Moore v. Madigan

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Madigan’s Procrastination Rewarded….Again

June 25, 2013 by 3 Comments

Illinois Attorney General Lisa Madigan was granted a second extension of time in which to file an appeal in the joint cases of Moore v. Madigan and Shepard v. Madigan. Justice Elena Kagan granted the extension of time to file the appeal until July 22nd.

The extension was granted by Justice Kagan on June 18th. One has to wonder if it had been Justice Thomas or Justice Scalia would Madigan have gotten her extension granted so easily. Unfortunately, the 7th Circuit is assigned to Justice Kagan for these type of matters.

The whole issue would become moot if Gov. Pat Quinn signs the carry bill that was passed on June 4th by the Illinois General Assembly. Madigan’s father, House Speaker Michael Madigan, is urging Quinn to do just that.

The Chicago Democrat’s office said Tuesday that the governor has not decided what action he’ll take on the legislation. The attorney general’s office released Kagan’s order but did not have an immediate comment.

House Speaker Michael Madigan – the attorney general’s father and a fellow Chicago Democrat – urged Quinn to sign the bill, which was a hard-fought compromise between the House and Senate.

“If you look at the vote in the House and the Senate it’s pretty clear that the governor’s veto could be overridden,” Madigan said after an unrelated committee hearing Tuesday.

As Sebastian noted when Madigan requested the second extension, this is getting ridiculous and it is time for Illinois politicians to stop playing games.

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Madigan Files For 30 Day Stay On Mandate (Updated)

June 4, 2013 by 8 Comments

Getting each house of the Illinois General Assembly to pass a concealed carry law with lopsided margins looks to have been the easy part. The harder part, in many ways, is going to be getting the law implemented.

It just got a bit harder today thanks to the machinations of Illinois Attorney General Lisa Madigan. She has filed a motion to stay the 7th Circuit’s 180 day mandate to have a concealed carry law in place for another 30 days. She gives as her rationale that it would give Gov. Pat Quinn “a reasonable time to fulfill his constitutional duties.” The Illinois Constitution gives the governor 60 days after a bill’s passage to consider and sign it. That amount of time is one of the longest in the nation according to the National Governor’s Association.

Madigan argues that the additional time is necessary to avoid having no state law in place which she says was the court’s original intent of the 180-day stay of its mandate.

The expiration of the stay on June 9 without a substitute law in place
would present a significant harm, not to the defendants in an individualized or
official capacity, but to the People and Constitution of Illinois. The current stay of
this Court’s mandate expires in less than one week, significantly shortening the
sixty-day period constitutionally afforded the Governor to consider and sign
legislation into law. Expiration of the stay on June 9 will either eliminate that
constitutionally-provided period entirely or create a gap in state firearm regulation.
These represent unnecessary harms to the public interest.

Madigan goes on to argue that 30 days is only for the “orderly completion of the legislative process and is not intended for purposes of delay.” If this is indeed the case, one might well ask why Madigan isn’t asking for 51 days or the full amount of time left for Gov. Quinn to either sign or veto the bill under the Illinois Constitution.

Madigan concludes her argument by saying she recognizes that a delay of a constitutional right imposes a burden upon the plaintiffs but that is outweighed by the public’s interest in not having a period where no law is in effect.

It should be noted that Madigan still has another 21 days left on her extension in which to file a writ of certiorari with the Supreme Court appealing this case. There is no word on what she intends to do regarding that.

UPDATE: Despite it being highly irregular and that a stay would seem to violate many of the Rules of Federal Appellate Procedure, Illinois Attorney General Lisa Madigan got her order staying the mandate of the court for another 30 days. 

1. MOTION TO STAY MANDATE FOR 30 ADDITIONAL DAYS, filed on
June 3, 2013, by counsel for the appellees.

2. OPPOSITION TO MOTION TO STAY MANDATE FOR ADDITIONAL 30
DAYS, filed on June 4, 2013, by counsel for appellants Michael Moore, Charles
Hooks, Peggy Fechter, Jon Maier, Second Amendment Foundation, Inc., and
Illinois Carry.

3. PLAINTIFFS-APPELLANTS MARY SHEPARD AND ILLINOIS STATE
RIFLE ASSOCIATION’S OPPOSITION TO MOTION TO STAY MANDATE
FOR ADDITIONAL 30 DAYS, filed on June 4, 2013, by counsel for appellants
Mary Shepard and the Illinois State Rifle Association.

IT IS ORDERED that the motion to stay mandate for additional 30 days is GRANTED.
This court’s mandate is STAYED until July 9, 2013. No further extensions to stay the court’s
mandate will be granted.
form

 Sebastian has more on the opposing motions here.

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Supreme Court Grants Illinois 30-Day Extension

May 3, 2013 by 10 Comments

The United States Supreme Court has granted Illinois Attorney General Lisa Madigan’s request for a 30-day extension in which to file a writ of certiorari in the joint carry cases of Shepard v. Madigan and Moore v. Madigan.

The application was granted by Justice Kagan.

From the court’s order:

Title:
Lisa Madigan, et al., Applicants
v.
Michael Moore, et al.
Docketed: May 1, 2013
Lower Ct: United States Court of Appeals for the Seventh Circuit
  Case Nos.: (12-1269, 12-1788)

~~~Date~~~  ~~~~~~~Proceedings  and  Orders~~~~~~~~~~~~~~~~~~~~~
Apr 26 2013 Application (12A1053) to extend the time to file a
petition for a writ of certiorari from May 23, 2013 to June 24, 2013,
submitted to Justice Kagan.
May 2 2013 Application (12A1053) granted by Justice Kagan extending the time to file until June 24, 2013.
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NRA-ILA On Win In 7th Circuit

February 23, 2013 by

The NRA-ILA was also pleased with the ruling from the 7th Circuit Court of Appeals on Friday that denied Illinois Attorney General Lisa Madigan’s request for an en banc hearing of the dual cases – Moore v. Madigan and Shepard v. Madigan.

They released this statement yesterday.


Fairfax, Va. – The United States Court of Appeals for the Seventh Circuit ruled on December 11, 2012, that Illinois’ total ban on carrying firearms for self-defense outside the home or business is unconstitutional. Today, the same court sitting en banc denied the State of Illinois’ petition to rehear the case. The case involves lead plaintiff Mary Shepard, an Illinois resident and a trained gun owner, who is licensed to carry a concealed handgun in both Utah and Florida. The National Rifle Association is funding this case. The Illinois State Rifle and Pistol Association is a co-plaintiff in this case.

On September 28, 2009, while working as the treasurer of her church, Ms. Shepard and an 83-year-old co-worker were viciously attacked and beaten by a six-foot-three-inch, 245 pound man with a violent past and a criminal record. Ms. Shepard and her co-worker were lucky to survive, as each of them suffered major injuries to the head, neck and upper body. Ms. Shepard’s injuries required extensive surgeries and she continues physical therapy to this day attempting to recover from her injuries.

In the ruling which was upheld today, Judge Richard Posner ruled that Illinois’ ban on carriage is unconstitutional. The Judge went on to say, “One doesn’t have to be a historian to realize that a right to keep and bear arms for personal self-defense in the eighteenth century could not rationally have been limited to the home. . . . Twenty-first century Illinois has no hostile Indians. But a Chicagoan is a good deal more likely to be attacked on a sidewalk than in his apartment on the 35th floor.”

“Today’s decision is a major victory for the Second Amendment and all the law abiding citizens of Illinois who wish to both to keep arms, and to bear arms,” added Chris W. Cox, executive director of NRA’s Institute for Legislative Action. “It is now clear that no state can deny law-abiding residents the right to carry a firearm for self-defense outside the home. We have been fighting this case for years and are prepared to keep fighting until the courts fully protect the entire Second Amendment.”

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SAF On Win In 7th Circuit

February 23, 2013 by

The refusal of the 7th Circuit to grant Illinois Attorney General Lisa Madigan an en banc hearing is a win for concealed carry in that state. While the question remains whether Madigan will appeal to the US Supreme Court, in the meantime the Illinois General Assembly has to get to work on a concealed carry law that would pass the court’s muster.

As you can imagine, the Second Amendment Foundation is thrilled with the refusal to grant an en banc hearing.


7TH CIRCUIT LETS POSNER RULING
STAND; HUGE WIN FOR CCW, SAYS SAF

BELLEVUE, WA – The Second Amendment Foundation today won a significant victory for concealed carry when the Seventh Circuit Court of Appeals let stand a December ruling by a three-judge panel of the court that forces Illinois to adopt a concealed carry law, thus affirming that the right to bear arms exists outside the home.

The ruling came in Moore v. Madigan, a case filed by SAF. The December opinion that now stands was written by Judge Richard Posner, who gave the Illinois legislature 180 days to “craft a new gun law that will impose reasonable limitations, consistent with the public safety and the Second Amendment…on the carrying of guns in public.” That clock is ticking, noted SAF Executive Vice President Alan Gottlieb.

“Illinois lawmakers need to create some kind of licensing system or face the prospect of not having any regulations at all when Judge Posner’s deadline arrives,” Gottlieb said. “They need to act. They can no longer run and hide from this mandate.”

“We were delighted with Judge Posner’s ruling in December,” he continued, “and today’s decision by the entire circuit to allow his ruling to stand is a major victory, and not just for gun owners in Illinois. Judge Posner’s ruling affirmed that the right to keep and bear arms, itself, extends beyond the boundary of one’s front door.”

In December, Judge Posner wrote, “The right to ‘bear’ as distinct from the right to ‘keep’ arms is unlikely to refer to the home. 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.”

Judge Posner subsequently added, “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 now up to the legislature,” Gottlieb said, “to craft a statute that recognizes the right of ordinary citizens to carry outside the home, without a sea of red tape or a requirement to prove any kind of need beyond the cause of personal protection.”

The ruling also affects a similar case filed by the National Rifle Association known as Shepard v. Madigan.

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Interesting Report On Concealed Carry Hearings

February 23, 2013 by

Chicago’s ABC 7 had a report on the legislative hearings about concealed carry in Illinois in the wake of the 7th Circuit’s denial of an en banc hearing for Moore/Shepard v Madigan. You just have to shake your head in dismay about the hysteria and ignorance spouted by officials from the Chicago Transit Authority and from the gun control lobby. Fortunately, this was offset by Dr. Paula Bradich and Todd Vandermyde.

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Illinois AG Madigan Requests En Banc Hearing In Carry Cases

January 8, 2013 by 4 Comments

Illinois Attorney General Lisa Madigan announced today that she will be requesting an en banc review of the 7th Circuit Court of Appeals decision in the joint cases of Moore v. Madigan and Shepard v. Madigan. This decision by the 7th Circuit would have forced the Illinois General Assembly to come up with some form of concealed carry within 180 days. An en banc review means all the judges of the 7th Circuit will review the case and not just the three judge panel assigned to the case. As I understand it, a petition for an en banc review is not automatically granted.

There had been some question on whether or not Madigan would appeal or seek an en banc review given her ambitions to succeed Pat Quinn as Governor of Illinois. Letting the decision stand would have been a bone tossed to downstate Illinois Democrats who tend to look at gun rights more favorably. I take Madigan’s petition as an indication that she feels that gun control post-Newtown is a winning proposition.

From Madigan’s press release:


Chicago — Attorney General Lisa Madigan today announced she has filed a petition for rehearing before the full U.S. 7th Circuit Court of Appeals in lawsuits challenging the Illinois laws that prevent the carrying of ready-to-use firearms in public.

The Attorney General’s petition for a rehearing “en banc” is a request for all of the judges on the 7th Circuit Court of Appeals to review the case after a December decision by a three-judge panel of the court held that the state laws barring carrying ready-to-use firearms in public are unconstitutional.

Madigan’s petition was filed in lawsuits brought against the State of Illinois by Michael Moore, Mary E. Shepard and the Illinois State Rifle Association, which allege that Illinois’ restrictions on the carrying of ready-to-use weapons in public violates their Second Amendment rights. The laws had previously been upheld by two separate federal district courts in Illinois.

In its December decision, the 7th Circuit Court of Appeals set a 180-day deadline for the Illinois legislature to draft and enact new laws relating to carrying ready-to-use firearms in public. Today’s petition for rehearing by the Attorney General does not affect that deadline.

Madigan issued the following statement regarding her decision to seek a rehearing:

“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. Based on those decisions, it is appropriate to ask the full 7th 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.”

UPDATE: The petition from the Illinois Attorney General’s Office can be found here.

The Brady Center along with Trayvon Martin’s parents and others have filed an amicus brief in support of the Madigan’s petition. It can be found here. Frankly, I find the thought of including Trayvon Martin’s parents in the amicus brief just a trifle tacky. But then again, this is the new and improved Brady Center.

There is also an amicus brief in support of Madigan’s petition from the City of Chicago, the Chicago Board of Ed, the Chicago Transit Authority, and the Legal Center to Prevent Gun Violence (the old LCAV) which can be found here.

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Dave Kopel Provides An Analysis Of 7th Circuit’s Illinois Carry Decision

December 13, 2012 by 1 Comment

In an interview with Cam Edwards of NRA News, Second Amendment scholar Dave Kopel analyzes the opinion of the 7th Circuit Court of Appeals in the Moore and Shepard cases.

He makes the point that Judge Richard Posner who wrote the decision is “the furthest thing from a libertarian” and had publicly disagreed with the Supreme Court’s reasoning in the Heller decision. However, Kopel said Posner was very smart and could read what the Supreme Court said (and meant) in that decision. If Posner had been a Supreme Court justice, his opinion might have been different. Since he wasn’t, Kopel said Posner wasn’t going to impose his own views on this case.

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Just Like Clockwork

December 12, 2012 by 2 Comments

It didn’t take long for the Chicago Sun-Times to call upon Illinois Attorney General Lisa Madigan to appeal the 7th Circuit Court of Appeals ruling in the joint cases of Moore v. Madigan and Shepard v. Madigan.

In their lead editorial today entitled “Madigan should appeal gun ruling”, the Sun-Times opines:

Illinois’ status as the only state that does not allow the carrying of concealed loaded guns was threatened Tuesday when a federal appeals court gave the state 180 days to change its law.

But that doesn’t mean Illinois should immediately allow anyone who feels like it to start toting a pistol.

Illinois Attorney General Lisa Madigan, who said Tuesday that she is reviewing her options, should appeal the overbroad ruling by the 7th Circuit Court of Appeals. And if the courts won’t extend the deadline while considering the appeal, the Legislature will have to craft a law that meets the court’s standards while providing as many protections as possible for citizens who don’t carry guns.

The Legislature might even be able to find a way to continue banning concealed carry while rewriting the law to satisfy the appeals court, which said the current law doesn’t rest on sufficient justification. Short of that, the Legislature could consider a narrowly crafted law, such as that in New York, which has concealed carry in theory but does not grant many permits.

Reading the full editorial, one can’t help but get the feeling that the editors of the Sun-Times are the residents of the 35th floor of the Park Tower of whom Judge Posner said had less need for concealed carry than people living in rough neighborhoods.

Frankly, I hope Ms. Madigan does pull an “Adrian Fenty” and appeal the ruling. Without the hubris of former Washington, DC Mayor Adrian Fenty, we would never have had the Heller decision confirming the Second Amendment protects an individual right. Likewise, without cases like this one being appealed, we will never get a decision from the Supreme Court on the right to carry outside the home.

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SAF On The Win Today In Chicago

December 11, 2012 by 1 Comment

The Second Amendment Foundation released this statement this afternoon concerning their win in the SAF’s case of Moore v. Madigan. As you can imagine, they are very happy.

What isn’t said is that the win in Moore/Shepard now gives them a split on carry between circuits with the 7th coming down on the side of carry while the 2nd Circuit’s ruling on Kachalsky affirmed New York’s Sullivan Law. This is very good as it will make it more likely that the Supreme Court will hear one or another of the Second Amendment carry cases working their way through the courts.

From the SAF’s release:

SAF WINS HUGE VICTORY FOR CARRY IN ILLINOIS

BELLEVUE, WA – The Second Amendment Foundation has won a huge victory for the right to bear arms outside the home, with a ruling in the Seventh Circuit Court of Appeals that declares the right to self-defense is “broader than the right to have a gun in one’s home.”

The case of Moore v. Madigan, with Judge Richards Posner writing for the majority, gives the Illinois legislature 180 days to “craft a new gun law that will impose reasonable limitations, consistent with the public safety and the Second Amendmenton the carrying of guns in public.”

“We are very happy with Judge Posner’s majority opinion,” said SAF founder and Executive Vice President Alan M. Gottlieb. “This is a victory for Illinois citizens who have been long denied a right recognized in the other 49 states; to have the means necessary for self-defense outside the home.

“In the broader sense,” he added, “this ruling affirms that the right to keep and bear arms, itself, extends beyond the boundary of one’s front door. This is a huge victory for the Second Amendment.”

“The Second Amendment,” Judge Posner writes, “states in its entirety that a well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.’ The right to bear’ as distinct from the right to keep’ arms is unlikely to refer to the home. 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.”

Later, Judge Posner adds, “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.”

“That the court will give Illinois lawmakers six months to craft a law allowing carry outside the home recognizes that the right to bear arms means what it says,” Gottlieb concluded. “The ball is now in the Legislature’s court, and we eagerly wait to see how well they can live up to their responsibility.”