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Shepard v. Madigan

United States Court of Appeals, Seventh Circuit

November 5, 2013

Mary E. SHEPARD, et al., Plaintiffs-Appellants,
v.
Lisa M. MADIGAN, Attorney General of Illinois, et al., Defendants-Appellees.

Argued Oct. 3, 2013.

Page 749

Charles J. Cooper, Attorney, David Thompson, Attorney, Cooper & Kirk, Washington, DC, William N. Howard, Attorney, Locke Lord LLP, Chicago, IL, for Plaintiffs-Appellants.

Clifford Berlow, Attorney, Karl R. Triebel, Attorney, Office of the Attorney General, Chicago, IL, Joseph A. Bleyer, Attorney, Bleyer & Bleyer, Marion, IL, for Defendants-Appellees.

Before POSNER, FLAUM, and WILLIAMS, Circuit Judges.

POSNER, Circuit Judge.

This is a sequel to our decision in Moore v. Madigan, 702 F.3d 933 (7th Cir.2012), which invalidated provisions of the Illinois gun law, 720 ILCS 5/24-1, -1.6, which, with exceptions mainly for police and other security personnel, hunters, and members of target-shooting clubs, prohibited a person from carrying a gun ready to use (loaded, immediately accessible— that is, easy to reach— and uncased) outside his property or the property of someone who has permitted him to be there with a ready-to-use gun. The panel majority (Judge Williams dissenting) held that so strict a ban— unique among the states— on carrying a gun violates the Second Amendment as interpreted in District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), and held applicable to the states in McDonald v. City of Chicago, __ U.S. __, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010).

For purposes of the present appeal the most important part of our 2012 decision is the last paragraph:

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 district courts for the entry of declarations of unconstitutionality and permanent injunctions. Nevertheless we order our mandate stayed for 180 days to allow the Illinois legislature to craft a new gun law that will impose reasonable limitations, consistent with the public safety and the Second Amendment as interpreted in this opinion, on the carrying of guns in public.

702 F.3d at 942. Later, at the state's request, we extended the stay for an additional 30 days. Thus we gave the state 210 days in which to enact a new gun law that would impose only reasonable restrictions on carrying guns outside the home, rather than the restrictions that we held to be unduly severe.

On July 9 of this year, the Illinois legislature, overriding a gubernatorial veto, enacted a new gun law, the Firearms Concealed Carry Act, 430 ILCS 66/1, et seq. Consistent with our decision in the Moore case, the new statute authorizes the issuance of licenses for carrying guns outside the home, 430 ILCS 66/10, but imposes a number of restrictions (more precisely, authorizes denial of a license on a number of grounds). Thus, to be entitled to a license, the applicant must have 16 hours of approved firearms training, see 430 ILCS 66/75; be at least 21 years old; have a currently valid Firearm Owner's Identification Card (a " FOID card," as it is called); and not have been convicted of assault, drunk driving, or certain other offenses or be in pending proceedings that could lead to disqualification for a gun license, and not have been treated recently

Page 750

for alcoholism or drug addiction. 430 ILCS 66/25. The new law is a " concealed carry" law; that is, in contrast to " open carry" laws, the gun must not be visible to other persons. The plaintiffs do not seek open-carry rights, at least in this litigation.

The legislature gave the Illinois State Police 180 days to make applications for concealed-carry licenses available to the public, and 90 days after receipt of the completed application to issue licenses to qualified applicants. 430 ILCS 66/10(d), (e).

On the same day that the state passed its new law, the stay of our decision expired, and our mandate, declaring the old law unconstitutional and enjoining it, issued, in ...


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