Judges: Posner
Filed: Nov. 05, 2013
Latest Update: Mar. 02, 2020
Summary: In the United States Court of Appeals For the Seventh Circuit _ No. 13-2661 MARY E. SHEPARD, et al., Plaintiffs-Appellants, v. LISA M. MADIGAN, Attorney General of Illinois, et al., Defendants-Appellees. _ Appeal from the United States District Court for the Southern District of Illinois. No. 3:11-cv-405-WDS-PMF — William D. Stiehl, Judge. _ ARGUED OCTOBER 3, 2013 — DECIDED NOVEMBER 5, 2013 _ Before POSNER, FLAUM, and WILLIAMS, Circuit Judges. POSNER, Circuit Judge. This is a sequel to our decis
Summary: In the United States Court of Appeals For the Seventh Circuit _ No. 13-2661 MARY E. SHEPARD, et al., Plaintiffs-Appellants, v. LISA M. MADIGAN, Attorney General of Illinois, et al., Defendants-Appellees. _ Appeal from the United States District Court for the Southern District of Illinois. No. 3:11-cv-405-WDS-PMF — William D. Stiehl, Judge. _ ARGUED OCTOBER 3, 2013 — DECIDED NOVEMBER 5, 2013 _ Before POSNER, FLAUM, and WILLIAMS, Circuit Judges. POSNER, Circuit Judge. This is a sequel to our decisi..
More
In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13‐2661
MARY E. SHEPARD, et al.,
Plaintiffs‐Appellants,
v.
LISA M. MADIGAN, Attorney General of Illinois, et al.,
Defendants‐Appellees.
____________________
Appeal from the United States District Court for the
Southern District of Illinois.
No. 3:11‐cv‐405‐WDS‐PMF — William D. Stiehl, Judge.
____________________
ARGUED OCTOBER 3, 2013 — DECIDED NOVEMBER 5, 2013
____________________
Before POSNER, FLAUM, and WILLIAMS, Circuit Judges.
POSNER, Circuit Judge. This is a sequel to our decision in
Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012), which invali‐
dated provisions of the Illinois gun law, 720 ILCS 5/24‐1, ‐1.6,
which, with exceptions mainly for police and other security per‐
sonnel, hunters, and members of target‐shooting clubs, prohib‐
ited a person from carrying a gun ready to use (loaded, imme‐
diately accessible—that is, easy to reach—and uncased) outside
his property or the property of someone who has permitted him
to be there with a ready‐to‐use gun. The panel majority (Judge
Williams dissenting) held that so strict a ban—unique among
the states—on carrying a gun violates the Second Amendment
2 No. 13‐2661
as interpreted in District of Columbia v. Heller, 554 U.S. 570
(2008), and held applicable to the states in McDonald v. City of
Chicago, 130 S. Ct. 3020 (2010).
For purposes of the present appeal the most important part
of our 2012 decision is the last paragraph:
The Supreme Court’s interpretation of the Second
Amendment therefore compels us to reverse the decisions in
the two cases before us and remand them to their respective
district courts for the entry of declarations of unconstitutional‐
ity and permanent injunctions. Nevertheless we order our
mandate stayed for 180 days to allow the Illinois legislature to
craft a new gun law that will impose reasonable limitations,
consistent with the public safety and the Second Amendment
as interpreted in this opinion, on the carrying of guns in pub‐
lic.
702 F.3d at 942. Later, at the state’s request, we extended the
stay for an additional 30 days. Thus we gave the state 210 days
in which to enact a new gun law that would impose only rea‐
sonable restrictions on carrying guns outside the home, rather
than the restrictions that we held to be unduly severe.
On July 9 of this year, the Illinois legislature, overriding a
gubernatorial veto, enacted a new gun law, the Firearms Con‐
cealed Carry Act, 430 ILCS 66/1, et seq. Consistent with our deci‐
sion in the Moore case, the new statute authorizes the issuance
of licenses for carrying guns outside the home, 430 ILCS 66/10,
but imposes a number of restrictions (more precisely, author‐
izes denial of a license on a number of grounds). Thus, to be en‐
titled to a license, the applicant must have 16 hours of approved
firearms training, see 430 ILCS 66/75; be at least 21 years old;
have a currently valid Firearm Owner’s Identification Card (a
“FOID card,” as it is called); and not have been convicted of as‐
sault, drunk driving, or certain other offenses or be in pending
proceedings that could lead to disqualification for a gun license,
No. 13‐2661 3
and not have been treated recently for alcoholism or drug ad‐
diction. 430 ILCS 66/25. The new law is a “concealed carry” law;
that is, in contrast to “open carry” laws, the gun must not be
visible to other persons. The plaintiffs do not seek open‐carry
rights, at least in this litigation.
The legislature gave the Illinois State Police 180 days to
make applications for concealed‐carry licenses available to the
public, and 90 days after receipt of the completed application to
issue licenses to qualified applicants. 430 ILCS 66/10(d), (e).
On the same day that the state passed its new law, the stay
of our decision expired, and our mandate, declaring the old law
unconstitutional and enjoining it, issued, in accordance with the
last paragraph of our opinion.
Our decision resolved appeals from two district court deci‐
sions, Moore v. Madigan (No. 11‐cv‐3134, C.D. Ill.) and Shepard v.
Madigan (which is this case; Moore is not before us). As soon as
our mandate issued (upon the passage of the new Illinois law),
the state moved in the district courts to dismiss the two cases as
moot. The plaintiffs in this case responded with motions that
the state be ordered, until the new law is fully implemented, to
allow any Illinois resident to carry a gun outside the home who
has a FOID card, eligibility for which requires little more than
that the applicant be at least 21 years old and not have a serious
record of criminal activity or mental disease or disability. See
430 ILCS 65/4.
The plaintiffs are incensed by the new law’s permitting a de‐
lay of 270 days (180 + 90) between the date of its enactment
(which was also the date our mandate issued) and the issuance
of the first permits under the new law. For during this time the
Illinois State Police are authorized to continue enforcing the ex‐
isting gun laws, 720 ILCS 5/24–1, 1.6, against persons without
concealed‐carry permits—which, of course, no one has yet, and
4 No. 13‐2661
maybe no one will have until 270 days from the enactment of
the new law. Illinois State Police, “Concealed Carry FAQ,”
www.isp.state.il.us/firearms/ccw/ccw‐faq.cfm (visited Oct. 25,
2013).
The district court ruled that the case is moot because the
plaintiffs had obtained all the relief to which our decision enti‐
tled them. (In the companion case, however, Moore v. Madigan,
the district judge has ruled that the case is not moot. See 3:11‐
cv‐3134‐SEM‐BGC (C.D. Ill. Oct. 9, 2013).)
A case challenging a statute’s validity normally becomes
moot if the statute is repealed or invalidated. E.g., Log Cabin Re‐
publicans v. United States, 658 F.3d 1162, 1165–66 (9th Cir. 2011)
(per curiam). And the provisions of the Illinois gun law that the
plaintiffs in this and the companion case challenge have been
invalidated. But the invalidation has not yet taken effect. The
invalid law lives on. It will continue to be enforced until the
new law is implemented by the making of the license applica‐
tions available to the public with a 90‐day deadline for process‐
ing each application. But the relief sought by the plaintiffs—that
any Illinoisan who has a FOID card shall be allowed to carry a
gun outside the home, without regard to additional restrictions
in the new law—is unreasonable.
Notice the plaintiffs’ concession that even in the interim pe‐
riod before the new statute is implemented, a person wanting to
be allowed to carry a gun outside the home must have a FOID
card. The reason for this concession is that the plaintiffs have
never questioned the constitutionality of limiting gun owner‐
ship, whether in the home or outside of it, to persons having a
FOID card; and if to be permitted to have a gun just in your
home you must have such a card, and that requirement doesn’t
violate the Second Amendment, how could it be a violation to
require the card if you want to take your gun with you outside
the home?
No. 13‐2661 5
So the plaintiffs have no quarrel with the applicability of the
FOID law to carrying a gun outside the home. Their gripe—the
basis for the interim relief they’re seeking—is that the state is
dragging its heels in bringing its new, concealed‐carry law into
line with our ruling. But to challenge this foot dragging, or any‐
thing else that they don’t like about the new law, the plaintiffs
must file a new lawsuit challenging the new law or the schedule
for its implementation, and seek a preliminary injunction. (A
permanent injunction, issued after a full trial on the merits,
would provide no relief, because by then the 270 days from the
enactment of the new law to the deadline for action on license
applications will have expired.) The appeal before us is not
from a ruling in a new lawsuit. It is from the district court’s re‐
fusal to rule that until the new law becomes fully operational
(on the 270th day after July 9 of this year), the Second Amend‐
ment entitles all Illinois residents who have a valid FOID card
to carry a gun outside the home.
That ruling by the district court would be actionable without
a new lawsuit only if it violated our mandate. We remanded for
the entry of declaratory and injunctive relief against the old
law, but fixed no timetable for the implementation of a super‐
seding law. Our opinion contains no explicit or implicit direc‐
tive to make declaratory or injunctive relief against the opera‐
tion of the old law immediate, without awaiting the enactment,
let alone the implementation, of a new law—thus creating a
regulatory gap (indeed a void, if it weren’t for the plaintiffs’
concession that only persons who have a FOID card are entitled
to carry a gun outside the home).
We gave the state 180 days to pass a new law. We did not
say that during that period, plus any further period before a
new law could be implemented and the issuance of licenses un‐
der it could begin, any Illinois resident who had a FOID card
could, without complying with any additional restrictions, start
6 No. 13‐2661
carrying guns outside the home. We said that the state could
create a new law with reasonable restrictions. We did not spec‐
ify them—that would have been premature. The new law re‐
quires 16 hours of instruction in the use of firearms (seemingly
a minimal requirement to ensure competence and safety in the
use of a gun for self‐defense in a public place, yet not a re‐
quirement for obtaining a FOID card), fingerprinting, head and
shoulder photos, a cleaner criminal and mental health record
than is required for a FOID card, and so forth. We do not say
that these restrictions are permissible; that issue is not before us.
We say only that our mandate did not forbid the state to impose
greater restrictions on carrying a gun outside the home than ex‐
isting Illinois law (in this respect materially unchanged by the
Firearms Concealed Carry Act) imposes on possessing a gun in
the home. Firearm Owners Identification Card Act, 430 ILCS 65.
It should have been obvious that transition to a new regime
of gun rights would require considered, complex state action,
and therefore could not be instantaneous. The plaintiffs don’t
argue that a new law could be implemented within 270 days. In
their reply brief they say that “Illinois can take as long as it
wants to implement its new concealed carry law; it just cannot
continue to enforce its unconstitutional carry ban in the mean‐
time” (the meantime that began on July 9). That is an untenable
insistence on “first day” relief. And whether it is untenable or
not, our essential point is that while our mandate set a deadline
for the enactment of a statute that would replace the statute that
we were invalidating, we neither set a deadline for full imple‐
mentation of the replacement statute by the grant of concealed‐
carry licenses to qualified applicants under the new statute nor
prescribed a regulatory regime for the interim period. Deciding
those matters was therefore left to the State of Illinois in the first
instance. What the state has done about the interim regime for
No. 13‐2661 7
concealed carry may be good or bad, constitutional or unconsti‐
tutional, but it is not a violation of our mandate.
We do not mean to belittle the plaintiffs’ complaint about
delays built into the new law. But if they don’t like the new law,
and wish to invalidate it, they must bring a new suit. Their only
basis for complaining about the district court’s refusal to enjoin
the old law immediately—and thus allow them (if they have a
FOID card) to start carrying guns in public without complying
with the new law—is that we ordered it and therefore the dis‐
trict court has violated our order. That is incorrect. We made no
order regarding relief except to specify a deadline for the state
to enact a new law. It met the deadline. Thus the district court
did not violate our mandate and so there is no basis for the re‐
lief that the plaintiffs sought. The denial of that relief is there‐
fore
AFFIRMED.