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Illinois Joins the Rest of the U.S.

Sunday, September 15, 2013


The fat lady has yet to sing, but as this article is being written, she is at least warming up her vocal cords. After years of effort, two Supreme Court cases, a decision by the Seventh Circuit Court of Appeals and more intrigue and maneuvering than in the season finale of a reality TV show, Illinois residents are poised to join the rest of the states in having a legal means of exercising their Second Amendment right to bear arms.

Illinois, of course, was the last state to completely prohibit the carrying of firearms outside the home or business for self-defense. By contrast, even such notoriously anti-gun jurisdictions as New Jersey, Hawaii and New York City have for many years made the issuance of a license to carry at least theoretically possible, even if few or no residents actually satisfy the arbitrary whims of licensing officials.

Illinois’ obstinacy underscores a key point in Second Amendment advocacy: it often takes a unique level of denial on the part of a jurisdiction for a court to move the Second Amendment needle in the right direction.

Washington, D.C., illustrated this point with its ban on possession of handguns. This spawned the landmark 2008 case of District of Columbia v. Heller, in which the Supreme Court recognized the Second Amendment as protecting an individual right to possess firearms for defense.

Chicago provided another example of this concept by ignoring the obvious implications of the Heller ruling for its own handgun ban. Even as the D.C. Council was dreaming up increasingly burdensome obstacles to stifle the lawful handgun ownership that Heller forced it to accept, Chicago would settle for nothing less than an unconditional ban. As a result, the Windy City’s gift to the nation was McDonald v. Chicago, the 2010 Supreme Court decision that confirmed the Second Amendment right is fundamental and applies to all law-abiding Americans.

Most would have gotten the hint at this point, but gun-banners are especially slow learners. Disregarding the Court’s guidance to the contrary, to say nothing of the long-established practice of 49 other states, Illinois insisted that Heller and McDonald had confined the Second Amendment’s protection to the home and that state laws essentially banning public carry did not infringe upon any constitutional right.

The Seventh Circuit was the next to draw the line and observed in its December 11, 2012, opinion in the NRA-supported case of Shepard v. Madigan and the similar non-NRA Moore case: “There is no suggestion that some unique characteristic of criminal activity in Illinois justifies the state’s taking a different approach from the other 49 states. If the Illinois approach was demonstrably superior, one would expect at least one or two other states to have emulated it.” The court invalidated Illinois’ ban on carrying firearms in public for self-defense, but held back its injunction for 180 days to let the Illinois legislature pass a law in keeping with the opinion. (For more on how strategic litigation can lead to positive legislation, see “In the Courts” in last month’s issue of this magazine.)

Reforming Illinois’ unconstitutional laws should have been relatively straightforward. Other states clearly know how to issue concealed carry licenses, and bills had been introduced year after year to do so in Illinois as well. But two camps quickly staked out their positions on the issue. Illinois has major anti-gun urban centers in Chicago and Cook County, while downstate areas hold more traditional pro-gun views. Anti-gun forces sought to exempt Chicago and Cook County and to impose a

“may-issue” regime, meaning that even otherwise eligible applicants could be denied licenses at the whim of police. Pro-gun advocates—including the NRA—sought a “shall-issue” law that would require a statewide license to be issued in accordance with a single, statewide list of objective qualifications.

Despite having plenty of time to comply with the court’s mandate, the legislature put off serious work on the issue until the final weeks of the session. The General Assembly was to adjourn for the summer on May 31, well before the court-imposed deadline of June 9. The Cook County State’s Attorney’s Office even feebly claimed that it was not bound by the Seventh Circuit’s decision and could continue to prosecute people for carrying in public both before and after the court’s deadline. Ironically, the cluelessness of this position may have spurred legislative activity by forcing legislators to think about the total confusion (and legal liability) that would result if officials and residents woke up on June 10 without a common understanding of the law.

Finally, the Illinois House took a “test vote” on April 17 and, by a 31-76 vote, soundly rejected a restrictive may-issue measure sponsored by Chicago Democrat Kelly Cassidy. Two days later, NRA-backed shall-issue legislation sponsored by downstate Democrat Brandon Phelps passed 64-45 in the House—a strong majority, but below the 71 votes needed to override a governor’s veto and satisfy a provision of the Illinois Constitution that requires a three-fifths vote for a state law that preempts the authority of home rule jurisdictions. Preemption is necessary for effective statewide right to carry in Illinois, as some jurisdictions have enacted separate bans on carrying firearms outside the home.  

Next into the fray was Sen. Kwame Raoul, a fiercely anti-gun Chicago Democrat who purported to offer a “compromise” approach. His “compromise,” however, tried to carve out Chicago by requiring a local “endorsement” for licensees to carry in the city. It also would have meant a may-issue system for everyone else, granting officials the power to determine if an applicant had “a proper reason for carrying a firearm” or was “a responsible person of good moral character” or whether the issuance of a license was “consistent with public safety.” (In litigation, Chicago had argued that the latter standard could not be met.)

Next, Rep. Phelps produced legislation that was still of concern to NRA members because of concessions that included high fees, a long list of prohibited places, lengthy training requirements and overbroad disqualifiers— but it at least established a statewide shall-issue regime with comprehensive preemption of local laws. It also included a process to allow law enforcement officials to object to an application if they had evidence the applicant was dangerous, prompting secondary review by a board composed of law enforcement, judicial and mental health professionals. This amendment passed the House on May 24, by a vote of 85-30.

Still, the Senate balked at the idea of giving the state legislature total authority to enact gun control laws. Its own 168-page “do-or-die” amendment was not released for review until the wee hours of the morning on the legislature’s self-imposed deadline of May 31. Even as NRA staff pored over its contents, it was advanced through the Senate 45-12 and then passed concurrence in the House 89-28, margins that were both veto-proof and strong enough to preempt local law.

But in Illinois, a veto-proof majority doesn’t necessarily stop a politically driven governor from vetoing a bill or, to be more precise, issuing an “amendatory veto,” proposing sweeping changes to the bill.

After a month of silent delay, on July 2, Gov. Quinn sent the bill back to the legislature with an absurd set of changes. The revised bill included provisions that would have limited people to carrying just one handgun with just one magazine and no more than 10 rounds of ammunition. It also  would have allowed carry only in places where property owners post notices that carry is allowed (rather than allowing carry except where it’s prohibited, as in every other state). Compliance with that “reverse posting” rule would have been nearly impossible, too, because the governor would also have struck the “safe harbor” provision that allows people to get out of their vehicles to store handguns safely in their trunks.

Fortunately, on July 9—right at the court-imposed deadline—the General Assembly rejected the amendments, finally putting a version of Right-to-Carry on the books in Illinois.

Yet going forward, much remains uncertain. Even if there’s no further appeal, questions remain about the practicalities of the law’s implementation and interpretation and its effect on pending lawsuits.

The Illinois State Police have until January 2014 to implement the law, and applications will have to be decided upon within 90 days of submission. 

Rep. Phelps deserves special thanks for his leadership on this issue. The real credit, though, goes to freedom-loving Illinoisans who refused to settle for anything short of first-class status for the Second Amendment. Your NRA also fought every step of the way to achieve the best results circumstances would allow. While the fight is far from over in Illinois, historic progress has been made.

All 50 states now agree in principle that there should be some way for at least some responsible, law-abiding citizens to bear arms outside the home for self-defense. The nation has spoken. Are you listening, Washington, D.C.? 

Illinois Chris W. Cox

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Established in 1975, the Institute for Legislative Action (ILA) is the "lobbying" arm of the National Rifle Association of America. ILA is responsible for preserving the right of all law-abiding individuals in the legislative, political, and legal arenas, to purchase, possess and use firearms for legitimate purposes as guaranteed by the Second Amendment to the U.S. Constitution.