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This just in… AG Madigan’s en banc motion denied

Friday, Feb 22, 2013

* 9:13 am - I just got a call from the NRA claiming that the full Seventh US Circuit Court of Appeals has denied Attorney General Lisa Madigan’s request for an en banc hearing of the recent ruling by a three-judge panel that Illinois’ public gun carrying laws are unconstitutional. Madigan wanted all of the appellate judges to hear the case. Not gonna happen.

AG Madigan’s next step - if she decides to take it - would be to appeal to the US Supreme Court.

More when I know more.

* 9:18 am - The order denying Madigan’s en banc rehearing motion is here, including a dissent by four out of the circuit’s ten presiding judges.

* From Judge David F. Hamilton’s dissent

In so many public settings, carrying and using firearms present lethal risks to innocent bystanders. Yet when people go about their daily lives in public places, they have no choice about whether to consent to the dangers posed by firearms in public. We can all choose whether to visit homes where firearms are present.

To illustrate the dangers posed by lawful use of firearms in public, consider a deadly confrontation on the streets of New York City in August 2012, when police confronted an armed man who had just shot and killed another man. The police officers were well trained in both how to shoot and when to shoot and not shoot. The officers fatally shot the gunman, but the officers’ many shots also wounded nine bystanders.

I intend no criticism of the officers, who confronted an urgent, dangerous situation that few have experienced first-hand. We will always need armed police officers, and some harm will be unavoidable despite their training, skill, and experience. But consider how much worse the situation on the crowded streets of New York might have been if several civilians, without the officers’ training but carrying firearms lawfully, had tried to help with their own firearms.

Unless the Supreme Court is prepared to embrace the view attributed to it by the panel majority, that the Second Amendment right to bear arms does not depend on “casualty counts,” 702 F.3d at 939, we should not assume that the logic of Heller extends naturally and without qualification to firearms in public.

- Posted by Rich Miller        

  1. - Anonymour - Friday, Feb 22, 13 @ 9:16 am:

    The vote was 6-4. The opinion is up on the Seventh Circuit website. Moore v. Madigan,

  2. - Sgtstu - Friday, Feb 22, 13 @ 9:20 am:

    I went to the link, thank you. What is the case number ?

  3. - Oswego Willy - Friday, Feb 22, 13 @ 9:21 am:

    The Attorney General’s Office needs SA Alverez to be the one to litigate this in front of the SCOTUS.

    Wonder how telling them that the next step is to ignore court orders, especially if the Supremes rule against her?

    Alverez - “It is my opinion, Justices, we can, and should, just ignore all these ruling in Illinois…”

    That would be delicious.

  4. - Cyber - Friday, Feb 22, 13 @ 9:22 am:

    Honestly, I thought I would never see Concealed Carry in Illinois in my lifetime. Thanks to all those who worked so hard for this: ISRA, Valinda, Todd, et. al.

  5. - Anonymous - Friday, Feb 22, 13 @ 9:29 am:

    The four more liberal judges dissented.

  6. - OneMan - Friday, Feb 22, 13 @ 9:31 am:

    Since Anita’s dude assured us the feds can be ignored on this, why worry…

  7. - Anon - Friday, Feb 22, 13 @ 9:31 am:

    I wish that commenter who was so avidly confident in the en banc challenge would step up here.

    This has got to be game over… Not going to go to the supremes, and Alvarez seems to be standing on shaky ground, alone.

  8. - John Jacob Jingleheimer Schmidt - Friday, Feb 22, 13 @ 9:31 am:

    Will Lisa take defeat and step to the side?

    Not likely. She won’t let us down, this will go all the way to SCOTUS and knock down NY, NJ, and CA too.

  9. - mjrothjr - Friday, Feb 22, 13 @ 9:31 am:

    This ought to make the hearing in Chicago more interesting today. Anyone know if it will be live on the internet?

  10. - benji - Friday, Feb 22, 13 @ 9:32 am:


  11. - Anonymous - Friday, Feb 22, 13 @ 9:33 am:

    She will waste more tax payer dollars

  12. - Esquire - Friday, Feb 22, 13 @ 9:35 am:

    With respect to Judge David F. Hamilton and his three colleagues, get a clue!

    The dissent refers to the case bearing on the rights of citizens in Illinois, Indiana and Wisconsin to carry concealed weapons. No, it doesn’t.

    Indiana and Wisconsin legislators have already authorized forms of concealed carry permits. Illinois stands alone among the fifty states in refusing to issue such permits to its citizens.

  13. - capncrunch - Friday, Feb 22, 13 @ 9:46 am:

    “…consider how much worse the situation on the crowded streets of New York might have been if…”

    Alternate history is a genre for fiction writers, not judges.

  14. - Fred - Friday, Feb 22, 13 @ 9:46 am:

    Anyone know of data regarding how many incidents there have been in conceal carry states where in self defense a conceal carry permit holder shot bystanders? While the dissenting opinion is passionate, is there a basis in reality?

  15. - wordslinger - Friday, Feb 22, 13 @ 9:54 am:

    5-4, 2-1, 6-4… I’m starting to think judges are divided on this issue.

  16. - John Jacob Jingleheimer Schmidt - Friday, Feb 22, 13 @ 9:54 am:

    CCW holders tend to be practiced. They also tend to be on the scene as a situation develops, rather than arrive on the hot scene in progress, which is a handicap facing the LEOs.

    Thus, if there are numbers to back this up, and I think that there are…
    that CCW holders involved in a shooting would have a lower percentage of taking out a bystander than would LEOs involved in a shooting.

  17. - Verbal Kint - Friday, Feb 22, 13 @ 9:55 am:

    Fred, that’s a good question. You would think if there were examples, the dissenters opinion would have referenced them instead of the hypothetical New York situation.

  18. - Fan - Friday, Feb 22, 13 @ 9:58 am:

    Im with Fred. Let’s see some facts about bystanders getting shot by accident. Is this the best example the dissenting judge could come up with? We’re the police officers supposed to hold their return fire waiting for bystanders to get out of the way, all the while hoping they don’t get shot? Put the responsibility where it belongs, the bad guy caused this, not the police.

  19. - Logic not emotion - Friday, Feb 22, 13 @ 10:02 am:

    As a strong second amendment supporter, I applaud this decision and believe it to be the correct one.

    Now I’m in a quandry. Do I hope that Illinois appeals to SCOTUS so the issue can be resolved nationwide with “may issue” eliminated or do I hope that the Illinois legislature finally appropriately recognizes the second amendment and passes “shall issue with preemption” legislation?

  20. - Ahoy! - Friday, Feb 22, 13 @ 10:03 am:

    The Court has made their decision, now let them enforce it.

    Of course the court is divided and it’s probably along party lines. I’m surprised we have a judicial system that does needs a majority for an en banc rehearing. I believe it only takes 3 judges at the Supreme Court to allow for a hearing, we should move toward that kind of system. For them to shut out a rehearing is wrong headed.

  21. - wordslinger - Friday, Feb 22, 13 @ 10:05 am:

    The practice of the Supremes is four justices for cert.

  22. - Skeeter - Friday, Feb 22, 13 @ 10:06 am:

    I expected that result.

    Lisa should never have bothered with that step. A waste of resources with little chance of success.

    I don’t see the Supreme Court taking this one. Is there a split among the circuits that I am not aware of? They may take it, but I doubt it.

  23. - Esquire - Friday, Feb 22, 13 @ 10:09 am:


    Not so sure, the 7th Circuit Court of Appeals vote to deny an en banc hearing was decided along party lines. Judge Rovner was an ally of Jim Thompson and is presumed to be a nominal Republican. She voted to join the dissent.

    In the US Supreme Court, it takes a minimum of four votes to approve a petition for a writ of certiorari.

    I am not confident enough to wager if the US Supremes will accept or reject the case. The Court has done several gun cases in recent years. Sometimes, they do not want to revisit familiar topics so frequently during a short period of time.

  24. - mid-level - Friday, Feb 22, 13 @ 10:13 am:

    I find it strange that judges, who are suppose to dispassionately interpret and uphold the constitution, are so often divided down party lines.

    Do they read the same words with ideology filtered spectacles?

  25. - SirLankselot - Friday, Feb 22, 13 @ 10:16 am:

    I don’t see why the U.S. Supreme Court would take up this case; nothing in it would elaborate on previous C&C rulings.

  26. - Todd - Friday, Feb 22, 13 @ 10:22 am:

    There is a split amoungst the circuits

  27. - D P Gumby - Friday, Feb 22, 13 @ 10:22 am:

    If 5-4, 2-1, 6-4 means “game over” why are you still fighting about Roe v. Wade (7-2)?

  28. - Original Rambler - Friday, Feb 22, 13 @ 10:22 am:

    Fan 9:58

    As to your second question, a resounding yes. You seem to be indicating that its OK for police to shoot through innocents to get the bad guy. Wow! I hope your not a LEO and I really hope that’s not what’s being taught at the academy.

  29. - 332bill - Friday, Feb 22, 13 @ 10:23 am:

    For those of you worried about being hit by a stray bullet from a CCW permit holder, maybe you should read this analysis about the efficiency of police officers in combat situations. In essence, police officers were found to hit the target only 25% of the time in close-range combat. I am not saying a CCW permit holder will be any better, just that officers are not as good as everyone thinks either.

  30. - wordslinger - Friday, Feb 22, 13 @ 10:24 am:

    DP, when did they stop fighting Roe?

  31. - Skeeter - Friday, Feb 22, 13 @ 10:24 am:

    Really Todd? Which court said no to CC?

  32. - RSW - Friday, Feb 22, 13 @ 10:31 am:

    The opinion is only binding in &th Circuit. I beleive most, if not all, states covered by 7th Circuit have concelaed carry laws so there is really no policy reason for Supreme Court to take case.

  33. - John Jacob Jingleheimer Schmidt - Friday, Feb 22, 13 @ 10:35 am:

    NJ, NYC, HI, and big swaths of CA have CCW in name only. The right CCW case in SCOTUS would be a wonderful thing.

  34. - Todd - Friday, Feb 22, 13 @ 10:53 am:

    2nd in kakchinsky (sp) they said no right good cause permissible

    Wollard in the 4th was won at trial on the same issue now up on appeal expect to loose it.

    The 2 also had another case two years ago saying no right outside the home so there is a split.

    I’m at a hearing in chicago

  35. - Anonymous - Friday, Feb 22, 13 @ 11:00 am:


    None have said no but the different Circuits have varied on the rights part. I am trying to remember but NY state law was upheld to demand a “Need” while Maryland’s demand for a “Need” was kicked out. As i remember please take it with a gain of salt as to specifics but that is the end result as i understand.

    Anyone want to bet that Alvarez’s office DIDN’T know this was coming? I think that is why they had that moronic comment on tuesday.

    As for Madigan Appealing to the Supremes. I doubt it. It would look bad to lose again right before the primary. As well as i am pretty sure those May Issue states do not want this upheld by the Supremes. Look at how much Bloomberg spent in CD2 he has some influence. I think he’d have a heart Attack if NYC were forced to live under this.

  36. - Mason born - Friday, Feb 22, 13 @ 11:13 am:

    sorry Anonymous there was me skipped fundamentals.

  37. - B - Friday, Feb 22, 13 @ 11:23 am:

    As Todd says, there is clearly a circuit split. I think many people thought that the 7th decision had some language that went out beyond even some of Scalia’s language in Heller/McDonald. And the en banc decision clearly notes that Moore “presents issues very different” from those in Heller/McDonald.

    I think its very likely that the case will be appealed and cert granted and the Daley strategy on guns of endless litigation coupled with broad restrictions that they fully expect to be challenged will continue by Illinois and Chicago. And based on the recent Simon poll, by continuing to fight against concealed carry Madigan and Emanuel would be doing their job as the poll results indicate a majority of Illinoisans and Chicagoans likely don’t support concealed carry.

  38. - Jeeper - Friday, Feb 22, 13 @ 11:36 am:

    The 7CA dissent saying ==… but also confident that the rights do not extend to all the arms that a modern militia might need== -seems- to me (IANAL) to contradict US v Miller (1939). That decision upheld Miller’s conviction for transporting a short barreled shotgun (a gun banned by the NFA) specifically because it was -not- suitable for military use and, for that reason, not suited for -militia- use, either, and so, not protected by 2A.

    From the decision:
    In the absence of any evidence tending to show that possession or use of a “shotgun having a barrel of less than eighteen inches in length” at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment, or that its use could contribute to the common defense. Aymette v. State, 2 Humphreys (Tenn.) 154, 158.

    That would imply the dissenter in this case is wrong: the Court appears to have recognized 2A as guaranteeing a right to specifically military weapons, not some crippled look-alike, in Miller.

    Granted, the current case directly involves pistols rather than long guns of any description, but the reasoning had to do with militia weapons based on currently used military weapons. Would a full size Beretta 9mm be OK but a compact version -not- be OK?

    This will be interesting.

  39. - dupage dan - Friday, Feb 22, 13 @ 11:39 am:

    So, for AG Madigan, it’s bascially been an up day?

    For the AG, there is little to lose by moving up to the Supremes. If they decline, she will be able to say she did her best. If not, she gets another shot at making her point. If she loses there she can still say she gave it her best shot. Since alot of her strength comes from the Chicago folks I don’t think she will be seen as weak - more like a stalwart vanquished warrior.

  40. - Jeeper - Friday, Feb 22, 13 @ 11:43 am:

    DPD: Absolutely. There is very little downside to this for Lisa IF she appeals. There is more downside potential to -not- appealing than there is in losing in the end.

  41. - Mason born - Friday, Feb 22, 13 @ 11:44 am:


    I think there is a will to appeal from Emanuel and Madigan but i think the timing is off for them. If the majority on the Supremes had changed i would agree with you. I think if Obama, who has stated opposition to carry, gets to replace one of the 5 from heller then i think they would be panting to appeal. However do they risk having it affirmed right now? Could they wait a few years until court changes then try to restrict the heck out of it until they are sued and push that one to supremes? i don’t know?

  42. - Fan - Friday, Feb 22, 13 @ 11:52 am:

    @Rambler- I never said shooting through the bystanders, that would be pretty dumb. My understanding was the people that were hit we’re in the background. So, your still ok with the perp being about 8 feet away, actively firing at the police, and the police were not to engage an active shooter, as there might possibly be a bystander in the background? Your law enforcement career would probably end very soon if you adopt that idea.

  43. - T.O. - Friday, Feb 22, 13 @ 12:07 pm:

    Anyone who can put 25% of their shots on target while being shot at is doing an outstanding job.

  44. - Todd - Friday, Feb 22, 13 @ 12:23 pm:

    Today the 10th circuit issued an opinion in Peterson, that said there was no right to bear arms outside the home.

    So there is afurther split. Please Lisa, please appeal…….

  45. - BleugrassBoy - Friday, Feb 22, 13 @ 12:30 pm:

    This request for a full hearing was just a delaying tactic by AG Madigan. Even if she and the Chicago Dems got the full hearing (or even if they try to take this fight to SCOTUS) they know they are going to lose this one.

  46. - Jeeper - Friday, Feb 22, 13 @ 12:37 pm:

    Todd: Agree; hope she appeals.

    BUT, the differing appealate decisions will likely induce SCOTUS to take the case without need for her to appeal.

    So, it might look better for her political future to appeal and be seen as the “stalwart vanquished warrior” (as DPD worded it) rather than let someone else carry on the fight.

  47. - Skeeter - Friday, Feb 22, 13 @ 12:39 pm:

    That’s an interesting theory.
    What exactly was she trying to delay? Judge Posner stayed his decision regardless of any additional request.

  48. - Jeeper - Friday, Feb 22, 13 @ 12:39 pm:

    OK; I kant spel…


  49. - wordslinger - Friday, Feb 22, 13 @ 1:13 pm:

    –Granted, the current case directly involves pistols rather than long guns of any description, but the reasoning had to do with militia weapons based on currently used military weapons. Would a full size Beretta 9mm be OK but a compact version -not- be OK?–

    Justice Scalia has said in recent public forums that he anticipates upcoming cases in which the court will be legislating, um, ruling, on what weapons are covered under the 2nd Amendment.

  50. - rick carter - Friday, Feb 22, 13 @ 1:14 pm:

    i still say those innocent bystanders not as many would have been shot if police had revolvers when is the spray and pray with a automatic in the best instest of the public

  51. - Original Rambler - Friday, Feb 22, 13 @ 1:42 pm:


    In your original post you said “get out of the way” which to me indicated the bystanders were IN the way, i.e. in the line of fire. I don’t know the facts of the cited case but for bystanders in the background it would be a judgment call by the LEO. If in your latest scenario there is a crowd of people directly behind the bad guy, then the LEO needs to withhold fire, even at the risk of his or her own life, until safe to do so. If the LEO is unaware of bystanders behind the bad guy, then it seems appropriate for him or her to fire away.

    I was more at issue with your first scenario and it seems like we’re in agreement. I don’t want to go overboard with variations of this scenario; I need to get some work done today!

  52. - Just The Way It Is One - Friday, Feb 22, 13 @ 1:46 pm:

    Ooh…6-4 or no, with all of the hype, both State-wide and NATionally, this is a brutal loss, at present, for Lisa and her reputation. A LOT of people in Chicagoland, where A LOT of voters oppose conceal-carry, will not be pleased with her inability to pull this one out. And this widely-heralded public defeat sure won’t help her cause while she is pondering her future as remaining AG, let alone “higher” Office–if folks conclude she can’t get it done AS the AG on such a critical, hot-button-political topic, they could doubt her competence in addressing the much LARger and multiplicity of far more complex matters in a “higher” position.

    And if she lost in front of the U.S. SuPREME Court (and good luck there on THIS particular issue, Illinois being the only “odd man out” at the party of enforcement of 2nd Amendent rights), that surely TOO would stand out even FAR more so, methinks, as one UGly Eye sore/mangled and severely ruffled feather in her cap if she considered pursuit of a higher post…yet succeeding there could also be perceived as notable…but how this plays out and what she decides to do NOW WILL inDEED be interesting…

Sorry, comments for this post are now closed.

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