VOL. 18  ISSUE NO. 50   |    DECEMBER 12 – 18, 2012


Second Amendment victory for Illinois citizens

‘[T]he constitutional right to carry ready-to-use firearms in public for self-defense may well not exist’
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second amendmentCHICAGO – On Tuesday, the Seventh Circuit Court of Appeals overturned the denials of declaratory and injunctive relief in two materially identical suits challenging an Illinois law, which forbids a person, with few exceptions mainly for law enforcement, hunting and members of shooting clubs, to carry a gun ready to use, in other words, loaded, immediately accessible, easy to reach and uncased.

The two cases, Michael Moore v. Lisa Madigan, Attorney General and Mary E. Shepard v. Lisa Madigan, Attorney General, appealed from the U.S. District Courts Central District of Illinois and the Southern District of Illinois were consolidated for oral arguments on June 8, 2012.

The decision, delivered by Seventh Circuit Judge Richard A. Posner agreed with the appellants that Illinois law violates the Second Amendment as interpreted by the U.S. Supreme Court in District of Columbia v. Heller and held applicable to the states in McDonald v. City of Chicago.

While Heller confirmed the Second Amendment protects “the right of law-abiding, responsible citizens to use arms in defense of hearth and home,” the Supreme Court has not yet addressed the question whether the Second amendment creates a right of self-defense outside the home.
The district courts ruled it does not and dismissed the two suits for failure to state a claim.

The parties and amici curiae provided the court with hundreds of pages of arguments in nine briefs with the main focus of their submissions being history.

Supporters of the Illinois law presented historical evidence that there was no generally recognized private right to carry arms in public in 1791, the year the Second Amendment was ratified—the critical year for determining the amendment’s historical meaning, according to McDonald.

In the Heller case, The District of Columbia argued “the original understanding of the Second Amendment was neither an individual right of self-defense nor a collective right of the states, but rather a civic right that guaranteed that citizens would be able to keep and bear those arms needed to meet their legal obligation to participate in a well-regulated militia.”

While the Supreme Court rejected that argument, the appellees were basically asking the Seventh Circuit to repudiate the court’s historical analysis, to which Posner responded, “That we cannot do. Nor can we ignore the implication of the analysis that the constitutional right of armed self-defense is broader than the right to have a gun in one’s home.”

Heller and McDonald both state “the need for defense of self, family and property is most acute” in the home. However, that didn’t mean it is not acute outside the home.

Heller repeatedly invoked a broader Second Amendment right than simply the right to have a gun in one’s home by stating the amendment “guarantee[s] the individual right to possess and carry weapons in case of confrontation.”

Posner notes, “Confrontations are not limited to the home.”

Citing the Second Amendment in its entirety, with emphasis added to “the right of the people to keep and bear Arms, shall not be infringed,” Posner stated, “The right to ‘bear’ as distinct from the right to ‘keep’ arms is unlikely to refer to the home. 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.”

Posner went on to say, “And one doesn’t have to be a historian to realize that a right to keep and bear arms for personal self-defense in the eighteenth century could not rationally have been limited to the home. Suppose one lived in what was then the wild west—the Ohio Valley for example … where there were hostile Indians. One would need from time to time to leave one’s home to obtain supplies from the nearest trading post, and en route one would be as much (probably more) at risk if unarmed as one would be in one’s home unarmed.”

He also points out the situation in 14th century England was different; there was no wilderness, no hostile Indians and the right to hunt was limited mostly to landowners.

Posner continued, “Twenty-first century Illinois has no hostile Indians. But a Chicagoan is a good deal more likely to be attacked on a sidewalk in a rough neighborhood than in his apartment on the 35th floor of the Park Tower. A woman who is being stalked or has obtained a protective order against a violent ex-husband is more vulnerable to being attacked while walking to or from her home than when inside. She has a stronger self-defense claim to be allowed to carry a gun in public than the resident of a fancy apartment building (complete with doorman) has a claim to sleep with a loaded gun under her mattress. But Illinois wants to deny the former claim, while compelled by McDonald to honor the latter. That creates an arbitrary difference.”

The court held that confining the right to be armed outside the home is “to divorce the Second Amendment from the right of self-defense described in Heller and McDonald.”

Because a state may be able to require “open carry” rather than concealed, the court also noted many criminals would continue to conceal the guns they carried to preserve the element of surprise and avoid the price of a gun permit.

After citing a number of studies about gun ownership, gun deaths and accidents, the court concluded, “In sum, the empirical literature on the effects of allowing the carriage of guns in public fails to establish a pragmatic defense of the Illinois law … Anyway the Supreme Court made clear in Heller that it wasn’t going to make the right to bear arms depend on casualty counts. If the mere possibility that allowing guns to be carried in public would increase the crime or death rates sufficed to justify a ban, Heller would have been decided the other way, for that possibility was as great in the District of Columbia as it is in Illinois.”

The court recognized that states can prohibit loaded guns in a variety of places such as school zones, government buildings, bars, airports or polling places, and stated, “The resulting patchwork of places where loaded guns could and could not be carried is not only odd but also could not guarantee meaningful self-defense, which suggests that the constitutional right to carry ready-to-use firearms in public for self-defense may well not exist.”

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