We have some video highlights from yesterday’s Illinois Supreme Court oral arguments in Kwame’s challenge of a Macon County court’s ruling striking down the PICA gun and magazine ban.  Thank you Greg Bishop for putting this together.  And by the way, when it comes to the video, is Illinois so poor and backwards that they can’t have a camera system any newer than 1973 in vintage to view these cases?

A couple of things to keep in mind when it comes to analysis and I’m not going to bury these in a 20-minute YouTube video.

First off, note Kwame Raoul right there front and center.  The cynic in me takes that as a sign that the outcome is baked into this already.  If Kwame thought he was gonna lose this, he wouldn’t have made an appearance.  It wouldn’t be a good image.  But if he knows he’s going to win, he can tout “I was there!”

Second, ignore the chaff.  Caulkins’ case had NOTHING to do with the Second Amendment.  Yes, the law in question has everything to do with gun rights, HOWEVER, he (and his lawyer Jerry Stocks) didn’t file suit on the Second Amendment-related claims.  They filed it using Tom DeVore’s template (kudos and credit go to Bazooka Tom for his original case) of challenging it under “Equal Protection” claims under the Illinois Constitution.  Yes, there were a couple of other aspects related to procedural issues challenged, and even briefly discussed in the hearing, but those weren’t upheld by the 5th Circuit Appellate Court in Illinois (which formed the basis for the ruling from Macon County striking down the law), so they weren’t on the menu yesterday.

When Jerry Stocks stood up he mentioned how his pleading raised the Second Amendment issues, but they’re not relevant to this case and to this court.  Remember, the ONLY thing the Illinois Supreme Court is pondering is whether or not the correct standard was used by the Fifth Circuit Appeals court to sustain the initial claim by DeVore in his original case (in Effingham if I recall correctly).

I’ve written about it before months ago.  The Illinois Supreme Court will NOT uphold the Macon County ruling to strike down the law under “Equal Protection.”  They will say the wrong standard was used.  Instead of “strict scrutiny,” the ISC will say that intermediate scrutiny (“Rational Basis” is another way of saying the same thing) should have been used.  Here, I’ll pull it up, from March 3rd:


The odds on thinking is that the Illinois Supreme Court is not going to let this order stand.

You want to know how they’re going to overturn this order?

Right here:


“The appellate court held… that the challenged exceptions are subject to strict scrutiny as a result…”

The Illinois Supreme Court will rule that the wrong standard was used.  They will rule that intermediate scrutiny was the appropriate legal standard of review given that this is an “Equal Protection” issue, not a Second Amendment challenge (subject to Bruen’s text, history and tradition / strict scrutiny standard).  What’s more, the belief is that the ruling will come down 4-3, allowing one of the Dem Supreme Court justices to vote for upholding the order to make it look like it wasn’t a “partisan” decision.

If the IL Supremes do allow this order to stand, it will kill our federal lawsuit as the case will be “mooted” out.

Here’s the video:


To that point, pay close attention to 5:00 or so with Justice Overstreet and 5:54, with Chief Justice Theis asking, “Why are we talking about the Second Amendment at all?”  She’s spot on.  Ignore the idiot from Kwame’s office.

Greg Bishop pulls up the interaction between the Million Dollar Baby Lizzy Rochford and Jerry Stocks.  Stocks does a good job with it, but frankly it was irrelevant.

Jerry seriously failed when asked by the Chief Justice this question:

Justice Theis:  “Has the United States Supreme Court or Court of Appeals across this country said that there is a constitutional right to keep and bear assault weapons?”

The correct answer SHOULD have been: The Heller decision affirmed a right to keep and bear arms in common use for lawful purposes.  Period.  Full stop.

Here, I’ll quote from the Heller Decision:


1. The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. Pp. 2788 – 2816.

(a) The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms. Pp. 2788 – 2799.

(b) The prefatory clause comports with the Court’s interpretation of the operative clause. The “militia” comprised all males physically capable of acting in concert for the common defense. The Antifederalists feared that the Federal Government would disarm the people in order to disable this citizens’ militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens’ militia would be preserved. Pp. 2799 – 2803.

(c) The Court’s interpretation is confirmed by analogous arms-bearing rights in state constitutions that preceded and immediately followed the Second Amendment. Pp. 2802 – 2804.

(d) The Second Amendment’s drafting history, while of dubious interpretive worth, reveals three state Second Amendment proposals that unequivocally referred to an individual right to bear arms. P. 2804.

(e) Interpretation of the Second Amendment by scholars, courts, and legislators, from immediately after its ratification through the late 19th century, also supports the Court’s conclusion. Pp. 2804 – 2812.

(f) None of the Court’s precedents forecloses the Court’s interpretation. Neither United States v. Cruikshank, 92 U.S. 542, 553, 23 L.Ed. 588, nor Presser v. Illinois, 116 U.S. 252, 264-265, 6 S.Ct. 580, 29 L.Ed. 615, refutes the individual-rights interpretation. United States v. Miller, 307 U.S. 174, 59 S.Ct. 816, 83 L.Ed. 1206, does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes. Pp. 2812 – 2816.

2. Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on 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. Miller‘s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons. Pp. 2816 – 2817.

3. The handgun ban and the trigger-lock requirement (as applied to self-defense) violate the Second Amendment. 2787*2787 The District’s total ban on handgun possession in the home amounts to a prohibition on an entire class of “arms” that Americans overwhelmingly choose for the lawful purpose of self-defense. Under any of the standards of scrutiny the Court has applied to enumerated constitutional rights, this prohibition—in the place where the importance of the lawful defense of self, family, and property is most acute—would fail constitutional muster. Similarly, the requirement that any lawful firearm in the home be disassembled or bound by a trigger lock makes it impossible for citizens to use arms for the core lawful purpose of self-defense and is hence unconstitutional. Because Heller conceded at oral argument that the D.C. licensing law is permissible if it is not enforced arbitrarily and capriciously, the Court assumes that a license will satisfy his prayer for relief and does not address the licensing requirement. Assuming he is not disqualified from exercising Second Amendment rights, the District must permit Heller to register his handgun and must issue him a license to carry it in the home. Pp. 2817 – 2822.

Instead, at about 15:00, Jerry said Heller protected handguns.  Yes, it protects handguns (see #3 in the holdings above), but more importantly it recognizes protection under section 1(f) of all guns in common use for lawful purposes.

Now, Jerry does a nice job articulating his argument starting around 16:00 or shortly after.

And here comes Million Dollar Baby Lizzy at 17:00…  blah blah blah.

Good point at 18:15 of Jerry pointing out that “grandfathering” of existing owners as compared to future owners is another violation of equal protection. 

19:20:  Chief Justice Theis talks that this isn’t a 2A case.  *THIS* is the crux of the case, or at least those issues for the Illinois Supreme Court to contemplate in this case related to the decision they’re evaluating.  If the IL Supreme Court recognized that strict scrutiny should be applied for all equal protection claims, it would cause a whole lot of other laws in Illinois to become ripe for overturning.  Courts don’t go out of their way to create more work for themselves.

The “bad” news is that Caulkins will lose his earlier trial court win at the Illinois Supreme Court.   But THAT is REALLY, REALLY GOOD NEWS in that it allows our federal cases to move forward.  Should Caulkins win here, our federal cases will be mooted out of court and we’ll have to start from scratch after the General Assembly passes a new gun ban, better written to make it more resistant to legal the challenges we’ve raised this round.

Someone asked me yesterday evening if I thought Tom DeVore would have done a better job arguing the case instead of Stocks.  Well, that’s a very big hypothetical.  Very apples and oranges because it wasn’t DeVore’s claim but rather Caulkins’.  On DeVore’s case as a whole?  Eh, maybe. 

But it wasn’t and it isn’t.  I’m not sure former US Solicitor General Paul Clement himself could have done a much job yesterday on the key point.  When you take away all of the extraneous decorations, this case hinges upon “is ‘strict scrutiny’ the appropriate standard in evaluating the ‘equal protection’ claim at the 5th District Appellate Court, or should they have used rational basis/intermediate scrutiny?”  Precedent seems to suggest “rational basis” and on that ground, Caulkins/Stocks lose.

That’s my hot take revisiting yesterday’s hearing.  Feel free to offer yours in comments.  Or criticism of my analysis.



15 thoughts on “Highlights & Analysis of Tuesday’s Supreme Court Oral Arguments in Caulkins Gun Ban Challenge”
  1. It’s not going to matter. JB has corrupted the courts. I’m guessing Easterbrook will get a memorial library thanks to JB for his quick unreasonable decision against the lower Coutts injunction.

  2. This particular suite was going nowhere from the beginning. Regardless of the legal argument the facts in evidence are many attorneys and judges have no clue what Heller v District of Columbia (2008 !!!!!!!!!!!!!) and /or NYRPA v Bruen (2022 !!!!!!!!!) have to say about the Second Amendment and how Second Amendment issues are to be analyzed. I am NOT an attorney and I understand. If these learned J.D. morons don’t understand what the USSC, the superior court, has commanded these persons should be disbarred and removed from the bench.

  3. This is playing out just as you have said John. When they come out with the decision against us. In their eyes it will be a vindication of the weapons ban. In reality it will bolster our case against the ban. Illinois is nothing if not predictable.

  4. This case never had a chance of prevailing in the Pritzker Supreme Court, but I actually think that is not a bad thing for the reasons John outlined. This case MUST be won on 2A grounds. If ISC throws out the law as is, the GA will simply show up in Fall veto session, strip out the protected classes, and repass the same load of unconstitutional garbage. That might buy us a few months, but it would render the current federal lawsuits moot as stated.

    PICA stands or falls at the Federal level, and will likely have to be adjudicated by the SCOTUS. Even the appellate courts cannot be trusted to render a correct verdict since they are packed with robed turds like Easterbrook who value his tainted legacy of nothingness over Constitutional Law. The biggest issue right now is getting ACB to injunct implementation and stop the clock on the ISP registration scam, given the improper meddling of the 7th in the lower courts ruling (which was only allowed because Easterbrook did an end run around judicial docketing procedures).

  5. What is also lost in all of this is that the ACTUAL case of constitutionality at the Federal level still hasn’t even been addressed by the McGlynn court yet. We are still wrangling over the injunction preventing PICA from being implemented. As it stands now, the merits of the actual case seen in the light of Bruen has not been addressed in any way, except to state that the Plaintiffs have a good expectation of prevailing in that case. None of this window dressing bullshit at the ISC means anything there.

    But – expect Kwame the Klown to come out heralding the greatest anti-2A victory in the history of America when he wins against Stocks in the ISC. You can bet JB Puffenstuff will be flapping his pie holster right along side for any sycophantic loser too stupid to understand they are being played.

  6. LiberalsRCancer, the path and resolution of the state cases and legal grounds for challenge will NOT moot the Federal cases. As to the merits of the case seen in the light of Bruen that issue has been addressed in the hearings for preliminary injunction. Bruen is a case primarily dealing with may issue v shall issue licensing schemes and the ability of US citizens to carry their firearms in public. Bruen ALSO did away with interest balancing (intermediate scrutiny). THIS is the big din Bruen; interest balancing is the basis for all of the gun control REGULATION. Judge McGlynn clearly understands the PICA is unconstitutional as he agreed to preliminarily injunct the statute AND cited Heller in his opinion. Heller (2008) says GUN BANS of arms commonly used for lawful purposes (such as…) are unconstitutional ! PICA is a GUN BAN and is thus unconstitutional, period, full stop!!!!!

  7. This may hurt some feelings here, but I have serious doubts that the dream team of Stocks & Caulkins are going to get the job done. I wouldn’t trust Stocks to get me off a traffic ticket, much less a matter of this importance. DeVore should have been the one to take this to the Illinois Supreme Court. DeVore is the one who masterminded the equal protection argument. and he was working on having the evidence/discovery to wrap it all up. I don’t have a lot of confidence in any of the federal cases involving the 2A argument. Sometimes it seems like we make small victories in the 2A space, but ultimately we are set up to fail. Until we can get rid of the 14th amendment, gun rights will be a “privilege” instead of a “right” I hope Stocks & Caulkins are successful, but they seriously hurt our chances when they wanted to be the ones to get to the top of the mountain.

  8. I can’t believe stocks sandbagged his whole way through the case thus far. He’s clearly making a Bruen challenge here without pleading it. Theis sees through it straigt away. I have to respect Justice THEIS for her questioning to try to get down to what exactly their case is about. Stocks seems to want to eat his cake and have it too.I don’t know how this turns out for gun owners

    I wonder what our fear is, that is … what stocks is afraid of and why they pleaded it under equal protection and special legislation in the 1st place. Equal protection inserts an “understood” word and that word is “rights” it’s equal “rights” protection. So whenever you hear equal protection you have to address The Initial Right and that’s the threshold. They’re struggling at here. When the right is determined and that does appear to be settled in the 4 cases Stocks mentions including BRUen then and only then can you proceed to the level of scrutiny. Without a right You don’t have any equal protection challenge period, so he’s either a mad genius or not.

    1. No surprise here. SCOTUS almost never issues emergency injunctions, especially where the case itself hasn’t even been heard in district court. Once again, Fat Bastard is already dancing around like he won the lottery here, when in fact he won nothing. SCOTUS simply refused to get involved at this point in an argument over emergency injunctive relief. This changes nothing about the material facts of the case.

      These delays piss me off, but we still have 7 1/2 months before ISP starts branding gun owners as felons. The actual meat of the case will be heard in a far more favorable court, and then it will be up to the Illinois Communist Party to prove the merits of their public safety assertions in the face of a Bruen decision that does not allow the balancing test anymore.

      That being said: FJB.

  9. I watched Mr. Bishop’s highlight reel. While Mr. Stocks did okay in my opinion, with the exception of that colossal mistake about the “right to bear assault weapons.” That woman representing the state is either a Kool-Aid drinking ideologue or she ‘ain’t’ real bright. And Kwame, he looked like a sissy with a bag full of sex toys there in the front row. I’m with you, John, on both the case analysis and the not-so-subtle message of Kwame’s presence.

  10. More happy ending videos please. Especially after depressing news like this.

Comments are closed.