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NakPPI
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Joined: May 08, 2011
Posts: 31
Location: Deerfield

PostPosted: Wed May 11, 2011 8:44 pm Reply with quoteBack to top

I've attached an interesting court case on concealed carry. (Spoiler alert: The court finds that a ban on all concealed weapons is constitutional)

http://www.state.il.us/court/opinions/AppellateCourt/2011/1stDistrict/February/1090840.pdf

We can get into the nitty gritty of Constitutional construction if you like, but the bottom line here is that the dissenting opinion is 100% correct.

Justice Neville finds that Illinois' outright ban on all concealed weapons is unconstitutional because the ban is not proportion to that interest that the State claims to be protecting by the ban. (street violence and such) Neville also notes that the majority opinion completely ignores the dicta of Heller and McDonald. (Dicta is a statement of opinion or belief considered authoritative though not binding. Supreme court dicta gets extra weight because it's the Supreme Court and every other court is inherently inferior to it.)

Neville basically says that the statute prohibiting a minor from carrying a concealed weapon is constitutional because prohibiting minors from carrying weapons is proportional to the State interest. Neville believes that the defendant should have been convicted under that statute.

Neville also points out the obvious: The Heller Court explained that the second amendment protects the right to “bear arms”(U.S. Const., amend. II), which it defined as the right to “ ' “wear, bear, or carry [arms] *** upon
the person or in the clothing or in a pocket, for the purpose *** of being armed and ready for offensive or defensive action in a case of conflict with another person.”

The long and the short of it is, this issue will go to the Supreme Court and eventually a court will recognize that Supreme Court dicta has weight and that you can't separate the words "keep" and "bear" to mean "only your home or place of business" which is what the majority is really saying when you boil it down to the lowest common denominator.
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sirbidwell
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Joined: Jul 06, 2010
Posts: 308
Location: Itasca, IL

PostPosted: Wed May 11, 2011 9:00 pm Reply with quoteBack to top

ok im for a loss, im reading the decision but im confused on your post, it is un-constitutional or constitutional???? you have it worded both ways...
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ColdBlueSteel
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PostPosted: Wed May 11, 2011 9:28 pm Reply with quoteBack to top

Agreed. The spoiler alert is what's confusing. Could you please clarify? Thanks!
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NakPPI
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PostPosted: Wed May 11, 2011 10:12 pm Reply with quoteBack to top

There are two parts to the opinion.

The majority decision was 2 justices finding that the ban is constitutional to 1 justice finding that the ban was unconstitutional (the dissent).

The first part of the opinion, which contains the actual ruling, finds that the ban on all concealed weapons is constitutional and the majority decision wins.

The majority holding was: "We continue to adhere to our holding in Dawson, where the Supreme Court in Heller and McDonald specifically limited its rulings to interpreting the second amendment’s protection of the right to possess a handgun in the home for self-defense purposes, not the right to possess handguns outside of the home. The Supreme Court’s decisions do not define the fundamental right to bear arms to include the activity barred by the AUUW statute."

Justice Neville, the dissent, disagreed and found that a ban on all concealed weapons is unconstitutional and I personally believe that the dissent is correct in this case.

It's my fault for not explaining the majority opinion at all and just jumping into the dissent. Smile

The bottom line is, the majority decision judges did some serious legal gymnastics to come to their conclusion.
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MichaelChappell
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Joined: Jan 19, 2010
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PostPosted: Thu May 12, 2011 6:16 am Reply with quoteBack to top

This ruling doesn't surprise me, except for the fact that 1 judge believed that a total ban was unconstitutional!! This case took place in Crook County, so I only find it surprising that 1 judge says that the ban is unconstitutional.

I wonder what would have happened had this case taken place south of I-80?? Would level minded judges, from outside the reach of Crook County, seen this case differently??

I firmly believe that, when we end up going after our rights in court, it should be filed in a court south of I-80. I personally feel that we have a better chance the farther we can get from the "Big Chicago Political Machine"!!

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NakPPI
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Joined: May 08, 2011
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Location: Deerfield

PostPosted: Thu May 12, 2011 7:48 am Reply with quoteBack to top

To give credit to the Majority judges, they did say that they were bound to follow Illinois Supreme Court cases, which is basically fancy lawyer talk for "Please appeal this to the Supreme Court." The same thing happened in McDonald, he initially lost at the appellate level because the lower court was bound my older case law. The same thing is true here, the Majority was unwilling to contradict Illinois Supreme Court precedent.
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