Illinois Concealed Carry Ban Ruled Unconstitutional By Federal Appellate Court

12/11/2012 12:58 pm ET | Updated Dec 11, 2012

Gun-rights advocates claimed a major victory on Tuesday when a federal appeals court in Illinois struck down the state's ban on carrying concealed firearms, in a ruling that may have national repercussions if appealed to the U.S. Supreme Court.

Before the 2-1 ruling, Illinois stood as the last state in the country maintaining an absolute prohibition on the carrying of concealed firearms by private citizens. The majority opinion, by Richard A. Posner of the Seventh Circuit Court of Appeals, found the ban on concealed weapons was unconstitutional under a 2008 Supreme Court decision overturning a sweeping handgun ban by the District of Columbia.

The Supreme Court's decision in 2008 firmly established a constitutional right to armed self-defense under the Second Amendment, Posner wrote.

"A right to bear arms thus implies a right to carry a loaded gun outside the home," he wrote.

The law banning concealed weapons was challenged in 2009 by gun rights groups suing on behalf of an Illinois woman violently attacked while volunteering at her church. The suit was funded by the National Rifle Association.

"Today's ruling is a victory for all law-abiding citizens in Illinois and gun owners throughout the country," said Wayne LaPierre, the NRA executive vice president.

The ruling gives the state 180 days to craft a law regulating the carrying of weapons. Many states, like New York and California, severely restrict the issuance of concealed carry permits. Other states, particularly in the West, have virtually no restrictions on such permits.

Illinois Attorney General Lisa Madigan, who fought the NRA lawsuit, is reviewing the ruling and will decide soon whether to appeal to the Supreme Court, a spokeswoman told NBC Chicago.

Gun control proponents called the ruling unfortunate and said they hoped the ruling would be appealed.

"Courts make mistakes," said Lee Goodman, an organizer with the Stop Concealed Carry Coalition. "That's why we have a process for appeal."

Illinois House Majority Leader Barbara Flynn Currie, who supports stricter gun control measures, said she hoped the ruling would be stayed until the Supreme Court had a chance to rule on an appeal. But if the state is forced to implement a concealed carry law, it should be severely restrictive, she said.

"There's no question that there are all kinds of limits one could impose," Currie told HuffPost.

Gun rights activists said that a restrictive concealed carry bill would be fought bitterly.

"I think the majority leader wants to have a ban without calling it a ban, and they don't have the votes to do it," said Todd Vandermyde, an Illinois-based lobbyist for the NRA.

"After going to court, we're not in the mood to compromise," he said.

Some called Posner's ruling simply puzzling, pointing to a widely discussed essay by the judge that harshly criticized the Supreme Court's decision overturning the District of Columbia handgun ban.

The August 2008 essay, in The New Republic magazine, stipulates that a literal reading of the Second Amendment grants the "right to bear arms" only to state militias, not private citizens.

"The text of the amendment, whether viewed alone or in light of the concerns that actuated its adoption, creates no right to the private possession of guns for hunting or other sport, or for the defense of person or property," Posner wrote.

"The Framers of the Bill of Rights could not have been thinking of the crime problem in the large crime-ridden metropolises of twenty-first-century America," he wrote. "And it is unlikely that they intended to freeze American government two centuries hence at their eighteenth-century level of understanding."

The essay clearly seemed to suggest that Posner was unlikely to rule broadly in favor of a constitutional right for armed self-defense, said Ladd Everett of the Coalition to Stop Gun Violence. The ruling may in fact be a gambit by Posner to force the Supreme Court to more clearly address the constitutionality of gun control, he said.

"This is really strange," Everett said. "I have to believe there is something else going on here."

In his 2008 essay, Posner noted that the majority opinion overturning the District of Columbia's handgun ban, by Justice Antonin Scalia, found that not all forms of gun control were unconstitutional.

"Justice Scalia was emphatic that the right to possess a gun is not absolute," Posner said. "All that is clear is that an absolute ban on possessing a pistol is unconstitutional. The other restrictions a government might want to impose are up for grabs."

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