In the cases of Moore and Shepherd, the 7th Circuit Court of Appeals has just ruled that Illinois’ ban on concealed carry violates the Second Amendment of the United States Constitution. From the decision [click here to read]: “The Supreme Court’s interpretation of the Second Amendment therefore compels us to reverse the decisions in the two cases before us and remand them to their respective district courts for the entry of declarations of unconstitutionality and permanent injunctions. Nevertheless we order our mandate stayed for 180 days to allow the Illinois legislature to craft a new gun law that will impose reasonable limitations, consistent with the public safety and the Second Amendment as interpreted in this opinion, on the carrying of guns in public.” Reasonable limitations consistent with public safety? Uh-oh. Or not, as the NRA’s man on the ground told TTAG. Separate post to follow . . .

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68 COMMENTS

  1. That is great news , maybe I can visit now!! I use to refuse to go and be unarmed. I wish new York would do the same thing !!

    • No kidding – living literally a rock’s throw away from NY, it’s inconvenient as hell. If I want to go to Pennsylvania – or pretty much anywhere but North – I have to cross NY. I looked into doing the whole licensing ringamarole in NY, but unless you’re a resident it can’t be done. And it’s not just a matter of carrying – I can’t transport a pistol (or a 30 rd mag) across NY state even if it is disassembled, cased and locked in the trunk.

    • There are several lawsuits making their way through the courts challenging the various ‘may issue’ schemes. Mostly, if I understand correctly, focused on requirements for folks wanting to carry to demonstrate subjective things like ‘good moral character’, ‘good judgement’, ‘good cause’, ‘sufficient justification’. (In CA some jursidictions accept simply self-defense as a reason, others require evidence of specific threats or conditions making that individual more likely than the general public to be attacked).

      • NY, NJ, and MD I know have similar ones in that they require a person to provide a resonable justification. There was that case in MD supreme court that shot it down and the judge said in his summary that a person does not require a justification to exercise a right, the right in itself is justification enough. The MD AG is appealing of course.

        I went to a lawyer Q&A at my range in NJ recently and he goes to some regular lawyer association meetings. He said that there are similar cases in all the northeast may issue states. Second Amendment foundation is heading the NJ one. He believes that they will all eventually make it to the US supreme court, potentially as one case. It may take a while though. Hopefully those old conservative justices don’t croak before then.

      • Three of the California cases have been argued in the last week. Two of them went reasonably well; a central issue in the Gura case is whether “good cause” is anything more than a desire to defend oneself–it isn’t a right if only a few can exercise it. In this context it is important to note that California now bans open carry (loaded or unloaded) in all urban areas, leaving concealed carry as the only route to effective self-defense when not at homw. I don’t think that there is any question the Ninth will recognize that the phrase “bear” extends to areas outside the home, the question being how far they will go with that holding.

      • In CA, the law was written and championed by white supremacists where good moral character meant white/non-felon and good cause meant you didn’t feel safe around the dark skinned. It has been much more recently that it turned into a celebrity / campaign contributor perk, and is gradually reverting to shall issue in more and more counties.

        I still have my great grandfather’s CCW paper listing race as white, and good cause as self defense.

    • Baby steps are nicer.

      Why?

      Because we get to listen to the irrational spluttering of our opponents longer.

      The incoherent rage and spluttering of pundits, political hacks and other assorted jacksnipes in Chicago must be positively delightful right about now…

  4. It has been a rough month since Obama’s re-election re: gun rights so it is good to read this piece. This ruling is indeed great news for the big-picture judicial record (I think) yet in real-world practice I wonder what will occur next in Illinois. Long-term, I’m still concerned about what will occur as Obama appoints more gun-grabbers to SCOTUS who have no regard or respect for traditional American rights.

  5. Mayor of Chicago:
    Concealed carry ban is unconstitutional? This is MADNESS!

    ST:

    THIS.IS. AMERICA!

    (ST kicks Rahm Emannuel into icy Lake Michigan)

  7. Despite the fact that the Stalinist attorney general of IL will appeal, we can see the end of a triumphant road.
    “You shall…proclaim liberty through the land to all its inhabitants.” Leviticus 25:10

    • It is very dangerous for her to appeal this to SCOTUS, because if she does and they uphold it, it will adversely affect the may-issue states (i.e. may-issue may get struck down nationally.)

      • Even without a direct appeal, all it will take is a differing opinion in another Circuit in a similar case to create a circuit split, which SCOTUS must eventually resolve.

  8. As I’m reading this (I’m only on page 8 so far), I’m finding it ironic that in deciding this case (and in SCOTUS deciding Heller and McDonald) they’re referring back to Blackstone and others’ interpretation of English law dating back to the 1700’s, given the state of gun (and other weapon) rights in the UK today. It appears that in an effort to properly interpret our Constitution, we’re giving more credence to the UK’s legal history than even they do.

    • Because US common law is derived from English common law, it is valid to cite such. A real American jurist (as opposed to one who just decides what he wants) looks at the whole chain of legal development leading up to modern case law.

      So my lawyer wife tells me.

      • Rokurota: Yeah, that makes perfect sense, of course. I wasn’t questioning at all the wisdom of our courts’ referral to the old English laws, I was expressing wonder at how their current situation is diametrically opposite their history. A kind of “how the hell did that happen?” thing.

        • Kings & Queens & Lords AKA aristocrats care nothing for the rights of the common people. If you’re a tyrant monarch who rules FOR LIFE, do you really want firearms in the hands of peasants? UK gun laws evolved to keep lower classes powerless.

          Lucky for us, George Washington had the common sense to want to be president of the USA, NOT king.

        • Ironically, the American revolutionaries in large part revolted because the American colonists were not being afforded their full English constitutional and legal rights. I’d argue that English Law, at least up until the 20th century, provided excellent protection for civil rights, and was a quite permissive regarding firearms, but the 20th century has been awful.

  9. They’ll probably do what New Jersey does, say that you need “justifiable need” but not define it so it’s automatically rejected if you apply.

    • As noted above, MD had their CCW law invalidated for that reason. NY and CA CCW laws are being challenged on that basis as well. If the various circuit courts rule the same as in the MD case- shall issue falls. If the circuit courts rule differently, than expect the issue to go before SCOTUS.

      • Remeber though that Md’s law was invalidated by the district court, that the case is on appeal to the Circuit Court, and that the Circuit Court issued a stay on the trial court judgment. There isno telling what the Court of Appeal will say; will it find Kachalski or Moore more persuasive? And if it goes for Moore, will it also agree that the existence of the right is sufficient good cause for its exercise? The Moore court majority did not appear to think so, but instead that some reasonable restrictions could be imposed in the interest of public safety.

        • Shale issue is reasonable restrictions. A training requirement is reasonable restrictions. Not allowing a law abiding person a CCW Permit without a good reason isn’t a reasonable restrictions.

          Thanks
          Robert

  13. Wait til u see the sh%tstorm the Chicommies start over this. They aint going down without a fight. Bet 5 years before they give up.

  17. Looking at IL’s political situation today,this verdict is well timed.Ten years ago a ‘may issue’ law may have passed muster in the state legislature,but Chicagos antagonism has alienated the state legisature so badly the only CCW that’s going to pass WILL be shall issue-or bust .And thanks to the 7th Circuit,bust is not an option for the antis.

  18. Great for Illinois. I’m really happy to hear they are getting their rights. Too bad it took this long but still. Also, it will be interesting to see what this does to the violence rates in Chicago. If they go down, it will be hard to argue concealed carry wasn’t the cause.

  19. So Illinois may end up joining NJ and NYC as MIIT, NIIF jurisdictions: May Issue in Theory, No Issue in Fact. Because fascist machine politicians never quit as long as they hold power.

    There likely will be a motion for re-hearing en banc, which means before all the judges of the 7th Circuit. Let’s see if the motion is granted and if so, whether the other judges decide to grow a pair. Actually, that would be a bunch of pairs.

    • Curious, you are a lawyer right? Is there any case history of MIIT-NIIF being attacked legally on the grounds that it is discriminatory? Like it seems like you can get a permit in these kinds of states if you are a) rich b) famous, or c) powerful. Isn’t this trend something that can illustrate a pretty obvious case of discrimination? Has it ever been done successfully?

      -D

      • Yes and no. Wealth is not a suspect classification giving rise to a discrimination claim. Instead, at least in California, the effort has been to try to establish an equal protection violation by comparing the “good cause” statements of CCW applicants in an effort to prove that in some counties, some peope are more equal than others. This effort has so far back fired–instead of reducing good cause to the lowest common denominator, the sheriffs in the no-issue or limited issue counties have amped up the required proof of good cause. The urban sheriffs (San Diego, San Francisco, LA) believe that the fewer guns on the streets the better.

      • I’m a retired lawyer. Your question is a very good one. The most recent MIIT, NIIF case of note was in the Second Circuit. Discrimination wasn’t part of the case, and likely will not be in any new cases.

        The problem is that discrimination is fine. It’s what you do every day when you buy at one store and not another or decide who you want in your club and who you don’t. In fact, that’s exactly what a licensing statute is supposed to do — discriminate between people who the issuing authority says do not need or shouldn’t have guns and those who the authority believes does need them or should have them. Even “shall issue” permitting schemes discriminate, based on criminal past, lack of proficiency or other details.

        Illegal discrimination is not fine. Discrimination is made illegal only by specific provisions of the Federal or state Constitution, legislation or court rulings that generally relate to race, religion, age, gender or other qualities of a person, primarily those that cannot be changed. Since most MIIT, NIIF states deny almost everyone, discrimination is not implicated.

    • Having lived there for eight years, and in Chicago for five of those, I’m trying to curb my enthusiasm. As Ralph notes, IL will no doubt file a motion for a re-hearing by the entire 7th.

      Should the ruling hold, remember that the Chicago/Cook county gang holds a lot of power in the state legislature. Neither the governor nor the AG can wipe their backsides without the go-ahead of the speaker of the house a Chicagoan who incidentally is the step-father of the AG, Lisa Madigan. She is politically ambitious and is likely a candidate for governor sooner or later.

      For anything to get by the governor and his amendatory veto power, I’ll lay odds that it’s as postulated above-May Issue in Theory, Not Issue in Fact. On top of that, look for any state pre-emption to be tossed for home-rule cities like Chicago.

      They won’t go down without a fight. Regardless of the budget issues they face, they’ll throw money and lawyers at this until the last dog is hung.

      • Check out the 3pm EST post. Adding to that, the NRA reckons the IL AG won’t appeal; the gun control advocates don’t want the case to get to the Supreme Court lest they lose even more bargaining power. Of which they don’t have much, apparently.

        • Great news if they don’t appeal. Expect a tough time in the legislature with the Chicago gang, though.

  20. Yeehaw!! I am glad for all the good people in Illinois!!! Now if the courts will force the commie state government cronies to make it shall issue within and outside the home will once again be a little safer.
    Of course someone needs to step on and make sure they don’t charge the applicants $500 a year, plus some other ungodly amount for some stupid shit rules only they have!!
    AR is shall issue, pass the b’ground checks, pay your fee, get your license. Took mine about 4 months due to backlog a few years ago!! Good for 5 yrs and $60 fee to renew.
    Would be a hell of a lot better than what they have now.
    Wonder how reciprocity is going to be handled by Illini State and others??

    • Once Wisconsin went, I got my CCW in four days. In the box (hand delivered) Tues Noon, arrived my mail box Friday. $37 fee +$13 background check (same as hand gin purchase). Five year renewal.

      • Ours breakdown as: $75 for class and range, $145 for complete application, to include fingerprint card, etc. took so long because of an influx of apps in 2009 after Obummer had been inaugurated. Renewal $60 and takes about 2 days online for approval!!

  22. Thats good news. Bet Obama and his Senate Kalinforia and company are spitting everywhere and foaming at the mouth over this.

  23. Illinois was/is the last to out right prohibit. California urban areas are essentially the same thing. Open question to all:Who thinks it will end up like CA. Or have a carry permit cost of $500 after fees, and training?
    Here in WI we were late, but have open and reasonable cost for CCW.

  24. Look for predictions of blood in the streets of Chicago, although they could just run current news footage instead.

    • I heard the politicians told the Tribune not to publish all the shootings, that way they could claim CC wasn’t necessary, Randy

  25. Everyone needs to read the dissent… It provides what I would call a “conservative” way out. The dissent argues that courts should defer to the legislature, that the history of carrying weapons outside of the home is muddled, and that Heller should not be read too broadly. Further, it argues that since Heller implies that the government can say where you can and can’t carry (schools, bars, government buildings), and since private property owners can decide to bar the carrying of weapons on their premises, the RKBA in public can, in theory, be reduced to nothing – do a mental exercise and assume that every public and private building, including public transportaton, banned the possession of a handgun — what would you do with your right to carry outside of the home? While I disagree with the dissent, it is somewhat persuasive and definitely could appeal to a “small c” conservative judge afraid of changing things too much too soon.

    • I agree with the broad implications of your theory on the meaning and possible application of aspects delineated in the dissent by Judge Williams. Even with the broad restrictions implicated, carry outside the home will not be reduced to a null. In fact, the restrictions as applied today that appear at first glance to be “common sense”, “reasonable”, etc.; like schools, government buildings, bars, sports arenas, and the like, will probably be challenged and found lacking rational justification in the future. For instance, if , by statue, I am denied the means of self defense in a particular venue, would/could that venue then be held absolutely liable for any injury that I incur because of that exclusion? Would I or my heirs be granted compensation/restitution for their negligence?

      • Wisconsin specifies in the law that if you post you can be sued for your actions. That is why we have some prize a$$holes illegally posting parking lot “entrances” to allow individual stores to escape liability & increased insurance costs. & if the shopping center is sued most are LLC & will try to avoid paying. Any attorney should be able to argue that the stores are in fact posted, scheme or not, Randy

  27. Sorry, I’m a little late to the party.

    This decision is huge, momentous and monumental. Posner, no friend to the 2A, has written a sound, rational judgement that hews to historical fact and judicial precedent, with clear insight and no apparent prejudice. Utterly remarkable. I’m absolutely stunned that he was able to put away his prejudices and reservations to write such a resoundingly strong and rational decision. I’m completely blown away. The reverberations from this will have very far reaching implications.

    The 7th’s opinion, though it may well come to blows in other courts, will likely carry the day down the road. In the 2nd and 9th, just to mention a couple of the most prominent 2A cases currently in contention, this decision will likely carry great weight. Kachalsky in particular (NY discretionary licensing) will likely benefit as it goes up the appellate ladder. If this makes it to SCOTUS, before there is a change in the current court’s makeup, shall-issue will likely be universally applied. CA, CT, DC, HI, IL, MA, MD, NJ, NY, will all be brought to heel. From that, national reciprocity will be the logical and correct next step.

    A year ago I would have said that national reciprocity was at least 10 years in the distance. In the light of Moore v. Madigan, I’m going to go out on a limb and say that it is 5 years away at the OUTSIDE. Take heart, stay focused, give generously to the cause, make it happen and rejoice.

    I’d nominate Alan Gura to be put up on Mount Rushmore. It’s too bad that there isn’t enough room to have him next to TR, but that’s a pretty small point. He’s done pretty well for an immigrant kid and truly, firmly symbolizes the American ethic.

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