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On December 11, 2012, the Seventh Circuit Court overturned the Illinois concealed carry ban. In the twin cases of Shepard v. Madigan and Moore v. Madigan, supported by the NRA and SAF, respectively, Judge Richard A. Posner held that “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.” As predicted here, the Attorney General of the State of Illinois has requested an en banc review. An en banc review is a review by all the Seventh Circuit judges of the decision handed down by the three judge panel in the Moore and Shepard cases. If the Judges agree to review the decision that’s a signal there may be trouble ahead; normally en banc reviews are denied (as it was in the McDonald decision striking down Chicago’s handgun ban).

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    • Nice clarification Ralph, thank you.
      I did have some questions.
      Is there a time limitation on of or when this needs to be accepted or rejected by?
      Also I heard that if the law stands as is there is a timeline for legislation on for implementation or it goes to constitutional carry. Is this true?
      If they do accept the review is there a timeline on how long they have to respond?

    • If the en banc petition is denied, all that’s left (in the appeals process) is applying for Supreme Court cert (which the Supreme Court doesn’t have to hear the case).

      If the en banc review is granted, it’s basically like if the case had been accepted by a higher court. There’s the opportunity for the full 7th Court to grant a stay of the panel’s ruling while the full court hears the case (or not, they can let the ruling stay in effect while the case is heard).

      If a stay is not granted, the 180 day temporary stay (issued by the panel in their ruling) keeps ticking down. If the 180 days expire without a new law getting passed addressing concealed carry in IL, you end up with a situation similar to why open carry is legal in VA. In VA there is no law forbidding open carry, therefore it is legal for everyone in VA, residents and non-residents alike, (other than legally possessing a firearm). There will be no law prohibiting CC in IL or listing any requirements/qualifications to CC, therefore it will effectively be constitutional carry (watch out for local jurisdiction laws on carrying).

  1. The tea-leaf-reading I’ve seen says that due to the respect Posner holds, en banc isn’t going to be granted.

    The big question is, if they try for SCOTUS review, will they be able to get a stay that keeps the carry ban alive past July 2013?

  2. en banc review is by all of the ACTIVE judges, not all of the judges, of the circuit. There are a number of judges on senior status, which is not considered active. IIRC, there are 10 active judges in the 7th. They would need 6 to agree to en banc. Although Shepard involved 3 republican appointees, Judge Williams (who was elevated by Clinton) voted against concealed carry, so that’s one for review. The two who voted favorably, including Posner, make in 2-1 against. Easterbrook will vote with Posner, making it 3-1, as will many others. Unless they thought Posner’s opinion was not STRONG enough, and just like they denied McDonald, I can’t see this happening. . . . . it has to be a stall tactic.


    Yes – 10 active judges, so if they agree en banc, then they will pull a senior status judge to help out. However, there are 7 republican appointees. And, this is also the circuit that brought McDonald and Ezell. . . .

    • I still think this is a stall/scare tactic. They want to get some restrictions in the carry bill so. . . . push to get a favorable ruling overturned and make the pro-gun lobby play nice and agree to restrictions. Then, wait out SCOTUS and when Barry gets his justice, find a case and bring it forth. If they go to SCOTUS now, they will lose. Posner is well respected and Scalia will just copy the Shepard opinion and add “ditto”.

        • I don’t think it works that way. The Clerk’s Office is open for filing no matter where the justices happen to be. Her date will be 90 days from the date of a denial of rehearing (if this is what occurs), no matter when that day falls.

          I don’t think this is a scare tactic., but rather a stall that will allow the legislature to enact odious restrictions before the ax falls, mooting the injunction order.

        • Mark – the court’s term ends in June, the same time the new law is supposed to take effect per the 7th cir ruling. Yes, Madigan has her 90 days, but if she doesn’t get the appeal in before the term ends, it will wait until the start of the next term. which is october.

          Under the en banc rules, the court has 14 days to decide if they want an “answer” filed by the successful plaintiffs. If yes, then it drags out. If no, then she has to file with SCOTUS w/in 90 days. 14 days from today is Jan. 22. depending on the arcane rules, it can be approx 35-45 days before the 7th could vote on a full blown en banc, and add in when they could actually hear it and make a decision . . . hell, how long did this appeal take? It could be this time next year before a decision to appeal to SCOTUS, and by then, there would a carry law. No, I am not bothered by an appeal. If anything, I think it works against SCOTUS deciding the case this term. So my philosphy is delay all you want . . . .

          and finally, over at illinois carry forum, the NRA’s llobbyist Todd V says there is a compromise bill agreed to by both sides that we will “like” that will be introduced before March so if anything, I gotta believe this is Madigan stall tactic to keep the pressure on our side to agree to whatever deal is being cut. Todd says he couldn’t go into details, but more to follow. Take that for what it is worth, but this is the guy who has been fighting for years for carry and even was quoted as saying that any legislation could not carve out Chicago.

  3. The en banc was a freebie for Lisa Madigan.

    No risk of damage to the national gun control movement and at the same time, it provides the illusion that she’s doing “something” to “fight” the Seventh Circuit ruling.

    En bancs are rare. It’s even a greater rarity when they overturn.

    Posner isn’t an amateur at writing good decisions.

    This one will stand.


    It’s almost not even news, any more than water is wet.



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