Update to
AW/Magazine Ban -
https://armedpolitesociety.com/index.php?topic=70249.msg1462891#msg1462891Update to
Harrel v Raoul (IL AW/magazine ban and affecting cases pertaining to Protect Illinois Communities Act: NAGR v Naperville, Harrel v Raoul, Barnett v Raoul, GOA v Raoul, Herrera v Raoul, Langley v Kelly) -
https://www.thehighroad.org/index.php?threads/scotus-considering-bianchi-v-frosh-duncan-v-bonta-the-turning-point-for-aw-magazine-ban.905531/post-13023981Compared to
Snope/Ocean State Tactical/Gray AW/magazine ban cases,
Harrel case in particular in that
7th Circuit remanded the case to consider "military use/military grade" and dissenting arguments/opinions along with consideration for Bruen methodology compliance of "Text, history and tradition" with burden shifting to state/government.
In his ruling, judge McGlynn defined the terms and examined how they applied -
“military use” refers to weapons that are selected, procured, tested, and issued to military members for use in combat. (Page 111)
“military-grade” ... issued to the military for use in combat. (Page 112)
"dual use" ... the Court holds that “dual use” refers to weapons that, while predominantly useful in military contexts, are also useful for civilian offensive or defensive use in confrontation such that they would be covered by the Second Amendment’s guarantee. (Page 112)
... Therefore, the Court holds that “military use” refers to weapons that are selected, procured, tested, and issued to military members for use in combat. With this in mind, none of the weapons, magazines, or attachment prohibited by PICA can be called “military-grade” since they were not issued to the military for use in combat ... a clear example is the semiautomatic handguns that are useful in military service yet are also “the quintessential self-defense weapon.” Clearly, even though handguns are useful and are used in military service, they are clearly protected by the Second Amendment (Page 110-112)
... This Court also holds that thirty-round magazines are not predominately useful in military service and, even if they were, dual use has clearly been demonstrated given their usefulness for individual self-defense and their ubiquity. (Page 113)
FPC attorney Anthony Miranda discuss critical Second Amendment Illinois PICA cases set to be decided after the Supreme Court denied emergency review and remanded by the 7th Circuit -
https://www.youtube.com/watch?v=M4RxUBMUOGA- We need to talk about ... critical case ... up for appeal ... challenging the state of Illinois ban on so-called "assault weapons" and also their magazines
- Recently we received a ruling from district court judge McGlynn ... and he struck down the Protect Illinois Communities Act also known as PICA
- Ruling came after the Supreme Court denied emergency review of a bunch of these Illinois rifle and magazine ban cases
- Despite that denial by the Supreme Court, judge McGlynn decided to move them forward to a final merits decision
- He recently issued a decision striking down the PICA law (rifle/magazine ban) ... He struck it down entirely as a violation of the Second Amendment
- Illinois has now appealed that decision in all these cases to the 7th Circuit and once again, the biased 7th Circuit three judge panel decided to grant the state's request to put a stay on that decision
- 7th Circuit also notified judge McGlynn that they believed judge McGlynn's decision was improper that maybe there were errors and they directed him to revise and essentially alter his decision to address some of those issues
- Judge McGlynn has now issued that revised decision and now this case is moving forward at the 7th Circuit Court of Appeal level
- You might remember that originally in multiple of these cases, a district court issued the preliminary injunctions that were requested and essentially those were intended to at least halt the enforcement of PICA before it fully took effect; however, the state of Illinois quickly appealed those preliminary injunctions to the 7th Circuit
- And on review, again the liberal and biased three judge panel in the 7th Circuit overruled the granting of those preliminary injunctions
- Now in coming to those decisions the 7th Circuit concluded that the arms protected by the Second Amendment do not include weapons that may be reserved for military use so they used something known as the
military use test, which again in my opinion does not align at all with what the Supreme Court said in Bruen, Rahimi, Heller or any of their precedent that then led all these cases for the first time to seek immediate Supreme Court emergency intervention- But like I mentioned, Supreme Court at the end of their last term denied emergency review to all of these Illinois cases but also in that denial order, you did have a statement from justice Thomas and he stated that,
If the Seventh Circuit ultimately allows Illinois to ban America's most common civilian rifle, we can and should review that decision once the case reach a final judgment. The court must not permit the Seventh Circuit to relegate the Second Amendment to a second class right
- So although Supreme Court denied emergency review to these cases, justice Thomas did make a statement and he stated that there was an interest in this type of case if it reaches a final merits decision
- While those preliminary injunction appeals and the emergency Supreme Court cert was going on the lower court judge McGlynn was moving these cases to a final judgment
- Recently there were oral arguments that were held in this case and then a decision came from judge McGlynn and once again, he found that PICA is unconstitutional
- It's unconstitutional under Bruen, it's still unconstitutional under the 7th Circuit precedent and therefore he struck down PICA in its entirety
- However in that decision, he did decide to temporarily stay the enforcement of his order for 30 days so the state of Illinois could appeal to the 7th Circuit and then also seek a more permanent stay from the 7th Circuit if they wanted to
- Of course, Illinois did appeal to the 7th Circuit and they also requested a stay from the 7th Circuit ... They wanted to halt the entire enforcement of that ruling by judge McGlynn ... Essentially they wanted to still be able to enforce PICA
- In their motion, the state of Illinois argues that the district court for the second time in 2 years entered an injunction prohibiting the enforcement of Illinois statute on a statewide basis, the court's decision is badly flawed and the injunction should be stayed pending appeal. The opinion below fails to faithfully apply this court's decision in Bevis, it cannot be squared with Supreme Court's precedent or the uniform decisions of the court of appeals applying such precedent and it would threaten public safety by permitting military grade weapons to proliferate again in Illinois
- So the state of Illinois' primary argument is that judge McGlynn misapplied Bruen and the 7th Circuit decision in Bevis and also it would be such a public risk to have these types of weapons on the streets
- Now one of the
interesting things with this appeal and request for stay is that the state of Illinois maintains a very hardline approach with these rifles and magazines saying that they are not arms at all and therefore they're not protected at all by the text of the Second Amendment- That's also despite the fact that they still acknowledge also in all of the briefs that these types of firearms and these magazines are owned in the millions by law abiding people not just in the state of Illinois but all over the US so they're clearly in common use but still the state is arguing that they're not protected arms
- On review, 7th Circuit panel agreed with the state of Illinois [of course

] and decided to grant a stay on judge McGlynn ruling
- Also important was the development that the 7th Circuit believed that judge McGlynn's decision was actually deficient that there were errors, that it was not expressed clear on the type of relief it was granting or who the judgment was in favor of and maybe what defendants were barred or enjoined from doing certain things
- So the 7th Circuit was saying that judge McGlynn, we believe your decision is deficient. We want you to revise it to change it into enter a new decision
- In the 7th Circuit's order granting the stay, the court also not only blocked the ruling but they also directed judge McGlynn to revise his prior decision
- In the order 7th Circuit stated that defendant's request for a stay rest largely on the fact that this court already has held that the laws in question survive motions seeking preliminary injunctions ... a decision at the preliminary injunction stage is not dispositive [determining the outcome of a case] when the plaintiff seek later permanent relief
- Our opinion indicated some matters that needed further exploration but the analysis in Bevis shows that the laws have enough support to remain in place pending the final resolution of plaintiff suit
- Every other court of appeals that has addressed the validity of similar legislation in the wake of Bruen has come to the same way in the same conclusion as Bevis
- So the 7th Circuit found that since they prior had ruled and upheld this type of restriction in the state of Illinois and since other circuit courts have upheld similar rifle/magazine bans, the state ban here should remain in effect until the 7th Circuit appeal is result
- They also told judge McGlynn that his prior decision was deficient and they expected him to essentially revise it
- Now we just got that revised decision from judge McGlynn so he heeded the 7th Circuit's warning, I guess, and decided to clarify his decision even though I think it was pretty clear before
- But it seems like the 7th Circuit was being nitpicky and wanted him to change his decision
- In the revised decision, he stated that, "This court holds that Protect Illinois Community Act is unconstitutional in accordance with the Second Amendment to the United States Constitution as applied to the states by the 14th Amendment of fact and conclusions of law and that the permanent injunction is required to protect the right rights of citizens of Illinois"
- He then granted a declaratory judgment and permanent injunction in favor of the plaintiffs and then all the other organizations and parties that were attached to each of those cases
- He then entered a decision enjoining the state defendants from enforcing the PICA laws expressly against those various plaintiffs- So he just had to go through one by one list directly that of course this law is blocked that PICA is unconstitutional and that the defendants here are expressly prevented from enforcing those laws against the defendant
- Now, really does that matter that much the 7th Circuit was for some reason being super nitpicky and was trying to find some sort of deficiency what the lower court decision
- In reality, this is still out of the hands of the lower court. It is now moved to the 7th Circuit
- You know court's hands and now they have issued the stay on that lower court decision and they have full control of this case
- Some think that the best option now is for the plaintiffs to then seek or maybe want an emergency review from the Supreme Court to remove this stay but right now I think that would just be denied
-
I think the best strategy as of right now would be to try to move this case as fast as possible through the 7th Circuit process through the three judge panel, maybe even try to bypass the En Banc and go directly to the Supreme Court because we all know how the 7th Circuit is going to rule on this case
-
Also keep in mind there is still hope for the Supreme Court to maybe grant review to a similar rifle ban case the Snope case out of Maryland that is a final merits case dealing also with the military use test coming out of 4th Circuit En Banc panel ruling that is currently seeking Supreme Court review- The Hope really is that Supreme Court will finally take up a critical rifle ban case this term and of course if they do and rule on that, that would impact the 7th Circuit cases here
- It would impact the state of Illinois's ban, California's ban on rifles, New York's ban, any state that has a rifle ban it would directly impact that