Arguments heard in case that invalidated concealed carry ban

By Bethany Krajelis | Oct 3, 2013


The 7th Circuit Court of Appeals today heard arguments over an injunction request in a case that led to the downfall of the state’s ban on carrying concealed weapons.

Within seconds of starting his argument, David Thompson, the attorney representing the plaintiffs seeking the injunction, was interrupted by U.S. Judge Richard Posner, who went on to initiate a back-and-forth discussion that took up the majority of Thompson’s time behind the podium.

And if Posner’s comments and line of questioning are any indication of how the court will rule, the plaintiffs may not get what they want, despite being handed a victory by the same appeals panel less than year ago.

In December 2012, the 7th Circuit overturned Illinois’ longstanding ban on carrying concealed carry weapons on constitutional grounds and gave the state legislature a 180-day deadline to come up with a law that would legalize concealed carry.

The panel’s split ruling came in Mary Shepard, et al. v. Lisa Madigan, et al. and Michael Moore et al. v. Lisa Madigan, et al. , a pair of federal suits that were consolidated for the June 2012 oral argument before the 7th Circuit.

Posner delivered the court’s ruling. Judge Joel Flaum joined him while Judge Ann Claire Williams dissented.

In July, Shepard and the Illinois State Rifle Association  filed an emergency motion for an injunction to bar the defendants from enforcing the ban on carrying firearms in public –codified in the Unlawful Use of a Weapon and Aggravated Unlawful Use of a Weapon statutes -- against Shepard and ISRA members for carrying firearms in a manner consistent with the Firearm Concealed Carry Act.

The act, which was crafted as a result of the panel’s 2012 ruling and took effect in July 2013, sets limitations on carrying firearms and requires completion of firearms training, among other things.

On behalf of the plaintiffs, Thompson told the appeals panel today that his clients don’t take issue with the limitations in the act, but do have a problem with the fact the state can continue to enforce the ban on carrying concealed weapons while it is putting its new conceal carry licensing system in place.

He said the Illinois State Police will make applications for conceal carry licenses available to the public by Jan. 5, 2014 and that it could take up to 90 days after that to start issuing licenses, a time period he says is unfair to individuals who already have Firearm Owners Identification (FOID) cards.

The state, however, argued in its briefing to the 7th Circuit that the plaintiffs’ argument is moot because the new act provides the relief they sought in their original complaint.

Assistant Attorney General Clifford W. Berlow reiterated that point during his argument, saying he was “perplexed” by Thompson’s position.

Berlow did not appear to use the entire time he was allotted for his argument, most likely because Posner had discussed the mootness point in detail during his back-and-forth with Thompson.

When Posner interrupted Thompson at the beginning of his argument, he questioned what the plaintiffs are challenging since the defendants complied with the court’s 2012 order by crafting a law that legalized concealed carry.

Posner told Thompson that “if you think they are dragging their heels” when it comes to the implementation of the new licensing system, “then bring a new lawsuit.” He also told Thompson that just because the state is “doing something you don’t like,” doesn’t mean he can seek an injunction.

Posner then brought up the landmark ruling in Brown v. Board of Education, explaining that while the court in that case deemed racial segregation in schools unconstitutional, it still took years for schools to be integrated.

“No one could have sought an injunction” in that case, Posner said.

Thompson said, “With all due respect, we read the case law differently.”

Posner told Thompson that it’s “ridiculous” to think the plaintiffs in Brown could have sought an injunction seeking immediate compliance with the court’s ruling.

Thompson then reiterated that his clients are not challenging the new act or its implementation, but are simply asking the court for an injunction against the enforcement of the state’s unlawful use of a weapon statutes until a concealed carry licensing scheme is in place.

That way, he said, individuals with valid FOID cards, like his clients, would be able to carry weapons and not face the possibility of being arrested. And then, once the state’s licensing system is in place, Thompson said they would have to apply like everyone else.

In his briefing to the 7th Circuit Court, Thompson wrote that continuing the enforcement of these statutes, despite the court’s ruling, basically means “that citizens cannot exercise their Second Amendment rights unless the State has in place a system to regulate such exercise.”

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