Shepherd v. Madigan Wins!!

The Illinois handgun carry ban has been struck down by the 7th Circuit Court of Appeals. From Alan Gura’s firm, From NRA, from Volokh. Looks like Posner was in the majority. One justice voted against. I guess Posner is coming around. More to follow.

UPDATE from Bitter: For those of you who can’t access the document for any reason, here are some choice quotes:

Both Heller and McDonald do say that “the need for defense of self, family, and property is most acute” in the home, id. at 3036 (emphasis added); 554 U.S. at 628, but that doesn’t mean it is not acute outside the home. Heller repeatedly invokes a broader Second Amendment right than the right to have a gun in one’s home, as when it says that the amendment “guarantee[s] the individual right to possess and carry weapons in case of confrontation.” 554 U.S. at 592. Confrontations are not limited to the home.

The Second Amendment states in its entirety that “a well regulated Militia, being necessary to the security of a free State, the right of the people to keep and
Arms, shall not be infringed” (emphasis added). The right to “bear” as distinct from the right to “keep” arms is unlikely to refer to the home. To speak of “bearing” arms within one’s home would at all times have been an awkward usage. A right to bear arms thus implies a right to carry a loaded gun outside the home.

For the anti-gunners who simply say that the right is outdated and irrelevant:

Twenty-first century Illinois has no hostile Indians. 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.

UPDATE: Dave Hardy: Astonishing ruling! What’s kind of sad is that it is astonishing. Dave notes that this ruling effectively sets up the circuit split that will likely lead to a carry case going before the Supreme Court.

UPDATE: Clayton Cramer: “One of the Chicago newspaper articles included a comment by a reader, warning that the streets of Illinois cities will run with blood.  Perhaps…but how could you tell the difference?

UPDATE: Kevin Baker: “And Then There Were None” Some might say that this is a bit premature, but the politics of this issue in Illinois has been teetering on the verge, and I think this court decision will make things get very real for a lot of the anti-gun folks in the Windy City. The politics of this will play very much in our favor, I think.

39 thoughts on “Shepherd v. Madigan Wins!!”

  1. Amazing!!! Awesome!! So now we are 50 for 50 in the Carry dept!
    Slowly, step-by-step…The Antis must be flipping their lids right now. Any chance this could appealed all the way up to the Supremes or?

    1. Adam, that’s in the hands of the IL Attorney General at this point. If IL decides to seek SCOTUS review, 4 judges need to vote to hear the case.

      1. Ahh, Ok… Thanks for the update…I am still learning the finer essentials of law/process/procedures as read this and other blogs.

        Good to know!

  2. Although it shoudl be interesting to see what the Legislature comes up with considering Gov.Quinn is a big Anti-2A. They will probably fall into the New York-New Jersey restrictive May issue style of carry…but hey, its a great first step in the right direction.

    From the Volokh site :

    The majority opinion concludes: “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.”

    1. Our legislature will surely pass something in the first session in January. Quinn will sit on it for as long as he can, then sign it saying he was forced to by the courts. The bill that nearly phased with a super majority last time isn’t perfect but it isn’t that bad either. Today is a great day in Illinois, for the first time in, well, ever.

  3. the supreme court has no reason to hear this case, been there, done that…

    Seems to me that if a law isn’t passed in 180 days to set the rules, Illinois becomes constitutional carry for those with a FOID card. I don’t see Quinn being able to push through some restrictive may issue law through the same legislature that just thwarted his assault weapons ban. He may be forced to sign something far more reasonable to get something on the books before the 180 days. But all of this is probably wishful thinking on my part. I suppose it’s asking too much for my home state to get a reciprocity agreement worked out before I have to travel to illinois for christmas!?!?

      1. oh yeah I realize, thankfully I’m traveling somewhere that doesn’t mind very much, aka: not chicago.

  4. I wouldn’t be surprised if the antis in the IL legislature try to add some sort of AWB amendment to a potential concealed carry bill.

    1. they don’t have the power to pull it off. They can’t risk not putting something on the books that defines the rules for carry since the ruling essentially makes it legal without setting any restrictions after 180 days.

      1. That would be pretty funny though, if they’d end up having one of the least restrictive carry laws in the country because they dragged their feet.

      2. Good point. I just read Rep Phelps’s statement to that fact. Still not holding my breath though. Hopefully they don’t screw us too bad on reciprocity agreements.

  5. “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.”

    THIS. It’s why may-issue is such a load of crap, the people who can get them (rich and politically connected) are the ones who can afford more comprehensive and elaborate security measures.

  6. From the Chicago Tribute: “The (Illinois) legislature, in the new session, will be forced to take up a statewide carry law,” said NRA lobbyist Todd Vandermyde.

    The lobbyist said prior attempts to reach a middle ground with opponents will no longer be necessary because “those compromises are going out the window.”

    Hey, couldn’t some NRA friendly politicians just shut everything down for 180 days? That would be fun.

    1. Haha that would be great.

      “Okay, you don’t want constitutional carry in 180 days? Well then, we have a list of demands.”

    2. There is the chance that an en banc review to the full circuit would reverse the ruling. A small chance, but it’s still out there. For that matter, a SCOTUS review could do the same.

      That is the only tangible leverage owned by the state right now. It is small, but enough to get the legislature moving right now. Any law passed would end the chance to appeal or review the case – there would be no controversy to fight over. So sitting around and doing nothing today offers some risk.

      This is a standoff with our side apparently having the better hand. We get the law we want today, or the state takes their chances that they lose everything in an appeal or review. Looking forward, if Madigan loses and the state law is invalidated, then there is zero reason for the majority of pro-gun legislators to do anything at all. That is your scenario and when it would best play out.

      The only reason I think the legislature feels compelled to move now is to end the chance of Madigan winning on review…however small that might be.

      Of course, the Governor will have to decide on a veto. If he does veto a good law, and ends up losing the long case…Constitutional Carry will be his doing.

  7. They still didn’t have the testicular fortitude to declare which level of scrutiny is appropriate.

    The carry issue is now destined for the SCOTUS, as this ruling is directly at odds with other circuits which have declared that there is no right to carry a gun outside your home.

    1. That’s quite all right, it’s a good rule of jurisprudence to decide cases on as narrow a basis as possible. Otherwise judges are legislating from the bench.

      I haven’t looked at this decision yet (this is the first item I’ve read on it), but I’m assuming they’re going by the principle in Heller that a complete ban fails any level of scrutiny. In fact, wouldn’t it be hard to introduce scrutiny except as dicta?

      But never fear, we’re doing well in Maryland where that is on the table.

  8. Posner’s criticism of the 2nd Circuit decision seems like a clear message to the Illinois legislature that their law better be closer to shall issue than may issue.

  9. No different than what happened in Maryland. We were on the path to “Shall Issue” until the court intervened. Still waiting on that ruling and if it is found that “good and substantial reason” is sufficient, that too creates a split. With Illinois, that is two major carry cases that I think SCOTUS is going to have to resolve on the “bear arms” side of the equation.

    Illinois can play the same game it has been for the past couple of years just like DC has. Don’t expect resolution anytime soon although the politicians will likely make it easier but reacting to the threats to their empires from the rabble.

  10. I don’t understand how the ruling doesn’t take effect for 180 days. If it is unconstitutional, it is unconstitutional, and the government had no authority to pass such a law in the first place. Where does the court get the authority to grant the government an unconstitutional power for 180 days? What would stop the court from declaring a law unconstitutional, but giving the government a year to fix it? Or ten years?

    1. It’s generally accepted practice to give the losing party a chance to comply with an edict of the Court. The Court is basically telling Illinois the law is unconstitutional, and giving it time to comply before enforcing its ruling. It’s generally been within the powers of courts to do things like this.

    2. Federal courts are loath to upend state legislative processes. They will generally give the state, under the guise of Federalist separation, time to amend their laws before striking them whole cloth. Exceptions have occurred during exigent circumstances – such as court-ordered changes or nullification of law for purposes of allowing a vote (Texas re-districting, for example).

    3. It’s also worth pointing out this isn’t a done deal. Short of a Supreme Court petition, Illinois next step is going to file for en banc review by the whole 7th circuit (as opposed to just the 3 judge panel decision). They could do that OR seek an appeal to the Supreme Court. A petition for en banc review is almost certain to follow. Whether the court grants it or not, will be the next big decision. If they do, then the issuing of a mandate will be delayed pending completition of that process (additional briefings d opportunity for oral argument). If they don’t, then Illinois will likely file a cert petition to the Supreme Court and seek to stay the issue of a mandate from the 7th circuit until a decision from SCOTUS (either denial of cert petition – which could come later in 2013 – or Supreme Court opinion likely in 2014).

      What will be interesting is if SCOTUS denies to hear the case and Illinois has not passed anything. I can’t for the life of me envision any scenario where constitutional carry is allowed to prevail in Illinois. And if it comes close (because the Rs get greedy) then I suspect a terrible bill gets passed.

      1. If they do, then the issuing of a mandate will be delayed pending completition of that process….

        I’m probably splitting hairs here, but they’d still have to get a formal stay from the court, right? It’s pretty much automatic if their appeal is heard, since it’s implicit the decision might be reversed, but they do need that formality, right?

  11. The last paragraph of this thing is the key.

    We are disinclined to engage in another round of histori- cal analysis to determine whether eighteenth-century America understood the Second Amendment to include a right to bear guns outside the home. 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. The theoretical and empirical evidence (which overall is inconclusive) is consistent with concluding that a right to carry firearms in public may promote self-defense. Illinois had to provide us with more than merely a rational basis for believing that its uniquely sweeping ban is justified by an increase in public safety. It has failed to meet this burden. The Supreme Court’s interpretation of the Second Amendment therefore compels us to reverse the decisions in the two cases before us and remand them to their respective district courts for the entry of declarations of unconstitutionality and permanent injunctions. Nevertheless we order our man- date 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.

    Please re-read the bolded element above. It says that, according to the Seventh Circuit, the Supreme Court has decided that public carry deserves the same level of protection as carry inside the home.

    Illinois/Chicago cannot create laws that prevent ownership of guns in the home. They tried that, and failed. According to CA-7, they cannot do the same for public carry. Discretionary issue (May Issue) requires that the right inside and outside the home be different. This decision leaves no room for debate – they are the same.

    This decision all but says, “Shall Issue”. I can paint a few ways that a recalcitrant court could accept something less, but frankly it would not survive review by the circuit. Not with this decision.

    Only thing IL can do now is ask for an en banc review. A cert petition would be nice, but then they run the risk that SCOTUS denies cert, in which case the whole fight is over before their 180 day mark is up. That would leave them no time to react.

    Fun stuff.

    1. Hmm…I forgot about the en banc option. Why would they NOT do that? It would give them another chance to win without having to go to SCOTUS, right? Is there an additional downside if they lose there?

      Im sure some wiser legal minds can educate me.

      1. They could do ask for the en banc review but are they going to gamble and let the clock run out? It’s hard to tell with the IL AG. She’s a trip, and her Daddy is the speaker of the house. I’m sure they are talking tonight about options, and I bet the governor is left out of the discussions.

        I also heard today that Rep Brandon Phelps who authored HB148 is saying that the ruling today will result in his bill being improved in our favor as back-bending compromise is not a requirement now.

        They just tried to pass an AWB and it failed spectacularly.

        1. If they pass a shall-issue bill, the state AG is stuck with the loss. She won’t be able to request en banc or appeal after the state complies. There would then be no controversy.

          The only fight left for her would be over the fees paid to NRA and SAF for their excellent work in these cases.

  12. I officially nominate myself as the good luck charm of the gun rights movement. I moved to DC just as Heller was heating up and this month I am moving to Chicago.

    Sure, I guess Gura gets some credit as well ;-)

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