We pause in the midst of our Snoopy dancing (not to mention more than a little schadenfreude at the thought of some of the conversations now going on under Chicago City Hall’s green roof) to post a few noteworthy excerpts from today’s landmark ruling by the 7th Circuit invalidating Illinois’ prohibition against carrying firearms outside the home. [Click here to read the ruling in its entirety.] Enjoy . . .

The Second Amendment states in its entirety that “a well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed” (emphasis added). 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 . . .

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. 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 . . .

A blanket prohibition on carrying gun in public prevents a person from defending himself anywhere except inside his home; and so substantial a curtailment of the right of armed self-defense requires a greater showing of justification than merely that the public might benefit on balance from such a curtailment, though there is no proof it would . . .

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. 

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40 COMMENTS

  1. Pretty hefty ruling. A key passage for me:

    “The Second Amendment states in its entirety that a “well regulated Militia, being necessary to the secruity of a free State, the right of the people to keep AND BEAR Arms, shall not be infringed” (emphasis added). 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.”

    • Now on to the next step: “SHALL NOT BE INFRINGED”.

      Ask two kids sharing the back seat of the family car what “infringed” means. “Mommmmm! He’s on MY SIDE!”

      ANY intrusion into my right is an infringement. Vermont carry for the whole USA.

  2. I’m wondering if this means that public open carry is now ok in Illinois? At least until the state gubmint can write up and pass a law against it. Just might be a couple of days of freedom available here.

    • It would also imply the requirement for a CHL to open carry in cities like Portland OR would come under pressure.

      • I think this is consistent with the California ruling that the state must allow some form of carry, either concealed or open. I think that there is still a legal argument under this ruling for only allowing licensed carry in one of those forms and not the other.

      • Even though open carry in Portland is lawful with a CHL, I wouldn’t even try it unless you enjoy long drawn out arguments with the Portland PD. I have heard nothing but bad things resulting from it.

        • I wouldn’t recommend it either, but it would be interesting if that had to be rolled back. Once open carry is allowed without the CHL restriction, there’s little reason for LE to harass OC’ers.

          The fact that OR residents can get their CHL without too many issues is not entirely true, even though OR is ‘shall issue’. They have some limitations on out of state permits (basically only neighbouring state residents can get them), plus there are costly complications for greencard holders.

      • Well, there was a gunman at the Clackamas Town Center mall outside of Portland about an hour and half ago. Shot up the place with a semi auto rifle, no kidding… wish there had been someone there to stop him… open carry or concealed, its important to have a means to defend yourself, and without a government issued permit.

  3. Snoopy Dancing?? Oh God!! I just cannot get the image out of my head of DZ and RF holding hands and doing the Snoopy Dance!!!!
    Wonder which one is Charlie Brown????
    Glad to hear that Illini is finally getting some justice!!

  4. Looks like the two Reagan appointees outvoted the Clinton appointee.

    This is a critical passage that should not be overlooked. The Court is citing an outside source with approval:

    “Based on available empirical data, therefore, we expect relatively little public safety impact if courts nvalidate laws that prohibit gun carrying outside the home, assuming that some sort of permit system for public carry is allowed to stand.”

  5. Seems to me a couple things the court has done:
    – Obliterated the distinction between being in the home and being outside the home, which has been the antis fall back since Heller
    – Rejected the “empirical” argument that more guns in public translates to more dangerous society, which is the fig leaf used to press ahead with more regs
    – Established a solid, textual grounding for CCW…”keep” and “bear” mean just that, keep and bear as in own and carry. We need all of this textual affirmation as we can get. The collective right argument, which we think is dead b/c of Heller, needs more than just killing. It needs killing, more killing, chopping up of the body and dispersal and burial of the body parts over a wide area.

    • – Rejected the “empirical” argument that more guns in public translates to more dangerous society, which is the fig leaf used to press ahead with more regs

      Actually, they didn’t reject this argument. They effectively endorsed it, but said it didn’t apply in this case. Specifically they were talking about was the overall rate of gun ownership.

      From pages 10/11 in the decision:

      Some studies have found that an increase in gun ownership causes an increase in homicide rates. Mark Duggan’s study, reported in his article “More Guns, More Crime,” 109 J. Pol. Econ. 1086, 1112 (2001), is exemplary; and see also Philip J. Cook & Jens Ludwig, “The Social Costs of Gun Ownership,” 90 J.Pub. Econ.379, 387 (2006). But the issue in this case isn’t ownership; it’s carrying guns in public. Duggan’s study finds that even the concealed carrying of guns, which many states allow, doesn’t lead to an increase in gun ownership.

      They effectively determined that since adding concealed carry doesn’t necessarily increase gun ownership, which implicitly through the cited studies increases homicides, there is no specific risk to society.

      • “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. ”

        IOW the empirical case is not there.

        • More…
          “Based on available empirical data, therefore, we expect relatively little public safety impact if courts invalidate laws that prohibit gun carrying”
          and…
          “the net effect on crime rates in general and murder rates in particular of allowing the carriage of guns in public is uncertain as a matter of theory and empirically.”
          and…
          “evidence is insufficient to determine whether the degree or intensity of firearms regulation is associated with decreased (or increased) violence.”

      • “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.”

        Your quote is a picked cherry. Posner surveys the literature and this is one dimension of the literature that he discusses. He also discusses other studies and other theories. However his bottom line is what I have quoted above on page 13.

  6. This is truly great news for all gun owners.

    But…. I’m still glad I don’t live in Illiniois, or California, or New York.

  7. They quoted Heller and McDonald and the SCOTUS ruling. What happens if or when the SCOTUS has five or more gun grabbers sitting on it much like Ginsburg, Kagan, and Sotomayor?

    • Under the policy of stare decisis, the Court is EXCEEDINGLY loathe to overturn prior precedents, even ones (e.g. the Slaughter House cases discussed by Thomas in his concurrence in McDonald) that are universally condemned as plain wrong. There is little risk that Heller will be overturned even if the politics of the panel change.
      Remember also that the SCOTUS unanimously concluded that the 2A is an individual, not a collective right, the difference being the scope of that right, the dissenters concluding that the right was one to be exercised in the support of (state) militias, thus giving effect to the prefatory clause of the 2A.

      • Stare Decisis means that conservative courts can’t overturn liberal precedent, but that liberal courts can overturn conservative precedent.

      • Under the policy of stare decisis, the Court is EXCEEDINGLY loathe to overturn prior precedents, even ones (e.g. the Slaughter House cases discussed by Thomas in his concurrence in McDonald) that are universally condemned as plain wrong.

        I have to disagree. Stare decisis applies most strongly to longstanding cases, established law, and settled principles. For a case just a couple years old, decided by a split court (5-4), with two strong dissents–if we get one new Justice who disagrees with the majority, I think there is a very real chance the court could overturn Heller. Stare decisis does not mean all prior decisions are set in stone.

        Remember also that the SCOTUS unanimously concluded that the 2A is an individual, not a collective right,

        SCOTUS did not conclude unanimously that the 2A is an individual right.

        Only the majority held that. None of the dissenters concurred in any part with the majority.

        Stevens’ dissent bypasses the question of whether the 2A is an individual right, and goes on to say that the 2A protects military uses of firearms and no other uses, not even hunting or self defense. He does say that it is a right that can be enforced by individuals, but collective rights can generally be enforced by individuals (as opposed to being only enforceable by states, for example). Several pages of Stevens’ dissent is dedicated to explaining why the 2A only applies to militias/military service, and not to individuals outside the military.

        One of several quotes from Stevens:
        “The Court’s announcement of a
        new constitutional right to own and use firearms for private purposes upsets that settled understanding…”

        So Stevens thought that private ownership right is new and not part of the 2A. Souter, Ginsberg, and Breyer all signed onto Stevens’ dissent. So all 4 of those justices don’t seem to accept government limits to private gun ownership.

        While they avoid actually stating outright that the 2A is not an individual right, the content of their dissents makes it quite clear. The 2A poses no limit whatsoever on government’s ability to limit, restrict, or deny private firearm ownership.

        Unless you’re in the militia. 😉

      • I have not supported the NRA for several years. I currently support SAF, OFF (Oregon Firearms Federation), and the JPFO (Jews for the Preservation of Firearms Ownership).

      • Renewed both my NRA and SAF one. NRA has some cons to it, but there’s also the ‘strength in numbers’ thing. GOA is probably a good one to support too.

  10. This is great though I wish that it was a Supreme Court decision instead because it is so awesome.

  11. When I was nearly placed on suicide watch after the confirmations of kagan and sotomayer my brother reminded me that both of Obama’s picks are morbidly obese and one is diabetic so there’s that….. Not that a conservative will ever win the presidency again…

  13. I’m reading the ruling now. Here’s one bit of judicial humor:

    “‘in Lawrence v. Texas, the
    [Supreme] Court emphasized that the state’s efforts to
    regulate private sexual conduct between consenting adults
    is especially suspect when it intrudes into the home.’
    2012 WL 5907502, at *9. Well of course–the interest in
    having sex inside one’s home is much greater than
    the interest in having sex on the sidewalk in front of
    one’s home. But the interest in self-protection is as great
    outside as inside the home.”

    Common sense applied to gun laws–who knew?

  14. Glad to hear it. When one state wins, we all win, where this is concerned. I’ve been tempted to encourage more Illinonati to head out here to the Brady’s favorite state, but this is much better.

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