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Illinois concealed carry ban struck down

(MCT) CHICAGO — Illinois’ days as the only state in the nation to forbid public possession of a firearm could be numbered after a federal appellate court threw out a state ban and gave lawmakers six months to figure out a way to let people legally carry around guns.

The 2-1 ruling Tuesday by a 7th U.S. Circuit Court of Appeals panel in Chicago affirmed a constitutional right to have ready-to-use firearms for self defense outside the home.

Gun owner groups declared a historic victory, claiming leverage to limit restrictions on who can possess a weapon as negotiations on a new state law unfold. Gun control advocates acknowledged the need for a revised conceal carry law, but said the court’s ruling still allowed for strict limitations.

Attorney General Lisa Madigan, representing the state, said her office is studying whether to seek to seek a rehearing, ask the full complement of 7th Circuit judges to rule, or appeal to the U.S. Supreme Court, as some gun control groups have advocated. Other gun control supporters feared an unsuccessful appeal could undo firearms restrictions across the country.

As Madigan regroups, the National Rifle Association, which provided some legal muscle in the case, boasted of a victory in a state where gun control forces long have held sway.

“We went to court,” said Todd Vandermyde, an NRA lobbyist. “We won. … Illinois will have a carry law by the Fourth of the July. And if the mayor or the governor or anybody else doesn’t like it, well, that’s just too bad.”

Chicago Mayor Rahm Emanuel, a strong gun-control advocate, said through a spokesman that he was “disappointed with the court’s decision.” In March, Emanuel introduced a City Council-passed resolution opposing state legislation that would have allowed people to carry firearms in public.

The ruling also could effectively undermine part of Chicago’s gun ordinance, which prohibits possession of a registered firearm outside the home. The opinion could make it legal for a Chicagoan with a registered weapon to take it outside — something now prohibited by the city, even if it’s on the owner’s own outdoor porch or yard.

At issue is a provision of Illinois’ five-decade-old criminal code involving the unlawful use of a weapon. Under the law, it is illegal for someone to carry or possess a firearm in a vehicle or conceal one on their body except on their own land or place of business. Exemptions exist for law enforcement, licensed hunters engaged in their activity and on established target ranges.

The appellate court overturned decisions by two federal judges that had upheld the state law. The new ruling concluded that if Illinois’ law was “demonstrably superior,” then at least one other state would have adopted it.

“We are disinclined to engage in another round of historical analysis to determine whether 18th-century America understood the Second Amendment to include a right to bear guns outside the home. 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,” Judge Richard Posner wrote for the majority.

“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. 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,” wrote Posner, a renowned legal scholar and veteran appellate judge who was appointed by President Ronald Reagan in 1981.

In the opinion, Posner wrote that “a Chicagoan is a good deal more likely to be attacked on a sidewalk in a rough neighborhood than in his apartment on the 35th floor of the Park Tower.”

“A gun is a potential danger to more people if carried in public than just kept in the home,” Posner wrote. “But the other side of this coin is that knowing that many law-abiding citizens are walking the streets armed may make criminals timid.”

In her dissent, Judge Ann Williams said the state Legislature acted constitutionally to prohibit firearms in public.

“Guns in public expose all nearby to risk, and the risk of accidental discharge or bad aim has lethal consequences,” Williams wrote. “Allowing public carry of ready-to-use guns means that risk is borne by all in Illinois, including the vast majority of its citizens who choose not to have guns.”

Illinois became the last state to prohibit the carrying of concealed weapons when Wisconsin lifted its ban last year.

The ruling effectively adds a new and intense political controversy onto the plate of a General Assembly already grappling with efforts to cope with the nation’s most underfunded public pension system and attempts to legalize same-sex marriage and expand gambling.

The issue of gun control has been politically vexing for decades in Springfield — defined more by geography and sometimes race rather than political party.

While support for strong gun laws generally has come from Chicago politicians, including Emanuel and his predecessor Richard M. Daley, downstate lawmakers traditionally have backed gun-owner rights including concealed carry legislation.

Democratic state Rep. Brandon Phelps fought unsuccessfully in the House to pass concealed weapons legislation with a long set of restrictions, but on Tuesday said opponents may regret they had not supported it. Now, Phelps said, he “can’t see us” going forward with legislation that has as many restrictions as the bill that failed.

The prior bill largely limited carrying weapons to when a person was in a car, walking into a house and out on a sidewalk, and it specifically disallowed guns to be carried in churches, schools, gymnasiums, sporting events, bars and businesses, Phelps said.

Reflecting the geographical divide, Democratic state Rep. Eddie Acevedo, a Chicago police officer, said there’s potential for certain areas of the city to become “the wild, wild West.”

“I fear that honest, law abiding citizens are going to get themselves in to predicaments where an individual has a weapon, and they unload on someone else they think may be armed, when in fact they may just be reaching in to their pocket for a cellphone,” Acevedo said.

Most states require a permit in order to carry a handgun, with different eligibility standards ranging from age limits to requiring applicants have no prior felony convictions or history of mental illness. As of 2011, there were at least 8 million active permits to carry concealed handguns in the United States, according to a July study by the U.S. Government Accountability Office.

The ruling did provide a way for state lawmakers to go forward. Posner noted that last month, the federal appeals court in Manhattan upheld a century-old New York state law that requires people who want to carry a gun to show “proper cause” that the firearm was needed for hunting or self defense and that the need had to be greater than the general population.

Reaction to the Illinois ruling rolled in from City Hall to the Capitol to college campuses.

Chicago Alderman Howard Brookins, 21st, chairman of the City Council black caucus, welcomed the court’s decision, saying allowing Chicagoans to carry concealed weapons would help level the playing field in neighborhoods where law-abiding citizens feel like they need firearms to protect themselves.

Constitutional law expert Eugene Kontorovich of Northwestern University said Posner’s decision was not driven by the debates about whether conceal carry laws affect crime rates or make communities more dangerous. Rather, he said Posner focused on defining the word “bear” in the Second Amendment, concluding that “it doesn’t just mean carry in your bathrobe” in your home.

“It’s an actual word, and the Constitution says you have a right to keep and bear arms,” he said. “Presumably both (words) are different and meaningful.”

Jon Lowy, director of the legal action project for the Brady Center to Prevent Gun Violence, said it was “disappointing” that the court did not allow Illinois citizens to determine their own laws about carrying a gun in public.

While Lowy acknowledged there is always a risk in appealing a case to any court, he said he believed if the Illinois case was taken to the nation’s highest court, it would “hold that it is constitutional to have reasonable restrictions on carrying guns in public.”


Tribune reporters Hal Dardick, Monique Garcia and John Byrne contributed.


©2012 Chicago Tribune

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