Quote of the day—Judge Edmond E. Chang

By analogy, it is enough that Plaintiffs have substantiated a chilling effect on protected Second Amendment conduct.

Judge Edmond E. Chang
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION
January 6, 2014
Illinois Association of Firearms Retailers, Kenneth Pacholski, Kathryn Tyler, and Michael Hall, v. The City of Chicago and Rahm Emanuel, Mayor of the City of Chicago.
[I’m not a lawyer but I think this is AWESOME!

This court appears to be saying that a “chilling effect” upon the Second Amendment is the equivalent of a “chilling effect” on the First Amendment and hence is unconstitutional. If so, then I can see registration of firearms and perhaps even background checks being thrown out as unconstitutional as well. And those ambiguous laws which ban “assault weapons” but allow other guns of the same caliber and rate of fire to remain legal will almost for certain be struck down. I could even see “school zones” being struck down because it is difficult to know you are within 1000 feet of school property. Hence those laws have a chilling effect upon your right to carry in public.—Joe]

20 thoughts on “Quote of the day—Judge Edmond E. Chang

  1. That has been my main point over the years as well- Second Amendment Jurisprudence needs to adopt the chilling effect standard from First Amendment Jurisprudence (and maybe we can move that to the Fourth Amendment as well).

    I could still see background checks as being upheld (sadly) but registration and bans, and other regulations would be right out. Let’s hope this continues.

    • I’ve said it before, and I’ll say it again: background checks aren’t “the answer,” but they need to be streamlined to prevent misuse.

      How about the BIDS proposal? FFLs get an encrypted database, which essentially is the “prohibited persons” list. They enter the buyer’s information (name, DOB, SSN, etc.) into the application, and get a simple “Yes” or “No” answer. No 4473s, no long-term record retention, no calls to NICS or the FBI. Pair that with a way to appeal a false-positive (and get the FFLs database updated), and you have background checks that really are “instant,” plus no chance of a registry since no records are kept.

      The anti-gun folks constantly whine about “background checks keep guns out of criminal hands.” This would serve the same purpose (whether it actually “works” is a debate for another time), with less long-term cost, more convenience for buyers/sellers, and no way to build an illegal registry. In other words, it’s completely unacceptable to the antis and the powers-that-be.

      I say we go for it!

      • Archer,

        And what does this do for the person who becomes a felon or a mental case AFTER they have legally purchased a gun? Do you suggest we hunt down those people and subject them to a thorough search to make sure they have no guns?

        It’s a good idea for the gun purchases of many but it doesn’t handle the problem I listed above.

        • “Do you suggest we hunt down those people and subject them to a thorough search to make sure they have no guns?”

          Ummmmm, Isn’t that what NY is doing NOW? There have been reports of the cops doing just that using the gun registration lists that they already had.

          • Yes, but without the gun registration lists, how could they do that? The options would be: 1) Life imprisonment for any felony; 2) random thorough searches of any felon to make sure they don’t have guns; 3)arm amputation for conviction of any felony (so you couldn’t operate a gun? Other countries do things like this…); 4) ????

          • Hell, ubu52, we can LOOK at how many crimes get solved with full national registration.

            Like in Canada, where they decided to eliminate their expensive, highly flawed, and deeply resented long gun registry, after determining it solved ZERO crimes.

            Just like “ballistic fingerprinting” of all new guns hasn’t solved any crimes in the several states that have tried it, even in cases where the murder weapons WERE registered, the shell casings with firing marks WERE on file, and teh gun had NOT been altered to change the “ballistic fingerprint”.

            registration of guns has ONE and ONLY one purpose —

            to allow a future government to forcibly disarm peaceful citizens. That is ALL is is used for, and the rate at which it is used towards that end approaches unity, both domestically and internationally.

            Therefor, anyone who proposed registration is actually advocating for forcible disarmament of peaceful citizens. . . which only assists criminals and tyrants.

            So, which do you favor — the violent predatory criminals whose guns will NEVER be registered (evn in “perfect” registration schemes, with low civilian gun ownership and onerous gun control schemes, ON AN ISLAND, the UK cannot stop black market MACHINEGUNS), or the genocidal tyrants we have seen all too often take over _after_ a democratically elected prior government enacted registration? Or both (as we have ALSO seen). There really isn’t any fourth option to choose from for anyone who has studied gun control and its history. ESPECIALLY someone like yourself, who is apparantly rational, and HAS been informed on teh issues repeatedly, for several years.

            So — which do you support? Tyranny and genocide by authoritarian subjegation; chaos, fear, and anarchy from teh subjegation of peaceful citizens by lawless animals, or a combination of the two?

        • Assuming the felony conviction/mental-issue restrictions continue to stand then do the same thing we do now in most states. Tell them they are now prohibited persons and they must dispose of their guns. Registration is rare in this country.

          • Actually, per a SCOTUS case you cannot force a felon to admit he has a firearm, as it violates his 5th Amendment right against self incrimination.

          • You CAN force him to admit he has guns he shouldn;t have, IF you are offering him an amnesty if he complies and surrenders them. Which is what the laws and regulations that govern “prohibited persons” disposing of guns ONCE they have become prohibited state.

            Their subsequent possession of the contraband arms is _another_ violation, and a continuing one.

            Of course, I am also of teh school of thought that says that if they are too dangerous to trust with guns, or a gallon of gas and a pack of matches, they should be in custody. If they are safe enough to be allowed to walk around where household poisons, gasolene, cars, or knives, are readily and legally available to the general public, then they should be trustworthy enough to own guns. Noteably, the “long standing” nature of laws prohibiting convicted (but released) felons from owning guns are actually rather recent, compared to the MUCH longer legal tradition that, once released from prison, they were generally free to rejoin the general population with regard to life. And the crime rate (including focusing on recidivism) was LOWER.

            We’ve TRIED the “prohibition” experiment. It failed here, just as it fails abroad. Let’s just end it — keep dangerous people (whether predators or simple nutcases) locked up away from the peaceful people, and quit trying to restrain the general population.

            The time for the failed religion of bigotry ruling civil life is over.

        • @ubu52:
          A convicted criminal (or adjudicated mentally ill person) in the custody of the state – whether incarcerated, institutionalized, or on parole/probation – forfeits quite a few of their rights, including freedom from unreasonable search/seizure. Note the distinct lack of 4th Amendment challenges to “tossing” prison cells, or parole officers performing contraband checks in parolees’ homes. So on its face, your idea – absent the “hunt down” straw-man – is within the realm of possibilities.

          I suggest we follow this simple maxim: Any person who can’t be trusted with a gun can’t be trusted without a custodian.

          IOW, until they’ve paid their debt to society and are therefore not a danger (or in the case of mentally ill folks, not a danger to themselves or others), they shouldn’t be out among decent people. And if they have paid their debt and are not dangerous, they shouldn’t be treated as such for the rest of their lives.

          Besides, you seem to forget that criminals aren’t required – indeed CANNOT be required – to register their guns. No gun registry, no matter how thorough, will have any criminal-owned guns in it, and is therefore of limited utility (at best) in solving crimes; in fact, no crime has been conclusively solved with data from a registry. You also forget that criminals rarely (less than 2% of the time, according to scholarly research) purchase their guns from licensed dealers.

          A full registry offers no law-enforcement advantages over the BIDS proposal, but BIDS checks can’t be misused to harass law-abiding gun owners like a registry can (and has been).

          • Might as well require registration of banned drugs. It would do just as much good. The whole idea is insane right from the get go.

            No; the only purpose of registration is to chill the exercise of a right.

            If being adjudicated mentally unfit in some way becomes a convenient means of gun rights deprivation, then you’ll see vast numbers of people being adjudicated mentally unfit. They did this sort of thing in huge numbers in the Soviet Union, and American Progressives are lusting after it here, with a burning passion.

            And to put the idea of registration (as a means of preventing bad things before they can happen) into perspective, maybe we could talk about AIDS carriers, or those who’s lifestyles put them at a high risk of contracting AIDS or other horrible diseases, and see how that flies. Now you’ll scream bloody murder, huh, ubu? And next I suppose we’ll need a proficiency test before a person can vote, and we’ll need breath analyzers in every motor vehicle, and checkpoints, and a DNA database which includes every person from birth, and regular audits of everyone’s income and spending histories, and hey; we might as well become the Soviet States of America while we’re at it, and then we’ll all be safe as fucking hell, huh? No one could ever get away with anything, except those in government employ, we could all be forced to wear standard uniforms, and plant rice by hand, heads down, barefoot in the mud for a living, “sharing” equally all the bounty by force of law. And of course we’ll HAVE to have forced sterilizations because there are already too many people according to some egg-heads sequestered from real life in universities. That’s the goal anyway. Why not just come out and admit it? Or are you too much a sniveling coward?

          • Lyle,

            Have you gotten a driver’s license lately? It appears a lot of states are collecting electronic fingerprints and thumbprints when you get a DL now.

            No, you won’t be able to run.

  2. A background check IS registration– you attempted to purchase a firearm, you are on record as doing so, hence you are registered as “one of those people”. A form 4473 is registration, just as sure as you’d walked in to the German Chancellery in 1940, declared your status as a Jew and were issued your yellow arm band.

    By rights, this should negate NFA ’34, GCA ’68 and everything that came since.

    • And we have clear demonstration by way of the IRS targeting scandal that our government is in fact capable of using, and willing to use, and does use, public records to attack, suppress and frustrate its political enemies.

      • Attempts to acquire and publish names and addresses of concealed carry permit holders are of the same sort, hence requiring a permit to carry has with it a chilling effect, and I submit that this chilling effect is among the original goals and motivations of these permit requirements.

          • It should be, but the newspaper editors will claim First Amendment protections, citing the “public’s right to know,” and most federal prosecutors – unless they’re extremely pro-gun-owner (when does that ever happen?) – will accept that.

            Plus, it’d be a PR nightmare for a federal prosecutor to charge a newspaper’s staff for the “crime” that many people will see as “doing their job.” You don’t see any prosecutions under 18 USC 241 and 242, either, because passing/enforcing laws depriving gun owners’ rights and conspiracy of the same is seen as someone’s (e.g. a city commissioner’s or police chief’s) job, federal criminal statutes notwithstanding. The problem isn’t the law; it’s the culture surrounding it.

            It’s interesting to see what happens when laws/rights collide. Rarely if ever good, but always interesting.

  3. Joe, have you ever considered that as these things contain to progress, especially as it comes to the constitutionality of these laws, they stop trying to pass this law or that law and exclusively attack the Constitution itself and/or BoR and 2A?

    • You mean via the simple device of an Executive Order that ignores the limitations placed by the Constitution on the actions of the Executive?

    • Sure. If the courts were to suddenly actually enforce all the restrictions on the government imposed by the Constitution the Constitution would be scrapped within a few months. But if it happens relatively slowly over the course of a couple decades it probably would be tolerated.

      And we have had direct attacks on the Bill of Rights. Lots of political pundits have suggested/demanded the elimination of the 2nd Amendment. President Clinton implied that it should be dismissed.

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