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Bench Memos

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Heller Decision Continues to Ripple across the Fruited Plain



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As Charlie Cooke just alerted us, the nation’s sole remaining total ban on carrying handguns for personal protection in public was struck down today by the Seventh Circuit of the United States Court of Appeals. According to my quick scanning of the decision, written by Judge Richard Posner and joined by Judge Joel Flaum, it asserts that the ban is unconstitutional, reverses and remands the pair of cases, and stays their order for 180 days to allow the Illinois legislature to remedy the statute:

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.

And rules that:

The appellees ask us to repudiate the Court’s historical analysis [in Heller and later, McDonald]. That we can’t 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.

Quite correct, and in the light of two relatively recent and clear Supreme Court opinions of the matter the State of Illinois ought to have amended its clearly unconstitutional laws. This it did not do. The court goes on to establish that the Second Amendment’s self-defensive nature cannot be cabined to the home, for what are seemingly obvious reasons:

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. To confine the right to be armed to the home is to divorce the Second Amendment from the right of self-defense described in Heller and McDonald.

Here the court is hitting on a distinction; in earlier cases the Supreme Court has typically been silent on the conceal-carry arena. This decision attempts to bring the law in line to what was originally intended, namely, that the right to bear arms includes when one is away from the home (whether in service of the militia, protecting oneself, or one’s family while at home and away) while rightly dismissing the tenuous reasoning for banning conceal carry put forth by the state of Illinois. 

It is important to keep in mind where these recent constitutional corrections regarding the Second Amendment derive from: a dedicated group of attorneys and plaintiffs in what would become D.C. v Heller, from which McDonald v. City of Chicago and this case flowed, among others. The Justice Department’s Office of Legal Counsel’s opinion on the Second Amendment, which predates all of the recent litigation, is also a great primer for understanding the constitutional right to self defense.

It remains to be seen if Illinois remedies this matter smartly and swiftly or takes the District of Columbia’s tactic of slow rolling every element they are obligated to do under the Supreme Court’s Second Amendment rulings. I hope Illinois does not follow the District’s lead in this arena. I will read this decision more thoroughly and post an update if warranted. In the meantime, you can read the decision here.



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