FedSoc Blog

7th Circuit Strikes Down Illinois’ Concealed Carry Ban


by Publius
Posted December 11, 2012, 2:16 PM

ABC News reports:

In a big victory for gun rights advocates, a federal appeals court on Tuesday struck down a ban on carrying concealed weapons in Illinois — the only state where it had remained entirely illegal.

The 7th U.S. Circuit Court of Appeals said state lawmakers have 180 days to write a new law that legalizes concealed carry.

Gun rights advocates long have argued that the prohibition against concealed weapons violates the U.S. Constitution's Second Amendment and what they see as Americans' right to carry guns for self-defense. The court majority on Monday agreed, reversing lower court rulings against a lawsuit that had challenged the state law.

"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," Judge Richard Posner wrote in the court's majority opinion. "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."

He continued: "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 court ordered its ruling stayed "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," Posner said.

Eugene Kontorovich comments on the decision at the Volokh Conspiracy:

Since Heller, I have maintained that Illinois’s ban on carrying guns violates the plain meaning of “bear” arms. The Second Amendment creates two distinct rights: “keeping” and “bearing,” one for the home, one for the street.

Today the Seventh Circuit agreed, holding Illinois’ carry ban unconstitutional. Judge Posner held that “bearing” is a right that only makes sense in public, and thus must allow for carrying outside the home.

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.

Indeed, the Second Amendment is about self-defense, and the need for that is greater outside the home, where one cannot as easily rely on passive defense mechanisms like locks and alarms. As Judge Posner put it: “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.”

The Seventh Circuit’s opinion is important for rooting a right to carry in the plain text of the Constitution, and eschewing elaborate historical or originalist inquiries. The next important question for a textualist is the scope of “arms.” But before then, this issue may be headed to the Supreme Court – the Second Circuit upheld a similar ban, attaching no particular import to the word “bear.” (Instead, it relied heavily on 19th century state gun laws, which seem inapposite given that no one then would have thought the 2nd Amendment applied to the states.)

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