Tuesday, December 11, 2012

Hell has frozen over and pigs have flown. Illinois’ ban on carrying weapons is unconstitutional, according to the 7th Circuit Court of Appeals in Moore v. Madigan.

Many thanks to reader Dan who forwarded this link. He also reports that: "The servers are going crazy at the moment. It took me many tries to get in and D/L the document. It runs 47 pages." From the opinion:
Twenty-first century Illinois has no hostile Indians. But a Chicagoan is a good deal more likely to be attacked on a sidewalk in a rough neighborhood than in his apartment on the 35th floor of the Park Tower. A woman who is being stalked or has obtained a protective order against a violent ex-husband is more vulnerable to being attacked while walking to or from her home than when inside. She has a stronger self-defense claim to be allowed to carry a gun in public than the resident of a fancy apartment building (complete with doorman) has a claim to sleep with a loaded gun under her mattress. But Illinois wants to deny the former claim, while compelled by McDonald to honor the latter. That creates an arbitrary difference. To confine the right to be armed to the home is to divorce the Second Amendment from the right of self-defense described in Heller and McDonald. It is not a property right—a right to kill a house guest who in a fit of aesthetic fury tries to slash your copy of Norman Rockwell’s painting Santa with Elves. That is not self-defense, and this case like Heller and McDonald is just about self-defense. . .
We are disinclined to engage in another round of historical analysis to determine whether eighteenth-century America understood the Second Amendment to include a right to bear guns outside the home. The Supreme Court has decided that the amendment confers a right to bear arms for self-defense, which is as important outside the home as inside. The theoretical and empirical evidence (which overall is inconclusive) is consistent with concluding that a right to carry firearms in public may promote self-defense. Illinois had to provide us with more than merely a rational basis for believing that its uniquely sweeping ban is justified by an increase in public safety. It has failed to meet this burden. 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.
LATER: Here's the FOX report on the decision. My friends tell me it is significant in legal circles that it was Justice Posner who wrote the majority opinion.


Earl Flanigan said...

That is merely the opening bars of a long song to be played. This IS Ill-annoys after all. Given my past experiences of meeting a few of our legislators - Obama included when he was just a two-bit punk in Springfield (since elevated to four-bit status); I suspect there will be the usual chicanery pulled when it makes it to the floor of the legislature. Hidden ammo bans, 'assault' weapon bans, ridiculous licensing requirements, I could go on all day. It IS good news, but the Fat Lady hasn't even entered the building yet.

Kevin Wilmeth said...

I'll admit, I had to read that one twice, and check the calendar to see if it had become April 1st without my realizing it, and then read it again.


While I still have to wonder where the catch is, it's actually invigorating to see some of that narrative--Jeez, it's almost as if a real human being wrote it.

Just not used to that any more.

The sound and fury on this one should be fun, shouldn't it? I mean, we all know that anything that the state responds with is going to continue to flagrantly violate applicable law (probability 100%), and doubtless create another easily exploitable registration trap, but the PSH crowd should still provide sufficient hyperventilation to extend the hurricane season another few months at least.


Anonymous said...

Posner's blog:


Anonymous said...

Not to be pessimistic, but as it stands IL citizens need only wait 180 days to be able to carry without a permit. Some gun-rights groups are already preparing to surrender their freedoms by proposing a bill in January which would require carriers obtain a permit. Why compromise when one doesn't have to give up anything? Regardless, watch ILGA leaders change the rules so a carry bill needs only a simple majority to pass. You'll then see Chicago lawmakers who have never voted on a carry bill before vote "yes" on a super-restrictive carry law which few can enjoy. It's not over til it's over. Meanwhile, I have to admit it's fun watching the gun-control people running around in a frenzy today.

rexxhead said...

In other news, a Texas Air National Guard F-16 was shot down over Odessa by what the pilot described as "a pig". The pilot ejected safely.

Ed said...

It has been decided that the current law is unconstitutional. Why is an unconstitutional law allowed to persist for another 180 days? Would "public safety" really be endangered if the law was remanded to the lower court immediately? Constitutional Carry similar to Vermont and several other states would be the result until other possibly unconstitutional legislation is passed and signed by the Governor. The greater evil is allowing an unconstitutional law to be in effect for another single day.

What other constitutional rights would be allowed to be violated for an additional 180 days if any other law other than a gun control law was found to be unconstitutional?

Anonymous said...

I Was born in the More southerly alined lower portion of the state back in the great year 67. After a stint in the Army I relocated to Arizona where I spent the majority of my life.
A few years ago I relocated back to my roots to be with my Mother in her failing medical condition, and also grow ties with the brother I left behind.

I have for the last several years followed closely the battle to regain a RIGHT that isn't supposed to be trampled on in the first place, and have been ashamed to admit I live in this state, and rarely admitting it amongst the freefor circle.

But I have known for the last year or so that we would finally get our RIGHT back, either by litigation or the vote.

HB148 introduced by a down state Dem, and supported by all downstate Dems came close, Hey they may be Dems, but they ain't completely stupid down here, they know their careers as politicians hinge on the vote of their constituents, and in this last election a measure was on the ballot to choose whether you support or appose concealed carry.

The numbers were overwhelming, the people of this state want it, and we will not be denied.

HB148 is still on the table, ISRA (Illinois state rifle association)along with Every Southern, and Central Illinois Rep. both Dem and GOP, as well as the people support this bill.

Try as they might, I believe the Chicago machine is just gonna have to accept that today is the beginning of the end of their reign of control over all of this state.

As others have stated, the fight isn't over yet, but that's just because the tyrants of the north have yet to realize they lost.

And thanks Mike for posting this, although I pay close attention, the news was broke to me here at SSI.


A man suddenly less ashamed to admit he lives in the land of Lincoln

Anonymous said...

Anon at December 11, 2012 11:56 PM: HB148 is off the table per the NRA. It was too restrictive as a compromise to win more votes, but that scenario has changed since yesterday. It will die at the end of this session anyway, but look for the next bill to resemble KY, TN, or FL.

Personally, I still think it would be better to resist all carry bills and let 180 days pass so citizens can carry openly or concealed with only a FOID card.

Anonymous said...

link to the ruling has been taken down.

Ashrak said...

I argued against hb 148 then and will do so again now. The supposed pro gun folks around here have begged and begged only to be batch slapped by the Madigans. I will not beg for permission slips!

There is no permission slip structure here and there is no valid reason to create one now. FOID is already required to own and that's onerous enough. Truthfully we shouldn't even be subjected to that!

No we should Not support ANY ILGA legislation at this time. What we MUST do for LIBERTYS sake is stand our ground and let the click run the 180 days we will then have Constitutional Carry by default. Preemption has been used to keep our right to carry away from us and now it is time to use that same path to bring about CC!

Republicans are about to show their Democrat stripes if they bow to legislation like hb148 now.

The right thing to do now is simply wait for the last grain of sand to fall out of the 180 day hourglass.


Anonymous said...


I took a close look at HB148, and you are right it is ridiculously restrictive, and I won't support it or any bill like it.

The more I read on where we stand the better I feel, that we will either get a good cc bill passed, or better yet just gridlock until time expires and have what all states should have constitutional carry!