ladies and gentlemen we welcome judge stacy endl of the southern district of illinois who is visiting with us today welcome thank you our first case of the morning is baron against the illinois concealed carry licensing review board questions before this court importantly include the question of what does it mean to be a fundamental right alongside these in our system of ordered liberty we know that no right is absolute every right has is subject to  some revision the state in this case i think would like to considered simply all something to be balanced against the public interest we don't think that's an appropriate analysis regarding the fundamental right of the supreme court has a problem in this case has to do with procedures that are going to be you use when it's perfectly clear that song procedures are broken that's a pretty standard process you should well then jump why should there be some special second amendment procedures where is it different from procedures under other amendments or under clauses of the constitution that give rights to say contracts we have pretty pretty well established procedures for dealing with claims about contracts well of course your honor i suppose there's a sense in which a right to contract was a fundamental right but since the one nine hundred thirty division makes it so it says s right there of indeed your honor there was a line of cases before the supreme court until the one nine hundred thirty s which overruled a whole bunch of employment protection laws precisely on that basis and that there was an absolute freedom to contract in the government couldn't put health cell safety and welfare regulations into place but in the present age we understand in our system of ordered liberty that there are rights that are not co equal some rights are that are more important and more fundamentally protected because they go to the core of that's right out of an illness or all animals are equal but some animals are more equal than others so you know you're going to try to avoid that exactly was the point i intended to make the right bear arms is a constitutional right to all ordinary law abiding citizens but under illinois statute at bar presently some citizens are more ordinary than others so so that that's the key to me presently because part of what i have a problem with is how due process rights can be violated under the existing system when someone hasn't tried under  and he changed the rules and now dances will be getting his license and so but go ahead your honor they ainge did in a way that is not changed in a way that creates a standard of dangerousness like the most critical thing going on before that board decides its composition is the fact you can't have a meaningful opportunity to respond to an objection that you haven't seen it is a title in the way has changed that rule we need to deal with the current setup right we were not writing on a clean slate when i read these briefs illinois initial approach sounded like what the supreme court held violated the first amendment in the draft case right now when i was doing the very same thing that selective service boards were doing they have confessed they were in the wrong and have changed their procedures to procedures the supreme court has at least as i read it found adequate for religion based clans and religion is in the first met so that's the source of my question we we know what's needed for religion different this is this is critical this is really important when a police officer a law enforcement agency files an objection the objection consists of two things  statement and the term used in four thirty i'll see a sixty six fifteen is information the applicant never gets to see the information or the objection itself under the new regulations the new regulations say only that the applicant can is to be advised if it's a sustainable claim of the basis of the objection not the evidence supporting it not a witness statement not a rap sheet only the basis of the objection that henry would you compare what illinois is doing here with how the selective service system fixed its rules after the supreme court held that a system like illinois initial system violated the constitution your honor i have to tell you i'm not prepared and selective service i did register for the draft i swear i did in one nine hundred seventy two but but you're you know my point is we've been through this before the supreme court approved the fix i'm trying to figure out why you think the second amendment will call for different procedures than the first amendment well i believe that the fourteenth amendment and matthews as well as the second amendment require that before the right to keep and bear arms a fundamental right can be taken away you have to have a meaningful opportunity to respond that's why i'm asking you don't doubt the first amendment is a fundamental right that it is important that people's right to religion not be overwritten right that's why i say we've been through this before we need to think about what's going on in illinois prospective guns versus say what happened in the sixty's and seventy's with respect to religious rights and the draft honor if a parade permit or another permit for public demonstration can be denied on the basis of evidence you've never had an opportunity to see only will tell you they think you're obnoxious or they think that you're likely to cause an afraid but no police reports to substantiate it no evidence that's what's going on they didn't change that part of the records they can't it's in the statute the board doesn't have authority to change the statute and that's why it's still here if you or anyone else your honor were to apply for a concealed carry permit and an objection came in you'd be given fifteen days to respond to a terse basis of the objection and you never going to chance to see whatever evidence this would make  process is required at the time the decision is made the fact that there's an administrative remedy afterwards is something that's available only when you're trying to correct something like a random an unauthorized act here the whole pattern is  hardwired into the statute there's another problem too if you only get to see the evidence on administrative review number one under illinois law you can't add any more evidence you can't respond to the new stuff you're seeing for the first time the standard of review back to the board is just going to be whether there is some substantial evidence not with a right or wrong at a time when it can make a difference where you can actually argue i am not a dangerous person you have no opportunity and it doesn't fix the problem that it's available to you after you've been denied and after the decision has been made you can't park it down the road up the the real problem here is the board isn't free to allow access even if it intended to and even wanted to because of the statutory provision that no one can inspect and those but under the supremacy clause the constitution trumps the statutes of illinois the board is required to follow constitutional it cannot say well we've got this  judge if that's what they think that's what they are saying we have no reason to believe they are dissembling i need to tell us that they believe this is consistent with the constitution the state's attorney certainly take that position they can take no other the hands of the board are bound by that stance you know they are not you are aware of the supremacy clause yes or federal law beats state law don't come to a court of appeals and say states are bound by state law anything in federal law to the contrary notwithstanding it's preposterous now we can see your argument your honor i don't believe an administrative agency has the power to pass on the constitutionality the supremacy clause applies to all fishel of state government you don't need to make stupid arguments you can argue the merits deficiencies and movement is all that really remains before this court right now is a single element of the plaintiffs second amendment complaint a claims everything else goes out on rightness as well meanwhile  variance of the due process claims must be dismissed on standing grounds and one of those also fails on whatever i'm a little wall so far this a person standing or not you seem to think that you have standing or not for each legal theory and i don't understand that as well we cabined the due process claims separately from the second amendment claims because it appeared in their opening brief that they were arguing they didn't have to be part of there is only one claiming all these case different legal theories are not different claims the plaintiffs have a single grievance which is they didn't get conceal carry licenses and they have multiple legal theories in support of their grievance that's not different claims that's a fundamental point of federal practice yes and it may be that all their claims fail and ripeness right there is only one claim yes there play have different legal theories so if i can id like to tell the court a little bit about how this new process came into being and what it does now because they haven't applied on to process that yes and they misstate how it works and th conjecture how it works the system that we now operate came into being in july of two thousand and fourteen of these rule these new rules change the experience for the applicant and the way that the board and the state police administer a process in three  respects first we now inform an applicant when there has been a law enforcement agency objection to the application that application goes up on a computerized system there could be several hundred applications a day that are processed they are seen across the state by local police the sheriff's office state's attorneys whatever the jurisdiction that's in charge of law enforcement there and the law enforcement there has the opportunity to l objection that objection must be conveyed to the attitude within ten days secondly accompanying the fact of that objection now is the basis for the objection that is in perhaps hundreds of different law enforcement agencies reporting information different ways what an applicant could receive is for instance the skokie police objects on the basis of prior arrests for an applicant a narrative describing what the arrests were for when they're curd and within fifteen years of receiving that information the applicant has the opportunity to provide explanation to a sufficient basis to be to have a meaningful opportunity to address the the denial and so you say they may be provided m r hearing you say that it depends on what the department decides to provide with all of these different law enforcement agencies objecting there is no consistency if you will at this point with the type of information that comes in but if you're arrested in one thousand nine hundred five or if you have a series of arrests we'll see arrests is pretty easy because you need to go back and get your rap sheet you can find out but what if it's something else other than the rest like an ongoing investigation of someone yes correct your honor  all this information may not be provide a fair bunch of this information may not be provided to the applicant if it contains sensitive information such as confidential witnesses or crimes of a sexual nature under investigation is the will is the applicant informed that ok there is information that exists but dressed as it needed to be redacted or thrice not being produced for this purpose or do they not even know that it exists to me easy to respond to because you know when the rest was you can go back and get the rap sheet i'm talking about other categories of things where they might be rejected and what councils point is is that when it gets into the review let's say somebody gets  nile when it gets to the review they get the full of ministry of record maybe there were allegations me that they want to respond to that but they're not in a position to do so because they can't they can't add more to the record they can't supplement the record is that true they can supplement the record when it gets to that level of review they're stuck with whatever it's not true because they have the opportunity to provide what information they are able and also alternatively the board itself can ask the applicant to provide additional information to provide further context and can help can also ask a lot of the agency also as a law enforcement agency to provide more information at that level if circumstances allow and find out what information the state police has about you from different law enforcement agencies which could include the f b i or homeland security part of the confidential information that you know to judge williams that can't be presented to an you can ask the applicant to come in and there will be testimony from witness and the board will consider that with the documents that it looks at in making a determination now there is also as you alluded to earlier judge williams there is the post deprivation process of administrative review where an applicant can file a complaint and the entire record is filed under seal in the state circuit court redacted if necessary and at that point the african sees every document within within our ability to reveal it if it's not confidential to make his case to the circuit court why he should or should not receive a license and that is what happened with this type of administrative due process under the state administrative review law satisfies the due process clause these improved these systems are an improvement to our prior process we continue to develop new and better measures to ensure that the second amendment get right to self defense is provided to people who satisfy the requirements of being able to carry in public there were enormous start up costs which we thousand for their concealed carry permits and they were denied within eight weeks with these two plaintiffs aside it's critical to note that not every applicant is denied a permit and not everyone is even flat for a law enforcement can and does regularly overrule board law enforcement objections or deemed that they're not sustainable so these two aside in a little over two years we issued a little bit more than one hundred seventy thousand valid concealed carry license that's about two percent of every person in illinois over the age of twenty one and we still are receiving thousands of applications a month you can range from five thousand to eleven thousand and that number has been on the increase in the last several months so our system is designed to ensure that our citizens whether they choose to carry a license in public or do not that only people who are qualified who are not deemed dangerous were a threat to public safety obtain licenses if there are no questions about this that's correct your honor and we would identify that of the three claims that they mention on page fifteen of their reply brief and have a narrow them down that's the only one to survive standing and they hinge their entire argument on  suppose it distinctions from the second circuit's decision and quack and in that case the second circuit held that new york city's licensing fee of three hundred forty dollars for three years did not violate any constitutional provision now that's ours is one hundred fifty for five years so it's about thirty dollars a year playing it's five times the amount so there's certainly no monetary basis for claiming that there's a constitutional violation  and then make an alternative argument that the fee here goes to all different places that don't have to do with law enforcement functions well that's not true they're all law enforcement related and then they neglect  that eighty percent alone goes to an illinois state police fund comparison would have the court note that texas and arkansas charge licensees around two hundred fifty dollars  there is no due process case on that that i'm aware of but where we are in no sense an outline that fee does not severely burned their second amendment rights and finally neither one of the remaining plaintiffs has alleged th case is still pending it is still pending in the in the state court and it's especially illustrative of one of the claims of being presented here we have included in the supplemental appendix in  our main brief a copy of the decision that mr baron got when the state court remanded his application to the illinois concealed carry license and review board it essentially is two pages each of which have one sentence which recites the very general statutory standard and does nothing more to connect his his case to the record that is illustrative of the third claim we advance under our due process argument it is especially telling we think how difficult it's going to be to obtain judicial review mr behrens case remains very much alive and we should make he clearly outstanding  broader standing issues the simple fact is yes the state recognized the problem after these lawsuits were filed yes it tried to fix that problem no it did not completely fix that problem it partially fixed the problem of no notice or opportunity to be heard which is why we're no longer arguing about that what it didn't fix was the problem that something will count something is in the administrative record at the time that the board notifies an applicant that they're not telling the applicant and they don't want to tell the applicant until it's too late for the applicant to make a record i have the same question for mr open  matter now what we have under matthews is a three part analysis to assess whether what we're talking about here is whether the authorized delay not withholding information but delaying information joe after the administrative record closes whether that passes the matthews test that the state argues no reason for not disclosing record information that is before the board at the time they notify the app that they've given no reason why that information isn't disclosed why that record administrative record isn't disclosed at the time and judge williams made an observation about arrests where at least you can go back and get the record it did come out during the argument  that to do a for a request for that will take five days at least that five days can be extended for another five these are working days we're talking about and yet the applicant has a total of fifteen days total not just working days to respond the for you option for going back and getting information that the board has and could easily give to the applicant just is not an option that passes muster under the basic williams task and again that if there are situations where there are sensitive information that isn't going even to be shown to the judge on review that's one thing the board can write a narrow rule saying under what circumstances national security information ongoing investigation we have those sorts of exceptions in fact in the form of statutes the board could write a rule providing for those special circumstances what the board is saying now what they're telling us is they're authorized system is they decide what kind of characterization counts as the basis for the objection and they withhold evidence in the administrative record currently before the board and they expect to hear from the applicant before that happens for what purpose they never say because as this court has his bench is recognized as soon as the administrative review procedure is filed which costs another several hundred dollars there will be an answer filed that will consist of the administrat record so what needs to be justified under the matthews test is not withholding evidence in some special cases where there may be a national security case will be taken 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