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Thread: Question for firearm attorneys regarding Moore vs. Madigan (IL) ruling.

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    Regular Member Superlite27's Avatar
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    Question for firearm attorneys regarding Moore vs. Madigan (IL) ruling.

    I am not an attorney, therefore have a very limited grasp of "legalese". I would appreciate input regarding a question I have about SAF's recent lawsuit on behalf of Michael Moore concerning carry in the state of Illinois from someone with a clearer understanding of legal jargon.

    I reviewed the case docket here: http://ia600603.us.archive.org/14/it...15.docket.html and from what I can tell, the judge, Kachalski, issued a ruling: http://www.archive.org/download/gov....52015.33.1.pdf concerning a request for dismissal from Madigan (et. al) based upon findings from a similar case in New Jersey. (Question #1: Am I on track with this, or completely screwed up?)

    In this link, from what I can tell, the judge concurred with the New Jersey findings that the SCOTUS ruling on Heller determined that infringements on firearm posession within the home were unconstitutional, but carry beyond that point was left up to the states, therefore: Restrictions on the carry of firearms outside the home were acceptable and not an infringement on Constitutional rights. (Question #2: Am I still following along correctly, or am I misunderstanding things?)

    My fundamental question (regarding these findings based on my vague understanding of them): At absolutely NO POINT within the Constitution does it mention LOCATION. The Second Amendment simply states "..shall not be infringed.". Nowhere does it state any location where the infringement would be acceptable. Therefore, the ruling of "within the home" is simply arbitrary.

    How does the state interject location (within the home vs. outside the home) into the argument? Is there any legal means to determine the state's basis for determination? (Asked simply: How does the state justify that the right to expect reasonable means to provide for your own protection ends at your doorstep when, at no point whatsoever is any limit stated in the document they use to determine this?) The state has determined that the reasonable protection of your life resides on a line at your doorstep. HOW does it reach this conclusion?

    Is there any legal way to ask the court this? Is this a valid argument that would provide any help in forwarding the legal argument for carry?

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    Heller only dealt with the issue of a man who wanted to be in possession of a firearm within his home, so that's the only issue the Court decided. It was clear that it was not ruling on any other issue. Court all over have been jumping on that, and taking the position that because that was the ruling in the case, that the decision has no meaning outside the home.

    I think the flaw in that argument is another issue that Heller did decide, and which I think is really the bigger Constitutional issue. The Court explicitly held that the "selective incorporation doctrine" by which "substantive due process" is implemented, is out the window. What that doctrine meant was that only those parts of the Bill of Rights which the Court had specifically (and selectively) stated applied to the states did apply to the states, and all the rest did not. Originally, and for a long time thereafter, the Bill of Rights was taken to be a restriction on federal power, since it is clearly written to constrain what Congress can do. But later, the Court took the "due process" clause in the Fourteenth Amendment (which is aimed specifically at state governments) to mean that states could not deny citizens certain "selectively incorporated" elements of the Bill of Rights.

    What Heller decided is that all of the Bill of Rights applies to the states, unless for some reason the Court carves out an exception. That's a really big change.

    So where I think the courts have gone wrong is by applying "selective incorporation" analysis to the results of Heller. They are taking the position that citizens' rights that the Supreme Court have not expressly held to apply to the states are still exclusively matters of state law. But Heller said the entire Bill of Rights applies to states, without any exception (since the Court has never, as far as I can recall, stated that any particular aspect of the Bill of Rights does not apply). So location just plain don't matter, subsequent to Heller, because if there's a federally recognized right to self-defense, it's an expansive right unless the Court has expressly limited it.
    Daniel L. Hawes - 540 347 2430 - HTTP://www.VirginiaLegalDefense.com

    By the way, nothing I say on this website as "user" should be taken as either advertising for attorney services or legal advice, merely personal opinion. Everyone having a question regarding the application of law to the facts of their situation should seek the advice of an attorney competent in the subject matter of the issues presented and licensed to practice in the relevant state.

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    I haven't read the case you mentioned, but from the summary you posted the case was in line with the way a majority of state courts have ruled. State and federal courts have long said that restrictions on firearm carry outside the home by states are not unconstitutional. Some states require carry permits, others don't. I don't see this changing in my lifetime.

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    Campaign Veteran since9's Avatar
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    Quote Originally Posted by Superlite27 View Post
    My fundamental question (regarding these findings based on my vague understanding of them): At absolutely NO POINT within the Constitution does it mention LOCATION. The Second Amendment simply states "..shall not be infringed.". Nowhere does it state any location where the infringement would be acceptable. Therefore, the ruling of "within the home" is simply arbitrary.
    Facts:

    1. SCOTUS upheld the Second Amendment in the location specific to Heller i.e. the home.

    2. The Second Amendment does not specify location.

    By way of reasoning, SCOTUS was affirming the Second Amendment in general. However, as we all know, courts are anything but logical.

    Is there any legal way to ask the court this? Is this a valid argument that would provide any help in forwarding the legal argument for carry?
    Sure. Find a state in which the carrying of a firearm is illegal, and carry. When you're busted, pay half a million dollars to a lawyer whose willing to raid the issue all the way up to SCOTUS, and let them answer it for you.
    The First protects the Second, and the Second protects the First. Together, they protect the rest of our Bill of Rights and our United States Constitution, and help We the People protect ourselves in the spirit of our Declaration of Independence.

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