Illinois Ban on Carry Ruled Unconstitutional (See Page 7)

[Gary L. Griffiths]

The opinion did not specify May/Shall.

Thus setting up the next great battle. The prohibitionists will want to pass may-issue laws like New York and California where issue can be denied for any reason, and applicants must prove that they are shot at almost daily to stand a prayer of getting a license. The ISRA and their cohorts will want shall-issue with minimal prerequisites.

It'll be interesting to watch the fireworks and see who ultimately wins. Pass the popcorn!

[Al Norris]

Originally Posted by NukemJim

A point of clarification please due to my confusion.

If Illinois passes a CCW law does is have to be "Shall Issue" or does the court order allow "May Issue" to be passed.

I have read different opinions about the above and was wondering.

Please realize that this is only my inexpert opinion (based upon what I think I know ),

In the Kachalsky case (2nd Circuit), Alan Gura has pretty much signaled he will petition the SCOTUS for a grant of cert. He has 90 days from Nov. 27th to file (give or take about 4 days for holidays). That puts things right at the end of Feb. or very early Mar.

Given that the 7th Circuit has decided the Moore/Shepard cases (7th Circuit), I believe he may be in the process of writing 2 drafts. Why 2, you ask?

Because we have yet to hear the decision in the 4th Circuit Woollard case. That could conceivably come out within the time frame Alan has to file. That panel is either going to uphold the MD Good & Substantial (G&S) clause of their carry law (most likely using the reasoning of the 2nd Circuit), or it will uphold Judge Legg's decision at the district court (adopting some of the reasoning of the 7th Circuit).

So one draft will be written as a direct circuit split between the 2nd and the 4th, with substantiating data from the 7th. The other draft (should the 4th not publish within the time frame) will be with the technical split between the 2nd Circuit and the 7th Circuit, with more of the push that "carry" in whatever form is the correct interpretation and does not lie outside the core meaning of the 2A - Self-Defense.

It thus becomes extremely important as to when the 4th publishes their decision. Equally important is what that decision says.

The Kachalsky case could very well be the case that settles the Shall Issue/May Issue question. It will have a profound effect throughout the US, however it is decided.

Right now, with the way things are today, it is slightly less than even odds the Court will grant cert. With a Woollard win, the odds go up dramatically. With a loss, I doubt the Court will grant cert.

Now, taking all of that into consideration, let's look at what Judge Posner said in Moore/Shepard.

Nevertheless we order our mandate stayed for 180 days to allow the Illinois legislature to craft a new gun law that will impose reasonable limitations, consistent with the public safety and the Second Amendment as interpreted in this opinion, on the carrying of guns in public.

We need to ask, what are reasonable limitations that address both the right and the public safety, the this court would be comfortable with?

I suggest that 37 States have laws that do not prohibit the bulk of the population. One "May Issue" State (Alabama), operates for all practical purposes, as "Shall Issue." I would also point to the decision in Ezell for further guidance on"reasonable."

None of the above takes into any consideration what Lisa Madigan may decide to do, in the next few days.

As you can see, a whole bunch of stuff is happening, nearly in parallel. So the actual answer is very complicated, both by matters inside and outside of Illinois.

[NukemJim]

Thank you.

NukemJim

[esqappellate]

Illinois motion for an extension of time to file a petition for rehearing. Filed today.

[Patriot86]

I hope it is denied. I have a feeling Lisa is just trying to waste as much time as possible

[Scimmia]

OK, so they're saying that they need time to determine if they want to file for an en banc hearing - but, oh, by the way, since one person is gone from the AG's office they wouldn't be able to draft the petition in time. IANAL, but this seems a bit ridiculous to me.

[Gray Peterson]

....Peterson 28(j) is filed in the 10th Circuit

[Al Norris]

Thanks Gray, for bringing that 28J letter here.

I would also like to extend a warm welcome to esqappellate. He is the appellate attorney, over at MDShooters.com that has been essential to many (myself included), in understanding the intricacies of law.

[raimius]

WELCOME!

I'm not a lawyer, so I definitely appreciate those who explain how things work within the legal system.

[esqappellate]

Thanks. This is a great forum. Al does a very good job with explaining things. I'll be glad to add my two bits worth from time to time.

[Gary L. Griffiths]

I'll be glad to add my two bits worth from time to time.

Your perspective and insights will be greatly appreciated.

[bitttorrrent]

So do we know if the time extension was granted or denied?

Even a layman as myself know this is a quick and direct stall tactic.

[krucam]

Extension request was granted through/including Jan 8th. No more Mr Nice Guy either...

12/18/2012 48 Order issued GRANTING motion to extend time to file petition for rehearing en banc. The appellees' petition for rehearing, if any, is due by January 8, 2013. No further extensions of time will be allowed. [47] BCM [48] [6450820] [12-1269, 12-1788] (FP)

[Al Norris]

Thanks for that, Mark. I was just heading over from MDShooters....

[esqappellate]

Here is what Maryland is saying about Moore in their 28j letter filed yesterday.

[Luger_carbine]

Can anyone educate me about the process for deciding whether or not to do an en banc review?

I think the court has 10 days to respond to a a petition?

So what would happen if Lisa Madigan asked for an en banc review?

Do all of the judges have a meeting where they first vote to have a review?

I'm sorry I can't figure this out from reading the rules:

http://www.ca7.uscourts.gov/rules/rules.htm#opproc5

[Luger_carbine]

In a few hours this may all be moot if the Illinois AG doesn't petition for en banc, but I'm still curious about what the process is - how the procedure for deciding whether a case will be reviewed or not.

[Mastiff]

If Lisa Madigan doesn't request an en banc hearing, does that also mean she can't appeal to the Supreme Court??

Denis in Cook County

[Al Norris]

Madigan has until midnight, the 8th, to file for an en banc rehearing. The 7th circuit has 10 days to decide to rehear the case, or not.

If the case is not reheard, the clock is still ticking on any possible petition of cert to the SCOTUS.

If the case is to be reheard, the clock stops. That clock will be reset and won't start again until the decision of the en banc rehearing.

My personal opinion? Judge Posner is very, very respected within the 7th Circuit and unless there is some glaring error, I don't expect the court to grant the rehearing. That leaves Madigan with about 65 days to decide if she will file a petition for certiorari.

[Jim March]

That leaves Madigan with about 65 days to decide if she will file a petition for certiorari.

Right, but she'd have to separately file for a "stay of execution" on the current carry bans, right? Appealing to SCOTUS or even getting granted cert doesn't automatically freeze the existing 7th Circuit commandments?

[esqappellate]

It's called a "stay of mandate" pending a petition for cert and such stays are common in high profile cases such as this one. All Illinois need show under Rule 41 FRAP is that the petition for cert would present a "substantial question" and there is "good cause for a stay." They really don't need it to merely file a petition, as they already got a 180 stay of mandate, which is way more than the 90 days for seeking cert. Of course, a stay of mandate would operate to stay the case until the SCT issues an order on cert. If cert is granted, then the stay continues in place. If cert is denied, then the mandate issues "immediately." They have until midnight tonight (Jan 8, 2013), Chicago time, to file any rehearing petition.

PS: Al, I think the 7th Circuit can take as much time as they want to decide whether to grant rehearing. Nothing in the rules impose any 10 day limit for consideration of such a petition.

[Al Norris]

I thought I had read something about a time limit in their local rules... But I'll take your expert word on this.

This wouldn't be the first time I was mistaken... It won't be the last!

[Luger_carbine]

But what is the inner workings on how the court decides?

Do they meet on Tuesdays and Thursdays and go over every en banc request and just do a show of hands or something? Are there 7 judges set aside just to vote on en banc petitions? Do all the judges get together and vote on it?

I'm wondering how that happens.

[esqappellate]

All active court of appeals judges on the 7th Circuit can participate in deciding whether to grant en banc. Any judge can request an answer to a petition for rehearing and no answer may be filed unless requested. Such a request for an answer is made before a vote as no petition will be granted without requesting an answer first. If one active judge requests a vote after receiving an answer, then every active judge votes on whether to grant. If no active judge requests a vote after a certain amount of time, then the en banc petition is denied without a vote. That certain amount of time varies from circuit to circuit, as does the internal operating procedure. In the 7th Circuit, here is part of Rule 5 of the 7th Circuit internal procedures:

d) Voting.

(1) Majority. A simple majority of the voting active judges is required to grant a rehearing en banc.
(2) Time for Voting. Judges are expected to vote within 14 days of the request for a vote or within 14 days of the filing of the answer pursuant to the request for a vote, whichever is later.
(e) Preparation of Order. After the vote is completed, the authoring judge, or the presiding judge of the panel if the author is a visiting judge, will prepare and send to the clerk an appropriate order. Minority positions will be noted in the denial of a petition for rehearing en banc or the denial of a petition for rehearing unless the judges in the minority request otherwise. Minority positions will not be noted in orders granting a rehearing or rehearing en banc unless so requested by the minority judge. An order granting rehearing en banc should specifically state that the original panel's decision is thereby vacated.

(f) Participants in Rehearings En Banc. Only Seventh Circuit active judges and any Seventh Circuit senior judge who was a member of the original panel may participate in rehearings en banc.

(g) Similar Procedures for Hearings En Banc. Similar voting procedures and time limits shall apply for requests for hearings en banc except that a staff attorney may circulate such a request.

(h) Distribution of Petitions. Petitions for rehearing that do not suggest rehearing en banc are distributed only to the panel. Petitions for rehearing en banc are distributed to all judges entitled to vote on the petition.

http://www.ca7.uscourts.gov/Rules/rules.htm#opproc5


Obviously, if a judge tells his colleagues that he needs more time before voting then the 14 days can stretch out to more time.

[Luger_carbine]

It's a matter of abstaining from requesting an answer or requesting an answer.

So, for instance, when the petition comes in Judge Williams could request an answer and that would trigger the review?