SAF files Suit in Illinois over Right to Carry

Mr H · Dec 13, 2012

I may be wrong on this, but I don't think 'mooting' is possible in this case, since the decision requires the IL legislature TO write law(s) to replace the invalidated one(s).

The question (to me) here is whether IL will meet the CA7's requirement, and it will pass muster with the respective District Courts (remember that Moore/Sheppard was also remanded).

Patrick · Dec 13, 2012

mr h said:
I may be wrong on this, but I don't think 'mooting' is possible in this case, since the decision requires the IL legislature TO write law(s) to replace the invalidated one(s).

The question (to me) here is whether IL will meet the CA7's requirement, and it will pass muster with the respective District Courts (remember that Moore/Sheppard was also remanded).

Moot is an ambiguous word. More accurately, when/if IL passes a law that comports with the ruling from the 7th Circuit, no party will be able to proceed in this case because no controversy exists.

To be clear, there could be arguments over the new law and whether it comports with the decision. If a May-Issue law comes forward, or if some type of subjective discretion is allowed by that law, then you can bet the SAF and NRA will use this case to go back to the court and seek a restraining order. That would start in the District Court, where they will argue that the state law does not meet muster, and therefore it too must be removed.

I am hopeful that will not happen. If the legislative majority holds, then we may see much better outcomes than any of us would have expected. At this point, even Chicago will have to throw in some towels.

Again...en banc would set this back a year.

Patrick · Dec 13, 2012

randian said:
If a shall-issue bill is passed, mooting the decision, does a circuit split still exist? If not, is there a big difference between citing this as supplemental authority, and citing it as a circuit split, in terms of how persuasively SCOTUS would view a cert. petition using it?

To the extent a split exists today, one would still exist. A decision is a decision. The only way to vacate this ruling is to get an en banc review. You can bet that is topic #1 in Illinois right now.

As for the split, on face a number of people see one. Even Lyle Dennison of ScotusBlog referenced this as an apparent split. But as esqappellate notes, the devil is in the details. It certainly feels like a split, even if technical issue require splitting some hairs to get there.

If en banc is denied, then I am pretty sure you will see Gura use this to claim a split with Kachalsky. Not sure of the calendar there, but it could work where IL would get their answer before Gura's clock runs down for his cert petition.

No matter how you split the hair, Moore is a good decision.

EDIT: Yes - I just wanted to say 'split' as many times as I could in this post.

jrosenberger · Dec 13, 2012

Patrick said:
To the extent a split exists today, one would still exist. A decision is a decision. The only way to vacate this ruling is to get an en banc review. You can bet that is topic #1 in Illinois right now.

As for the split, on face a number of people see one. Even Lyle Dennison of ScotusBlog referenced this as an apparent split. But as esqappellate notes, the devil is in the details. It certainly feels like a split, even if technical issue require splitting some hairs to get there.

If en banc is denied, then I am pretty sure you will see Gura use this to claim a split with Kachalsky. Not sure of the calendar there, but it could work where IL would get their answer before Gura's clock runs down for his cert petition.

No matter how you split the hair, Moore is a good decision.

EDIT: Yes - I just wanted to say 'split' as many times as I could in this post.

This is one of the few times where it's actually true that we'll know more in TWO WEEKS. The deadline to petition for rehearing is only 14 days. If a petition is filed, who knows how long that will take to be resolved. Hightower's petition for rehearing was denied in a day or two.

The cert clock for Kachalsky expires in late Feb/early Mar, so it seems pretty likely we'd have an answer on en banc by then.

Patrick · Dec 13, 2012

jrosenberger said:
This is one of the few times where it's actually true that we'll know more in TWO WEEKS. The deadline to petition for rehearing is only 14 days. If a petition is filed, who knows how long that will take to be resolved. Hightower's petition for rehearing was denied in a day or two.

The cert clock for Kachalsky expires in late Feb/early Mar, so it seems pretty likely we'd have an answer on en banc by then.

Gura's request for en banc in Hightower took about two weeks from submission to be denied. My impression is they generally don't take that long. Once a decision is made, it's not good to keep parties hanging on the possible next step. A degree of certainty should be the norm.

jrosenberger · Dec 13, 2012

Patrick said:
Gura's request for en banc in Hightower took about two weeks from submission to be denied. My impression is they generally don't take that long. Once a decision is made, it's not good to keep parties hanging on the possible next step. A degree of certainty should be the norm.

Thanks for correcting me on that. I remember it feeling shockingly fast at the time.

Patrick · Dec 13, 2012

jrosenberger said:
Thanks for correcting me on that. I remember it feeling shockingly fast at the time.

Al or someone will be along shortly to tell us how many hours, minutes and seconds we are off on our remembrance...

Hell, they could probably tell us the relative humidity in Boston at the time en banc was denied...

Maestro Pistolero · Dec 13, 2012

I may be wrong on this, but I don't think 'mooting' is possible in this case, since the decision requires the IL legislature TO write law(s) to replace the invalidated one(s).

To be precise, a court can't compell a legislature to write a law. It can declare a law unconstitutional and allow the legislature time to craft a new one, which is what the court has done here.

esqappellate · Dec 13, 2012

Patrick said:
Al or someone will be along shortly to tell us how many hours, minutes and seconds we are off on our remembrance...

Hell, they could probably tell us the relative humidity in Boston at the time en banc was denied...

hightower opinion issued 8/31, petition for rehearing filed 9/13. Rehearing denied 9/24 Fast.

Mr H · Dec 13, 2012

Maestro Pistolero said:
To be precise, a court can't compell a legislature to write a law. It can declare a law unconstitutional and allow the legislature time to craft a new one, which is what the court has done here.

Point taken... thanks.

randian · Dec 13, 2012

Maestro Pistolero said:
To be precise, a court can't compell a legislature to write a law.

I'm not so sure that's true. What's the difference between compelling the appropriation and expenditure of money, and compelling the writing of a law? Legislature's may not, generally, appropriate or expend money except according to law. I see no difference between demanding the expenditure of money for a particular purpose, and demanding a law be written and passed authorizing the expenditure of money for that purpose.

Biggfoot44 · Dec 14, 2012

It's not *compelling* . The Court gave them a time window to use if they cared to in the face of a prospect they really wouldn't like if they did nothing.

vafish · Dec 14, 2012

Biggfoot44 said:
It's not *compelling* . The Court gave them a time window to use if they cared to in the face of a prospect they really wouldn't like if they did nothing.

I think the court gave the legislature a pretty compelling reason to write a law. But they aren't forcing the legislature to write it.

The definition of compel is to urge forcefully or to cause to do by overwhelming pressure.

I think the court has compelled the legislature to write a law.

swinokur · Dec 14, 2012

Either that or Constitutional carry will be the law of the state.

My guess is they'll pass something that won't allow a slap down by the Courts. But it is Illinois.

BigMBobbyOP · Dec 14, 2012

Just wanted to point out that the dissent make some pretty good points. Basically I thought the best point was where he was speaking on the patchwork of places that banned carriage. Allowing carry in public but restricting it to this vast patchwork of places doesn't really add up. Either is safe in public or its not.

CAS_Shooter · Dec 14, 2012

BigMBobbyOP said:
Just wanted to point out that the dissent make some pretty good points. Basically I thought the best point was where he was speaking on the patchwork of places that banned carriage. Allowing carry in public but restricting it to this vast patchwork of places doesn't really add up. Either is safe in public or its not.

Doesn't this just fall under reasonable regulation that all rights are subject to? I think the ruling simply confirms the right inside and outside the home. The right is founded on a fundamental premise; the premise is self defense. That then being established, what are the reasonable constraints in exercising that right. While there might be disagreement in the details, I see no conflict with the establishment of the right to carry outside the home along side reasonable rules of engagement. No different than the no yelling fire in a crowded theater concept.

So, maybe what doesn't add up is the too restrictive patchwork. But that is subjective and not at all conflicting with the confirmation of the right outside the home and the natural regulations that go along with the right.

esqappellate · Dec 14, 2012

CAS_Shooter said:
Doesn't this just fall under reasonable regulation that all rights are subject to? I think the ruling simply confirms the right inside and outside the home. The right is founded on a fundamental premise; the premise is self defense. That then being established, what are the reasonable constraints in exercising that right. While there might be disagreement in the details, I see no conflict with the establishment of the right to carry outside the home along side reasonable rules of engagement. No different than the no yelling fire in a crowded theater concept.

So, maybe what doesn't add up is the too restrictive patchwork. But that is subjective and not at all conflicting with the confirmation of the right outside the home and the natural regulations that go along with the right.

Aren't you forgetting all the BLOOD IN THE STREETS! Seriously, the dissent is merely willing to defer to the State's assessment of that risk to public safety associated with the public carry of LOADED handguns. There I go again. Sorry, I can't help myself..... Serious again. What demolishes the dissent is that part of the majority opinion that demonstrates that Illinois' assessment of the risk is unsupported by real facts. The clincher, of course, is Posner's statement that the right doesn't depend on casualty reports.

BigMBobbyOP · Dec 14, 2012

esqappellate said:
What demolishes the dissent is that part of the majority opinion that demonstrates that Illinois' assessment of the risk is unsupported by real facts.

how do you even quantify the risk to produce any facts at all?

Rattlesnake46319 · Dec 14, 2012

Gray Peterson said:
IL does not have a pocket veto. If the Leg passes it, and the Gov doesn't sign it, it becomes law without his signature. The home rule hurdle & the veto override hurdle is exactly the same amount of votes.

In 180 days, you will be able to carry in IL with a FOID, or a home state carry license if you're a non-resident, per a 2005 state supreme court decision on the matter.

Do you happen to have a link for that decision? The idea of crossing the Mississippi eastbound while carrying makes me giggle.

esqappellate · Dec 15, 2012

Rattlesnake46319 said:
Do you happen to have a link for that decision? The idea of crossing the Mississippi eastbound while carrying makes me giggle.

here is the state statute.

SAF files Suit in Illinois over Right to Carry

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