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Illinois Bid for Rehearing of Gun-Carry Appeal Rejected

Feb. 22 (Bloomberg) -- Illinois Attorney General Lisa Madigan lost a bid for a rehearing of a federal appeals court decision to void a state law prohibiting people from carrying loaded guns outside their homes or usual places of business.

A three-judge panel of the Chicago-based U.S. Court of Appeals struck down the state law in a 2-1 ruling issued Dec. 11. With nine of the court’s 10 active members voting, the tribunal today rejected Madigan’s request for so-called en banc reconsideration 5-4.

The December decision reversed two lower-court rulings upholding the law, the only one of its kind in the U.S. The panel delayed enforcement of its decision for 180 days to give the state Legislature time to draft a replacement measure consistent with public safety and the U.S. Constitution.

Writing for the court’s four dissenting members today, U.S. Circuit Judge David Hamilton said the prior decision exceeded in scope the U.S. Supreme Court’s 2008 ruling in District of Columbia v. Heller that individuals have a right to bear arms.

“The Supreme Court has not yet decided whether the post-Heller individual right to keep and bear arms at home under the Second Amendment extends beyond the home,” Hamilton wrote, echoing arguments Madigan made in her request for reconsideration.

‘Bear Arms’

The U.S. Constitution’s Second 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. Court of Appeals in Denver today ruled the constitutional provision doesn’t guarantee a right to carry a concealed firearm in a separate case brought by a Washington resident suing to compel the Denver sheriff’s office to issue to him such a permit under a Colorado law.

In the Heller ruling, the appeals court noted, the high court said that nothing in its opinion “should be taken to cast doubt on longstanding prohibitions” placed upon gun ownership.

“There can be little doubt that bans on the concealed carrying of firearms are longstanding,” the three-judge Denver panel said in its unanimous decision. “We conclude that the concealed carrying of firearms falls outside the scope of the Second Amendment’s guarantee,” it added later.

December Ruling

The Chicago-based court’s December ruling was the first by a federal appeals court to invalidate legislation that restricted the carrying of firearms in public, according to today’s dissent.

The majority ruling written by U.S. Circuit Judge Richard A. Posner in December “leaves the state a good deal of constitutional room for reasonable public safety measures concerning public carrying of firearms,” Hamilton said.

Joining him in dissent were U.S. Circuit Judge Ann Claire Williams, who also dissented from the original ruling, along with Ilana Diamond Rovner and Diane Wood.

The dissenting judges “provided a clear framework to guide the Legislature in drafting a new law,” Maura Possley, a spokeswoman for Madigan, said in an e-mailed statement.

180-Day Deadline

“With the 180-day deadline still in place, it is critical that the Legislature continue to work to enact a law that will protect public safety,” she said.

The five judges who opposed the rehearing issued no separate opinion today. Judge Michael Kanne didn’t participate in the decision, according to a footnote in the nine-page document.

The cases are Moore v. Madigan, 12-1269 and Shepard v. Madigan, 12-1788, U.S. Court of Appeals for the Seventh Circuit (Chicago). The Colorado case is Peterson v. Martinez, 11-1149, in the U.S. Court of Appeals for the Tenth Circuit (Denver).

To contact the reporter on this story: Andrew Harris in the Chicago federal courthouse at

To contact the editor responsible for this story: Michael Hytha at

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