Updated: 01-07-16

701 F.3d 81 (2d Cir. 2012)
Certiorari denied, 4-15-13


As hundreds of thousands of law-abiding Illinois citizens await the outcome of current litigation efforts in the Moore/Shepard v. Madigan case, and the ISP drags its tail in preparing for the onslaught of “carry” license applications numbering in the hundreds of thousands, it is noteworthy to look at one of the cases with like issues where our U.S. Supreme Court recently refused to grant certiorari. Fortunately, our lobbyists were successful in their efforts to assure the new Illinois carry statute has all the earmarks of a “shall issue” law, and while that clearly distinguishes our statute from those “may issue” statutes, such as that involved in the Kachalsky case, not much separates either from the calloused view most circuit appellate courts are giving “carry” laws in general.
Issue: This appeal presented a single issue: Does New York's handgun licensing scheme violate the Second Amendment by requiring an applicant to demonstrate “proper cause” to obtain a license to carry a concealed handgun in public?
Plaintiffs, seeking to carry handguns outside the home for self-defense. applied for and were denied a full-carry concealed-handgun license by one of the defendant licensing officers for failing to establish “proper cause”—a special need for self-protection—pursuant to New York Penal Law section 400.00(2)(f). Plaintiffs argued that the proper cause provision, on its face or as applied to them, violates the Second Amendment as interpreted by the Supreme Court in District of Columbia v. Heller, 554 U.S. 570, 128 S. Ct. 2783, 171 L.Ed.2d 637 (2008)
The district court granted the State Defendant’s Motion for Summary Judgment sua sponte, and found that SAF lacked standing to sue on its own behalf or on behalf of its members. The district court concluded that the concealed carrying of handguns in public is “outside the core Second Amendment concern articulated in Heller: self-defense in the home,” and in the alternative, held that ”the proper cause requirement would survive constitutional scrutiny even if it implicated the Second Amendment.”
The subject license provision [400.00(2)(f)] provides that a license “shall be issued to have and carry [a firearm] concealed · by any person when proper cause exists for the issuance thereof.” N.Y. Penal Law § 400.00(2)(f) New York bans carrying handguns openly, and the Plaintiffs must demonstrate proper cause pursuant to section 400.00(2)(f) in order to carry a concealed firearm.
To establish proper cause to obtain a license without any restrictions, the Plaintiffs are required to“ demonstrate a special need for self-protection distinguishable from that of the general community or of persons engaged in the same profession.”
    (a.) Unlike a license for target shooting or hunting, “[a] generalized desire to carry a concealed           weapon to protect one's person and property does not constitute ‘proper cause.
    (b.) Good moral character plus a simple desire to carry a weapon is not enough.
    (c.) Nor is living or being employed in a “high crime area
Plaintiffs' applications were all denied for the same reason: Failure to show any facts demonstrating a need for self-protection distinguishable from that of the general public.
Addressing the parties’ main arguments, the Court said:
Invoking Heller, Plaintiffs contend that the Second Amendment guarantees them a right to possess and carry weapons in public to defend themselves from dangerous confrontation and that New York cannot constitutionally force them to demonstrate proper cause to exercise that right. Defendants counter that the proper cause requirement does not burden conduct protected by the Second Amendment. They share the district court's view that the Supreme Court's pronouncement in Heller limits the right to bear arms for self-defense to the home.
The Court rejected Plaintiffs’ Second Amendment arguments and, applying intermediate scrutiny “[b]ecause our tradition so clearly indicates a substantial role for state regulation of the carrying of firearms in public,” concluded that “Heller provides no categorical answer to this case. and in many ways, it raises more questions than it answers.” . . . “Our review of the history and tradition of firearm regulation does not ‘clearly demonstrate[ ]’ that limiting handgun possession in public to those who show a special need for self-protection is inconsistent with the Second Amendment. Accordingly, we decline Plaintiffs' invitation to strike down New York's one-hundred-year-old law and call into question the state's traditional authority to extensively regulate handgun possession in public. The decision of the U.S. District Court granting Defendants summary judgment sua sponte is affirmed.”
The Court rejected Plaintiffs’ Second Amendment arguments and, applying intermediate scrutiny “[b]ecause our tradition so clearly indicates a substantial role for state regulation of the carrying of firearms in public,” concluded that “Heller provides no categorical answer to this case. and in many ways, it raises more questions than it answers.” . . . “Our review of the history and tradition of firearm regulation does not ‘clearly demonstrate[ ]’ that limiting handgun possession in public to those who show a special need for self-protection is inconsistent with the Second Amendment. Accordingly, we decline Plaintiffs' invitation to strike down New York's one-hundred-year-old law and call into question the state's traditional authority to extensively regulate handgun possession in public. The decision of the U.S. District Court granting Defendants summary judgment sua sponte is affirmed.”
On 4/15/13 the U.S. Supreme Court denied certiorari, however it is anticipated that the U.S. Supreme Court will soon hear a case dealing with the issues of whether:
    a.) The Second Amendment guarantees a right to carry firearms outside of the home           for self-defense; and
    b.) Denial by local governments of “carry” licenses to law-abiding citizens unless           “proper cause is demonstrated by the applicant” violates the Second Amendment.
Justice Posner, writing for the majority in the recent 7th Circuit Court of Appeals decision in the Case of Moore/Shepard v. Madigan, chastised the 2nd Circuit’s decision in Kachalsky, noting that it reopened historical issues that were settled by Heller. A split in the Circuits, such as that now existing between the 7th the 2nd and the 4th leaves the door open for the U.S. Supreme Court to grant certiorari when the next case with similar issues is petitioned to the Court.

McDonald v. City of Chicago
561 U.S. ____ (2010) Slip Opinion

In a 5-4 landmark decision, the United States Supreme Court followed its ground-breaking ruling in District of Columbia v. Heller, 554 U.S. _____, and, in reversing the Seventh Circuit’s affirmation of a District Court’s holding denying Petitioner’s Second Amendment arguments against municipal firearm bans by the City of Chicago and Oak Park, held that the Second Amendment is a fundamental right and is incorporated against the states under the 14th Amendment of the U.S. Constitution. The case has been remanded to the 7th Circuit Court of Appeals for reconsideration pursuant to the decision by the U.S. Supreme Court.
While the majority of the Court deciding in favor of McDonald held that the 2nd Amendment is incorporated by the Due Process clause of the 14th Amendment, Justice Thomas took one of the roads argued by Petitioners’ counsel, which made some believe that the Court overruled the Slaughterhouse and Cruikshank decisions, and that the “privileges and immunities” clause of the Constitution was the basis for Second Amendment incorporation. Nevertheless, Justice Thomas’ concurring opinion, together with that of Justice Scalia’s, added to the majority five votes needed to decide favorably for the Petitioners. Attorney Alan Gura, who was counsel in the Heller case, successfully represented McDonald, and other individual petitioners as well as the Illinois State Rifle Association and the Second Amendment Foundation.
A Supreme Court 5-4 decision raises a red flag as to why four of the Justices refuse to acknowledge what freedom-loving Americans have believed for centuries, and which the founding fathers of our nation perceived as a fundamental, inalienable right deeply rooted in our nation’s history, and implicit in the concept of ordered liberty. That right, most scholars have believed, existed before the passage of the 2nd Amendment. The majority made frequent references to the pre-existing right of self-defense, which is the back-bone of the Second Amendment, and there is much to be said about the majority’s dissection of what many now recognize as “ strained arguments” posed by Justice Stevens.
The Majority’s caveat re-affirmation of the position it took in the District of Columbia v. Heller case that various firearm restrictions, including the prohibition of possession of firearms by felons or the mentally ill, those laws affecting the commercial sale of firearms, and those imposing restrictions regarding the carrying of firearms in sensitive areas such as government buildings, and the like, still apply, raises another red flag. Coupled with the fact that four of the Justices, and most assuredly their successors, will continue to take an opposing stand to applications of the principles set forth by the majority in McDonald, these restrictions can be stretched and broadened to a point where more basic rights are suppressed. While all agree that keeping firearms out of the hands of felons, the mentally ill, and away from sensitive places such as courtrooms, it is the interpretation of those restrictions that require constant alertness and strict scrutiny to ensure that those restrictions are not employed in an arbitrary and discriminatory manner so as to further alienate the rights of law-abiding citizens who are entitled to keep and bear arms.
It will be interesting to learn how anti-gun advocates and some courts will interpret the McDonald majority’s reference that the “fundamental right guarantee is fully binding on the states and thus limits (but by no means eliminates) their ability to devise solutions to social problems that suit local needs and values.” Also, quoting from the 38 states’ and amicus brief of the State of Texas, the Court noted that “state and local experimentation with reasonable firearms regulations will continue under the Second Amendment.”
Repeatedly, we have seen cases setting forth a basic principle of law abused by law enforcement authorities and ignored by some courts to a point of ludicrousness. Classic examples are registration requirements imposed to such a degree in some anti-gun municipalities such as Chicago, and various states, that the real aim is to defeat the thrust of 2nd and 14th Amendment protections. Many Courts also have repeatedly ignored the protections afforded under the 4th and 14th amendments by upholding invalid searches and seizures. Fortunately, many of those decisions have been cured on appeal to higher courts, but not always. That, of course, is a matter the strongest pro-gun entity in Illinois [the Illinois State Rifle Association (ISRA)] has addressed in cases such as People v. Diggins, and by its constant watch-guard of legislation by its lobbyists in Springfield.
McDonald, in the wake of District of Columbia v. Heller, is now recognized as the second major step forward in a continuing battle by pro-firearm advocates to protect and further the fundamental right to keep and bear arms, be it for self-defense, defense of property, hunting, target shooting, or collecting, all warranting no knit-picking regulatory restrictions. Assuredly, the legal fight will go on, and on !

Chicago’s New Ordinance

The City of Chicago’s amended ordinance which took effect on July 12, 2010, is the latest attempt by the City Council, guided by its Mayor, to throw another obstacle in the path of our road to victory in the never-ending battle against the anti-gun lobby bent on depriving us of our fundamental right to keep and bear arms. The United States Supreme Court’s recent decision in McDonald v. City of Chicago, 561 U.S. ____ , slip op.(2010), sends a message to the citizens of our state, and throughout the country, that our founding fathers decreed that we shall not be deprived of our fundamental inalienable right of self-defense. In the words of Alexander Hamilton:
      The sacred rights of mankind are not to be rummaged for among old parchments
      and musty records. They are written as with a sunbeam in the whole volume of
      human nature, by the hand of the Divinity itself, and can never be erased
      or obscured by mortal power.
Chicago’s City Council obviously does not get the message, and in anticipation of the overturning of its existing ordinance banning handguns and hand-cuffing countless gun owners to an unfettered registration scheme, when the Appellate Court rules pursuant to the dictates of the U.S. Supreme Court, it hastily passed the amended version which contains a plethora of unconstitutional provisions.
A lawsuit filed on behalf of Chicago residents and another by a non-resident seeking to establish a gun shop/range within the City limits spell out many of the vague and discriminatory provisions. They include:
( a.) A firearm permit that contains requirements for instruction on firearm training and use of firearms, absent any guidelines, and banning the training within the City;( b.) A limitation to the use of a firearm in self-defense only within the confines of the home, clearly depriving a Chicago citizen of a wider scope of self- protection under our existing state statutes; (c.) A so-called “unsafe handgun” provision that gives unbridled discretionary power to the individual in charge of registration to make that decision; (d.) Vague and overbroad requirements pertaining to possession of firearms by some citizens that would bar certain homes from the protection afforded by a firearm; (e.) Banning the transportation of firearms to such a degree that a resident or non-resident is deprived of constitutional protections afforded under both state and federal statutes; (f.) Another registration scheme that will only adversely affect law-abiding citizens, and do nothing to take away or limit the firearms in the hands of the gang-bangers who are creating havoc within the City.
Other infirmities in the new ordinance raise equal protection and more Second Amendment violation issues that some pro-gun advocates believe are tantamount to “junk-piling” the litigation. In any event, most of us believe that many of the allegations will survive technical motions to strike, and more steps will be taken to protect our rights. You can be assured that Illinois State Rifle Association, the state’s strongest protector of gun rights, is carrying the battle flag and will continue to fight both in the Courts and on the legislative front, as always. As ISRA has often pointed out: The City could direct its $$$ toward giving its citizens more police protection, or finding other legitimate ways of assisting citizens, rather than spending big bucks defending its ludicrous ordinance on its road to nowhere.

Braglia v. McHenry County State’s Attorney’s Office (Illinois Department of State Police, Appellant), 371 Ill. App. 3d 790. 863 N.E. 2d 1150 ( 2d District, 2/27/07) .

In an appeal brought by the Illinois Department of State Police, the principal issue before the Appellate Court was whether, pursuant to section 10 (b) of the Illinois Firearm Owner’s Identification Act [430 ILCS 65/10(b)] “a firearm owner’s identification (FOID) card should be issued to an applicant who would ordinarily be disqualified from holding one because of a conviction of domestic battery.” The Illinois State Police Department filed the appeal, claiming that it should have been named as a party in the initial action brought by the Plaintiff, Daniel Braglia, in the Circuit Court of McHenry County where he filed his action against the office of the State’s Attorney of McHenry County.
The Appellate Court rejected the claim of the Illinois Department of State Police that it had standing to appeal the order of the Circuit Court directing the Department to issue a FOID card to the Plaintiff. The following summary of the case, including the Appellate Court’s decision, contains some omissions not noted in the quoted text:
Facts: The Plaintiff below had been convicted of domestic battery and his FOID card application had been denied by the Illinois Department of State Police (ISP). He then brought an action naming the McHenry County State’s Attorney’s Office as the party defendant, and neither gave any notice of the proceedings to the IPS nor named it in the lawsuit. Plaintiff offered testimony at a hearing regarding his personal background, including history of arrests and convictions. “On 11/30/05 the Trial Court entered its Order directing the IPS to issue a FOID card to the Plaintiff. On December 30, 2005, the Department moved to vacate the order. The Trial Court denied the Department’s motion, and the Department brought this appeal.” The Plaintiff filed a motion to dismiss the appeal claiming the Department lacked standing to appeal the matter.
Appellate Court Decision: The Court noted the prior provisions of the FOID Act where an applicant is denied he may appeal to the Director of the ISP for a hearing, who, “upon receipt of such an appeal . . .the Director is satisfied that substantial justice has not been done . . . may order a hearing to be held by the Department upon the denial or revocation.” [430 ILCS 65/10, prior to August 2001].
The Court went on to note that “ the General Assembly amended Section 10 of the Act so that the aggrieved party may appeal to the director of the Department of State Police for a hearing upon such denial “ . . . unless the denial . . . was based upon a . . . domestic battery . . . in which case the aggrieved party may petition the Court in writing in the county of his or her residence fro a hearing upon such denial . . .” [Section 10(a)].
Further, “(b) At least 30 days before any hearing in the circuit court, the petitioner shall serve the relevant State’s Attorney with a copy of the petition. The State’s Attorney may object to the petition and present evidence. At the hearing the Court shall determine whether substantial justice has been done. Should the court determine that substantial justice has not been done, the court shall issue an order directing the Department of State Police to issue a card. Pub. Act. 92-442, eff. August 17, 2001.
The Department argued that the language in Section 10 requiring the petition to be served on the State’s Attorney “does not supersede general common-law jurisdictional principals that preclude entry of a judgment against a state agency over which personal jurisdiction is lacking,” citing Akmakjia v. Department of Professional Regulation, 287 Ill App. 3d 894 (1997) and People v. Grau, 263 Ill. App. 3d 874 (1994).
The Appellate Court distinguished both cases, noting that in Akmajia the Department of Professional Regulation (DPR), and in Grau, the Secretary of State, were both vested with quasi-judicial powers which entitled them to be joined as parties to the judicial proceedings. However, the Department (ISP) is charged with purely “ministerial duties . . .” The Court then notes that the question before the lower court “was whether justice required granting [Braglia’s] application despite the disqualification. The Department’s ministerial duty to deny Plaintiff’s application did not vest it with any direct interest in that distinct (albeit related) question.”
“. . . Our decision might have been different if the trial court’s order imposed extensive duties on the Department. See People v. White, 165 Ill. App. 3d 249 (1988) . . . However, the order merely required the issuance of a FOID card. “
The Court noted further that in In re Detention of Hayes, 321 Ill. App. 3d, 178 (2001), it held that “the Department of Human Resources would have ‘non-party standing to appeal the court’s commitment order if it believes the order exceeds the trial court’s [statutory] authority.”’ Lastly, “arguably, even if the Department had any direct interest in the matter before the trial court, it should have been the Director of State Police (not the Department) who asserted the interest. The absence of the Director of State Police as a party to this special appeal further attenuates the Departments’ asserted interest in the trial court’s decision."
“. . .For the foregoing reasons, we conclude that the Department lacks standing to appeal from the order of the circuit court of McHenry County. Accordingly, we grant plaintiff’s motion to dismiss this appeal. Appeal dismissed.”

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