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Thursday, October 20, 2016

Ind. Decisions - 7th Cir. rules on Illinois law regulating the concealed-carry rights of nonresidents

In Culp v. Madigan (CD Ill.), 22-page 2-1 opinion, Judge Posner writes:

The plaintiffs in this case, nonresidents of Illinois each of whom has a concealed-carry license from his home state, travel to Illinois whether on business or for family or other reasons and want, while they are in Illinois, to be allowed to carry a firearm even if they are not within the exceptions to the restrictions on nonresident gun carrying just listed, but are not allowed to do so because they aren’t residents of states that have firearm laws substantially similar to Illinois’. They argue that Illinois’ refusal to issue concealed-carry licenses to them violates Article IV of, and the Second and Fourteenth Amendments to, the Constitution. The district judge declined to issue a preliminary injunction, precipitating this appeal. * * *

The critical problem presented by the plaintiffs’ demand—for which they offer no solution—is verification. A nonresident’s application for an Illinois concealed-carry license cannot be taken at face value. The assertions in it must be verified. And Illinois needs to receive reliable updates in order to confirm that license-holders remain qualified during the five-year term of the license. Yet its ability to verify is extremely limited unless the nonresident lives in one of the four states that have concealed-carry laws similar to Illinois’ law. A trial in this case may cast the facts in a different light, but the plaintiffs have not made a case for a preliminary injunction. AFFIRMED

MANION, Circuit Judge, dissenting. [beginning on p. 8]
Just four years ago, this court invalidated Illinois’ decades-old blanket ban on the carrying of firearms in public. Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012). We recognized that the Second Amendment requires states to “permit law-abiding and mentally healthy persons to carry loaded weapons in public.” Berron v. Ill. Concealed Carry Licensing Review Bd., 825 F.3d 843, 845 (7th Cir. 2016). It was only in response to our decision in Moore that Illinois finally became the last state in the nation to enact a concealed-carry law.

Although Illinois now reluctantly allows its residents to carry concealed weapons with a license, it still significantly restricts the rights of nonresidents to do so. State law prevents the residents of 45 states from even applying for an Illinois concealed-carry license because the Department of State Police has not classified their states’ public-carry qualifications as “substantially similar” to those Illinois imposes. These nonresidents, including the plaintiffs in this case, have no opportunity to prove that they meet Illinois’ requirements. Based solely on their states of residence, they are deprived of any opportunity to exercise their Second Amendment rights in Illinois.

When a state law infringes on the fundamental Second Amendment right to keep and bear arms for self-defense, it must satisfy heightened scrutiny. Our precedents instruct that to sustain such a law, a state must present “an extremely strong public-interest justification and a close fit between the government’s means and its end.” Ezell v. City of Chicago, 651 F.3d 684, 708 (7th Cir. 2011). Illinois has not done so here. As explained below, the state’s chosen method to regulate non-resident concealed-carry license applications is not sufficiently tailored to its goal of properly vetting out-of-state applicants’ criminal and mental histories. Therefore, the ban violates the Second Amendment.

Nevertheless, the court holds that the plaintiffs are not entitled to preliminary relief because the application ban is not “unreasonable.” The court’s application of rational-basis review to the nonresident application ban is directly contrary to Supreme Court and Seventh Circuit precedent. Under the proper standard of review, the plaintiffs are certain to succeed on the merits of their Second Amendment claim.1 I would reverse the district court’s judgment and remand with instructions to issue a preliminary injunction. I respectfully dissent.

Posted by Marcia Oddi on October 20, 2016 06:50 PM
Posted to Ind. (7th Cir.) Decisions