Capitol Fax.com - Your Illinois News Radar

It’s not that simple

Posted in:

Illinois

* From the AP…

Gov. Pat Quinn wants the state’s attorney general to appeal a federal court ruling that Illinois’ concealed carry ban is unconstitutional. An appeal would put the matter before the U.S. Supreme Court.

Illinois is the only state with such a ban. Quinn said Wednesday that an appeal is Illinois’ “only hope” of maintaining it. […]

Attorney General Lisa Madigan disagrees with Quinn. She told reporters Wednesday that she wants to see what lawmakers will do before considering an appeal.

This is being portrayed as a clear choice, so much so that I was considering making it a question of the day, but I decided to call the AG’s office first.

It turns out that by the time the US Supreme Court could do anything, even if Madigan files an appeal immediately (which she can’t reasonably do because these things take a bit of time and amicus briefs have to be solicited, etc.), the 180-day time limit decreed by the federal appellate court would have already expired, the AG’s office claims. And in the interim if the General Assembly passes a bill that becomes law, the case would be moot anyway.

Plus, there’s already an appeal to the top court of New York’s concealed carry law, which the US Supremes may take and Illinois could then possibly join.

* AG Madigan has, however, quietly filed a brief with the Illinois Supreme Court in a separate gun case which argues that the federal appellate court ruling was an “unsound decision,” is “plagued” with “infirmities,” uses references to previous US Supreme cases “out of context,” and commits a “failure to engage in an independent historical analysis.” The brief was sent to me by the NRA a few days ago and got lost in the usual session shuffle. From the filing…

(T)he majority opinion incorrectly marginalizes the significance of the extensive empirical evidence that supports a ban on the public carry of guns by arguing that Heller made clear “it wasn’t going to make the right to bear arms depend on casualty counts.” However, public safety was not a central concern in Heller where it involved the right to possess a gun for self-defense at home.

Neither defendant, nor the majority, dispute the fact that public safety is a relevant factor to be considered in evaluating the validity of public carry laws. Their position, though, disregards that fact that public safety, by definition, entails an assessment of whether the conduct sought to be regulated or banned places police officers and the public in general at risk of injury or death. As the dissent aptly recognized:

The Illinois statutes safeguard the core right to bear arms for self-defense in the home, as well as the carry of ready-to-use firearms on other private property when permitted by the owner, along with the corollary right to transport weapons from place to place.

Guns in public expose all nearby to risk, and the risk of accidental discharge or bad aim has lethal consequences. Allowing public carry of ready-to-use guns means that risk is borne by all in Illinois, including the vast majority of its citizens who choose not to have guns. The State of Illinois has a significant interest in maintaining the safety of its citizens and police officers.

The dissent, thus, properly found that the Illinois General Assembly “acted within its authority to conclude that its interest in reducing gun-related deaths and injuries would not be as effectively served through a licensing system,” and instead enacted a statutory scheme that prohibited most forms of public carry of ready-to-use guns. Accordingly, this Court should hold that the AUUW statute passes constitutional muster under any level of scrutiny.

* Madigan filed the brief with Cook County State’s Attorney Anita Alvarez, who made headlines recently when her aide claimed that the General Assembly wasn’t bound by a federal appellate court ruling. However, AG Madigan argues in the brief that the Illinois Supreme Court isn’t bound by the appellate ruling until the US Supreme Court weighs in…

This Court is not bound to the Moore/Shepard decision. It is well-settled that “[bjecause lower Federal courts exercise no appellate jurisdiction over State courts, decisions of lower Federal courts are not conclusive on State courts, except insofar as the decision of the lower Federal court may become the law of the case.” People v. Kokoraleis, 132 111. 2d 235, 293-294 (1989). This Court has recognized that “[ujntil the Supreme Court of the United States has spoken, State courts are not precluded from exercising their own judgments on Federal constitutional questions. Kokoraleis, citing United States ex rel. Lawrence v. Woods, 432 F.2d 1072 (7th Cir. 1979).

Accordingly, this Court should conduct an independent Second Amendment analysis in this case. Such an analysis establishes that Moore/Shepard was wrongly decided, and that it does not control the outcome of this Case.

Thoughts?

posted by Rich Miller
Wednesday, Mar 13, 13 @ 12:08 pm

Comments

She is correct that by the time they create a SCOTUS appeal and hear from SCOTUS whether they would take the case or not, the 180 days would have expired.

BUT, she is continuing to argue that this is a regulation based that is needed because of the health and wellbeing of citizens…

She sites that Posner said Heller was not about to make the decision about body counts, but ignores the section where he also states that there is little evidence that a licensed concealed carry would work any worse or be any worse than Illinois complete ban with regards death/injury by firearms.

She also is ignoring that Illinois is unique in its ban (also pointed out by Posner) of all forms of carry. California (until just recently) at least allowed open carry of an unloaded weapon, and used this to argue that you could bear arms, when people fraught their CCW licensing process.

She is fighting an uphill battle in a unique environment. When something is deemed a RIGHT (whether its guns or abortion) that essentially means the state can regulate something but not ban it. While there is no straight analogy here, saying “bear arms” means you can bear them in your home only constitutes a BAN. Listening to the State’s arguments on how the law is NOT A BAN just regulating where you can carry by saying no where expect your property property is like saying You can have an abortion, but no where in this state, or only in your kitchen…

Anyway, she in a tough spot and I be she knows that Illinois’ unusual ban has a terrible change at SCOTUS. NYC, may have a better chance.

BTW, Posner did NOT say Illinois must pass concealed carry. he said the state must allow persons to BEAR arms. Historically (as noted in the arguments and opinions) that means open or concealed can be barred, but not both, and a law me regulate where and when arms can be carried if they are reasonable as it is a restriction on a right and self defense.

Comment by Really? Wednesday, Mar 13, 13 @ 12:21 pm
Rich,

You don’t suppose this is a crack from Quinn towards his biggest Primary threat? Seems like Lisa knows the score and is making a reasonable choice no matter which side you come down on. Something tells me she informed Quinn of this and he is making political hay.

Comment by Mason born Wednesday, Mar 13, 13 @ 12:26 pm
She has no chance. Arguing that a federal court cannot dump a state law as unconstitutional is just a reaction of those who see some power slipping away.

Illinois doesn’t regulate carry (the bearing of arms) and instead bans it. This blanket ban (or any ban that is broad) will probably fall flat on its face in front of the supreme court.

Do I agree it’s Lisa’s job to defend the laws of Illinois? yes. Do I think she should keep fighting over and over with Illinois’ and Chicago’s history in court with the second amendment? Nope.

We in Illinois have a skewed view of gun laws. We have top cops and politicians telling us our gun laws are weak. When in fact we have no gun show loophol, a ban on any carry, a firearm owner registration and checking system, every personal sale must have a state approved FOID card, strict regs on types of guns avail legally in the city and cook county….

Its a good bet that when you are the nail that sticks out you will get hammered back down. And this has been a generational thing for years in Illinois… The sky will not fall, there will not be blood in the streets, people wont shoot each other over parking spots or on the Metra…

And if people here (politicians) are so scared of civilians with guns how do they feel in Wisconsin, Michigan, Indiana, Iowa? scared?

No, they continue to fight this, trying to go back over historical arguments in heller and saying “bear” means in your home and they will continue to lose. Quinn needs to get over it.

Comment by RonOglesby Wednesday, Mar 13, 13 @ 12:31 pm
Reading her brief in the Aguilar case, what is not mentioned above is that this is a defendant convicted of the UUQ law that is appealing…

She is defending the apeal and saying things like this throughout:

“The dissent in Moore/Shepard found…” or
“Moreover,even assuming that Moore/Shepard was properly decided”

I love it. pointing out over and over how yout hink it was decided wrongly. Like if I say “Wasn’t me” enough the jedi mind trick will eventually win over a different judge.

Comment by RonOglesby Wednesday, Mar 13, 13 @ 12:41 pm
@Ron:

People have differing opinions of whether concealed carry is included as a “right” under the 2nd Amendment. Unless you have some insight into what the Supreme Court will say (or maybe not say), then your’s is opinion and nothing more. Cut the vitriol.

Comment by Demoralized Wednesday, Mar 13, 13 @ 12:44 pm
Demoralized,

Did I say concealed carry was a right? and where was my vitriol? please point it out.

Being a fan of the law I can say SCOTUS does not like blanket bans on pretty much anything touching a “right”. Even regulatory messes that will equate to a blanket ban on something tend not to fair well in the high court. Just facts.

as far as concealed carry did I say somewhere it was a right? no. have you read the Heller decsion? they call out and define the means Keep and bear as they regard to arms. In the Moore decision Judge Posner also calls out what Bearing arms means and does an analysis of it.

Maybe you didnt like the abortion analysis, but it is yet another touchy topic that pulls emotion into arguments and points out another right that also gets infringed on the state level.

Yes people have different opinions on what constitutes a right. Never did I say concealed carry is a right, sir (or mam). An no the Supreme court doesnt have to rule… If Lisa does not appeal this stands or are you not aware of that?

Comment by RonOglesby Wednesday, Mar 13, 13 @ 12:51 pm
Ahh, I actually just noticed i deleted my comparion to abortion infrginment in some states because I thought it may be too much for some people… So I see that wasnt my “vitriol”.

Comment by RonOglesby Wednesday, Mar 13, 13 @ 12:54 pm
Illinois’ statewide coalition against concealed carry applauds the governor’s call upon the Attorney General to do her job, protect the people of the State, and uphold Illinois’ law.

Comment by StopCCCoalition Wednesday, Mar 13, 13 @ 12:56 pm
@Ron:

The post above is about the concealed carry law. My assumption was that your comment might be relevant to that. And, yes, your comment was filled with vitriol. Anytime somebody discusses guns somebody on either side of the issue comes out swinging as if the world is going to end if their argument is the only truth. And you can be as condascending as you want. I’m fully aware of the decision in Illinois. But if you think it won’t get to the Supreme Court eventually then you are dreaming. Bite me.

Comment by Demoralized Wednesday, Mar 13, 13 @ 12:59 pm
Bear in mind i am not talking about her brief to State Supreme that seems like pure merde. i mean the decision not to appeal. The case against the NY law is a lot more likely to be decided the way they want then the IL law.

Comment by Mason born Wednesday, Mar 13, 13 @ 1:01 pm
Ron, the AG cites two cases that side with theory a fed app court ruling is not valid. What are your cases that trump those so I can read them?

Comment by M O'Malley Wednesday, Mar 13, 13 @ 1:02 pm
Beats me. This lawyering is over my head.

I have to imagine it will end up with the Supremes one way or the other. If they get it, the Appellate ruling and time-clock doesn’t matter.

The GA can pass something and Quinn can sit on it until it’s known whether the current law is going to be reviewed.

I think. If it was all so clear, you wouldn’t have so many lawyers and so many judges who can’t agree.

Comment by wordslinger Wednesday, Mar 13, 13 @ 1:03 pm
@Ron:

And, by the way I don’t care one way or the other. I’m neither for or against concealed carry. Have it. Fine. Don’t have it. Fine.

Comment by Demoralized Wednesday, Mar 13, 13 @ 1:04 pm
In Moore v Madigan the people sued for carry of any kind.

Concealed Carry or Open Carry, either one would meet the letter of the decision, no?

But concealed carry, the sticky wicket, is the one least likely to cause panicked by-standers.

Comment by John Jacob Jingleheimer Schmidt Wednesday, Mar 13, 13 @ 1:06 pm
JJJS

You bring up the real sticky wicket here. From what i have read at the time of signing 1791. Open Carry was considered normal and honorable but concealed was considered distasteful and proof of criminal intent. These days it is practically the opposite. It is conceivable then that by a historic reading open would be Constitutionally protected while concealed is not. Something tells me that is the last thing Rham or Bloomberg want to see.

Comment by Mason born Wednesday, Mar 13, 13 @ 1:11 pm
@JJJS:

I would prefer open carry so that I knew who was carrying. But that’s just my opinion. Of course I understand the point of concealed carry. No need to announce to the world you have a gun.

Comment by Demoralized Wednesday, Mar 13, 13 @ 1:12 pm
@demoralized
I wont argue with you. I am talking the law, the strategy and how things move through courts (gun cases or not) you are the one with attacks about my post being full of vitriol and of course the wonderful “bite me”… wins so many legal cases

That said, it is a bad bed to take it to the supremes. NY or Maryland (with the arguments that a CCW permit must show need) has a much better chance of winning there, vs blanket bans. Of course Illinois could join one of those cases should they pass a ‘may issue’ law, but I am not sure that is probable.

Would love to discuss that and the legal strategy behind a move like that vs ‘bite me’ comments.

Comment by RonOglesby Wednesday, Mar 13, 13 @ 1:15 pm
From the Lawrence opinion cited by Lisa/Alvarez:

“Of course in a given factual setting when a lower federal court has jurisdiction over the subject matter and the parties, its adjudication is the law of the case and its judgment is binding on all other courts, subject only to the appellate process. But that is not the situation here. The district court’s declaration that the interference ordinance is unconstitutional was made in an unrelated case and at a time when petitioner’s appeal from his conviction was pending in the Supreme Court of Illinois. In these circumstances, we hold that the federal court’s ruling was not binding on the state appellate tribunal.”

How does this help them? The 7th circuit decision is binding until/unless Lisa seeks appeal and SCOTUS stays the 7th Circuit order. End of story.

Comment by Tasty Grouper Wednesday, Mar 13, 13 @ 1:18 pm
Mason, JJ, it doesn’t do you any good to go back to original intent.

There were local ordinances against open- or conceal-carry from the get-go. Don’t you guys watch Westerns?

Heller and McDonald were groundbreaking decisions because they changed what had been the accepted Constitutional interpretation up to then.

Comment by wordslinger Wednesday, Mar 13, 13 @ 1:27 pm
Vitriol: Bitterly abusive feeling or expression.

Not seeing any “vitriol” yet. Of course this is a gun thread and it is still early…

Comment by Slick Willy Wednesday, Mar 13, 13 @ 1:34 pm
Word

I am not trying to guess what the Court may chose to do. I am simply commenting on the changing of the times. As well as the Irony if the accepted practice at the time were to be the final decision.

Remember the Wild West is usually considered post Civil war which was years after the signing of the bill of rights. I just find the history very interesting.

Comment by Mason born Wednesday, Mar 13, 13 @ 1:41 pm
Word

Having read the Federalist papers i would argue Heller simply shifted the legal thinking back inline with the founders but we could start our own thread on that one so i will agree to disagree.

Think this has anything to do with the primary coming up?

Comment by Mason born Wednesday, Mar 13, 13 @ 1:43 pm
Once IL passes a law and PQ signs it, the question is moot. What she needed to do was get a stay of the ruling while she appealed. She didn’t/couldn’t do that so, unfortunately, this particular case is probably not appropriately appealable. So limit the hell out of this “right” and pray.

Comment by Chicago Cynic Wednesday, Mar 13, 13 @ 1:43 pm
@ M’ Omalley
I ‘m not a lawyer so I will have to read those cases specifically (and will this evening… still ahve work to do today).

But there are actually 3 points here I see.

1-Can Illinois just ignore the 7th’s ruling unless the supremes rule
2-Is it a good idea strategy wise to take this to the supremes
3- What does the 7th’s opinion have to do with Aguilar (the case Rich noted above)

1- Yes a law cannot be removed from Illinois law by the 7th circuit… Very true. Essentially the 7th’s rulling of unconstitutionality is advisory to the state. BUT the part they missed (the state’s side) is that State was a party to the case. They will be enjoined from enforcing/charging someone with the law. So yes the Illinois court still can convict under the law and the law can stay on the books but Illinois SAs and police will be kept from arresting people or charging them with UUW/AUUW after 180 days.

2- As I said blanket bans don’t fare well with the supremes. Rules, regs, even tough (or bad) ones do much better. Illinois would have a better chance passing a NYC style law and fighting that in the courts vs a blanket ban.

3- The case the SA filed above responding that they though the 7th ruled incorrectly… also notes that the 7ths ruling allowed for law abiding citizens… The guy in the case here is a 17 year old banger, with no FOID card and a defaced (serial number removed) weapon… Hardly a “law abiding citizen”

In this case He will lose as I believe the AG/SA are correct that this ruling covered otherwise law abiding citizens. Now the pols might flaunt a win here saying they can keep their laws and in our twitter world all you will hear is “Court ignores the 7th circuit” but my guess is the case will hinge on the fact that this guy was not otherwise law abiding.

Comment by RonOglesby Wednesday, Mar 13, 13 @ 1:50 pm
Mason, I wasn’t referring just to the Old West, I was just pointing out that it was accepted after ratification of the Constitution that local ordinances could prohibit the carrying of weapons, whether open or concealed.

Comment by wordslinger Wednesday, Mar 13, 13 @ 1:51 pm
The decision of federal courts, other than the Supreme Court, are not binding on the state courts. They are binding on the parties. If I remember the Seventh circuit case correctly, the appeals came from the Central and Southern District, so the parties are somewhere downstate. Whoever they are it is binding on them. That being said, state courts will pay close attention to the reasoning of federal appellate decisions and Judge Posner is a highly respected jurist. Still there is another federal circuit decision out there. Would not bet the farm one way or another.

Comment by Bigtwich Wednesday, Mar 13, 13 @ 1:51 pm
CC

The problem with your statement is you have to apply same standard for this right as for 1st, 4th, etc. For example if the Cops in Chicago went door to door searching for drugs and Illegal Guns it would do a lot to curtail the gang warfare yet without a warrant for each and every residence it would violate the 4th and we would all consider it to be unconstitutional.

While i am for CCW i am beginning to understand the quantum leap this is for Chicago area politicians and some residents.

Comment by Mason born Wednesday, Mar 13, 13 @ 1:53 pm
Big

You seem to know more than me if the state is a party to the lawsuit doesn’t that make it binding on the state? It was after all Moore v. Madigan.

Comment by Mason born Wednesday, Mar 13, 13 @ 1:57 pm
@Wordslinger

You are correct sir. After ratification the Bill of rights was ONLY a limit on the Federal government. States and local govs could ban carry, free speech and even force a state church.

It was after the 14th amendment and the incorporation doctrine that the bill of rights started to apply to states (all after reconstruction). Heller was just one of the last cases to incorporate an amendment.

Now was it common to ban carry? not very. Generally one or the other was banned. But you are correct.

Comment by RonOglesby Wednesday, Mar 13, 13 @ 1:58 pm
Bigtwitch

the State of Illinois AG was a party not just southern illinois

Comment by Really Wednesday, Mar 13, 13 @ 1:59 pm
Prepare to see more of this hand-wringing on behalf of those intent on keeping Illinois in the Dark Ages when it comes to allowing its residents to right to defend themselves and their families from violent attack.

June 9th is the magic day, ladies and gentlemen.

It’s sad that Illinois has to be dragged kicking and screaming into the real world.

John

Comment by John Boch Wednesday, Mar 13, 13 @ 2:03 pm
@Bigtwich “Posner is a highly respected jurist”. Many may respect Posner, but many do not. Some think he’s intellectually dishonest, disconnected with reality and discourteous to the attorrneys who appear before him. For some background on him, read this (subscription): http://www.newyorker.com/archive/2001/12/10/011210fa_fact_macfarquhar

Comment by B Wednesday, Mar 13, 13 @ 2:06 pm
B-
tryue, many dont like Posner, or Scalia for that mattter. But that doesnt make their rulings any less binding or valid.

Comment by RonOglesby Wednesday, Mar 13, 13 @ 2:12 pm
Dark Ages? There are an awful lot of us that think the express train you apparently prefer to get us to the wild west where everyone was packing heat will be a return to a far less civilized dark age.

Yes, I know I’m from Chicago so my opinion will be dismissed by those preferring to have the right to tote a Glock 9 wherever they go, but so be it. If you want to have a gun in your home, you already have that right. Arm up. Enjoy. Hope your three year old doesn’t decide to play cops and robbers. Whatever. But please keep it out of crowded theaters, bars, schools, etc.

Comment by Chicago Cynic Wednesday, Mar 13, 13 @ 2:15 pm
The portions of the Illinois law challenged in Moore have been (or will be) enjoined. The mandate will issue from the 7th Circuit 180 days from December 11. Shortly thereafter, the district courts in the Moore v. Madigan cases (two were consolidated) will enter orders consisting of “declarations of unconstitutionality and permanent injunctions.”

If any Illinois official attempts to enforce the law, he or she would be violating a permanent injunction and would be subject to contempt of court. Illinois judges would be obligated, under the Supremacy Clause, to dismiss any prosecution. It doesn’t matter what the Illinois Supreme Court thinks.

The Aguilar brief appears to argue that different subsections of the law are at issue in that case. It is true that the Illinois Supreme Court is not bound by the 7th Circuit’s reasoning if the case is factually or legally distinguishable. It would be bound by any injunction or declaration.

Because the federal trial courts have not yet issued their formal orders (and won’t until June), it’s difficult to opine as to whether the argument advanced by Madigan and Alvarez in Aguilar is without any merit. The exact language of the federal trial courts’ orders will decide whether Illinois courts and prosecutors are bound by the analysis of Moore in all UUW cases, or just in a narrower subset of cases arising under portions of the statute at issue in Moore.

Comment by Anonymour Wednesday, Mar 13, 13 @ 2:19 pm
CC

Thanks for showing the vitriol. This has happened before in 49 other states. This will not recreate the so called “Wild West” unless there is something about IL that makes our citizens the exact opposite of every other state in the Nation. I know you are a Cynic but the sky really isn’t falling. In 5 yrs after the date it goes into effect you won’t remember why it scared you so much.

Comment by Mason born Wednesday, Mar 13, 13 @ 2:35 pm
–This has happened before in 49 other states.–

Not really, but I just feel obligated to say that at this point.

The California or New York laws strike me as good compromises for Illinois. NJ, Maryland or Mass., would be good from my point of view, Hawaii best, but that’s just me.

Comment by wordslinger Wednesday, Mar 13, 13 @ 2:42 pm
The fear is shootouts in the streets. This is the same old tired argument against concealed carry that has been used for many years. To my knowledge this is not an issue in the other states (49) that have concealed carry. Why would Illinois be different?

Comment by The unknown poster Wednesday, Mar 13, 13 @ 2:44 pm
Word,

True, its not 49 states with “Shall” issue. But NY is very different in up state vs counties near NYC. Hawaii I wont comment on and of course they are in court also.

But shall issue states now account for 41 of the states I believe. Jersey (as a state) is may issue and very close to no issue. NY is mixed as is Maryland. California is way mixed, on the coast and from San Fran south is very much no-issue as “may” issue and the rest of california (east) and north is for the msot part shall issue.

One problem with these states though is the abuse. Politicially connected and those with enough money to throw at the system tend to be the ones with premits (Hawaii being the exception) meaning The middle class single mom with a stalker ex-husband doesnt alway get a permit, but the guy that donated to a Sheriff’s election does… That would happen in Illinois with a quickness. Thus one of the reasons I am against “may” issue. Too much room for graff and corruption in a state where that is the norm.

Comment by RonOglesby Wednesday, Mar 13, 13 @ 2:51 pm
Thanks Mason - I’m not “scared.” I just think this is a stupid policy with potentially dangerous ramifications. I also believe, as did Courts for 200 years until only very recently, that the 2nd amendment does not grant an individual right to bear arms, and certainly not an unlimited one.

But truly, which one of sounds more “scared?” The one living unarmed without fear in an urban area or the one insistent that safety can only be achieved if armed with an automatic weapon?

Comment by Chicago Cynic Wednesday, Mar 13, 13 @ 2:57 pm
–But NY is very different in up state vs counties near NYC–

Kind of my point. The law recognizes the political and daily life differences within the state.

There’s a big disconnect when you start talking about conceal-carry riding the Red Line at rush hour and going about your business in your car in Jackson County.

Comment by wordslinger Wednesday, Mar 13, 13 @ 2:57 pm
word

Okay so 49 are not shall issue but as Ron points out if you live away from NYC, Boston,or Southern Cali it is basically shall issue. The point i was trying to make is Private citizens in 48 other states (i’ll give you HI), carry in public and no shootouts at high noon have been the results.

I am curious about the preference for Shall issue among Chicago-ites. Unless you have something like NYC that voids every ones permit but Retired and active LE, all shall issue does is ensure no one Cook county can get a permit. Of course you have the whole political connections. If the state goes to May issue but the permit is recognized throughout the state aren’t you basically disarming Chicago residents while allowing a yokel from Effingham (tongue firmly in cheek).

Comment by Mason born Wednesday, Mar 13, 13 @ 3:03 pm
CC

Where do you get Automatic Weapon?? I Personally am not Scared and have no reason to be. However i have a duty to protect my Family to the best of my ability therefore carrying is an option if i feel the risks warrant it.

You would be hard pressed to find a clear precedent for a collective Militia right. The closest is U.S. V. Miller which at best says you can ban weapons that do not have a suitable usage for a militia. What Miller doesn’t say is that Mr. Miller since he wasn’t in a Militia has no right to possess his shotgun. The right is clearly of the people as in “the right of the people to….”

Comment by Mason born Wednesday, Mar 13, 13 @ 3:10 pm
So Mason, where does that right stop? What weapons can governments prevent you from keeping or carrying? Or are there no limits they are allowed to impose?

Comment by Chicago Cynic Wednesday, Mar 13, 13 @ 3:12 pm
And FWIW, I don’t favor banning handguns. I am, though, a big fan of the part of the second amendment nobody in the pro-gun crowd ever discuss - “well-regulated.”

Comment by Chicago Cynic Wednesday, Mar 13, 13 @ 3:15 pm
–Okay so 49 are not shall issue but as Ron points out if you live away from NYC, Boston,or Southern Cali it is basically shall issue–

NJ is basically a ban. Delaware and Maryland ain’t easy, either.

Comment by wordslinger Wednesday, Mar 13, 13 @ 3:19 pm
=== Chicago Cynic - Wednesday, Mar 13, 13 @ 3:15 pm:

And FWIW, I don’t favor banning handguns. I am, though, a big fan of the part of the second amendment nobody in the pro-gun crowd ever discuss - “well-regulated.” ===

Then you don’t read this blog much.

Comment by dupage dan Wednesday, Mar 13, 13 @ 3:23 pm
CC

Where does the right stop? I have no problem with restrictions on Nukes, Cannon, Anti air missiles, etc.
The restrictions on Automatic weapons i am iffy on although they do not ever belong in the hands of Police or Federal Law Enforcement even if allowed in civilian hands. I will explain. I received very good training in the employment of automatic weapons if you hit your target 50% of the time you are an expert. A Police officer or FBI agent is responsible for each and every single round they fire. A Weapon by it’s very design that is meant for Accuracy by Volume is not suitable for Law Enforcement.

You see in my humble opinion the problem is not the hardware the problem is the individual. It isn’t the mechanical action of a device that is illegal and immoral it is the action. The reason i am iffy on the Automatic weapons is you could give me a M2 HB (machine gun) i could use it every weekend and no one would ever get hurt. So it is completely possible for a citizen to possess and use without causing a public safety issue. However i admit the ability for a Gangbanger utilizing it is an unacceptable risk unfortunately we cannot ban gangbangers. However it is the person not the equipment.

Comment by Mason born Wednesday, Mar 13, 13 @ 3:27 pm
law abiding citizen carrying a concealed weapon in public for self defense? I am much more worried about that 18 year old gang banger carrying a stolen pistol in his pocket. A CC ban does noting to stop those folks from packing heat but denies that right to those who might truly

Comment by The unknown poster Wednesday, Mar 13, 13 @ 3:27 pm
sorry, copy and paste didn’t work so well.

Comment by The unknown poster Wednesday, Mar 13, 13 @ 3:28 pm
Mason born

The State was not a party. Generally states can not be parties in federal court. Several state officers were named parties. However, that does not prevent the Attorney General from arguing for a different interpretation of the law in a different case. Illinois state courts are only bound by decisions of higher Illinois state courts and the US Supreme Court. In this instance you do not have a US Supreme Court opnion on point and you have different views on the subject by two federal circuits. The Illinois Supreme Court could follow one or the other but is not bound by either. It could for that matter come up with an entirely different view. I would add that state court respect the legal reasoning of federal courts and do seem to give greater difference to courts in their geographic area but there is no obligation to do so. It is a matter of comity.

Comment by Bigtwich Wednesday, Mar 13, 13 @ 3:29 pm
The first part of my comment should have said “what is to fear from a law abiding citizen….” and the last part “but denies that right to those that might truly need one.”

Comment by The unknown poster Wednesday, Mar 13, 13 @ 3:29 pm
Big

Huh okay so what you are saying is that the decision is binding on Madigan as Attorney General but not on the State? Not trying to argue just trying to understand. Would that mean then that if she resigned it wouldn’t apply at all? Aren’t the States required to comply with the districts they are in? This makes me wonder about all the Civil Rights Cases from the 60’s where racist state courts were overturned by Fed courts.

Comment by Mason born Wednesday, Mar 13, 13 @ 3:37 pm
Bigtwich,
Sorry, but Illinois state courts are bound by federal court injunctions against state officers declaring a law unconstitutional. The Illinois Supreme Court has so held:

Finally, the State and the City cannot evade the Landry injunction by arguing that the state courts of Illinois are not bound by decisions of lower federal courts. As a general rule, the interpretation given to Illinois statutes by the lower federal courts is not conclusive on the courts of this state. Hanrahan v. Williams, 174 Ill.2d 268, 277, 220 Ill.Dec. 339, 673 N.E.2d 251 (1996). That rule, however, is addressed to the situation where the federal court’s decision is being invoked as precedent on a point of law. In the case before us, the Landry decision is not being cited for its legal analysis. Whether the federal court’s analysis is correct is irrelevant. Whatever one thinks of the federal district court’s reasoning, its decision is binding because it constitutes a valid judgment by a duly-constituted tribunal on the same question presented here and prohibits the same prosecuting officials involved in this case from enforcing the same statute against the same class of defendants to which the defendant in this case belongs.

People v. Nance, 189 Ill. 2d 142 (2000).
http://www.leagle.com/xmlResult.aspx?xmldoc=20001613724NE2d889_11573.xml

Comment by Anonymour Wednesday, Mar 13, 13 @ 3:42 pm
didn’t one of the U.S. Supreme Court opinions practically invite a case on concealed carry? we might be the only state left in question, but that does not mean the question will not appear before the USSC. the only question is how and when.

Comment by Amalia Wednesday, Mar 13, 13 @ 3:44 pm
Amalia

you are completely right. This is one of the reasons why the NRA would love LM to appeal. Since IL is the extreme you aren’t arguing over whether a law allows a right but is too restrictive but arguing no right.

I actually gained respect for LM with what was posted by Rich above her decision to not appeal right now is a common sense decision and appears to be made without a desire for limelight. I couldn’t disagree with her more on this but her reasoning is a nice change compared to most of what we hear here.

Comment by Mason born Wednesday, Mar 13, 13 @ 3:49 pm
Mason,

I understand your logic, but am at a loss with the notion that law enforcement should be less well armed than gang bangers, drug dealers and white supremacists.

Yes, I know, guns don’t kill people, people kill people. Except that a maniac with a knife is way less likely to commit mass murder than a maniac with a 60 or 100 round magazine in a fully automatic AR-15.

Comment by Chicago Cynic Wednesday, Mar 13, 13 @ 4:12 pm
Round 1 in the primary.

Comment by Just Me Wednesday, Mar 13, 13 @ 5:03 pm
What would happen if a male Republican AG and Republican State’s Attorney took the view that the state was not bound by a federal appeals court decision broadening abortion rights? Lisa Madigan and Alvarez can disagree with them, but their oath as attorneys and chief legal officers of their respective jurisdictions requires them to comply with court decisions.

Comment by Meanderthal Wednesday, Mar 13, 13 @ 5:06 pm
lisa has lost about every case that she has went against she holds this stance not to do what is wright but to keep her liberal base happy and vote for her its a political thing it would be interesting if some one would file a foia and see what this costing tax payers

Comment by county chairman Wednesday, Mar 13, 13 @ 6:39 pm
Mason born

Please note the Landry decision was, Landry v. Daley,280 F.Supp. 938, (N.D.Ill.1968). Have not looked it up but assume that Daley was the State’s Attorney. Yes the decision was binding on Daley. But here the current State’s Attorney of Cook as well as other counties were not, “the same prosecuting officials involved”.

Comment by Bigtwich Wednesday, Mar 13, 13 @ 6:43 pm
Nowhere were people have been granted ccw has there been blood running in the streets. Some States like Alaska do not have a permit system and the mythical wild west does not exist with shootouts at high noon.

What I get from politicians and people opposed to ccw is they believe Illinoisans are somehow more ignorant and inheritantly more dangerous than all other Americans.

We do not want ccw because we want to kill people, nor to cause fellow citizens harm. We want to do so because we accept the responsibility for protecting our families, and yours, from those who wish others harm.
If you do not want a firearm, don’t own one. But do not choose for me.

Comment by FormerParatrooper Wednesday, Mar 13, 13 @ 6:46 pm
@Chicago cynic

AR 15’s are not select fire weapons. They have two settings, safe and fire. They fire semi automatically. The M16A1 does have the option of automatic fire, and the M16A2 has a burst setting and not automatic.

If police need weapons to combat drug dealers and the rest, the why shouldn’t the rest of us?

Comment by FormerParatrooper Wednesday, Mar 13, 13 @ 6:56 pm
CC

This is what i am trying to get at. A Gangbanger doesn’t care what 7 yr old is on the other side of the wall, in the Sandbox neither did we. However a cop has to be aware that every round he fires may strike that innocent bystander. Therefore he has a duty to ensure every round he fires is aimed at the perp and doesn’t endanger an innocent. A Automatic weapon aka machine gun not a semi automatic weapon fires rounds until the trigger is released. A three rnd burst from an m16 aimed at teh center of the chest will hit center chest with the first, Right clavicle with the 2nd, and usually miss about ear level with the third. Now that is with a experienced Combat Marine trained to levels the police are not. Do you really want 33%of the rnds the police fire un aimed?? Add to that a .223 will travel all the way through both sides of sheatrock walls and if it doesn’t hit a stud continue through multiple walls.
I have no problem with the police or anyone having Semi-Automatic weapons. There seems to be a problem with definitions. An Automatic weapon requires a class 3 federal lisence which is not something most citizens have they have been illegal to own without the class 3 since 1968 and you cannot own a weapon made after 1986. BTW it is illegal in IL to own an automatic weapon period unless you are law enforcement. So there have been no mass murders in this country with Automatic Ar-15’s. It is possible that banned Military weapons from outside the U.S. are coming into Chicago but i cannot attest to that. As for dealing with a gangbanger with a banned automatic weapon you do not need a machine gun a Semi-Auto (one shot per trigger pull) will work just fine.

As for the knife gun analogy nothing stops rape faster than a 9mm. And nothing runs off burglars faster than an Ar-15 which also happens to be the easiest weapon for most Females to use.

Comment by Mason born Wednesday, Mar 13, 13 @ 7:02 pm
–Nowhere were people have been granted ccw has there been blood running in the streets. Some States like Alaska do not have a permit system and the mythical wild west does not exist with shootoutsre at high noon.–

That’s an extreme misrepresentation of those who don’t agree with you. No one uses that language. Guns in the public square can and should be regulated. Where you draw the line is the issue.

The reason CCW hasn’t made it in Illinois is because of the zealotry of proponents. You could have had a New York or California law years ago, the 23% of the population in Chicago could have cared less if there was conceal-carry in Marion or Macoupin Counties.

Can’t you see that?

A home-rule law with veto-proof majorities would have passed long ago.

Now, rather than a state law, it’s twisted up in the federal courts and will remain so long after most people don’t care.

Comment by wordslinger Wednesday, Mar 13, 13 @ 7:32 pm
Bigtwitch

Don’t look at me you can argue with - Anonymour. Myself i think the State Supremes will give us their opinion withing the next 87 days. but if i was MJM i don’t think i’d wait.

Comment by Mason born Wednesday, Mar 13, 13 @ 7:42 pm
word

I see your opinion but remember the 23% you think that don’t care in cook. have neighbors in Chicago that care a great deal and are members of the ISRA. A political crony only plan wouldn’t have served them at all. as far as twisted in courts unless U.S. Supremes act in next 87 days this issue is more or less up to the GA. the Il Supremes aren’t going to tell madigan to ignore feds. That is a precedent they do not want to set.

You aren’t trying to regulate where they are being carried you are trying to regionalize the state and say here no guns period. Why wasn’t chicago trying to come halfway?? Could it be that you didn’t think you would ever have to listen to the dumb yokels.

Comment by Mason born Wednesday, Mar 13, 13 @ 7:51 pm
@wordslinger

I have heard that arguement made. Thewild west was brought up in this thread.

The issue is that all law abiding citizens deserve thier right regardless of thier zip code. The limits on where the line ends is arbitrary when people are acting lawfully. There are places I can concede to restricting ccw. It has to be reasonable. If in good faith both sides can determine what is reasonable the all the better.

Comment by FormerParatrooper Wednesday, Mar 13, 13 @ 8:04 pm
==You aren’t trying to regulate where they are being carried you are trying to regionalize the state and say here no guns period.==

I am certainly not saying no-guns, period. Never have.

Guns in your home is not my business.

Hunting is a great recreational activity and should be promoted more through advertising and supported more by restoring DNR.

My issue is guns in the public square. And I think there are regional differences that could be accommodated.

As I said earlier, there’s a big difference between conceal-carry on a packed Red Line and going about your business in your car in Jackson County.

And please don’t try to link conceal-carry to gangbangers and illegal guns. Those issues are completely unrelated.

But any help the ISRA or NRA wants to give on illegal guns, some of us would be much obliged.

And I’m an old farm boy. If anyone’s a yokel, it’s me.

Comment by wordslinger Wednesday, Mar 13, 13 @ 8:15 pm
Florida recently passed the 1,000,000 CCW holder mark. Can’t even go to that state without risk of all the blood carrying you out into the ocean.

Give Chicago the ability to not have CC. The rest of the state can have it. I won’t go into the city anyway. Or let this thing get to June 9 and we get Constitutional Carry.

Comment by downstater Wednesday, Mar 13, 13 @ 8:49 pm
She could move to stay the mandate until the Supreme Court considers the cert petition. The 180 day clock would stop. Easy solution.

Comment by Anon Wednesday, Mar 13, 13 @ 9:50 pm
The Moore v. Madigan decision from the 7th Circuit is binding on the defendants in the two cases on appeal (Moore and Sheperd). Those defendants are the Union County State’s Attorney, the State Polce and the Attorney General. But guess what? The Attorney General does not have independent authority to prosecute criminal cases (like a UUW violation) in the Illinois trial courts. She can only do so in conjunction with a local State’s Attorney. And that’s where this gets interesting — while Moore is binding on the Union County State’s Attorney, it is not binding on the other 101 State’s Attorneys in the State.

Those 101 other State’s Attorneys prosecuting crimes in the Illinois courts follow the decisions of the Illinois courts on whether an Illinois statute violates the U.S. Constitution. Right, the Illinois courts in People v. Aguilar and about 4 other appellate decisions have held that Illinois’ UUW law does not violate the Second Amendment. Aguilar is currently pending in the Illinois Supreme Court, so we may soon know whether they think the UUW law is constitutional.

But the point that the Attorney General and the Cook County State’s Attorney’s office made is legally correct: federal district courts and circuit courts (like the 7th Circuit) cannot tell a State court that it must strike down a State statute on grounds that it violates the federal constitution. Only the U.S. Supreme Court may do that.

And, finally, Governor Quinn is correct that the federal courts are split on whether the Second Amendment prohibits laws banning persons from carrying loaded weapons outside the home. While the Seventh Circuit has said that the Second Amendment bars such laws, the Tenth Circuit from Denver says it does not, And the Illinois Supreme Court in Aguilar has yet to be heard from. No matter how Aguilar is decided, the federal circuit courts are split and, in such instances, the U.S. Supreme Court often takes cases to resolve such splits of authority.

Comment by Anon Thursday, Mar 14, 13 @ 12:25 am
Some posters believe that after June 9, the State will have so-called “constitutionl carry” in the event that the Legislature does not amend its UUW law. That is legally incorrect, too.

For three reasons relating to principles of federalism and federal appellate procedure, the UUW statute construed in Moore is not like the carriage in Cinderella that turns into a proverbial pumpkin at stroke of midnight on June 8.

First, the 180 day period that the Seventh Circuit referenced in Moore stays the issuance of the mandate in that case. In other words, the Seventh Circuit said it will wait 180 days to return the case to the district court and have the district court enter judgment against the parties. But as I noted in an earlier post, the judgment in Moore is against the Union County State’s Attorney and the Attorney General. Such a judgment is not binding on the other 101 State’s Attorneys in Illinois.

Second, even if the 180 day stay of the mandate was a “ticking clock” for the Legislature, who says that the proverbial clock started ticking in December? The Seventh Circuit decision in Moore did not become a final decision (and, thus, appealable to the U.S. Supreme Court), until the Seventh Circuit denied rehearing en banc by a 5-4 vote on February 22, 2013 (the same day, by the way, that the Tenth Circuit decided Peterson and held that the Second Amendment did not bar State or local laws prohibiting persons from carrying loaded weapons in public). So, if there is some 180 clock running, it started in late February and not December. And by my counting, that takes us to August.

Third, just how do lower federal courts have the authority to tell State Legislatures that they have to pass a particular law? They do not have that authority. It is true that Moore is the law of the Seventh Circuit and, thus, is controlling in any federal lawsuit challenging a UUW law prohibiting concealed carry on Second Amendment grounds. But under the doctrine of federalism set forth in the U.S. Supreme Court decision Younger v. Harris, federal court should abstain from enjoining State court criminal prosecutions on federal constitutional grounds provided that a party can raise those constitutional arguments in the State court. Aguilar shows that defendants in Illinois UUW cases have been able to raise a Second Amendment defense to the charge of violating the UUW statute by carrying a loaded, concealed weapon outside the home. Thus far, the Illinois courts have not adopted that view of the Second Amendment. The anticipated Aguilar decision will hopefully provide some guidance on that issue.

Comment by Anon Thursday, Mar 14, 13 @ 12:49 am
Word

My point is this if chicago wanted a NY style law or HI law they could have easily got it before Heller. Instead they choose to bury their heads in the sand now it has come to bite them. “You can ignore reality, but you cannot ignore the consequences of ignoring reality” Ayn Rand

Comment by Mason born Thursday, Mar 14, 13 @ 5:09 am
Mason, quoting Ayn Rand automatically negates any otherwise valid point you make. It’s a rule of the internet. Just wanted to make you aware.

Comment by Jimbo Thursday, Mar 14, 13 @ 7:44 am
Jimbo

While i agree a lot of people see that name and tune out but you got to admit that Quote is priceless. Also utterly true ignore the reality that you must pay your car note all you want but you cannot ignore the tow truck hauling it away. Can you really say you disagree with it?? I just have to give credit where credit is due. After all even a broken clock is right 2 times a day.

Comment by Mason born Thursday, Mar 14, 13 @ 8:48 am
Mason born

Sorry

Annon

You nailed it.

Comment by Bigtwich Thursday, Mar 14, 13 @ 8:50 am
Big and Anon

Just curious how does that reasoning comply with the incorporation of the 2nd in McDonald? Seems to me that post McDonald you have to treat the 2nd same as the 1st and 3-8th which requires a much higher standard of review.

Comment by Mason born Thursday, Mar 14, 13 @ 9:17 am
I find the stand by SA Alvarez and AG Madigan to be ironically similar to Alabama Chief Justice Roy Moore who thought he could ignore a non-USSC federal court order to remove his Ten Commandments plaque from his courtroom. Of course, it was ultimately removed.

Perhaps more telling, though, the Alabama disciplinary committee removed Chief Justice Moore from office.

What does this say about Illinois when Alabama would remove a public official, and Illinois would not even presume to lift a finger against public officials arguing and pleading the same defiance?

Comment by Non-ISRA Member Thursday, Mar 14, 13 @ 10:11 am
Big and Anon,

Ok. Lets assume you are correct. The 7th circ decision is binding only on Union County and the AG. I get arrested for the same crime in Cook. Can I not bring an equal protection action in US district court claiming the citizens of Cook county have unequal treatment in the law compared to Union? I will win and get an injunction banning prosecution because the federal district courts ARE bound by the 7th Circ. I fail to see how a decision such as this is binding on one county and not another within the state. SAs can try to arrest people after June, but they will get their hands slapped real fast by federal courts if they do so. I wouldn’t risk my license and reputation over a lost cause.

Comment by Tasty Grouper Thursday, Mar 14, 13 @ 11:38 am
The positions of SA Alvarez and AG Madigan are completely different than the position of Alabama Supreme Court Justice Moore. In Justice Moore’s case, if I recall correctly, he ignored an order against him from a federal district judge. In Moore v. Madigan, the order is against the Union County State’s Attorney and the Attorney General. And the Attorney General has no authority to independently prosecute criminal actions in the trial court. Only the 102 State’s Attorneys throughout Illinois can do that. And 101 of them are not bound by the order in Moore.

As for the Equal Protection argument, that is also a non-starter. The Equal Protection Clause prevents legislatures from enacting legislation that treats different classes of people differently absent some justification. Here, the federal court has enjoined a downstate State’s Attorney from prosecuting certain UUW violations. No other State’s Attorney in Illinois is subject to that injunction. The Equal Protection Clause is not implicated in any way.

Comment by Anon Thursday, Mar 14, 13 @ 12:27 pm
Mason-born, it is not clear what standard of review the State and federal courts will employ when reviewing Second Amendment challenges to legislation regulating firearms. So far, the courts seem to favor intermediate scrutiny as the appropriate standard of review.

Comment by Anon Thursday, Mar 14, 13 @ 12:29 pm