Illinois Ban on Carry Ruled Unconstitutional (See Page 7)

[Don H]

Originally Posted by MLeake

Don H, I think his rationale is that this particular change will have been due to the prior law having just been ruled unconstitutional. IE, it was not "changed," it was invalidated.

I had time to do some research and came across this tidbit:

38 ALR Fed. 617
"Where subsequently to the petitioner's conviction the United States Supreme Court or the Court of Appeals renders a decision holding unconstitutional, as applied to the petitioner, the federal statute under which he had been convicted, the courts have held such decision to be a sufficient or proper ground for granting a petition for a writ of error coram nobis under 28 U.S.C.A. § 1651 to vacate the petitioner's federal conviction, even though the sentence had already been served."

So it appears that a conviction under a federal statute later determined to be unconstitutional can be vacated. It seems reasonable that a similar relief would be available for a conviction under an unconstitutional state statute. I haven't yet run across anything that allows a civil action for damages or to recoup expenses. Perhaps one of our legal experts will be able to address this aspect?

[Tom Servo]

The opinion seems to approve of a permit system and more than hints that a state can require competency in firearms before issuing a permit.

I can't find the post, but Al brought this up previously.

The courts are not going to give us unfettered carry rights. Not gonna happen. We've asked them to read original intent, and there are tons of laws from the 18th and 19th centuries regulating mode and manner of carry. Several state constitutions acknowledge the right to keep and bear arms but reserve the right to regulate how they're borne.

So, we'll probably be stuck with permits and restrictions on time, place, and manner. From here, we go to the courts to establish a standard that isn't prohibitively restrictive, but I don't see the whole shebang simply going away.

[hogdogs]

WAY TOO AWESOME TO READ THIS!!!

Thanks to all the folks who sacrificed so much in this long hard fight against the Chicago-Daly machine that has held the 2nd Amendment hostage in the whole of the state for so dang long!!!

Brent

[Al Norris]

Originally Posted by 62coltnavy

The decision is of course not binding on the Ninth Circuit, and moreover, the three California cases and the one Hawaii cases all dealt with the scope of the sheriff's discretion under the state "may issue" statute, an issue not presented in Moore v. Madigan (there was no right to carry in Illinois for self defense until today), i.e., what may be required by was of "good cause" for issuance. The decision will be persuasive to the extent that there is still an argument being presented by various governmental entities that the right to "bear" does not extend beyond the home.

What this decision does help to do, with respect to the CA and HW cases, is that it is now a persuasive argument that the law must allow for a law-abiding citizen to carry in some form, in public places (self-defense = "good cause").

In his decision, Judge Richard Posner wrote in several ways, that there is no real difference in self-defense, inside or outside the home. The most revealing statement was this:

The Supreme Court has decided that the amendment confers a right to bear arms for self-defense, which is as important outside the home as inside.

Within the domain of the CA7, and within Illinois in particular, while a specific type of scrutiny was not used, the above implies that whatever the IL legislature does, will have to withstand a very high level of judicial review, "if not quite strict scrutiny" (Ezell, cite omitted).

If I'm reading this correctly, Illinois will now have to justify any laws against public carry in the same manner they would have to justify laws against guns in the home. That doesn't mean that IL will get a "Shall Issue" law, merely that whatever form the legislature decides upon, it will have to pass (real) Intermediate Scrutiny, at the very least.

[mack59]

Illinois will not have a "may issue" law either in the state as a whole or seperately in Chicago. The rkba movement in Illinois has been working hard for almost 20 yrs to get a shall issue law and year after year they have made progress - electing pro-ccw politicians, doing grunt work lobbying, holding public informational meetings on the right to carry in towns and cities throughout the state, educational outreach to politicians and public officials and law enforcement, working with both political parties, putting concealed carry county level referendums on the ballot that have passed gathering popular support, and holding politicians feet to the fire on rkba issues.

Last year and before they have had the opportunity to pass a "may issue" law or one that excluded Chicago and that idea was soundly rejected. Both the Illinois House and Senate have solid majorities for a shall issue law. The anti-rkba governors attempt to pass an assault weapons ban was rejected by both House and Senate by over 2/3 majorities this year. The only reason Illinois doesn't have a shall issue law today is through the political manuvering of Mike Madigan and that by a slim margin. So there is no possible way that Illinois will end up with a may issue law. No way that the pro-rkba movement and pro- rkba majorities in the House and Senate will allow anything less than statewide shall issue to pass. If they wouldn't surrender to may issue before, there is no way they will do so after this victory.

That doesn't mean Chicago, Speaker Madigan, or Governor Quinn will roll over by any means, but they are the one's on the hot seat now. And the pro-rkba is not going to let them off by settling for a deal they could have made before this decision.

[Xfire68]

^^^^^^100% agree. The Anti's lost their chance at the May issue. We won't settle for overly restricted bill after yesterday.

[Luger_carbine]

BTW...

Thank you Ronald Reagan

[Technosavant]

We won't settle for overly restricted bill after yesterday.

Glad to hear it. Those of us across the river in MO are pulling for you. Just be sure to build in some reciprocity so we can visit.

[Carry_24/7]

I'm moving to Aurora IL next month for my job, and got on TFL today to ask a serious question, "does anyone think IL will get CCW in the near future?"

Then I find this thread...wonderful. I was fretting my move, but since i'm FED, I do what I gotta do.

Great thread; I feel better now about my FL to IL move.

[Al Norris]

So the big question is: What Happens Now?

The CA7 has stayed its own mandate for 180 days, to give the IL legislature time to rewrite their laws. The pro-gun legislatures in IL have all the necessary power to enact a sweeping "Shall Issue" statute, statewide, preempting even Chicago and the enough to overide the Governor's veto. If you've been reading the Chicago papers, you know that the NRA-ILA/ISRA lobbyist, Todd Vandermyde, has the ball in their court. They will not be giving away anything. The anti's will have to beg to get any concession at all.

If the IL legislature fails to act, on day 181, the current law falls. So-called "Constitutional Carry" (Vermont style) will be the default in all of IL.

IL has 90 days to appeal to SCOTUS. IIRC, they have 14 days to motion for an en banc hearing. The clock is running.

If they are going to stall, they will make the en banc motion, shortly. Since this is a matter of striking a State law (a serious matter, for the courts), I suspect they will be granted that motion.

Should the CA7 take up the case en banc, the panel's decision will be removed. I'm assuming that a new briefing schedule will be issued... That will take up another 6 months or so. Then we will wait for a decision from the CA7. Could be another year from now.

Then, should this decision affirm the panels original decision, IL could stall further by appealing to the SCOTUS. That's another year to year and a half wait... June of 2015.

All during this time, the Law will remain in effect, as a stay will be granted at each and every step of the way.

The above doesn't take into consideration Woollard, or at this juncture, Kachalsky (which could conceivably put the final nail in their coffin, before an en banc decision).

Then we should also consider the 3 cases currently at the 9th (yes, this decision will have an affect upon them - good or ill). Should I also mention the NJ case? How about Gray's case?

This is the watershed moment we have been waiting for.

Meanwhile, the supplemental authorities have started to roll in.

From the Peruta Case (attached). From the Baker case: http://www.scribd.com/doc/116464602/...hority-Madigan. From the loonngg delayed Palmer case (this one is Gura Gold): http://www.archive.org/download/gov....37887.43.0.pdf.

Expect 28J letters (citing Moore) in Peterson, Woollard, Richards and Piszczatoski, to begin showing up, shortly.

[TheNocturnus]

Congrats to Illinois citizens! My wife has family in Illinois and now we can go visit them without worrying about my CCW permit. (provided you add a reciprocity clause for Missouri permit holders)

This is great news.

[mack59]

Thanks for the good information on the appeals process. I think that the anti's will try to stall by appealing the decision. Probably the en banc process would be their best bet for possibly overturning the decision, though the seventh has so far been pretty consistent on the 2nd since the USSC decisions and Posner is considered very influential in the district.

My hope, and it just that, is that the seventh will refuse an en banc hearing and let the state appeal to the USSC. My only basis for believing that is the expeditious way the seventh handled the appeal in the moore and shephard vs madigan cases, the state tried to delay and the court pushed to get it heard sooner rather than later. I am sure quiet phone calls are being made today to determine if the seventh would be receptive to an en banc appeal or whether an appeal straight to the USSC would be better. We'll certainly know in a couple of weeks.

My primary concern is that by the time this gets appealed and if accepted possibly heard by the USSC, that the makeup of the court may have changed. With the current USSC, I could see them accepting this case just because Scalia would love to make some comments on Posner's decision even if he supports the outcome as there is no love lost between those two.

Politically, the anti's will have to work hard to keep the damn from breaking on concealed carry and appealing the decision is the only bullet they've got. So, I do agree they will try to appeal, because I don't see them giving up.

[Tom Servo]

Expect 28J letters (citing Moore) in Peterson, Woollard, Richards and Piszczatoski, to begin showing up, shortly.

Gura didn't waste any time! It's amusing to see this entering the annals of 2nd Amendment jurisprudence:



I'm reminded of Judge Easterbrook's comments about Space 1999 reruns constituting cruel and unusual punishment.

Meanwhile, from the losing side, we have this:

"Courts make mistakes," said Lee Goodman, an organizer with the Stop Concealed Carry Coalition. "That's why we have a process for appeal."

Illinois House Majority Leader Barbara Flynn Currie, who supports stricter gun control measures, said she hoped the ruling would be stayed until the Supreme Court had a chance to rule on an appeal. But if the state is forced to implement a concealed carry law, it should be severely restrictive, she said.

"There's no question that there are all kinds of limits one could impose," Currie told HuffPost.

[Horny Toad]

Watching this with great interest from "Justifiable Need" NJ.

[Dr Big Bird PhD]

I don't see the Vermont CCW laws coming into affect after the 181 days. I'm sure there's enough politicians out there clawing to get a bill passed, and this would be the perfect time.

[Al Norris]

Just in case someone didn't understand the reference Tom Servo made:

Twenty-first century Illinois has no hostile Indi-
ans. But a Chicagoan is a good deal more likely to be
attacked on a sidewalk in a rough neighborhood than in
his apartment on the 35th floor of the Park Tower.
A woman who is being stalked or has obtained a
protective order against a violent ex-husband is more
vulnerable to being attacked while walking to or from
her home than when inside. She has a stronger self-defense
claim to be allowed to carry a gun in public than
the resident of a fancy apartment building (complete with
doorman) has a claim to sleep with a loaded gun under
her mattress. But Illinois wants to deny the former claim,
while compelled by McDonald to honor the lat-
ter. That creates an arbitrary difference. To confine
the right to be armed to the home is to divorce the Second
Amendment from the right of self-defense described
in Heller and McDonald. It is not a property right—a right
to kill a houseguest who in a fit of aesthetic fury tries
to slash your copy of Norman Rockwell’s painting
Santa with Elves. That is not self-defense, and this case
like Heller and McDonald is just about self-defense.

[mack59]

Interesting development, Illinois Gov. Quinn announced at a press conference today that he would work with legislators to craft a concealed carry law that includes reasonable restrictions such as disallowing mentally ill individuals from carrying. He also stated that any decision to appeal the case further would be left up to the atty general Lisa Madigan.

Gov. Quinn is the smallest player in the drama, but his amendatory veto power could be annoying and delaying. Still his public position to work towards a concealed carry law is positive. His laying of the choice to appeal or not at Lisa Madigan's feet is slap at her as she and her father, Micheal Madigan the House Speaker who runs the state, have ambitions for Lisa to be the next US Senator from Illinois and another USSC loss doesn't look good on the resume. Still I doubt that will be a major influence in her decision.

Lisa and her father Mike are the big players here due to her office and his power. The Mayor of Chicago is a bit player, not as powerful as Daley was and more bark than bite in this kind of statewide politics. Lisa will have to decide and act in public soon. Mike will probably publically play his cards close to his vest. Backroom deals and state money are his tools. If Mike Madigan wanted this to happen it would be a done deal, but that ain't gonna happen. He and his daughter, the states atty, will be in the same corner for sure whatever else happens. They may put up token resistance or fight til the last dog, but I don't think they will give in.

[jmortimer]

I think the Illinois lawmakers will pass a law exactly like we have in California which has the effect of keeping the majority disarmed. You can see that Posner had to hold his nose on this one. At least he acknowledged that precedent compelled decision.

[Al Norris]

Despite Judge Posner "calling out" the 2nd Circuit in Kachalsky, it is an easy read to say that almost any type of CC permitting system would get a favorable view from him.

However, in the world of Court, should a CC law be passed by the IL Legislature, it would immediately moot the case, if AG Madigan did file for en banc, which is the course I think she would choose to go.

[Tom Servo]

Illinois Gov. Quinn announced at a press conference today that he would work with legislators to craft a concealed carry law that includes reasonable restrictions such as disallowing mentally ill individuals from carrying.

Which is something even the most lenient shall-issue states have.

Your post has some really interesting insights into Illinois politics that I was unaware of.

[HarrySchell]

I think the Illinois lawmakers will pass a law exactly like we have in California which has the effect of keeping the majority disarmed. You can see that Posner had to hold his nose on this one. At least he acknowledged that precedent compelled decision.

I expect so. It is interesting to note that CA counties and cities outside the inclusive and liberal bastions of Lost Angles and San Fran are moving as close to shall issue as they can. Sacramento County accepts "self-defense" as good cause.

The Legislature continues to search for ways to disarm citizens in every way possible, and Lost Angles City and County are virtually "no issue". Liberal elites will do their best to keep it this way, but they are losing the argument, along with people like Madigan and Quinn. Once the economic model crashes, I suspect even Lost Angles will have to reconsider. There will be no officers on the street, taxes won't cover the outstanding pension and healthcare obligations. Won't be anyone to arrest you for carrying. I would like to be wrong, of course.

Kudos to Posner for doing his job as he should, whatever he thinks personally. Reminds me of Larry Tribe's reluctant conversion on 2A from a collective to an individual right.

[Gary L. Griffiths]

If the IL legislature fails to act, on day 181, the current law falls. So-called "Constitutional Carry" (Vermont style) will be the default in all of IL.

An interesting observation. So what happens to someone who gets caught carrying in Illinois tomorrow, or today for that matter. The 7th has said that Illinois' failure to have provisions for any form of carry is unconstitutional. If it's unconstitutional, then the law is unenforceable. The legislature has 180 days to enact a carry statute, but the current law isn't constitutional for another 180 days, it's unconstitutional NOW.

Another thought, to stir the pot: Within the jurisdiction of the 7th Circuit, we now have a constitutional right to carry a weapon (just like the 2nd Amendment says). OK, say I have a CW permit from IA and want to carry in a state within the 7th that doesn't recognize IA permits (and doesn't issue non-resident permits). Would the law prohibiting me from carrying in that state not be unconstitutional? Would a Supreme Court ruling upholding Moore be a de-facto national CW permit?

[Gaerek]

Maybe I'm wrong, but if there is an appeal (and I believe there will be) I just don't see SCOTUS even hearing the appeal. They'll probably just say something like "read Heller and MacDonald." The case is certainly different than MacDonald specifically, but it's very much along the same lines. It would be difficult to justify that MacDonald was only about having a gun in your home for protection since it's obvious (and even the CA7 made reference to this) that you need protection outside your home as well.

Maybe I'm wrong, but I just don't see SCOTUS taking the appeal.

[Gaerek]

An interesting observation. So what happens to someone who gets caught carrying in Illinois tomorrow, or today for that matter. The 7th has said that Illinois' failure to have provisions for any form of carry is unconstitutional. If it's unconstitutional, then the law is unenforceable. The legislature has 180 days to enact a carry statute, but the current law isn't constitutional for another 180 days, it's unconstitutional NOW.

The CA7 gave a stay for the current law until either 180 days is up, or another law is drafted (whichever comes first). Even though technically they called the law unconstitutional, it is still illegal to carry during the stay.

[Luger_carbine]

I doubt the NRA's guy is going to allow a California style law.

I don't think they're going to agree to a bad deal now just so they don't have to live with the current law a few more years. They seem set on getting a Florida type carry law.

I think people here are underestimating just how scary the prospect of constitutional carry is to the anti-gunners in Illinois.

And as to appealing... how does that help the gun control crowd besides stalling? Hoping one of the conservative justices on the Supreme Court retires or something and is replaced by President Obama? Yes there is a delay, but does anyone see the current court overturning Moore?

I don't...