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Thursday, Jan. 17, 2013 11:59 pm

Attorney General asks for rehearing on crucial gun case

Madigan hopes to reverse concealed carry

Illinois Attorney General Lisa Madigan asked a federal court last week to rehear a crucial case dealing with concealed carry of firearms. The court previously struck down Illinois’ ban on concealed carry, but Madigan hopes to reverse the court’s decision.

In doing so, Madigan might delay the implementation of a concealed carry program in Illinois and avoid jeopardizing gun-control efforts in other states.

The case started in May 2011, when two separate lawsuits were filed against Madigan and other public officials, claiming Illinois’ ban on concealed carry of firearms is unconstitutional. Both cases were dismissed from federal district courts in Illinois, which said the Second Amendment of the U.S. Constitution doesn’t specifically guarantee a right to carry weapons outside of one’s home.

The plaintiffs appealed and their cases were combined before the Seventh Circuit Court of Appeals in Chicago, which reversed the lower courts.

In its 2-1 decision released Dec. 11, 2012, the appellate court relied on two recent cases known as Heller and McDonald, in which the U.S. Supreme Court struck down laws banning firearms in one’s home. But the appellate court also provided its own analysis of the Second Amendment and the history surrounding it.

“The right to ‘bear’ as distinct from the right to ‘keep’ arms is unlikely to refer to the home,” the appellate court said. “To speak of ‘bearing’ arms within one’s home would at all times have been an awkward usage. A right to bear arms thus implies a right to carry a loaded gun outside the home.”

The appellate court gave Illinois 180 days – until Sunday, June 9 – to enact a new law with “reasonable limitations” that allows the carrying of guns in public. Lawmakers haven’t acted on any legislation to do so yet, and Attorney General Madigan announced on Jan. 8 that she would seek a full rehearing of the case, though her request doesn’t halt the 180 days.

“In ruling that Illinois must allow individuals to carry ready-to-use firearms in public, the 7th Circuit Court’s decision goes beyond what the U.S. Supreme Court has held and conflicts with decisions by two other federal appellate courts,” Madigan said. “Based on those decisions, it is appropriate to ask the full Seventh Circuit to review this case and consider adopting an approach that is consistent with the other appellate courts that have addressed these issues after the U.S. Supreme Court’s landmark Heller and McDonald decisions.”

Madigan’s request for an “en banc” rehearing means all of the judges in the Seventh Circuit Court of Appeals would decide the case, instead of the normal three-judge panel. Charles Cooper, a Washington, D.C.-based attorney representing the National Rifle Association in the lawsuit, says the likelihood of the appellate court granting a rehearing is slim. Even Ann Spillane, Madigan’s chief of staff, admits she doesn’t see it happen often. It requires 6 out of the 10 active justices in the circuit to vote in favor of accepting the case.

But Spillane says the case is ripe for rehearing because of the disagreement between the Seventh Circuit decision and two decisions in other jurisdictions.  One of those other jurisdictions is the Second Circuit, which includes the state of New York. Spillane says the concealed carry case there is currently awaiting approval to be heard by the U.S. Supreme Court.

The request for a rehearing may have been a calculated move by Madigan to win the case without elevating it to the national level. If Madigan had instead appealed the case to the U.S. Supreme Court, she would have risked an adverse nationwide decision that could force other states and certain cities to change relax current gun control laws.

States like Maryland and New Jersey, for example, technically allow concealed carry, but anyone applying for a license must prove their need to carry a firearm. If Illinois’ law were to be struck down by the U.S. Supreme Court, those other states might be required to ease their restrictions. While the Supreme Court noted in its Heller decision that concealed carry laws have been upheld by courts in the past, both the Heller and McDonald decisions struck down gun laws. The current Supreme Court is composed of five conservative-leaning justices and four more liberal justices, meaning pro-gun advocates have an upper hand when appearing before the Supreme Court.

Madigan’s choice to seek a rehearing in the appellate court doesn’t mean her office couldn’t later appeal to the Supreme Court anyway.

Charles Cooper, the attorney for the NRA, says once the 180 days are up, an Illinois resident with a valid Firearm Owner’s Identification (FOID) card, should be able to carry a concealed firearm if nothing else changes.

“Illinois already has a registration mechanism in place,” Cooper said. “If a person satisfies the existing requirements, they would be able to carry an operable firearm concealed.”

Contact Patrick Yeagle at pyeagle@illinoistimes.com.
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