Wednesday, May 9, 2012

Oral Arguments Set For Challenges To Illinois' Ban On Carry

The NRA's challenge to the ban on any form of carry in the state of Illinois, Shepard et al v. Madigan, will come before the 7th Circuit Court of Appeals for oral arguments on Friday, June 8th in Chicago. The Illinois State Rifle Association is a party to this suit.

At the same time, the Court of Appeals will also hear the Second Amendment Foundation's case, Moore et al v. Madigan. Illinois Carry, SAF, and a number of other individual plaintiffs are party to this suit.

A motion had been made to consolidate the cases by attorneys for the State of Illinois and was denied on April 26th. Judge Frank Esterbrook ordered:
IT IS ORDERED that the motions to consolidate are DENIED. Appellees do not need a formal order of consolidation in order to file one brief addressing two appeals. They may file one brief, or two, at their option.

IT IS FURTHER ORDERED that the motion for an extension of time is GRANTED, but only until May 9, 2012 (in both appeals). This should allow enough time to prepare a single brief covering the two cases. Appellees previously told the court that the two suits are functionally identical. There is accordingly no need for time beyond the 30-day extension already granted, and this one-week increment.

The court’s last regular sitting of the current term is June 8, 2012. If the court were to delay the appellees’ briefs until June 1 or June 11 (the alternate dates appellees propose), that would postpone oral argument until next September, an unnecessary delay. Appellees must file their brief (or briefs) in both cases by May 9, and appellants their reply briefs by May 23. That will permit oral argument the last week of May or the first full week of June.
The lead attorney for the plaintiff-appellants in the Shepard case is Charles Cooper of Cooper and Kirk. Mr. Cooper has been handling much of the NRA's appeal work and formerly was an Assistant Attorney General in the Reagan Administration.

David Sigale, co-counsel in both the McDonald and Ezell cases, is listed as the counsel of record in the Moore case. However, I expect Alan Gura to present the oral arguments as there was a notation in the docket of his schedule and he is listed as an attorney in the case.

UPDATE: P.T. had a question below about the three judges who will hear the case and whether they had been announced. I asked David Sigale if he knew who they would be. His response is below:
John, my understanding is that the Judges get picked for the panel not long before the argument. In any event, the litigants only find out who is on the panel when they show up that morning.


  1. Any idea of which judges will be hearing the case?

  2. @PT: I looked but I don't see anything listed yet. It will be the same panel for both appeals.

  3. Yeah I hope this is our last bump in the road

  4. It will be interesting to see if Alan Gura still thinks a state has the authority to license the carrying(open carry) of weapons outside the home. A right can not be licensed...See Murdock v Penn 319 U.S. 105 (1943)

    "It is contended, however, that the fact that the license tax can suppress or control this activity is unimportant [319 U.S. 105, 113] if it does not do so. But that is to disregard the nature of this tax. It is a license tax – a flat tax imposed on the exercise of a privilege granted by the Bill of Rights. A state may not impose a charge for the enjoyment of a right granted by the federal constitution."

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  6. Don,

    It's not nearly as simple as "fundamental rights can't be licensed." Marriage licenses, parade permits, solicitation licenses all exist and if administered correctly are constitutional.