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Illinois Asks U.S. Appeals Court to Rehear Gun-Carry Case

Illinois Attorney General Lisa Madigan asked a U.S. appeals court to reconsider its decision last month to invalidate a state law that prohibited people from carrying loaded guns outside of their home or business.

A panel of the U.S. Court of Appeals in Chicago, by a 2-1 vote, overturned a pair of lower-court rulings upholding the law and returned the cases to those courts with instructions to find the measure unconstitutional. The appellate judges delayed the effect of their ruling for 180 days to give the state legislature time to write a replacement law.

Madigan, in her petition filed today, asked for a rehearing by a 10-judge panel.

“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,” the attorney general said in a statement announcing the filing.

The appellate decision came just three days before a Connecticut man shot and killed 27 people, including his mother and then 20 children at an elementary school in suburban Newtown. He also took his own life.

Outright Ban

Illinois is the only U.S. state with an outright ban on the carrying of a loaded weapon outside the home or regular workplace. One of the lawsuits was filed by the Bellevue, Washington-based gun rights group, the Second Amendment Foundation; the other by the Illinois State Rifle Association.

“One doesn’t have to be a historian to realize that a right to keep and bear arms for personal self-defense in the 18th century could not rationally have been limited to the home,” U.S. Circuit Judge Richard A. Posner wrote, referring to the original drafting of the Constitution and the 1791 ratification of the amendment.

The amendment reads in full, “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 U.S. Supreme Court in 2008 ruled that the amendment confers an individual right to keep and bear arms, striking down a handgun ban in the District of Columbia by a 5-4 vote. By the same margin two years later, the high court invalidated a Chicago ordinance that banned guns even within the home.

2008 Ruling

The 2008 high court ruling “left unresolved” whether a ban on gun carrying outside the home is unconstitutional, Madigan argued in today’s filing.

Last month’s appeals court ruling also conflicts with decisions rendered by appellate panels based in New York and in Richmond, Virginia, the attorney general wrote. She also disputed Posner’s take on Second Amendment history.

“It was an arrestable offense to carry arms in public in Seventeenth and Eighteenth Century Britain,” the attorney general said. “Many Founding-era governments barred open or concealed carry in public places, either by statute or common law.”

Richard Pearson, executive director of the Illinois rifle association, said further court review is fine.

“If it goes to the full-judge panel and we win, we’re happy,” he said in an interview. “If we don’t, we’ll go to the Supreme Court.”

The cases are Moore v. Madigan, 12-1269 and Shepard v. Madigan, 12-1788, U.S. Court of Appeals for the Seventh Circuit (Chicago).

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