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Illinois Loses Bid for Gun Ban Rehearing

(CN) - After striking down an Illinois ban against publicly carrying loaded and uncased weapons, days before the Sandy Hook Elementary massacre, the 7th Circuit refused Friday to rehear the case.

Before the Dec. 11 ruling, Illinois law allowed uncased, "ready-to-use" guns in a person's home, apartment or permanent place of business, but prohibited carrying such weapons in public. Illinois was the only state to adopt such a ban, but it never took effect amid legal challenges.

Federal judges in central and southern Illinois dismissed separate challenges to the law under the Second Amendment in early 2012. A three-judge panel of the federal appeals court consolidated the cases for review.

Noting that there is no Supreme Court ruling that directly addresses the issue presented by the Illinois law, a divided court said the right to self-defense must extend outside of the home.

This interpretation accords with the written text of the Second Amendment, according to the ruling.

"The right to 'bear' as distinct from the right to 'keep' arms is unlikely to refer to the home," Judge Richard Posner wrote for the majority. "To speak of 'bearing' arms within one's home would at all times have been an awkward usage. A right to bear arms thus implies a right to carry a loaded gun outside the home."

Three days after he issued this ruling, a gunman killed 20 children, six adults, his mother and himself at Sandy Hook Elementary School in Newtown, Conn.

Illinois petitioned for a rehearing en banc less than a month later, but the sharply divided 10-judge panel voted no Friday.

Only the four dissenting judges, led by Judge David Hamilton, explained their reasoning.

"The Supreme Court has not yet decided whether the post- Heller individual right to keep and bear arms at home under the Second Amendment extends beyond the home," Hamilton wrote. "The panel's split decision in these cases goes farther than the Supreme Court has gone and is the first decision by a federal court of appeals striking down legislation restricting the carrying of arms in public. Until the Supreme Court faces the issue, the state of the law affecting people in Illinois, Wisconsin, and Indiana is an important question worthy of en banc consideration to decide whether to affirm, reverse, or remand for further factual development."

Instead of invoking the Newtown massacre, the dissent draws upon an August 2012 shootout between police and an armed perpetrator.

"The police officers were well trained in both how to shoot and when to shoot and not shoot," the dissent states. "The officers fatally shot the gunman, but the officers' many shots also wounded nine bystanders. I intend no criticism of the officers, who confronted an urgent, dangerous situation that few have experienced first-hand. We will always need armed police officers, and some harm will be unavoidable despite their training, skill, and experience. But consider how much worse the situation on the crowded streets of New York might have been if several civilians, without the officers' training but carrying firearms lawfully, had tried to help with their own firearms. Unless the Supreme Court is prepared to embrace the view attributed to it by the panel majority, that the Second Amendment right to bear arms does not depend on 'casualty counts,' ... we should not assume that the logic of Heller extends naturally and without qualification to firearms in public.

"Moreover, the panel majority makes its constitutional point about self-defense outside the home by relying on the need for weapons on the early American frontier. The reliance misses the point. ... It would have been foolish for any frontier government to prohibit carrying weapons from homestead to trading post. But we do not usually test constitutional doctrine by asking whether all foolish laws would be banned. The real constitutional question is whether there is a right to bear arms in public so rigid that it must strike down duly enacted laws that apply in the downtown streets of modern Chicago, Washington, or New York. It need not be."

Relying on "hypothetical" arguments, the majority block the new Illinois gun law before the state could produce evidence about its utility, Hamilton wrote.

"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. 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," the dissent concludes.

Judge Ann Claire Williams, who dissented from the December ruling, joined in Hamilton's opinion, as did Judges Ilana Rovner and Diane Wood.

Judge Michael Kanne did not participate in the consideration of the rehearing petition.

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