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What Are The Chances Of Gun Rights Activist Winning In Case Against Deerfield, IL?

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A lot of us are paying an awful lot of attention to a tiny spec on the Illinois state map. Yes, I’m one of them, and we’re not paying attention to that dot on the paper for no good reason. In fact, there’s a lot going on in that simple case. There are also a whole lot of angles at work here.

Further, I’m not a legal mind by any stretch of the imagination. I’m a guy who bangs away at a keyboard about guns and politics for a living, which means I need a breadth of knowledge, but being an expert on any one topic is probably not in the cards for me. Luckily, there are legal experts out there who are willing to opine on stuff like this for me.

Over at Reason’s Volokh Conspiracy, we learn a little bit more about the case against Deerfield, including precedences that might be useful in the case.

There’s one big hole that I’ve completely missed in my discussion of the topic, too.

Yesterday a firearm and magazine confiscation ordinance in the Chicago suburb of Deerfield was blocked on by a temporary restraining order. The Lake County Circuit Court held that the ordinance violates a state preemption statute. The court’s opinion is attached to this post.

Statute and ordinance background: In 2013, Deerfield enacted an ordinance regulating the storage and transportation of so-called “assault weapons” and “high capacity” magazines. The municipal ordinance was in contemplation of imminent passage of an Illinois state statute preempting such laws. The Illinois statute is 430 ILCS 65/13.1. It declares: “the regulation of the possession or ownership of assault weapons are exclusive powers and functions of this State.” Any local ordinance or regulation that “purports” to regulate the ownership or possession of such arms in a manner inconsistent with state law is void. Since Illinois does not prohibit the ownership of “assault weapons,” no local government may do so. The state statute defines “assault weapons” as “firearms designated by either make or model or by a test or list cosmetic features that cumulatively would place the firearm into a definition of ‘assault weapon’ under the ordinance.”

However, the preemption statute includes a grandfather clause. Local laws enacted before the preemption statute’s effective date (or within 10 days after the effective date) may continue in force. Grandfathered ordinances “may be amended.”

In April 2018, Deerfield substantially changed its 2013 ordinance. The new law changed the definition of “assault weapon,” and prohibited possession, transportation, bearing, and sale. Residents who had been in lawful possession of such arms had until June 13 to surrender them to the Chief of Police or otherwise remove them from the village. The penalty for non-compliance was a fine of $1,000 per day. In addition, the Deerfield ordinance, as interpretted by the Deerfield government, similarly prohibited the possession of any “Large Capacity Magazine.” This was defined as magazines over 10 rounds, such as the 13 or 17 round magazines that are the manufacturer-supplied standard magazines for many of the most common handguns.

That’s right, Illinois has a preemption clause in state law.

Honestly, they were the last state I expected to have one, but there we go.

Clear-cut, right? Well, Deerfield is basically arguing that they simply changed their pre-existing law. Since the previous law only dealt with the transportation and storage of guns, though, I don’t think that argument is going to fly.

I urge you to go and read the whole post. There are a lot of interesting points to consider, and this isn’t from an anti-gun attorney either, so keep that in mind. It should also be noted that not everything described is a clear win for our side on this one, either. There are some arguments being made that may well be struck down based on precedent.

That said, the preemption alone is probably enough to strike down the Deerfield ban.

Here’s hoping.

Hat tip: The Truth About Guns

The post What Are The Chances Of Gun Rights Activist Winning In Case Against Deerfield, IL? appeared first on Bearing Arms.

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15 hours ago, Bearing Arms said:

A lot of us are paying an awful lot of attention to a tiny spec on the Illinois state map. Yes, I’m one of them, and we’re not paying attention to that dot on the paper for no good reason. In fact, there’s a lot going on in that simple case. There are also a whole lot of angles at work here.

Further, I’m not a legal mind by any stretch of the imagination. I’m a guy who bangs away at a keyboard about guns and politics for a living, which means I need a breadth of knowledge, but being an expert on any one topic is probably not in the cards for me. Luckily, there are legal experts out there who are willing to opine on stuff like this for me.

Over at Reason’s Volokh Conspiracy, we learn a little bit more about the case against Deerfield, including precedences that might be useful in the case.

There’s one big hole that I’ve completely missed in my discussion of the topic, too.

Yesterday a firearm and magazine confiscation ordinance in the Chicago suburb of Deerfield was blocked on by a temporary restraining order. The Lake County Circuit Court held that the ordinance violates a state preemption statute. The court’s opinion is attached to this post.

Statute and ordinance background: In 2013, Deerfield enacted an ordinance regulating the storage and transportation of so-called “assault weapons” and “high capacity” magazines. The municipal ordinance was in contemplation of imminent passage of an Illinois state statute preempting such laws. The Illinois statute is 430 ILCS 65/13.1. It declares: “the regulation of the possession or ownership of assault weapons are exclusive powers and functions of this State.” Any local ordinance or regulation that “purports” to regulate the ownership or possession of such arms in a manner inconsistent with state law is void. Since Illinois does not prohibit the ownership of “assault weapons,” no local government may do so. The state statute defines “assault weapons” as “firearms designated by either make or model or by a test or list cosmetic features that cumulatively would place the firearm into a definition of ‘assault weapon’ under the ordinance.”

However, the preemption statute includes a grandfather clause. Local laws enacted before the preemption statute’s effective date (or within 10 days after the effective date) may continue in force. Grandfathered ordinances “may be amended.”

In April 2018, Deerfield substantially changed its 2013 ordinance. The new law changed the definition of “assault weapon,” and prohibited possession, transportation, bearing, and sale. Residents who had been in lawful possession of such arms had until June 13 to surrender them to the Chief of Police or otherwise remove them from the village. The penalty for non-compliance was a fine of $1,000 per day. In addition, the Deerfield ordinance, as interpretted by the Deerfield government, similarly prohibited the possession of any “Large Capacity Magazine.” This was defined as magazines over 10 rounds, such as the 13 or 17 round magazines that are the manufacturer-supplied standard magazines for many of the most common handguns.

That’s right, Illinois has a preemption clause in state law.

Honestly, they were the last state I expected to have one, but there we go.

Clear-cut, right? Well, Deerfield is basically arguing that they simply changed their pre-existing law. Since the previous law only dealt with the transportation and storage of guns, though, I don’t think that argument is going to fly.

I urge you to go and read the whole post. There are a lot of interesting points to consider, and this isn’t from an anti-gun attorney either, so keep that in mind. It should also be noted that not everything described is a clear win for our side on this one, either. There are some arguments being made that may well be struck down based on precedent.

That said, the preemption alone is probably enough to strike down the Deerfield ban.

Here’s hoping.

Hat tip: The Truth About Guns

The post What Are The Chances Of Gun Rights Activist Winning In Case Against Deerfield, IL? appeared first on Bearing Arms.

View the full article

 

Bearing Arms, I was cursed by going out and getting a legal education.  When I try to share what the law IS, not what they want it to be, you'd be surprised to find the trolls that come out of the wood-work to argue about this.  IF we had legal teams, we would stand a chance.  The problem is, we have the Internet and keyboard commandos that really think they understand the law and we can't win because of disinformation... Having said that, I'd like to comment on a point you brought up.

 

When I was a teen I belonged to a group called GASP - Georgians Against Smoking Pollution.  What I was after, in those days was smoke free restaurants and public places to have non-smoking areas.  In Atlanta I helped the people living there to draft and get passed an ordinance against smoking in public places.  Don't fall asleep on me yet.

 

A few years later, the city of Atlanta passed an ordinance against having so-called "assault weapons."  And so, for a few weeks, the gun stores were almost shut down; the gun shows were all but dead.  A group called Citizens for Safe Government called upon me to head one of the legal teams.  Each team had to examine one aspect or another of the lawsuit.  My job was to find out, on what basis the city was claiming a right to be able to outlaw firearms.  As it turned out, the city's position was that, since the people petitioned for restrictions on public smoking, the citizenry implied that the county had been given permission by its voters to institute laws to "protect public safety."In support of their position was the very law I helped write and lobby for!  That was my first lesson in understanding the concept of precedents.

 

The other legal team found the winning strategy because state laws allowed (sic) the people to have AR 15s, AKs, etc. and that law preempted the Atlanta City Ordinance.  Things went back to normal and I learned a valuable lesson from one of our founders:

 

"An avidity to punish is always dangerous to liberty. It leads men to stretch, to misinterpret, and to misapply even the best of laws. He that would make his own liberty secure must guard even his enemy from oppression; for if he violates this duty he establishes a precedent that will reach to himself."

—Thomas Paine, A Dissertation on the First Principles of Government (1795

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