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Federal court hearing today on the right to carry a gun in Illinois

Thursday, Aug 4, 2011

* We should probably keep a close eye on these two cases

Gun-rights advocates claim that Illinois is violating the Second Amendment by prohibiting Illinois residents from being able to, in some fashion, carry a firearm in public. A hearing on one such case, in which Michael Moore, of Champaign, and the Second Amendment Foundation Inc., a gun-rights advocacy group, are suing Illinois Attorney General Lisa Madigan’s office and the state of Illinois, is scheduled Thursday in the U.S. District Court in Springfield. […]

Madigan’s office argues in court filings that the state is following constitutional law, because a person isn’t outlawed from owning a firearm, just limited in the manner he can wield it.

A nearly identical lawsuit with nearly identical arguments is unfolding in a U.S. District Court in southern Illinois. The Illinois State Rifle Association, or ISRA, a group dedicated to furthering firearm rights and affiliated with the National Rifle Association, or NRA, is backing both cases but is only a plaintiff in the southern Illinois instance. […]

“We have a very strong case,” Todd Vandermyde, a NRA lobbyist, said. “When you look at some of the briefs that have been filed by the state and attorney general and some of the arguments they are trying to make, I think it is clear they are very, very nervous.”

Vandermyde specifically pointed to an argument made Madigan’s office that since the state doesn’t outlaw openly carrying a loaded gun outside of cities, towns and other incorporated parts of counties, there is not full scale prohibition.

“The laws being challenged here are reasonable measures to ensure public safety and do not violate the constitution,” said Maura Possley, a spokeswoman for Madigan.

* From the second lawsuit mentioned above

Illinois’s 720 ILCS 5/24-1 (the “Unlawful Use of Weapons” law) and 720 ILCS 5/24-1.6 (the “Aggravated Unlawful Use of a Weapon” law) constitute a complete ban on the public carrying of firearms by law abiding citizens otherwise qualified to possess them in Illinois.

The effect of the Unlawful and Aggravated Unlawful Use of a Weapon law (the “Weapons Laws”) is, at a bare minimum, a plain violation of Plaintiffs’ Second Amendment rights.

The harmful effects of this ban are severe, and its immediate forestallment imperative. As a result of the Weapons Laws, 69-year-old Mary Shepard was unarmed when working at the First Baptist Church in Anna, Illinois on September 28, 2009. At 3:00 p.m., an attacker broke in to the church, beat Mrs. Shepard and another elderly woman nearly to death, and left them bleeding. Mrs. Shepard sustained four skull fractures, fractures of both cheeks, shattered teeth, a concussion, crushed vertebrae, two torn rotator cuffs, and a mangled arm. She has lost the hearing in her left ear, and now suffers blinding recurrent headaches.

Mrs. Shepard has a valid Illinois Firearms Owner Identification Card and has no criminal record. She has completed five safety and self-defense training courses. Although Mrs. Shepard is licensed in two other states to do so, she was not carrying a handgun on her person on the afternoon of the attack. Forty-nine states recognize some form of self-defense carriage; Illinois alone recognizes no form of self-defense carriage.

The other suit is nearly identical, except for certain facts involving the plaintiff.

As always, try your very best to avoid bumper-sticker slogans and drive-by comments on this topic. We’ve all heard your one-liners before. There’s no need to repeat yourselves. Violators will be deleted and possibly banned.

* In other gun-related news, Gov. Pat Quinn signed a bill into law earlier this week

Under the law, signed Tuesday, felons convicted of unlawful use or possession of a weapon face two to 10 years behind bars.

Additional violations by felons caught with guns while on parole or supervised release will carry a sentence of three to 14 years in prison.

Quinn was asked yesterday whether the new law would lead to even more overcrowded prisons. The governor side-stepped the question, saying laws have to be enforced. Listen…

- Posted by Rich Miller        

42 Comments
  1. - Bigtwich - Thursday, Aug 4, 11 @ 7:08 am:

    Looking at the Statutes cited, I do not see that Ms Shepard was prohibited from having a gun at the church if the church permitted it. If that prohibition is there, I am missing it.


  2. - Man in the Middle - Thursday, Aug 4, 11 @ 7:30 am:

    What I find most convincing about allowing concealed carry is how it could help potential victims, such as the woman in our office who is often alone for the last two hours of the afternoon, with only one exit, in a neighborhood that suffers weekly if not daily muggings. It really bothers me that where that office is located, she isn’t even legally allowed to carry pepper spray or a knife with a blade longer than 2 inches to defend herself.


  3. - the Patriot - Thursday, Aug 4, 11 @ 7:56 am:

    Ms. Shepard could carry a gun at her “regular place of business” under IL law. The problem is you can’t carry it from your car to your office without putting it in a case. People still get charged for having a gun at work even though it is allowed under IL law.

    I like that we now have a clear case to show the people that Lisa Madigan is anit gun. What the sad part is you have an AG who is clearly in line with her father and the chicago Mayors who refuse to provide adequate protection to the people, but don’t want the people to protect themselves. You cannot look at the crime stats and make a colorable argument that gun control works.

    The police are far out numbered by gun carrying criminals. The only way to turn around crime, especially in cities, is to put guns in the hands of citizens(with training) and allow them to even the odds. It is exactly what the founding fathers meant about a well armed militia. To protect against armies foreign and domestic.


  4. - How Ironic - Thursday, Aug 4, 11 @ 8:27 am:

    I am hopeful the law changes in Il. This change is long overdue.


  5. - B - Thursday, Aug 4, 11 @ 8:59 am:

    Have people heard WBEZ’s reports on comparison of gun laws and murder rates in Chicago & Toronto this week? The reports raise serious questions to which it seems there are limited answers. Here’s location for the story:
    http://www.wbez.org/series/under-gun-murder-chicago-and-toronto


  6. - MS - Thursday, Aug 4, 11 @ 9:15 am:

    B

    You’re comparing apples to oranges. Canada has an almost complete ban on all handguns. You can only own a rifle in Canada. Why not compare Chicago to Paris or Chicago to London? Whats the point? It’s different countries!


  7. - OneMan - Thursday, Aug 4, 11 @ 9:18 am:

    Bigwich –
    Perhaps because she would have had to unload it, case it, put it in her trunk, drive to church then reverse the process and carry it in with her.

    Unless of course she was walking then as I understand the law in Illinois would have had to unload it, have had the ammo already at church (because I don’t think you can walk with a gun and ammo on your person at the same time in a public way in general) the load it at church.

    Anytime there is something every state allows but one, it strikes me as a bit strange, bet it carry in Illinois or some state in the south that does not allow the sale of some ‘massage devices’

    There are finite limits you can put on any right. The question is, are Illinois’ limits with that realm and if so, then can the same argument be made for rights that other states don’t like?


  8. - Logic not emotion - Thursday, Aug 4, 11 @ 9:27 am:

    Our political / legal system prevents Ms Shepard and others from being able to legally carry an effective defensive tool for protection. It does so in an environment where the same system routinely pleads violent offenders down to misdemeanors and probation to avoid the court and incarceration costs. The system then releases convicts early while touting new gun laws requiring longer sentences as the answer.

    The state of Illinois has earned the distinction as “the most broke state in the nation”. It is far from the best on many other rankings. Vendors / providers are waiting months for payment. Yet, top state officials choose to waste precious resources fighting to continue denying its citizens the ability to effectively protect themselves instead of supporting their ability to do so while receiving millions of dollars in fees for permits that could be used to improve the public safety infrastructure.

    It does this even though many of the law enforcement associations have came out in open support of allowing citizens to legally carry firearms and many states are reducing their carry restrictions even further.

    Some argue that political / legal system in Illinois could be improved… I understand how they might think that.

    I wish the plaintiffs well and extend to them my appreciation.


  9. - amalia - Thursday, Aug 4, 11 @ 10:17 am:

    oh goody! can we look forward to guns at a Joe Walsh rally?


  10. - reformer - Thursday, Aug 4, 11 @ 10:27 am:

    The NRA touts the landmark Heller decision, which struck down DC’s handgun ban.

    In the majority decision of that case, Justice Scalia writes, “The Second Amendment right is not unlimited…It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues.”
    If the NRA wins their lawsuit, wouldn’t that overturn part of Heller?


  11. - Mongo - Thursday, Aug 4, 11 @ 10:30 am:

    I lean towards the well-regulated civilian militia interpretation of the Second Amendment, and I doubt Mrs. Shepard is a member of the militia. It seems silly to think that owning a gun is an individual right that cannot be regulated.

    A heinous crime indeed, but just sensationalism by the plaintiff.

    That said, things change. I like living in a state where I know the guy passing me on I-90 isn’t armed. But if it changes, it changes. I would probably concede qualified handgun ownership and possession, but not automatic weapons.

    Like most issues, most of the people I know don’t think much about this. The debate is driven by 2 or 3% at both ends of the spectrum.

    Everyone deserves their day in court so I too wish the plaintiff’s luck. I also hope the AG does their darndest to win on the merits.


  12. - Six Degrees of Separation - Thursday, Aug 4, 11 @ 10:33 am:

    I like living in a state where I know the guy passing me on I-90 isn’t armed

    Someday, I hope to have your sense of confidence and X-Ray Vision.


  13. - OneMan - Thursday, Aug 4, 11 @ 10:40 am:

    Reformer

    The Second Amendment right is not unlimited…It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues.”

    The thing is, I think in Illinois you can’t even open carry. Also I don’t think the question has been asked lately of the court.


  14. - B - Thursday, Aug 4, 11 @ 10:47 am:

    MS, I think that you’ve accidentally highlighted one of the key take-aways from the WBEZ series: why do two cities with the same population and a day’s drive from each other have such drastically different murder rates? could it be the strict gun laws in one city and the lax regulation of guns in the other?


  15. - Retired Non-Union Guy - Thursday, Aug 4, 11 @ 11:00 am:

    Mongo,

    Some facts:

    Heller and McDonald affirmed it is an individual right. It can be regulated but the regulations have to be reasonable. The follow-up to Heller in DC made it clear that even the “revised” DC rules were not considered reasonable … and the “revised” DC rules were, in some ways, less restrictive than Illinois / Chicago law.

    Automatic weapons, i.e. fully automatic, are already prohibited by federal law (since 1934 if memory serves) unless you happen to be a federally licensed dealer or one of the law enforcement / armed forces exceptions.

    In my personal experience, there are quite a few what most people would consider law abiding citizens who are already walking around with concealed handguns. They are licensed to do so in other states and are willing to take their chances with the Illinois legal system but not with the potential criminals on the street with them.

    The problem with the Illinois law is it doesn’t trust anyone to be responsible. For example, until a couple of years ago when the law was changed, even police officers that we trusted to carry a gun (usually at least two, a service gun and a concealed backup gun) 24/7 could no longer carry a firearm upon retirement. If you couldn’t trust a retired cop to act responsibly, who will you trust?

    In a nutshell, that’s the problem with the current law …


  16. - Cincinnatus - Thursday, Aug 4, 11 @ 12:04 pm:

    There are two very interesting components in this thread, one illustrating the wrong way to deal with guns (illegal carry) and one showing the right way (punishment for illegal use of guns).


  17. - Ghost - Thursday, Aug 4, 11 @ 12:12 pm:

    Not to delve to deep in the legal and emotional fireball of the issue, I think IL problem is its adamant refusal to regualte.

    i.e. pass a conceal carry with profficency and other requirements instead of rufusing to develope a regulation.

    Heck with todays technology to laser etch you could require anyone wit a conceal carry to only load bullets eteched with an id number traceable to them….you need a high score on vice city or whatever rules they want in place.

    Heck you can get automatic weapons in the us if you jump through al the hoops…but those hoops are not easy or cheap.

    We charge 4k for a liquor license in cook county…. 10k for a ocnceal carry? :)


  18. - Cook County Commoner - Thursday, Aug 4, 11 @ 12:57 pm:

    I suspect that if Toronto and Canada abolished their restrictive gun laws, the violent crime differential between Chicago and Toronto would remain the same. There’s something going on in our nation softening the natural human adversion to engage in violence on our fellows. Economics? Dysfunctional families? Media violence? I don’t know. But I don’t think ease of purchasing a firearm has much to do with it.


  19. - Farker - Thursday, Aug 4, 11 @ 12:59 pm:

    CC is coming in IL. It’s only a question of how soon and how it will be regulated. What happened in Wisconsin is a perfect example. While they didn’t have concealed carry until recently they did have open carry. Open carry didn’t require a permit or training or background investigation, the only stipulation was no carrying while in a vehicle. Of course this isn’t the case anymore since they recently passed CC.

    So my question is what happens in IL? You can’t open carry and you can’t conceal carry. So would you rather have open carry with no requirements for training or background checks or would you rather have CC with training and checks and reasonable restrictions and revenue generated from licensing of permits?

    All we want is some form of what every state in the union besides us now enjoys.


  20. - Oberon - Thursday, Aug 4, 11 @ 1:05 pm:

    Mrs, Shepard was not a member of the militia at the time, due only to her age.

    “20 ILCS 1805/1) (from Ch. 129, par. 220.01)
    Sec. 1. All able‑bodied citizens of this State and all other able‑bodied residents in this State who have declared their intention to become citizens of the United States, between the ages of 18 and 45, except such as are expressly exempted by the laws of the United States and the State of Illinois, shall be subject to military duty and designated as the Illinois State Militia.”


  21. - the Patriot - Thursday, Aug 4, 11 @ 1:17 pm:

    I was actually referring to the inention of the framers of the US Constitution who believed the best way to ensure the safety of its citizens was for citizens to have guns. I know Mike Madigan and Pat Quinn are better statesman than Washington, Jefferson, Adams, and Madison, but those guys had a few ok ideas.


  22. - titan - Thursday, Aug 4, 11 @ 1:33 pm:

    Mongo - I don’t think you’d be happy with the “militia” interpretation.

    The “militia” at the time was every able bodied male from ages 16 to 60.

    I am not sure I’d want 16 year olds being any better armed than they are now in Chicago.


  23. - Benny - Thursday, Aug 4, 11 @ 1:39 pm:

    Ghost, would you be willing to pay that much to exercise your First Amendment Rights? How about $10K library cards for the kids?


  24. - titan - Thursday, Aug 4, 11 @ 1:40 pm:

    Well, I see that the state has already culled the 16 year olds from the militia, and opened it to women!


  25. - OneMan - Thursday, Aug 4, 11 @ 1:44 pm:

    Or how about a punitive tax on some medical procedures, you cool with that too?


  26. - B - Thursday, Aug 4, 11 @ 1:59 pm:

    To CCC,
    You are surely right that there are many factors that contribute to the much higher murder & gun violence rates in the U.S. compared to nearly every other Western democracy. But the factors you’ve listed, and most others, are much more difficult to address with legislation than a person’s access to firearms.


  27. - Logic not emotion - Thursday, Aug 4, 11 @ 2:01 pm:

    “I like living in a state where I know the guy passing me on I-90 isn’t armed.”

    No offense; but reality and perceived reality are often far different and denial is the first part of some processes. Perception may be that the guy isn’t armed. Reality may be that he’s a drug dealer armed to the teeth. We know drugs are transported and we know that violent people who ignore gun laws exist. Those are facts. It is also a fact that Illinois laws prevent most law abiding citizens from having an effective means to defend themselves from those people. These cases will hopefully change that.


  28. - Ghost - Thursday, Aug 4, 11 @ 2:50 pm:

    Benny I would be willing to pay 10k for my kids to have concela carry.

    Library cards are non lethal. I paid .25 for my coffee this morning, that doesnt mean I think all liquorlicenses should go for .25 either.

    Under the work comp commission a humna being is worth 500 weeks times the wadge cap. Perhaps we should set the license fee at 50k, the value of a worker killed at work…

    Do you not beleive in a capatilist economy? supply and demand. We are not communists who give away things for free when we can charge for them.

    Heck the casino licneses will go for well over 100k, lets use that figure if we want to chase donw the rabbit of comparison to other things.


  29. - Cincinnatus - Thursday, Aug 4, 11 @ 3:37 pm:

    Ghost,

    Using your logic we should reinstitute the poll tax. You believe Constitutional rights should be charged for…


  30. - Small Town Liberal - Thursday, Aug 4, 11 @ 3:41 pm:

    - You believe Constitutional rights should be charged for… -

    Cinci, if you haven’t realized by now that constitutional rights can be regulated, and those regulations can require licensing that costs money, then you’re on the wrong blog.


  31. - Todd - Thursday, Aug 4, 11 @ 4:34 pm:

    In the majority decision of that case, Justice Scalia writes, “The Second Amendment right is not unlimited…It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues.”
    If the NRA wins their lawsuit, wouldn’t that overturn part of Heller?

    Reformer –

    You are are correct that it is not an unlimited right. We never said it was, but note what the Heller Court said; Any weapon, in Any manner. They could limit the types of weapons carried how they may be carried or even where. Time, place and manner restrictions that we see with the First Amendment all the time.

    Heller’s reference to concealed carry bans, were in the context that they were upheld because there was the ability to carry openly. The Court cited State v. Reid as an example of this. Which states:

    “But the court say that it is a matter which will not admit of legislative regulation, and in order to test the correctness of its opinion, supposes one Legislature to prohibit the bearing arms secretly, and a subsequent Legislature to enact a law against bearing them openly; and then asks the question, whether the first, or last enactment would be unconstitutional. Under the provision of our constitution, we incline to the opinion that the Legislature cannot inhibit the citizen from bearing arms openly, because it authorizes him to bear them for the purposes of defending himself and the State, and it is only when carried openly, that they can be efficiently used for defence.

    In respect to the two prohibitory enactments supposed by the court of Appeals of Kentucky, we should be disposed to think, if either one, when standing alone, would be constitutional, that the last would be regarded as an expression of the will of the Legislature when enacted, and as it could not operate in harmony with the first, would by implication, repeal it. This view, we think, accords with the decision of the supreme court of the United States, in Sturges v. Crowninshield”

    Illinois is the ONLY state that does not have a mechanism that allows citizens to carry a firearm for self defense. That is what the Reid gets to and was cited by the Court.

    Opponents like to cherry pick the parts of Heller that they think will make their case, without looking at the context or rulings cited by the Court.

    And to answer the question, this would not be overturning Heller, it would be following the guidelines of Heller.

    Mongo—

    The notion of the militia was dealt with and dispensed with in Heller.

    “The Second Amendment is naturally divided into two parts: its prefatory clause and its operative clause. The former does not limit the latter grammatically, but rather announces a purpose.”

    And

    “But apart from that clarifying function, a prefatory clause does not limit or expand the scope of the operative clause.”

    So like it or not, the state run militia being the only people who can have guns argument was discarded in the dustbin of constitutional law in 2008.


  32. - Rich Miller - Thursday, Aug 4, 11 @ 4:38 pm:

    ===We never said it was===

    That’s correct. The problem is with many of your followers.


  33. - Mongo - Thursday, Aug 4, 11 @ 4:43 pm:

    Oberon and Titan, thanks for the education. Nice to be wrong again!

    As to Retired Non-Union Guy, I said I lean towards the militia position, not that the courts do. Courts have been, and will continue to be, wrong on some issues or cases.

    Finally, to Six Degrees and others, aaahh to have x-ray vision. I misspoke…it is my perception that the guy passing me on I-90 is not packin’…


  34. - Todd - Thursday, Aug 4, 11 @ 4:58 pm:

    Nice to know your paying attention to me Rich…

    Yes I understand that some only read the words, “shall not be infringed” But that is not how the Court is going to proceed.

    I would not be surprised if the Court did not issue an injunction, I think she knows she has a political hot patato in her lap and wants to get it out of there.

    She indicated she probably could not get a ruling out tommorow, but I would not be surprised to see one next week. Either way it’s gonna get appealed.


  35. - Rich Miller - Thursday, Aug 4, 11 @ 4:59 pm:

    Todd, I always pay attention to you.


  36. - wishbone - Thursday, Aug 4, 11 @ 5:44 pm:

    Every time that gun rights have been extended for responsible citizens anti gun activists have predicted Armageddon and it never happens. Illinois is now the only state that prohibits concealed carry and as a Democrat I know how much harm this issue has done to my party.


  37. - railrat - Thursday, Aug 4, 11 @ 6:03 pm:

    wishbone! smart!!!! pass your thoughts on to harry osterman, mayor rahmster etal. the outcome will be worse than they had the option of during session!! dumb da dumb dumb


  38. - Dibby - Thursday, Aug 4, 11 @ 6:27 pm:

    Mongo - our founding fathers leaned that way, that’s why it was included.


  39. - Bigtwich - Thursday, Aug 4, 11 @ 6:32 pm:

    I go with the intentions of the founders. If people want to carry unrifled muzzle loaders, I have no objection.


  40. - wishbone - Thursday, Aug 4, 11 @ 7:31 pm:

    “If people want to carry unrifled muzzle loaders, I have no objection.”

    Sure, and freedom of the press only applies to hand operated presses and, of course, no freedom of speech on the internet.


  41. - wordslinger - Thursday, Aug 4, 11 @ 11:31 pm:

    Sigh. I don’t understand much about the conceal carry “debate.” But in regards to the crimes against Ms. Shepard I’ll remind those who were pushing the Phelps bill last year, it prohibited conceal carry in:

    –A church or other place of religious worship.–

    Anecdotal evidence is red meat for the yabbos on the political spectrum, but we try to raise the bar in debate here. For example, a conceal carry opponent could point out the random crimes committed in this big country by lawful conceal-carry permit holders. Check it out.

    http://www.vpc.org/ccwkillers.htm

    If the argument for conceal carry is that it was original intent of the founders, you’re wrong. As any fan of Westerns knows, local ordinances forbidding carrying firearms are as old as the Republic.

    If the argument for conceal carry is that the Constitution is evolving, well, then have at it.

    As things stand now, if the Illinois cases ever get to The Supremes, your “rights” are whatever Justice Kennedy will sign off on. He replaced Justice O’Connor as the “5″ in “5-4″ votes.


  42. - Cincinnatus - Friday, Aug 5, 11 @ 8:24 am:

    New Record:

    A Gun topic on CapitolFax with only 42 comments!


Sorry, comments for this post are now closed.


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