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Court to Lisa Madigan: No rehearing on concealed-carry guns ruling
Chicago Tribune ^ | February 22, 2013 | By Ray Long and Clout Street

Posted on 02/22/2013 11:35:06 AM PST by Brad from Tennessee

SPRINGFIELD — A divided federal appeals court today rejected Illinois Attorney General Lisa Madigan’s request for a rehearing on the case where the state has been ordered to allow citizens to carry guns in public.

Madigan made the request following the U.S. Seventh Circuit Court of Appeals decision in December that gave Illinois 180 days to put together a law that would allow concealed weapons in Illinois.

There has been no word yet from Madigan’s office on her next move. She could choose to appeal to the U.S. Supreme Court or decide to let the ruling stand.

The appeals court action officially rejected Madigan’s request for a rehearing by the full court, but the denial came with a stinging dissent from four of the nine members of the appeals court who reviewed the matter. The original order came down from a three-member panel that also had a split vote. . .

(Excerpt) Read more at chicagotribune.com ...


TOPICS: News/Current Events; US: Illinois
KEYWORDS: 2ndamendment; banglist; chicago; guncontrol; illinois; secondamendment

1 posted on 02/22/2013 11:35:10 AM PST by Brad from Tennessee
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To: Brad from Tennessee
Man, these state bureaucrats do not like being told to follow the Constitution.
2 posted on 02/22/2013 11:37:06 AM PST by Steely Tom (If the Constitution can be a living document, I guess a corporation can be a person.)
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To: Steely Tom

“Man, these state bureaucrats do not like being told to follow the Constitution.”

They won’t.

They are liberals.

And the Holder-felon’s “Just Us” dept will look the other way.

Wanna bet?


3 posted on 02/22/2013 11:43:25 AM PST by Da Coyote
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To: Da Coyote
Wanna bet?

Not me, Coyote Dude!

4 posted on 02/22/2013 11:47:11 AM PST by Steely Tom (If the Constitution can be a living document, I guess a corporation can be a person.)
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To: Brad from Tennessee

Kinda called it on this one, but it wasn’t hard to foresee since it is the Illinois way. Stall, obfuscate, ask for more hearings, rinse, repeat as needed until the deadline has passed. Then act surprised that nothing has been done and begin the process again while asking for more time. Over and over and over. They act like kids. Ignore it long enough and it goes away or everyone forgets. Don’t think this one will go away.


5 posted on 02/22/2013 11:50:37 AM PST by RonInNaples
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To: Brad from Tennessee

See how that restrictive gun law is working out for Chicago....

http://crimeinchicago.blogspot.com/


6 posted on 02/22/2013 11:54:57 AM PST by bluecat6 ("All non-denial denials. They doubt our ancestry, but they don't say the story isn't accurate. ")
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To: Brad from Tennessee

Hey Lisa


7 posted on 02/22/2013 11:55:52 AM PST by deoetdoctrinae (Gun free zones are playgrounds for felons.)
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To: bluecat6
It makes sense that in the most corrupt city west of Port-au-Prince the state's chief law officer would be obsessed with disarming the innocent.
8 posted on 02/22/2013 12:02:19 PM PST by Brad from Tennessee (A politician can't give you anything he hasn't first stolen from you.)
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To: Brad from Tennessee

They have to disarm us all so that they can steal our food to give to Obama’s Zombies.


9 posted on 02/22/2013 12:10:35 PM PST by editor-surveyor (Freepers: Not as smart as I'd hoped they'd be)
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To: Brad from Tennessee; Steely Tom; neverdem; Da Coyote; RonInNaples; bluecat6; deoetdoctrinae; ...
The arguments made in the dissent are critical to the continuing fight, not just for the 2nd Amendment, but American liberty itself. Judge David Hamilton lays out the liberal position on human rights in general. Take a look:

“The Supreme Court has not yet decided whether .. the individual right to keep and bear arms at home under the Second Amendment extends beyond the home,” Hamilton wrote.

This is liberalism writ large: the belief that a group of intellectual elites decide what is or isn't a right. That is a fundamental duty of American citizens and the entire purpose of unalienable rights. They cannot be sold or arbitrated away.

Second, in keeping with the liberal approach to thinking he ignores the facts before him. The Right to Keep and Bear arms - who bears arms within their own home? It's a nonsense argument made out of desperation. The legal origins and precedents, plus the fact that concealed carry as well as open carry in sum Constitutional Carry works in those states in which it is now "legal" prove as much.

Hamilton’s dissent also noted the ruling that called for Illinois to allow concealed carry is the “first decision by a federal court of appeals striking down legislation restricting the carrying of arms in public.”

I don't know if this is the first decision, but it is a decision most certainly in keeping with original intent of the 2nd as well as previous SC decisions. Illinois law is too restrictive. It is the last state that completely doesn't allow any type of firearm carrying outside the home. So zero rights are a nonstarter. Does Hamilton honestly think that zero gun rights outside the home are acceptable?

He wrote that three major points are worthy of consideration by the full appellate court rather than simply the three-member panel:

*Whether to extend the right to bear arms outside the home and into the public sphere, a matter that “presents issues very different from those involved in the home itself, which is all the Supreme Court decided” in a case currently viewed as the law of the land.

Again, the SC cannot extend or limit Constitutional Rights. His thinking ignores the clear wording of the 10th Amendment.

*How to handle what the panel did not decide. The three-member panel left Illinois a “good deal of constitutional room for reasonable public safety measures concerning public carrying of firearms.”

That's not up to the courts at all. The ball is in the hands of the IL legislature and other state legislatures. NYs new firearm law will most certainly come up for review and barring an extra liberal vote will be struck down.

*How to proceed in future decisions about laws that are more narrowly tailored and any state interests that justify some restrictions on rights.

Narrowly tailored laws already exist in other states. Again, this isn't a court issue, but a legislative one.

“Where the law is genuinely in doubt, as it is likely to remain for some time under the Second Amendment, a trial court can do a great service by ensuring the development of a thorough and complete record that provides a reliable, accurate factual foundation for constitutional adjudication,” Hamilton wrote. “The federal courts are likely to do a better job of constitutional adjudication if our considerations are based on reliable facts rather than hypothesized and assumed facts.”

Hamilton is way behind the curve here. The SA is coming into clearer and clearer focus. When a plurality of sitting Chicago Aldermen accept the concept of "good" guns it's over and we're very close. The reliable facts already exist in thousands of other cases and incidents across the other 49 states. What else will another trial gain in facts?

10 posted on 02/22/2013 3:35:42 PM PST by 1010RD (First, Do No Harm)
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To: 1010RD
Thanks for your thorough analysis.
11 posted on 02/22/2013 4:26:27 PM PST by Brad from Tennessee (A politician can't give you anything he hasn't first stolen from you.)
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To: 1010RD
Closer to home, I copied the following from the Illinois Constitution , with its curious qualifier:

SECTION 22. RIGHT TO ARMS: Subject only to the police power, the right of the individual citizen to keep and bear arms shall not be infringed.

12 posted on 02/22/2013 7:23:32 PM PST by Jacquerie ("How few were left who had seen the republic!" - Tacitus, The Annals)
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To: Jacquerie

Beat me to it, Jacquerie. Even the Illinois Constitution is clear. “the right if INDIVIDUAL citizens to keep AND BEAR arms shall not be infringed. In this context “police power” means something like “Sir, I’m going to ask you to give me your firearm while I investigate...” whatever it is. This should be followed immediately by something like “Unless if find a reason to arrest you i will return this to you when you leave. Fair enough?”

“Police power” is not Legislative power.


13 posted on 02/22/2013 7:38:54 PM PST by Lurker (Violence is rarely the answer. But when it is it is the only answer.)
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To: Brad from Tennessee
From the linked article: "... the Madigan statement said. “Significantly, in today’s decision, four of the 7th Circuit judges have provided a clear framework to guide the legislature in drafting a new law. "

What legal nonsense.

Madigan is suggesting that the framework offered by the DISSENTING judges are the guidelines for a Constitutionally acceptable law in Illinois. Without having read the original Posner decision, I would hazard a guess that this "framework" is not going to be acceptable.

The idea that the government can decide whether one has good cause to exercise a right is laughable. Even the People's Republik of Kalifornia typically justified its infringements in court by being able to claim that there is no individual right to keep and bear arms. Since the Heller and McDonald decisions, that is no longer true.

14 posted on 02/22/2013 8:58:34 PM PST by William Tell
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To: 1010RD; DMZFrank; endthematrix; Chgogal; NotJustAnotherPrettyFace; Lawgvr1955; Petruchio; ...
We dodged a bullet - BIG TIME!

At the time of the founding, as now, to “bear” meant to“carry.” See Johnson 161; Webster; T. Sheridan, A Complete Dictionary of the English Language (1796); 2 Oxford English Dictionary 20 (2nd ed. 1989) (hereinafter Oxford).When used with “arms,” however, the term has a meaning that refers to carrying for a particular purpose—confrontation. In Muscarello v. United States, 524 U. S. 125 (1998), in the course of analyzing the meaning of “carries a firearm” in a federal criminal statute, JUSTICE GINSBURG wrote that “[s]urely a most familiar meaning is, as the Constitution’s Second Amendment . . . indicate[s]: ‘wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person.’” Id., at 143 (dissenting opinion)(quoting Black’s Law Dictionary 214 (6th ed. 1998)). We think that JUSTICE GINSBURG accurately captured the natural meaning of “bear arms.” Although the phrase implies that the carrying of the weapon is for the purpose of “offensive or defensive action,” it in no way connotes participation in a structured military organization.

Lets see what Ginsburg says when it gets to the Supreme Court.

15 posted on 02/22/2013 11:32:33 PM PST by neverdem ( Xin loi min oi)
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To: Brad from Tennessee

You’re welcome and thanks for all your efforts. We need to be eternally vigilant and count on one another. We’re up against it and hard.


16 posted on 02/23/2013 3:02:51 AM PST by 1010RD (First, Do No Harm)
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To: Jacquerie

Narrowly applied it would mean only upon action by the police, for instance, disarming you during an investigation, but only temporarily. Instead it’s been broadly interpreted to mean any “police power” the state or locality may have including outright banning.

I wish someone had done a study of the IL constitutional convention with the same depth we have of the 2nd Amendment. We need much better legal scholarship at the state level. We need 50 Stephen P. Halbrooks.


17 posted on 02/23/2013 3:08:25 AM PST by 1010RD (First, Do No Harm)
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To: Lurker; Jacquerie; neverdem

“Police power” is legislative power.

http://machaut.uchicago.edu/?resource=Webster%27s&word=police&use1913=on&use1828=on

Although I agree with you and your interpretation I’d like to see the debate minutes and contemporaneous accounts of the proceedings to fully understand what was meant. I believe it was the intent to use the 1828 definition as opposed to the 1913 definition and the one most commonly understood in modern times to be simply law enforcement.

The word clearly included legislative power at the time and is founded in US Constitutional law: http://en.wikipedia.org/wiki/Police_power

Here’s a little history: http://en.wikipedia.org/wiki/Illinois_Constitution#History

Clearly, though, a right that can be so constrained by a state’s “police power” as to be zeroed out is an affront to the IL constitution itself, let alone the US Constitution. It cannot stand stronger and improved legal scrutiny.

More interesting is Article 12 http://www.ilga.gov/commission/lrb/con12.htm

That passage might be very useful in determining the types of arms limited by the “police power”. I’ve not heard it used in IL, yet. If every able bodied person is a part of the militia when do we get trained and armed?

Plus, the original IL constitution wasn’t voted on by the people of the state, but simply ratified by the conventioneers. http://books.google.com/books?id=Qw4lAAAAMAAJ&pg=PA326&vq=Dement&dq=JOhn+Dement+Black+Hawk#v=onepage&q=Dement&f=false


18 posted on 02/23/2013 3:34:17 AM PST by 1010RD (First, Do No Harm)
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To: Brad from Tennessee

Any day Lisa Madigan gets rebuked is a good day.


19 posted on 02/23/2013 10:32:42 AM PST by Marathoner (What are we waiting for? Where are the Articles of Impeachment!)
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To: Lurker; 1010RD
“Police power” is not Legislative power.

Unfortunately, you are incorrect. In constitutional law lingo, "police power" refers to the power of state and local legislatvie bodies to pass laws that are rationaly related to the preservation or promotion of public health, safety, or welfare.

20 posted on 02/23/2013 10:49:22 AM PST by Labyrinthos
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To: 1010RD; Lurker; neverdem
Nice online links. I checked an 1828 British dictionary that defined police similarly as: “The regulation and government of a city or country, so far as regards its inhabitants.” Clearly a legislative power.

It would seem from a classical definition that it would, as you said, allow the state to negate a recognized right, which doesn't make a lick of sense.

21 posted on 02/23/2013 10:49:22 AM PST by Jacquerie ("How few were left who had seen the republic!" - Tacitus, The Annals)
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To: Lurker; 1010RD
“Police power” is not Legislative power.

Unfortunately, you are incorrect. In constitutional law lingo, "police power" refers to the power of state and local legislatvie bodies to pass laws that are rationaly related to the preservation or promotion of public health, safety, or welfare.

22 posted on 02/23/2013 10:49:42 AM PST by Labyrinthos
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To: RonInNaples

The dem side is spending govt money. They figure if they stall long enough, the other side will run out of funding.


23 posted on 02/23/2013 10:54:13 AM PST by SauronOfMordor (To learn who rules over you, simply find out who you are not allowed to criticize - Voltaire)
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To: Labyrinthos; Lurker

I don’t know exactly who you are saying is incorrect. The “police power” isn’t unlimited legislative power, although it grants states certain specific legal rights, but vis a vis federal law and in this case the right to keep and bear arms. See here:

http://www.oyez.org/cases/1950-1959/1958/1958_94

Chicago and Madigan are on very weak ground in using the police power to enforce gun rights. What is the health, safety or welfare issue there?

Also, keep in mind that Illinois has essentially abandoned care for the seriously mentally ill. Only liberals could think this way.

What I suspect is they’ll scramble to create a law onerous enough to keep blacks from getting guns which could be just the opening necessary to break the Dem hold on Cook County...am I dreaming?


24 posted on 02/23/2013 11:15:23 AM PST by 1010RD (First, Do No Harm)
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To: Labyrinthos; Lurker; neverdem

Keep in mind that this is a desperate last stand for Illinois liberals. The reason Hamilton is arguing the “police power” perspective is that’s all they have.

Unfortunately, the facts and the law are against them.

If I were formulating strategy against them I’d wait until the legislature writes and passes the law (working to make it as broad as possible) and then chip away at it.

I like the 12th Article of the IL Constitution. I’d like to do some research on court cases involving it. I suspect they’re very sparse. But, if every able-bodied citizen is a member then it cannot be fulfilled by the Illinois National Guard and must apply to all of us. If I am expected to serve, I must be prepared, armed and trained.

We have cc here in Illinois, but it is a technicality in the law. It has worked in every case I know of, but you still go to jail, have to win in court and get your guns back. Not my idea of any kind of right at all.

One other thing to consider is the 1st Amendment. The argument is often made that you cannot shout “fire” in a crowded theater. That isn’t true - you can shout “fire” in a crowded theater, but must suffer the consequences of your lie or error. It is the same with any right, no?

Therefore the 2nd is an absolute right, but it doesn’t protect you from your infringements on the rights of others nor against torts for your actions. It’s really simple, yet liberals have fluffed it up completely.

I certainly never learned any of this while in government school.


25 posted on 02/23/2013 11:31:04 AM PST by 1010RD (First, Do No Harm)
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To: Lurker

Good point .... Stay safe !


26 posted on 02/24/2013 3:33:51 AM PST by Squantos ( Be polite, be professional, but have a plan to kill everyone you meet ...)
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To: neverdem

Yes a bullet was dodged.

But I really hate dodging bullets by only one vote. Democrats can afford to lose many times. They just keep coming back. We can only lose once, and its over.

Freedom still stands...by only one vote.


27 posted on 02/24/2013 3:55:41 AM PST by Cyclops08
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To: Brad from Tennessee

From one of the left-wing dissenters: ““The Supreme Court has not yet decided whether .. the individual right to keep and bear arms at home under the Second Amendment extends beyond the home,” Hamilton wrote.”

That shouldn’t be too hard. It’s the right to “keep and bear” arms. Bear means to carry. I can’t imagine the founders were talking about carrying your guns around the house.


28 posted on 02/24/2013 7:25:11 PM PST by ModelBreaker
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To: ModelBreaker

More on this subject:

http://www.freerepublic.com/focus/f-news/2990867/posts


29 posted on 02/24/2013 8:40:31 PM PST by Brad from Tennessee (A politician can't give you anything he hasn't first stolen from you.)
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