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Seventh Circuit on Illinois Concealed Carry

Seventh Circuit on Illinois Concealed Carry

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12/12/2012

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In the
United States Court of Appeals
 For the Seventh Circuit
 
Nos. 12-1269, 12-1788M
ICHAEL
M
OORE
 ,
et al
.,
 
and
 
M
ARY
E.
 
S
HEPARD
 ,
 
et al
.,
Plaintiffs-Appellants
 ,v.L
ISA
M
ADIGAN
 ,
 
A
TTORNEY
G
ENERALOF
I
LLINOIS
 ,
et al
.,
Defendants-Appellees.
 
Appeals from the United States District Courts for theCentral District of Illinois and the Southern District of Illinois.Nos. 3:11-cv-3134-SEM-BGC and 3:11-cv-405-WDS-PMF
 — 
Sue E. Myerscough
and
William D. Stiehl
 ,
 Judges
.
 
A
RGUED
 J
UNE
8,
 
2012
 — 
D
ECIDED
D
ECEMBER
11,
 
2012
 Before P
OSNER
 , F
LAUM
 , and W
ILLIAMS
 ,
Circuit Judges
.P
OSNER
 ,
Circuit Judge
. These two appeals, consolidatedfor oral argument, challenge denials of declaratory andinjunctive relief sought in materially identical suits underthe Second Amendment. An Illinois law forbids a person,with exceptions mainly for police and other securitypersonnel, hunters, and members of target shooting clubs,
Case: 12-1269 Document: 45 Filed: 12/11/2012 Pages: 47
 
2
Nos. 12-1269, 12-1788720 ILCS 5/24-2, to carry a gun ready to use (loaded,immediately accessible
 — 
that is, easy to reach
 — 
anduncased). There are exceptions for a person on hisown property (owned or rented), or in his home (but ifit’s an apartment, only there and not in theapartment building’s common areas), or in his fixedplace of business, or on the property of someone whohas permitted him to be there with a ready-to-use gun.720 ILCS 5/24-1(a)(4), (10), -1.6(a); see
People v.Diggins,
919 N.E.2d 327, 332 (Ill. 2009);
People v. Laubscher
 ,701 N.E.2d 489, 490–92 (Ill. 1998)
 ; People v. Smith,
374 N.E.2d 472, 475 (Ill. 1978);
People v. Pulley,
803N.E.2d 953, 957–58, 961 (Ill. App. 2004). Evencarrying an unloaded gun in public, if it’s uncasedand immediately accessible, is prohibited, other than topolice and other excepted persons, unless carriedopenly outside a vehicle in an unincorporated areaand ammunition for the gun is not immediately accessi- ble. 720 ILCS 5/24-1(a)(4)(iii), (10)(iii), -1.6(a)(3)(B).The appellants contend that the Illinois law violatesthe Second Amendment as interpreted in
District of Colum-bia v. Heller
 , 554 U.S. 570 (2008), and held applicable tothe states in
McDonald v. City of Chicago
 , 130 S. Ct.3020 (2010).
Heller
held that the SecondAmendment protects “the right of law-abiding,responsible citizens to use arms in defense of hearthand home.” 554 U.S. at 635. But the Supreme Court hasnot yet addressed the question whether theSecond Amendment creates a right of self-defenseoutside the home. The district courts ruled that it doesnot, and so dismissed the two suits for failure to statea claim.
Case: 12-1269 Document: 45 Filed: 12/11/2012 Pages: 47
 
Nos. 12-1269, 12-1788
3
The parties and the amici curiae have treated usto hundreds of pages of argument, in nine briefs.The main focus of these submissions is history. Thesupporters of the Illinois law present historical evidencethat there was no generally recognized private rightto carry arms in public in 1791, the year the SecondAmendment was ratified
 — 
the critical year for determiningthe amendment’s historical meaning, according to
 McDon-ald v. City of Chicago
 ,
supra
 , 130 S. Ct. at 3035 and n. 14.Similar evidence against the existence of an eighteenth-century right to have weapons in the home for purposesof self-defense rather than just militia duty hadof course been presented to the Supreme Court inthe
Heller
case. See, e.g., Saul Cornell,
 A Well-Regulated Militia
2–4, 58–65 (2006); Lois G. Schwoerer, “To Hold andBear Arms: The English Perspective,” 76
Chi.-Kent L. Rev.
27, 34–38 (2000); Don Higginbotham, “The Second Amend-ment in Historical Context,” 16 Constitutional Commen-tary 263, 265 (1999). The District of Columbia hadargued that “the original understanding ofthe Second Amendment was neither an individual rightof self-defense nor a collective right of the states, but rathera civic right that guaranteed that citizens would be ableto keep and bear those arms needed to meet their legalobligation to participate in a well-regulated militia.”Cornell,
supra
 , at 2; see also Paul Finkelman, ’A WellRegulated Militia’: The Second Amendment in HistoricalPerspective,” 76
Chi.-Kent L. Rev.
195, 213–14 (2000);Don Higginbotham, “The Federalized Militia Debate:A Neglected Aspect of Second Amendment Scholarship,”55
William & Mary Q.
39, 47–50 (1998); Roy G. Weatherup,
Case: 12-1269 Document: 45 Filed: 12/11/2012 Pages: 47

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