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Illinois Attorney General Files En Banc Appeal in 7th Circuit

In the case of Shepherd/Moore v. Madigan, Madigan has decided to appeal to the entire 7th Circuit Court to review the case. I don’t know enough about how this works with the 180 day deadline the three judge panel imposed on the Illinois legislature to pass carry laws that are constitutional.

Thanks to Gene Hoffman of CalGuns Foundation for linking the petition. I particularly like this one, so far:

Second, the panel majority held that defendants failed to offer “extensive empirical evidence” sufficient to make a “strong showing that a gun ban was vital to public safety.” Slip op. 13-14. This heightened showing, which approaches strict scrutiny, likewise conflicts with Kachalsky, Masciandaro, and this Court’s en banc decision in Skoien. Thus, if the en banc Court concludes that the Second Amendment extends beyond the home, this appeal asks the Court to decide whether less rigorous scrutiny, and traditional rules of legislative deference, apply in this context.

Let me translate that out of legal talk for you “We just want to be able to say it’s critical for public safety without presenting any real evidence that it is, and have you believe us.” That’s not any kind of heightened scrutiny at all. It’s basically rational basis. I don’t really have time to read the rest right now, but have it.

8 Responses to “Illinois Attorney General Files En Banc Appeal in 7th Circuit”

  1. Bubblehead Les says:

    I’m pretty sure that this will get up to SCOTUS in the next term. Let’s hope that none of the Five who voted for Heller and McDonald retire or die before then.

  2. Flubnut says:

    This appeal will not delay the 180 days CCW mandate that the original decision ordered. Only an appeal to the SCOTUS will delay it any further.

    • Patrick says:

      If review is granted, then the decision is delisted as if it never happened. If the review is denied, then the clock is never reset and the 180 day window is unchanged.

      If SCOTUS grant review, they are likely to stay the decision pending the cert petition. But at best, that appeal would be considered this fall. So an appeal request could slow things a bit. But there is risk to Illinois (and NY, MD and others) in asking for cert. This would be a tough call for Madigan.

      But first the 7th has to deny review. Again…there is chance they will take it.

    • Countertop says:

      First, this is exactly what I predicted would happen back when the decision first came down. Second, once they agree to an en banc rehearing, the 180 days will be stayed. As it is, their denial of that will also likely indicate that the 180 days begins at that point. And, as Patrick points out, appeal to the Supreme Court may/or may not come with a further stay (and then as a practical matter – even if it doesn’t, the failure of Illinois to do anything would only give rise to the opportunity for an additional lawsuit – which, if it wasn’t dismissed outright as moot would take another year to a year and a half to complete, during which time SCOTUS would have issued a decision. And of course, all Illinois has to do is begin the process of putting a system, or even exploring how to construct it, and a court is likely to give them a pass and an extension on the 180 days).

      • Patrick says:

        A further refinement to your comment: if en banc is granted, then the decision is officially rescinded. As in, “never happened.”

        No stay of the 180 day deadline would be required, because the 180 day deadline would cease to exist, along with the entire ruling.

        Next step will be waiting for a judge to show interest and request an answer to the request. From there it’s going to be interesting to see if they call a vote, and if so – of course – what the outcome would be.

        It should take under a month. Should.

        By the rules, if no judge takes an interest, then it is automatically denied without vote after 14 days.

  3. mikee says:

    Laws get strict scrutiny when emanations of penumbras, regarding privacy, relating to abortion and contraception, are concerned.

    One might think that an enumerated constitutionally guaranteed right would require the same level of scrutiny, or a more strict one.

    If not, one might think the courts are illegitimate.

  4. Patrick says:

    Wow. Full of holes. It spends the greatest number of words telling the 7th Circuit to grant review because the majority dared opine on a constitutional question before the Supreme Court did so itself. They are arguing that appeals courts should reserve constitutional questions to the Supreme Court as court of first impression.

    The rest is not much better. That said, some say en banc is quite possible, given the weighty nature of this thing.

    We should know soon. If the 7th denies review, then they will look to give Illinois ample time to get an appeal put together prior to the deadline expiring.

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