Illinois Ban on Carry Ruled Unconstitutional (See Page 7)

[BGutzman]

What would the legal basis for this be? If you're on the freeway and get arrested for doing 75 in a 65 zone and next year that speed limit is bumped up to 75, you don't get the fine returned and the conviction expunged or deleted; the fact remains that the act was illegal at the time it was committed.

As I understand it (I am not a lawyer) laws that are found to be unconstitutional are to be treated as if they had never had any force of law or never had existed. Now, how this works out in reality I cant say and other here are much more informed on these things, but that's the answer as I understand it.

 

[Mike38]

Being from Illinois, I don’t believe a thing until I have the CCW permit in my wallet.

 

[droptrd]

^^^

This.

But Im happy. Serious case of perma-grin

This opinion couldve gone the other way. This is a good day

 

[KyJim]

Undoubtedly a great win for 2A rights but a word of caution. 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.

ome states sensibly require that an applicant for a
handgun permit establish his competence
in handling firearms. A person who carries a
gun in public but is not well trained in the use of firearms
is a menace to himself and others. See Massad
Ayoob, “The Subtleties of Safe Firearms Handling,”
Backwoods Home Magazine, Jan./Feb. 2007, p.
30; Debra L. Karch, Linda L. Dahlberg & Nimesh
Patel, “Surveillance for Violent Deaths—National
Violent Death Reporting System, 16 States, 2007,” Morbidity
and Mortality Weekly Report , p . 1 1 ,
www.cdc.gov/mmwr/pdf/ss/ss5904.pdf (visited Oct.
29, 2012).

http://www.ca7.uscourts.gov/fdocs/docs.fwx?submit=rss_sho&shofile=12-1269_002.pdf, slip opinion at 16-17 (font attributes deleted from original).

 

[tommyd78]

illinois carry

hold the congrats this will be done the CHICAGO WAY don't think Illinois politicians those mainly from chicago will lay down over this. The hippocrites that will vote against this probably have their own special carry permits or their own bodyguards with permits. This state is nuts lived here forever that's my fault.

 

[Don H]

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]

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]

Incredible

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/Notice-of-Supplemental-Authority-Madigan. From the loonngg delayed Palmer case (this one is Gura Gold): http://www.archive.org/download/gov.uscourts.dcd.137887/gov.uscourts.dcd.137887.43.0.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.