Thursday, April 5, 2012

Anti Gun Rights Groups Held At Bay In Court's "Assault Weapons" Decision

Illinois Supreme Court Justices

The lawsuit filed by Matthew D. Wilson, Troy Edhlund, and Joseph Messineo,
against the Cook County, Illinois “Assault weapons” ban, has survived a motion
for dismissal in the Illinois Supreme Court and was sent back to the trial Court
for further proceedings. It was filed to challenge the Blair Holt
“Assault weapons ban’s constitutionality. 

A spokesperson for the three men said that this was a victory for them
because the Illinois Court kept the case alive. It was a unanimous decision
by the seven Justices. The three men have won a battle; however, a war still lies 
ahead. But, there may be a proverbial light at the end of the tunnel
for "black"guns in Illinois. 

A reading of the opinion shows that the case was sent back to the lower
Court because the Illinois Supreme Court felt that it didn’t have enough
on the existing trial record of the lower Court proceedings to rule on the
argument in the case. This is hardly a victory for the anti gun rights groups 
hoping for an outright upholding of the ban.

The Ordinance is a typical Chicago style oppressive anti gun measure  
Here is the Ordinance and what the Court said about  it.

The ordinance prohibits "the sale, transfer, acquisition, ownership,
or possession of “assault weapons as "defined by a specific list of 60
rifles and pistols designated by model name or type, and “assault
ammunition,” including any ammunition magazine having a capacity
of  more  than  12  rounds  of  ammunition." 1  

"The Cook County Commissioners proposed and passed the ordinance in 1993
for 3 purported reasons:
1) easy access to firearms and ammunition had become a concern of
public health, safety and welfare for the citizens of Cook County;
(2) assault  weapons  were  20  times  more  likely to  be  used  in  the
commission of a crime than other kinds of weapons; and
(3) there was  “no legitimate sporting  purpose for the military style  assault
weapons being used on the streets.”The ordinance also contained a
Laundry list of dozens of “attributes” of an “assault weapon.” 1

It was shortly followed by the Clinton AWB that expired in 2004. "The
2006 revised County ordinance also prohibits the possession of
large capacity magazines with the capacity to accept more  than  10
rounds  of  ammunition." 2   

"Under its provisions, a person  who prior  to  the  enactment, lawfully
possessed  assault weapons or large capacity magazines, had 90 days
from the effective date to surrender the weapons to the sheriff, to
remove the weapons from the county, or to modify the weapons to
render them inoperable or  no  longer  defined  as  an  assault  weapon. 
Violation  of  the Ordinance  is  punishable  by imprisonment  for  not 
more  than six months  and by a fine between $500  and $1,000." 1

The trio challenged the law in several respects. The only challenge that the
Court accepted was a Second Amendment challenge based on McDonald
and Heller.

The Illinois high Court cited the 2008 decision in District of Columbia v. Heller
where "a  five  justice  majority of  the  Supreme  Court  expressly
recognized,  in  its  first  “in-depth  examination,”  that  the  second
amendment confers an individual right to keep and bear arms (id. at
592), and that the “central component of the right” is the right of
armed self-defense, most notably in the home." 2

These men argued that the County’s ban on assault weapons as
defined in the Ordinance violates the second amendment right to bear
arms. The second amendment provides: “A well regulated Militia,
being necessary to the security of a free State, the right of the people
to keep and bear Arms, shall not be infringed" 2
Based on this interpretation, the US Supreme Court "invalidated the District of
Columbia’s complete prohibition on handguns in the home by law abiding
 citizens, and invalidated its requirement that all firearms in the home be
kept inoperable." 1

"The US Supreme Court majority found that
“under any of  the standards  of scrutiny the Court  has  applied  to
enumerated constitutional rights” a prohibition on all handguns was
a ban on “an entire class of ‘arms’ that is overwhelmingly chosen by
American society for [the] lawful purpose” of self-defense and that
a complete prohibition on their use was invalid. The Court
explained  that  “whatever else [the second  amendment]  leaves  to
future evaluation, it surely elevates above all other interests the right
of law-abiding, responsible citizens to use arms in defense of hearth
and home.  1 

But the Illinois Court also said “Nevertheless, the Supreme
Court held that the scope of the right is not without limitations. The Court
made clear that “Like most rights, the right secured by the Second
Amendment is not unlimited.” 1

"The US Supreme Court additionally attempted to sketch out a non
exhaustive list  of  “presumptively lawful  regulatory measures,”  including
“longstanding prohibitions  on  the  possession  of firearms  by
felons and the mentally ill, or laws forbidding the carrying of firearms
in sensitive places such as schools and government buildings, or laws
imposing conditions  and qualifications on the commercial sale of
arms.” 1

"Thereafter, the US Supreme Court revisited the second amendment
in McDonald v. City of Chicago,where The US Supreme Court 
reiterated  its  central holding  in  Heller “that  the  Second Amendment
protects the right to possess a handgun in the home for
the purpose of self-defense. Additionally, that Court reiterated
that the second amendment right was far from absolute and noted that
the doctrine of incorporation “does not imperil every law regulating
firearms." 1

"Since  Heller and McDonald, courts have generally followed a two-pronged
approach.The threshold question we must consider is whether the
challengedlaw imposes  a  burden on  conduct falling within the
scope of thesecond amendment guarantee. That inquiry involves a textual and
historical inquiry to determine whether the conduct was understood
to be within the scope of the right at the time of ratification.
If the  government  can  establish  that  the  challenged  law  regulates
activity falling outside the scope of the second amendment right, then the
regulated activity is categorically unprotected." 1

"However, if the historical evidence is inconclusive or suggests
that the regulated activity is not categorically unprotected—then there
must  be  a  second  inquiry into  the  strength  of  the  government’s
justification  for  restricting  or  regulating  the  exercise  of  Second
Amendment  rights.” 1

"The second amendment categorically protects the right of
law-abiding  citizens  to  possess  a  handgun,  particularly for
self  defense in the home, because handguns are a class of arms that the
Supreme Court has found are “overwhelmingly” chosen by American
society for the lawful purpose of self-defense. Unlike the District of
Columbia handgun ban, the Illinois Court could not say
as a matter of law that the Ordinance  purports to prohibit  an  entire 
class  of  arms  that  is overwhelmingly chosen by American society
for self-defense in the home." 1

The Illinois Court said, The Ordinance is not an absolute ban on the
possession of all rifles, shotguns, or pistols for self-defense. Nor is
 it a complete ban on all semiautomatic firearms. Instead, it covers
a particular subset of these weapons with  particular  characteristics
that the County has determined make them capable of firing rapidly,
delivering a large number  of  shots  without  reloading,  and  creating
a  high  risk  of collateral damage." 1

"The Court in Heller had no reason to consider regulation of these particular
types of firearms with these particular attributes." 1

The State Court noted that, "It can’t be said  be said with any certainty,
unlike in Heller, that assault weapons, as defined  under the Ordinance, 
are the  “quintessential weapon of choice” for self-defense by Americans.
At least some of these types of weapons were banned for 10 years under
federal law and  have  been  banned  in  some  degree by numerous  states
andmunicipalities, albeit without any uniform definition." 1

"In 1994, the federal Bureau of Alcohol,
Tobacco, Firearms and Explosives characterized assault weapons as
“mass produced mayhem” and weapons of choice for gangs, drug
dealers, and mass killers to outgun police officers on the streets." 1

"The ATF, Congress, and the County have concluded that
assault weapons under varied definitions have no “sporting purpose.
The Illinois Court also couldn’t say conclusively at this early stage of the
litigation that assault weapons as defined in this Ordinance categorically fall 
outside  the scope  of the rights protected  by the second  amendment. 
Heller explicitly recognized  a  historical  and
long-standing tradition of firearms regulations prohibiting a category
of “dangerous and unusual weapons” that are “not typically possessed
by law-abiding citizens for lawful purposes.” Historically, weapons
like machine guns, sawed-off shotguns, grenade launchers, and other
high-powered weapons have fallen into this  category due to their
extreme nature." 1

"Both parties argue that the dangers of assault weapons as
defined by the reach of this Ordinance, and want to debate whether
these types of arms are appropriate for self-defense and whether these
types of prohibited weapons under the Ordinance are well suited to
the  core lawful  purpose  as  expressed  in  Heller." 1  

The three men "want 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." 1

The Court concluded that, "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
decided that this  question  requires them  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." 1

Given the procedural posture of this case, the Court would "not choose
to make a second Amendment decision at this time. Unlike other cases,
the Court here had a minimal legislative record to review and didn’t
want to make assumptions without first attempting to ascertain relevant facts.
Their deference to a legislative finding is a balancing of competing interests." 

(Docket No. 112026)
MATTHEW D. WILSON et al., Appellants, v. THE COUNTY OF
COOK et al., Appellees.
Opinion filed April 5, 2012.


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