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Federal appeals court tosses state ban on carrying concealed weapons

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Updated: January 13, 2013 6:20AM



SPRINGFIELD — In a huge win for gun-rights groups, a divided federal appeals court in Chicago Tuesday tossed the state’s ban on carrying concealed weapons and gave Illinois’ Legislature 180 days to craft a law legalizing concealed carry.

“The debate is over. We won. And there will be a statewide carry law in 2013,” said Todd Vandermyde, a lobbyist for the National Rifle Association.

A move to legalize concealed weapons could surface as soon as the January lame-duck session but is more likely to drag into the spring with a debate now no longer centering on whether to permit concealed carry but where — or where not — to permit it, such as college campuses, bars, sports arenas and movie theaters.

The timing hinges on Attorney General Lisa Madigan’s plans. She still hasn’t said whether she intends to appeal Tuesday’s dramatic ruling to the U.S. Supreme Court.

In a split opinion, the three-member 7th Circuit Court of Appeals reversed lower court rulings in two cases downstate that upheld the state’s longstanding prohibition against carrying concealed weapons.

Illinois is the only state with an outright prohibition on concealed carry.

“We are disinclined to engage in another round of historical analysis to determine whether eighteenth-century America understood the Second Amendment to include a right to bear guns outside the home,” Judge Richard Posner wrote in the court’s majority opinion.

“The Supreme Court has decided that the amendment confers a right to bear arms for self-defense, which is as important outside the home as inside. The theoretical and empirical evidence (which overall is inconclusive) is consistent with concluding that a right to carry firearms in public may promote self-defense,” he continued.

“Illinois had to provide us with more than merely a rational basis for believing that its uniquely sweeping ban is justified by an increase in public safety. It has failed to meet this burden,” Posner wrote.

“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,” he continued.

“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,” Posner said.

In a minority opinion, Judge Ann Williams wrote that Illinois is within its rights to ban weapons in “sensitive places” like government buildings, churches and universities in the name of safety.

“The Illinois legislature reasonably concluded that if people are allowed to carry guns in public, the number of guns carried in public will increase, and the risk of firearms-related injury or death in public will increase as well,” Williams said. “And it is also common sense that the danger is a great one; firearms are lethal.”

The attorney general, who was defending the state’s prohibition of concealed carry, remained silent on whether her office would appeal Tuesday’s ruling to the U.S. Supreme Court.

“The court gave 180 days before its decision will be returned to the lower court to be implemented. That time period allows our office to review what legal steps can be taken and enables the Legislature to consider whether it wants to take action,” Madigan spokeswoman Maura Possley said.

In May 2011, gun-rights advocates lost a bid in the Illinois House to legalize concealed carry by a 65-32 vote. Seventy-one votes were necessary for passage of the legislation, House Bill 148, which was lobbied against by Gov. Pat Quinn and Chicago Mayor Rahm Emanuel.

The measure, sponsored by state Rep. Brandon Phelps (D-Harrisburg), would have enabled Illinoisans to carry concealed weapons if they had a firearm owner’s identification card and underwent a firearms education course.

Under the failed bill, permit holders could not have been a patient in a mental institution in the previous five years nor have any felony, violent misdemeanor or drug convictions in the previous 10 years.

Concealed weapons also wouldn’t have been allowed under the plan at government buildings, courthouses, schools, sports arenas and stadiums, amusement parks, libraries or college campuses.

At the time of the vote, the Illinois State Police estimated that 325,000 people would have taken advantage of a concealed-carry program, which was projected to raise $32 million annually for the state through license fees.

Phelps would not rule out possibly trying to move concealed carry legislation during the upcoming lame-duck legislative session, which runs from Jan. 2 through mid-day on Jan. 9. But he stopped short of saying how closely a new bill would mimic HB148.

“In that bill, there were a lot of limitations, a lot of safety guidelines, background checks. But pretty much, this court today didn’t really specify where you can carry, where you can’t. It just sent a mandate that Illinois has to have a concealed carry law in 180 days,” he said. “I think we can come to an agreement. I think we can pass sensible legislation.”

Whatever form the legislation takes, Phelps said he thinks it will have a noticeable impact on Chicago’s crime epidemic.

“There are a lot of people in the city of Chicago who are scared to say if they are for concealed carry. I had numerous people email and call me from Chicago and Cook County who said they wanted this day to happen — people who couldn’t say something, but maybe worked for the city or county,” Phelps said.

“I think you’ll see a reduction in violence because right now, the criminals know there’s no one legally who can defend themselves. If I’m a gang member and I now know there’s concealed carry, if I try to steal that person’s bag, I’ll be careful what I do because that person might have a gun.”

But Emanuel appeared to consider Tuesday’s concealed carry ruling a major setback to his effort to combat gang-related violence on Chicago streets that has triggered a 20 percent spike in Chicago homicides and an even bigger increase in shootings.

“We are disappointed with the court’s decision,” the mayor’s office said in a statement issued after the ruling.

“The city is reviewing [Tuesday’s] opinion and will coordinate our efforts with the state to best protect the residents of Chicago and still meet constitutional restrictions. As the mayor has said all along, the city of Chicago is committed to maintaining the fullest degree of lawful handgun restrictions possible while still respecting the Second Amendment rights of law-abiding citizens, because maintaining common-sense restrictions is an issue of public safety.”

Ald. Howard Brookins (21st), chairman of the City Council’s Black Caucus, though, welcomed the ruling, citing the “unequal treatment” of people caught with weapons in Cook County.

“If you’re stopped in Chicago, it’s been a felony. If you’re stopped in one of these suburban towns, the state’s attorney has been charging you with a misdemeanor,” Brookins said.

Brookins said he’s not at all concerned that concealed carry would turn inner-city neighborhoods already reeling from gang violence into shooting galleries.

“Those people have a gun now. They’ve just been made criminals because they can’t legally have it. And the gang-bangers and thugs are gonna have a gun regardless,” he said.

The governor’s office, meanwhile, played its cards close to the vest after Tuesday’s ruling but noted Quinn’s opposition to the earlier Phelps legislation.

“His opposition then stands for itself,” Quinn spokeswoman Brooke Anderson said, referring to her boss. “But we’re reviewing the opinion now to determine our next step.”

A spokesman for House Speaker Michael Madigan (D-Chicago) said he had not conferred with the top House Democrat on a possible course of action following the ruling, but an aide to Senate President John Cullerton (D-Chicago) hinted at a lengthy legislative response time that could well go beyond the first two weeks of January.

“We’re going to take the time the court has given us to carefully review the ruling and to consult with the attorney general’s office before we determine what legislative action we take on concealed carry,” Cullerton spokeswoman Rikeesha Phelon said.

The head of the state’s primary gun-control group disagreed with the appeals court ruling and urged Illinois lawmakers to write “the most restrictive requirements” possible, akin to tight concealed-carry laws in New York and California, which control who can and can’t get a permit to carry a weapon.

“Today’s decision is disappointing, but not surprising,” said Colleen Daley, executive director of the Illinois Council Against Handgun Violence, in a prepared statement. “The strategy of the NRA and the gun-rights organizations has been to litigate where they can’t legislate.”

But Vandermyde, the NRA lobbyist, cautioned that gun-rights advocates won’t allow the legislative process to drag on indefinitely, and certainly not past the 180-day window established by the appeals court.

“I can tell you right now, we’ll look very dimly about people dragging their feet to sit here and say we’re going to let the governor play his little game ... to drag it out for another year. If that happens, there’s the probability we’ll be back in court, seeking an injunction immediately. There’s a cliff to this thing,” Vandermyde said.

“You know what? We waited 20 years for this. We’re tired of waiting.”



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