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Tuesday, December 11, 2012

ind. Courts - 7th Circuit rules on Illinois "ready-to-use" gun law [Updated]

In Michael Moore v. Lisa Madigan, AG (CD & SD Illinois), a 47-page, 2-1 opinion (including the 26-page dissent), Circuit Judge Posner writes:

These two appeals, consolidated for oral argument, challenge denials of declaratory and injunctive relief sought in materially identical suits under the Second Amendment. An Illinois law forbids a person, with exceptions mainly for police and other security personnel, hunters, and members of target shooting clubs, 720 ILCS 5/24-2, to carry a gun ready to use (loaded, immediately accessible—that is, easy to reach—and uncased). There are exceptions for a person on his own property (owned or rented), or in his home (but if it’s an apartment, only there and not in the apartment building’s common areas), or in his fixed place of business, or on the property of someone who has permitted him to be there with a ready-to-use gun. [cites omitted] Even carrying an unloaded gun in public, if it’s uncased and immediately accessible, is prohibited, other than to police and other excepted persons, unless carried openly outside a vehicle in an unincorporated area and ammunition for the gun is not immediately accessible. [cites omitted]

The appellants contend that the Illinois law violates the Second Amendment 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). Heller held that the Second Amendment protects “the right of law-abiding, responsible citizens to use arms in defense of hearth and home.” 554 U.S. at 635. But 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 that it does not, and so dismissed the two suits for failure to state a claim. * * *

We are disinclined to engage in another round of historical analysis to determine whether eighteenth-century America understood the Second Amendment to include a right to bear guns outside the home. The Supreme Court has decided that the amendment confers a right to bear arms for self-defense, which is as important outside the home as inside. The theoretical and empirical evidence (which overall is inconclusive) is consistent with concluding that a right to carry firearms in public may promote self-defense. Illinois had to provide us with more than merely a rational basis for believing that its uniquely sweeping ban is justified by an increase in public safety. It has failed to meet this burden. 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 unconstitutionality 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 public.


WILLIAMS, Circuit Judge, dissenting. [that begins, at p. 22 of 47] The Supreme Court’s decisions in Heller and McDonald made clear that persons in the state of Illinois (unless otherwise disqualified) must be allowed to have handguns in their homes for self-defense. But those cases did not resolve the question in this case—whether the Second Amendment also requires a state to allow persons to carry ready-to-use firearms in public for potential self defense. The majority opinion presents one reading of Heller and McDonald in light of the question presented here, and its reading is not unreasonable. But I think the issue presented is closer than the majority makes it out to be. Whether the Second Amendment protects a right to carry ready-to-use firearms in public for potential self-defense requires a different analysis from that conducted by the Court in Heller and McDonald. Ultimately, I would find the result here different as well and would affirm the judgments of the district courts.

[Updated at 5:17 PM] The Washington Post has this long AP story, headed "Federal appeals court strikes down concealed carry ban in Illinois, the last state to have one." The story begins:
CHICAGO — In a major victory for gun rights advocates, a federal appeals court on Tuesday struck down a ban on carrying concealed weapons in Illinois — the only remaining state where carrying concealed weapons is entirely illegal — and gave lawmakers 180 days to write a law that legalizes it.

In overturning a lower court decision, the 7th U.S. Circuit Court of Appeals said the ban was unconstitutional and suggested a law legalizing concealed carry is long overdue in a state where gun advocates had vowed to challenge the ban on every front.

“There is no suggestion that some unique characteristic of criminal activity in Illinois justifies the state’s taking a different approach from the other 49 states,” Judge Richard Posner, who wrote the court’s majority opinion. “If the Illinois approach were demonstrably superior, one would expect at least one or two other states to have emulated it.”

Posted by Marcia Oddi on December 11, 2012 03:14 PM
Posted to Ind. (7th Cir.) Decisions