of 1961 provides that a person is not guilty of aggravated unlawful use of a weapon if that weapon is “unloaded and enclosed in a case, firearm carrying box, shipping box, or other container by a person who has been issued a currently valid Firearm Owner’s Identification Card.” 720 ILCS 5/24–1.6(c)(iii) (West 2006). In the case at bar, we are asked to determine whether the center console of a vehicle is a “case” within the meaning of this provision. For the reasons that follow, we conclude that it is.”

The Court noted that the “Defendant testified that, when he was pulled over, he was about to drive back to Florida, and that he carried his guns in the console when traveling because the highway was “dangerous.” Defendant’s passenger, Willie Moore, also testified. He confirmed that defendant asked him for the keys to the console, that he retrieved them from the glove compartment and gave them to defendant, and that defendant then unlocked the console. After defendant unlocked the console, Moore said, defendant advised Boland he had guns in the console.

The defense sought a jury Instruction at the close of the evidence based on section 24–1.6(c)(iii) “ that a person is not guilty of aggravated unlawful use of weapons if the weapons are enclosed in a “case, firearm carrying box, shipping box, or other container” by a person who has been issued a currently valid FOID card. The trial judge refused the instruction.

The trial judge also prohibited defendant from asserting, in closing argument, that the console was a ‘case’ or “other container” under section 24–1.6(c)(iii). However, the State was allowed to argue that the console was not a ‘case.”’

. . . [T]he jury returned its verdict, finding defendant guilty of aggravated unlawful use of weapons. The court sentenced defendant to 30 months’ imprisonment. On appeal, the appellate court reversed and remanded for a new trial, finding that the center console of a vehicle is a “case” within the meaning of section 24–1.6(c)(iii). 379 Ill. App. 3d 994. In so holding, the appellate court rejected the finding in People v. Cameron, 336 Ill. App. 3d 548 (2003), that a glove compartment was not a “case” or the legislature did not define the word “case” as used in section 24–1.6(c)(iii) and this appeal turns on the proper interpretation of that term. We review this question of law de novo. Kankakee County Board of Review v. Property Tax Appeal Board, 226 Ill. 2d 36, 51 (2007).”

. . .Because the term “case,” used in section 24–1.6(c)(iii), is not defined, we assume the legislature intended the term to have its ordinary and popularly understood meaning. People v. Ward, 215 Ill. 2d 317, 325 (2005). The plain and ordinary definition of “case” is: “a box or receptacle to contain or hold something (as for carrying, shipping, or safekeeping).” Webster’s Third New International Dictionary 346 (1993). Examples given in the dictionary included “a silver cigarette [case],” “12 bottles in a [case],” and “a display [case] in a meat market.” A “box” is defined as: “a rigid typically rectangular receptacle often with a lid or cover in which something non liquid is kept or carried” (Webster’s Third New International Dictionary 263 (1993)) and a “receptacle” is defined as something that “receives and contains something” (Webster’s Third New International Dictionary 1894 (1993)).

In Cameron, the appellate court interpreted the phrase “other container” within section 24–1.6(c)(iii). The Cameron court found that not only were a “firearm carrying box” and “shipping box” portable receptacles, but a “case” was as well. Invoking the doctrine of ejusdem generis, the court concluded, based on the common element of portability among the items in section 24–1.6(c)(iii), that an “other container” must also be portable. Because a glove compartment is fixed, and not portable, the Cameron court held that it was not an “other container” within the meaning of section 24–1.6(c)(iii).

We, like the appellate court, find the Cameron court’s analysis flawed. The Cameron court never attempted to define “case”; it merely assumed a “case” must be portable. While a firearm carrying box and shipping box might contain an inherent element of portability, under its plain and ordinary definition, “case” does not. For example, a display case in a meat market or elsewhere is not portable in the commonly understood meaning of portability.1 Accordingly, not all “cases” are portable. Because there is no common attribute of portability amongst the terms utilized in section 24–1.6(c)(iii), the Cameron court’s analysis is incorrect.”

. . .The State’s argument that noscitur a sociis resolves the case at bar fails for the same reason that ejusdem generis fails. There is nothing in the language of the statute from which one could conclude that the legislature intended the terms “shipping box” and “other container” to be interpreted only in reference to firearms. Thus, there is nothing in the overall statutory scheme to suggest that the legislature intended for the various types of receptacles to be firearm specific.

Moreover, the term “firearm” does not precede all of the terms or phrases, i.e., the statute does not read “firearm case, carrying box, shipping box or other container.” Likewise, the statute does not read “case, carrying box, shipping box, or other firearm container.” Had section 24–1.6(c)(iii) been drafted in either of these ways, it might be reasonable to interpret it to require that all specified types of receptacles be interpreted only in reference to firearms. Based on the actual language of the statute, we conclude that the doctrine of noscitur a sociis simply does not apply here.”

. . . However, we need not resort to the legislature history because we find the plain language of section 24–1.6(c)(iii) unambiguous. Un-persuaded by the State’s arguments, we conclude that the legislature used the broad general term “case” unmodified. Giving the word “case” its plain and ordinary meaning, as we must, permits but one conclusion: the term “case” in section 24–1.6(c)(iii) includes any portable or non portable receptacle and need not be interpreted only in reference to firearms.

Based on the foregoing, we find, in the case at bar, that the center console of a vehicle falls within the ordinary definition of case. A center console is a receptacle that contains or holds something. As such, we find that defendant’s conduct falls within the exception set forth in section 24–1.6(c)(iii). In so finding, we note that our result is controlled by the plain language of section 24–16(c)(iii) as enacted by the legislature. We are not at liberty to depart from the language employed. Whether the statute is wise or the best means to achieve the desired result are matters left to the legislature, not this court.

Accordingly, we affirm the appellate court’s conclusion that the trial court erred in refusing defendant’s proposed jury instruction based on section 24–1.6(c)(iii) and erred in refusing to permit defendant to argue in closing argument that the center console was a “case” within the meaning of section 24–1.6(c)(iii). Our determination that the center console is a “case” within the meaning of section 24–1.6(c)(iii) does not end this case. A factual question remains as to whether the exception is applicable based on whether the firearms at issue here were “enclosed” in the center console. For this reason, we remand the matter to the circuit court for a new trial. In light of our decision, we must consider whether a new trial would subject defendant to double jeopardy. See People v. Jones, 175 Ill. 2d 126, 134 (1997); People v. McDonald, 125 Ill. 2d 182, 201 (1988). “

. . .We affirm the judgment of the appellate court, which reversed the judgment of the circuit court and remanded the cause for further proceedings. Affirmed.”




Posted: 06/25/2010

DIGGINS HAS BEEN MISCONSTRUED BY MANY, OPENING THE DOOR TO ARREST AND PROSECUTION

People v. Michael Diggins, 235 Ill. 2d. 48 (Ill 2009)

Since People v. Diggins was decided by our State Supreme Court, a number of articles, commentaries and general blogging have circulated stating that guns can be easily and safely transported in motor vehicles in just about every manner possible, loaded, unloaded, and in some cases in fanny packs worn by drivers and/or passengers. Nothing can be further from the truth than those type of analysis.
To begin with, Diggins focuses on the language in the UUW statute that relates to “aggravated unlawful use of a weapon.” The State Supreme Court addressed the exemption provisions of Section 24-1.6 (c)(iii) which provides that a person is not guilty of aggravated unlawful use of a weapon if that weapon is “unloaded and encased in a case, firearm carrying box, shipping box, or other container by a person who has been issued a valid Firearm Owner’s Identification card.” The Court begins by noting:
“[W]e are asked to determine whether the center console of a vehicle is a ‘case’ within the meaning of this provision. For the reasons that follow, we conclude that it is.”
One of the first points the Supreme Court states was that a prior decision by the 4th District Court of Appeals was flawed when it held that a glove compartment was not a “case” within the meaning of the exemption language because a glove compartment is not portable.
Even though the Supreme Court made that observation, that does not mean that it ruled expressly that glove compartments are cases. While part of its analysis, it was not part of the Court’s decision. That determination must come in another decision, when the issue is squarely before the Court. Also, that observation may be quoted in future cases.
What is important in Diggins, is that the Supreme Court holds that a case does not have to be a container specific to a firearm and it need not be limited to something portable. The Court’s language is understandable to non-attorneys when it says:
“Unpersuaded by the State’s arguments, we conclude that the legislature used the broad general term ‘case’ unmodified. Giving the word ‘case’ its plain and ordinary meaning, as we must, permits but one conclusion: the term ‘case’ in Section 24-1.6 (c)(iii) includes any portable or non-portable receptacle and need not be interpreted only in reference to firearms.
. . . Based on the foregoing, we find, in the case at bar that a center console of a vehicle falls within the ordinary definition of case.
. . . Whether the statute is wise or the best means to achieve the desired result are matters left to the legislature, not the court.”



Posted: 03/20/2008

People v. Michael Diggins, 379 Ill. App. 3d 994 (Ill 2008)

This case covers the latest of Illinois State Court decisions dealing with the issue of defining “case” and/or the meaning of “uncased” or “container”as those terms would apply to the exemption provision of the Illinois Statute dealing with the offense of “aggravated unlawful use of weapon” wherein the legislature specifically provided that the offense of aggravated UUW does not apply to the transportation or possession of weapons that are “unloaded and enclosed in a case, firearm carrying box, or other container.” (720 ILCS 5/24-1.6 (c ) (iii).
A person commits the offense of aggravated UUW in Illinois by knowingly carrying a firearm in a vehicle that was uncased, loaded and immediately accessible at the time of the offense, unless the person was carrying the firearm on his land, abode, or fixed place of business. (720 ILCS 5/24-1.6(a)(1)(3)(A).
Facts: the defendant in this case was stopped for a traffic violation, and when asked for his I.D. he showed the officer his FOID. The officer then asked if he had a gun and the defendant pointed to his center console and said there were two guns therein. The ensuing search produced a revolver, semi automatic pistol, six rounds of .357 ammo and a magazine loaded with .45 ammunition. The officer maintained that the center console lid was open and he also found the key within the console. Defendant testified that the console was locked and the key was in the car’s glove box. It was uncontroverted that the weapons were unloaded.
Issues/Challenges: The defendant insisted on a jury instruction stating: ”[U]nder Illinois law a person is not guilty of aggravated unlawful use of a weapon if the weapons are enclosed in a ‘case, firearm carrying box, or other container’ by a person who has been issued a currently valid Firearm Owner’s Identification Card (FOID card).” The Judge denied defendant’s counsel’s attempt to argue in closing that “the location in which the officer found the firearms was a ‘case’ or ‘other container’.”
Decisions: The trial Judge not only denied the instruction tendered by defendant, but also when queried by the jurors: “What is the legal definition of a ‘case’?” the Judge, over objection, advised the jurors that a center console was not a “case” under Illinois law. The Jury verdict was “guilty as charged” and Defendant appealed.
The Appellate Court Reversed and remanded, finding the issue regarding the exception was a question of law to be considered de novo. and that the center console constituted a “case” under the Statute. The Court looked at several prior decisions—among which People v. Cameron, 336 Ill. App. 3d 548 ( 4th Dist., 2002), People v. Smyth, 352 Ill App. 3d 1056 ( Ist Dist., 2004), and People v. Williams, 368 Ill. App. 3d 616 (Ist Dist., 2006) dealt with various “firearms-in-vehicles” scenarios and the resulting interpretations of the exceptions language in the aggravated Unlawful Use of Weapon statutory provisions.
The Court refuted the Cameron decision, finding its decision fails to meet the guideline of People v. Hanna, 207 Ill. 2d. 486 ( 2003), that “statutes are to be construed in a manner that avoids absurd or unjust results.” Instead, the Court found the rationale in People v. Smyth, 352 Ill. App. 3d 1056 ( Ist Dist., 2004) appropriate, and applied it to this case. Cameron held that a vehicle’s glove compartment is not an “other container” within the meaning of the exemption, and distinguished between “fixed” and “portable” containers, holding the Legislature intended the exemptions to apply only to “portable devices.” But the Appellate Court here, in rejecting Cameron, and Williams, which had followed its rationale [Gun found in zippered compartment of vehicle deemed “uncased”], opted to accept the Smyth court’s rationale—that is, the term “case” is to have its ordinary meaning, and no distinction is made between portable and fixed containers, so long as they are truly “enclosed in a “case ( meaning completely closed or “enveloped”).
To get a clear overview of the contrasting interpretations of these issues by the Courts in the various Districts (Ist, 2nd, 3rd and 4th) look for more of the cited cases in this author’s Archives. You may also want to see in Archives: People v. Dieppa, a 2nd District case (2005) holding a “glove compartment, whether locked or unlocked is a container.”





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