The Magazine of Illinois Lawyers

March 2013Volume 101Number 3Page 118

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Despite 7CA ruling, Illinois judges not dismissing concealed-carry cases

According to a lawyer monitoring such cases, local judges are unlikely to stop enforcing the ban until this summer, the state's deadline for enacting a law that passes Second Amendment muster.

In December, a federal appeals court in Chicago declared an Illinois ban on the concealed carrying of firearms outside the home to be unconstitutional.

Two months later, state court trial judges have not yet acquitted any defendants charged with simple possession under the law and, according to an Illinois criminal-defense attorney who is closely monitoring these kinds of prosecutions, local judges are unlikely to stop enforcing the unconstitutional law until this summer.

"People are still being charged with felonies for simple possession of a weapon - not using the weapon to commit a crime, but just possessing it outside of their home," said Chicago-based defense attorney Robert Pervan. "Judges are just continuing matters until June, by when the legislature should have enacted legislation that won't interfere with or conflict with the Constitution or cases like Moore and Sheppard. It's in limbo right now."

Posner's opinion

In the consolidated cases of Moore and Shepard, et al., v. Illinois, Nos. 12-1269 and 12-1788, the Seventh Circuit U.S. Court of Appeals struck down those portions of article 24 of the state's Criminal Code that prohibit the possession of ready-to-use firearms in public.

The 2-1 split decision was drafted by U.S. Circuit Judge Richard Posner, who provided a thorough analysis of the history of gun ownership and prior U.S. Supreme Court decisions involving the Second Amendment. Prior cases have involved gun ownership and the right to use a firearm in defense of one's home, which Posner said are substantially different issues than the one presented in Moore and Shepard: the unlawful possession of lawfully owned firearms.

"The parties and the amici curiae have treated us to hundreds of pages of argument, in nine briefs. The main focus of these submissions is history," Posner wrote for the majority. "But the Supreme Court has not yet addressed the question whether the Second Amendment creates a right of self-defense outside the home. The district courts [in Moore and Shepard] ruled that it does not, and so dismissed the two suits for failure to state a claim."

Posner wrote that supporters of the Illinois law presented historical evidence showing there was no generally recognized private right to bear arms in public in 1791, the year the Second Amendment was ratified. Nor was there a right to have weapons in the home for purposes of self-defense, other than the right to keep and bear arms as part of a "well regulated Militia."

But Posner found that the Supreme Court had already addressed those rights in prior rulings in which the court determined that a private right does exist for people to own firearms for personal protection in their homes and on their property.

"The appellees ask us to repudiate the Court's historical analysis. That we can't do," Posner wrote. "Nor can we ignore the implication of the analysis that the constitutional right of armed self-defense is broader than the right to have a gun in one's home."

Posner pointed to the plain language of the Second Amendment itself as proof that the right to gun ownership is broader than for limited purposes of a well-regulated Militia. In particular, Posner found the right to bear arms extends beyond the confines of one's home because of the Amendment's promise that "the right of the people to keep and bear Arms, shall not be infringed."

"The right to 'bear' as distinct from the right to 'keep' arms is unlikely to refer to the home," Posner wrote. "To speak of 'bearing' arms within one's home would at all times have been an awkward usage. A right to bear arms thus implies a right to carry a loaded gun outside the home."

According to Posner, Illinois is the only state in the nation that maintains a "flat ban on carrying ready-to-use guns outside the home." The District of Columbia has a similar law, but all other states allow guns to be carried in public, with various levels of regulation and restrictions.

"It is not that all states but Illinois are indifferent to the dangers that widespread public carrying of guns may pose," Posner wrote. "But others have decided 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."

The Supreme Court has ruled that the Second Amendment confers a right to bear arms for self-defense, which Posner said is "as important outside the home as inside." Furthermore, he said, the theoretical and empirical evidence is inconclusive as to whether public gun possession increases violence in society any more than it increases legitimate self-defense.

As such, the seventh circuit majority held that the Illinois "flat ban" is unconstitutional because there is no compelling governmental interest in prohibiting law-abiding responsible gun owners from peacefully carrying their weapons in public.

"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 that 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."

Pressure on judges

However, according to Pervan, who is currently defending non-violent clients charged with possession of firearms under article 24, Illinois circuit court judges have yet to enter declarations of unconstitutionality in the cases he is handling. Pervan is also keeping track of other similar cases throughout the state, and he believes that no Illinois judge has yet enforced the seventh circuit's ruling in Moore and Shepard.

Posner entered a 180-day stay of the court's mandate in those cases "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."

Although the 180-day stay does not expire until June, Pervan said the detail of Posner's historical analysis and the logic in the court's ruling make it appropriate for Illinois trial judges to dismiss article 24 charges now, despite the stay, against defendants who have committed no crime other than the peaceful possession of firearms in public.

"Everyone will agree that using a weapon or gun to rob someone is a crime, but we're going beyond that by prosecuting for simple possession," Pervan said. "The common denominator is you can't confine someone's right to possession of a gun to only inside the home. You have to let them have it outside the home as well."

In the cases he is handling in defense of article 24 prosecutions, Pervan said he has filed motions to dismiss based on the seventh circuit's recent ruling. He has spoken with several other lawyers who have taken similar procedural steps, but so far, he said, not a single motion has been granted and not a single defendant has been acquitted.

"It's difficult as an attorney to represent your client. You tell them this new case came down and you could be in a good position here, but then the judge denies the motion," Pervan said. "Even worse, they're denying it without really any explanation. There are some judges who are simply not even waiting to hear the motion. They just enter and continue the motion until June, or they deny the motion and continue the matter until June."

Pervan said he hopes Illinois trial judges will start applying the new case law to the facts of pending cases and dismiss article 24 charges against defendants who lawfully own their guns and have committed no crimes other than peaceful possession in public. However, given Chicago's skyrocketing homicide rates and national tragedies like the recent shootings at Sandy Hook Elementary School in Connecticut, he also recognizes the current pressure on judges to be tough on defendants charged with gun crimes.

"The courts have come to the conclusion that a flat-out prohibition of people carrying firearms in public…is unconstitutional," Pervan said. "But sitting judges, particularly in Chicago, are facing enormous political pressure. Every day we open newspapers and we see kids getting shot, kids getting killed, and then you factor in national shootings like Sandy Hook and it gets tough for these judges to start dismissing gun cases because they don't want to be seen as being soft on crime."

HB 154, a concealed carry bill entitled the Family and Personal Protection Act, was filed in the Illinois House on January 15 by Rep. David Reis (R-Olney).

Adam W. Lasker <> is a lawyer in the Chicago office of Ancel, Glink, Diamond, Bush, DiCanni & Krafthefer.

Member Comments (1)

Chicago is not the O.K. Corral, but it's quickly turning into it. The biggest city in Illinois is quickly becoming a mecca for gun violence. The last thing this city and the State of Illinois needs is to send an invitation to “gun slingers” that it's okay to legal carry concealed weapons in this jurisdiction.

Allowing people to carry concealed weapons in public is ludicrous and inviting more senseless violence.

The predominant consideration should be safety and protecting the public and state courts and legislatures have a duty to address those safety issues not encourage more violence. Every one of the Bill of Rights has reasonable restrictions. There's no rational reason that the Second Amendment should be exempt from all exemptions. Safety trumps constitutionality.