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Shepard v. Madigan

United States District Court, Seventh Circuit

July 28, 2013

MARY E. SHEPARD and the ILLINOIS STATE RIFLE ASSOCIATION, Plaintiffs,
v.
LISA M. MADIGAN, solely in her official capacity as ATTORNEY GENERAL OF ILLINOIS, GOVERNOR PATRICK L. QUINN, solely in his official capacity as Governor of the State of Illinois, TYLER R. EDMONDS, solely in his official capacity as the State's Attorney of Union County, Illinois, and SHERIFF DAVID LIVESAY, solely in his official capacity as Sheriff of Union County, Defendants.

MEMORANDUM & OPINION

WILLIAM D. STIEHL DISTRICT JUDGE

This matter is before the Court after the issuance of a mandate of the United States Court of Appeals for the Seventh Circuit in Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012) (Mandate issued July 9, 2013) (Doc. 72). In response to the filing of the mandate (which had been stayed by the Court of Appeals for 210 days) the parties have filed several motions which are now fully briefed and before the Court for ruling:

1. Defendants Madigan, Quinn and Edmonds (“State defendants”) filed a motion to dismiss for lack of jurisdiction (Doc. 73), to which plaintiffs have filed a response (Doc. 74). Defendant Livesay filed a nearly identical motion (Doc. 78) to which plaintiffs have filed a response (Doc. 79). Defendant Livesay has filed a memorandum in support of his motion to dismiss (Doc. 88). The State defendants have filed a supplement to the motion to dismiss (Doc. 86).
2. Plaintiffs have filed a motion for declaration of unconstitutionality and for a preliminary and/or permanent injunction (Doc. 75). State defendants filed a response to this motion as part of their supplement to the motion to dismiss (Doc. 86)
3. Plaintiffs filed a motion to expedite briefing on the motion to declare the new Illinois statute unconstitutional (Doc. 76) to which the defendants filed a response (Doc. 77).

I. BACKGROUND

The posture of this case is unique. The Seventh Circuit determined in Moore v. Madigan, (the lead case from the Central District of Illinois which was heard with this case) that the then-controlling Illinois laws, 720 ILCS 5/24-2; 720 ILCS 5/24-1(a)(4), (10) and 720 ILCS 5/24-1.6 (prohibiting carrying a loaded, immediately accessible, uncased gun), were unconstitutional. The court issued its opinion in December of 2012, but stayed issuance of the mandate for a period of 180 days to allow the Illinois legislature time to pass legislation allowing for the concealed carrying of firearms within the state.

The Seventh Circuit determined in Moore that the “Supreme Court’s interpretation of the Second Amendment therefore compels us to reverse the decisions in the two cases before us and remand them to their respective districts for the entry of declarations of unconstitutionality and permanent injunctions.” Id. The mandate was stayed “to allow the Illinois legislature to craft a new gun law that will impose reasonable limitations, consistent with public safety, and the Second Amendment as interpreted in this opinion, on the carrying of guns in public.” Id. That 180 day period was extended for an additional 30 days, and on the thirtieth day of the additional period, July 9, 2013, when no law had yet been passed, the Seventh Circuit issued its mandate.

Later, on the day that the mandate was issued (July 9, 2013), the State of Illinois passed comprehensive amendments to the prior laws establishing the “Firearm Concealed Carry Act, ” (“Act”) -- Public Act 098-0063, available at: http://www.ilga.gov/legislation/publicacts.

A. The Seventh Circuit Opinion in Moore

As part of its opinion in Moore, the Seventh Circuit applied the Supreme Court decisions in District of Columbia v. Heller, 554 U.S. 570 (2008) and McDonald v. City of Chicago, 130 S.Ct. 3020 (2010). The Supreme Court has recognized that the need for “defense of self, family and property is most acute” in the home, 130 S.Ct. at 3036. The Seventh Circuit further determined “that doesn’t mean it is not acute outside the home” 702 F.3d at 935, because “[c]onfrontations are not limited to the home.” Id. at 936.

The Court of Appeals noted that 49 states in the United States have some form of concealed carry law. The court determined “that a proper balance between the interest in self-defense and the dangers created by carrying guns in public is to limit the right to carry a gun to responsible persons rather than to ban public carriage altogether, as Illinois with its meager exceptions comes close to doing.” Id. at 940. The court further found that the “constitutionality of the challenged statutory provisions does not present factual questions for determination in a trial. . .[because] only legislative facts are relevant to the constitutionality of the Illinois gun law.” Id. at 942. The court held that the State of Illinois had failed to meet its required showing that there was more “than merely a rational basis” for the then-controlling law. (The state had asserted that “its uniquely sweeping ban is justified by an increase in public safety.” Id.)

B. The Illinois Firearm Concealed Carry Act of 2013.

A brief overview of the new Act is appropriate. The Act provides that the Department of State Police (“State Police”) shall issue a license to any applicant who meets certain qualifications, giving him or her the right to carry a loaded or unloaded concealed firearm, fully concealed or partially concealed, on or about his or her person and on his or her person within a vehicle. The Act establishes a “Concealed Carry Licensing Review Board” ...


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