Thomas Maag did a tremendous job today in the Southern District court, in East St. Louis of all places. Maag, an attorney with some pro-gun wins under his belt, argued for a summary judgement to have at least parts of Pritzker’s PICA gun & magazine ban tossed out.
Greg Bishop live-tweeted from the courtroom and did a good job.
Follow him here for his tweets from the oral arguments.
I’m pressed for time and will let folks read for themselves his tweets instead of embedding a bunch of them. Suffice it to say the flavor was a judge very skeptical of arguments presented by the Illinois Attorney General’s guy, Christopher Wells.
Maag did a good job illustrating the vagueness and Wells had little to counter the potential for this law to have very disparate applications to people based upon zip codes. That’s not how laws are supposed to work.
Let’s cut to the chase: I say Judge McGlynn will likely side with Maag and issue the summary judgement. The IL AG will appeal right away. I predict the case may (not will, but may) go to the same three justices that heard our case at the end of June and still haven’t issued their decision.
Why not “will” end up in front of those three (for sure)? It’s not a 2A argument here, it’s a vagueness argument. So they might not assign it to those three, but instead give us a random draw of three. Call it a 1 in 3 chance that happens, which is better than none.
My Magic 8-ball says that no matter if the three that heard our case issue their decision on our case before McGlynn issues his ruling on this one, if they do get this new case, they will have to twist themselves into a pretzel to block Judge McGlynn again.
Something else to mull in the back of your mind: Duncan v. Bonta from California. The 9th Circuit Court of Appeals ruled against St. Benitez (the District Court judge that ruled brilliantly in our favor several times) the first time and found the magazine ban constitutional. The Supremes vacated that ruling and remanded it for a “do over” and to follow Bruen.
Immediately, the 9th Circuit then played games to snatch Benitez’s second decision and issue another stay in DIRECT contradiction of the SCOTUS decision in Bruen.
LKB, a 2A litigator, wrote this in comments over at TTAG about the 9th’s latest stunt in Duncan v. Bonta:
Argument is that California is very likely to prevail on appeal, and if they don’t stay the permanent injunction it will suffer irreparable injury.
That is a VERY high bar that is almost never satisfied. The Court had to twist itself into a pretzel to get there. And, as noted in the dissent, the majority opinion never even attempts to conduct any Bruen analysis!
The dissent also points out another bit of screweyness that’s going on. Usually, for a court to decide to take a case en banc, it requires a majority vote of all active status judges — senior status judges don’t get a vote unless they were on the 3-judge panel. But by treating Duncan as a “comeback” case rather than allowing the panel to consider it first and then having a fresh en banc vote, the Ninth Circuit has essentially disenfranchised seven judges that were appointed after the original Duncan en banc vote, while allowing five senior status judges (who were active when the original vote was taken, but no longer get to vote to take cases en banc) to stay on the en banc panel. Talk about dead hand control!
As the dissent notes, SCOTUS has already slapped the Ninth Circuit’s hand for this same maneuver before. I expect to see an emergency motion to vacate the stay order presented to SCOTUS. Hopefully, ACB will have a bit more backbone than she did on VanDerStok.
My 7-day weather forecast is that we might get to the US Supreme Court on a magazine decision with Duncan first because of where it’s at in the grand scheme of things. And, oh by the way, did you see those dissenting opinions in the 9th’s decision yesterday? They’re BRUTAL.
From just the first dissent:
If the protection of the people’s fundamental rights wasn’t such a serious matter, our court’s attitude toward the Second Amendment would be laughably absurd…
Despite this clear direction, our court once again swats down another Second
8 Amendment challenge. On what grounds? Well, the majority largely doesn’t think
9 it worthy of explanation. Rather than justify California’s law by looking to our
10 historical tradition as Bruen commands, the majority resorts to simply citing various
11 non-binding district court decisions. There’s no serious engagement with the Second
12 Amendment’s text. No grappling with historical analogues. No putting California
13 to its burden of proving the constitutionality of its law. All we get is a summary
14 order, even after the Supreme Court directly ordered us to apply Bruen to this very
15 case. The Constitution and Californians deserve better.
There’s much more, but you get the idea.
A lot of ways this can go, but they’re all good for us.