Illinois 7th Circuit, Moore/Shepard v. Madigan

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 12-1269, 12-1788
MICHAEL MOORE, et al., and
MARY E. SHEPARD, et al.,
Plaintiffs-Appellants,
v.
LISA MADIGAN, ATTORNEY GENERAL
OF ILLINOIS, et al.,
Defendants-Appellees.
Appeals from the United States District Courts for the
Central District of Illinois and the Southern District of Illinois.
Nos. 3:11-cv-3134-SEM-BGC and 3:11-cv-405-WDS-PMF—
Sue E. Myerscough and William D. Stiehl, Judges.
ARGUED JUNE 8, 2012—DECIDED DECEMBER 11, 2012
Before POSNER, FLAUM, and WILLIAMS, Circuit Judges.
POSNER, Circuit Judge. 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,
2 Nos. 12-1269, 12-1788
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.
720 ILCS 5/24-1(a)(4), (10), -1.6(a); see People v.
Diggins, 919 N.E.2d 327, 332 (Ill. 2009); People v. Laubscher,
701 N.E.2d 489, 490–92 (Ill. 1998); People v. Smith,
374 N.E.2d 472, 475 (Ill. 1978); People v. Pulley, 803
N.E.2d 953, 957–58, 961 (Ill. App. 2004). 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.
720 ILCS 5/24-1(a)(4)(iii), (10)(iii), -1.6(a)(3)(B).
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). Hel l e r held that t he 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.
Nos. 12-1269, 12-1788 3
The parties and the amici curiae have treated us
to hundreds of pages of argument, in nine briefs.
The main focus of these submissions is history. The
supporters of the Illinois law present historical evidence
that there was no generally recognized private right
to carry arms in public in 1791, the year the Second
Amendment was ratified—the critical year for determining
the amendment’s historical meaning, according to McDonald
v. City of Chicago, supra, 130 S. Ct. at 3035 and n. 14.
Similar evidence against the existence of an eighteenthcentury
right to have weapons in the home for purposes
of self-defense rather than just militia duty had
of course been presented to the Supreme Court in
the Heller case. See, e.g., Saul Cornell, A Well-Regulated
Militia 2–4, 58–65 (2006); Lois G. Schwoerer, “To Hold and
Bear Arms: The English Perspective,” 76 Chi.-Kent L. Rev.
27, 34–38 (2000); Don Higginbotham, “The Second Amendment
in Historical Context,” 16 Constitutional Commentary
263, 265 (1999). The District of Columbia had
argued that “the original understanding of
the Second Amendment was neither an individual right
of self-defense nor a collective right of the states, but rather
a civic right that guaranteed that citizens would be able
to keep and bear those arms needed to meet their legal
obligation to participate in a well-regulated militia.”
Cornell, supra, at 2; see also Paul Finkelman, “ ’A Well
Regulated Militia’: The Second Amendment in Historical
Perspective,” 76 Chi.-Kent L. Rev. 195, 213–14 (2000);
Don Higginbotham, “The Federalized Militia Debate:
A Neglected Aspect of Second Amendment Scholarship,”
55 William & Mary Q. 39, 47–50 (1998); Roy G. Weatherup,
4 Nos. 12-1269, 12-1788
“Standing Armies and Armed Citizens: An Historical
Analysis of the Second Amendment,” 2 Hastings Constitutional
L.Q. 961, 994–95 (1975).
The Supreme Court rejected the argument. The
appellees ask us to repudiate the Court’s historical analysis.
That we can’t do. Nor can we ignore the implication
of the analysis that the constitutional right of armed selfdefense
is broader than the right to have a gun
in one’s home. The first sentence of the McDonald
opinion states that “two years ago, in District of
Columbia v. Heller, we held that the Second Amendment
protects the right to keep and bear arms for the purpose
of self-defense,” McDonald v. City of Chicago, supra, 130 S.
Ct. at 3026, and later in the opinion we read
that “Heller explored the right’s origins, noting that the
1689 English Bill of Rights explicitly protected a right
to keep arms for self-defense, 554 U.S. at 593, and that
by 1765, Blackstone was able to assert that the right
to keep and bear arms was ‘one of the fundamental rights
of Englishmen,’ id. at 594.” 130 S. Ct. at 3037. And immediately
the Court adds that “Blackstone’s assessment
was shared by the American colonists.” Id.
Both Heller and McDonald do say that “the need
for defense of self, family, and property is most acute”
in the home, id. at 3036 (emphasis added); 554 U.S. at
628, but that doesn’t mean it is not acute outside the home.
Heller repeatedly invokes a broader Second
Amendment right than the right to have a gun in
one’s home, as when it says that the amendment
“guarantee[s] the individual right to possess and
Nos. 12-1269, 12-1788 5
carry weapons in case of confrontation.” 554 U.S. at 592.
Confrontations are not limited to the home.
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.
And one doesn’t have to be a historian to realize that
a right to keep and bear arms for personal self-defense
in the eighteenth century could not rationally
have been limited to the home. Suppose one lived in
what was then the wild west—the Ohio Valley for example
(for until the Louisiana Purchase the Mississippi
River was the western boundary of the United States),
where there were hostile Indians. One would
need from time to time to leave one’s home to
obtain supplies from the nearest trading post, and en
route one would be as much (probably more) at risk
if unarmed as one would be in one’s home unarmed.
The situation in England was different—there was
no wilderness and there were no hostile Indians and
the right to hunt was largely limited to
landowners, Schwoerer, supra, at 34–35, who were
few. Defenders of the Illinois law reach back to the
fourteenth-century Statute of Northampton, which provided
that unless on King’s business no man could “go nor
6 Nos. 12-1269, 12-1788
ride armed by night nor by day, in Fairs, markets, nor in
the presence of the Justices or other Ministers, nor in no
part elsewhere.” 2 Edw. III, c. 3 (1328). Chief Justice Coke
interpreted the statute to allow a person to possess weapons
inside the home but not to “assemble force, though he
be extremely threatened, to go with him to church,
or market, or any other place.” Edward Coke, Institutes of
the Laws of England 162 (1797). But the statute enumerated
the locations at which going armed was thought
dangerous to public safety (such as in fairs or
in the presence of judges), and Coke’s reference to “assemble
force” suggests that the statutory limitation of the
right of self-defense was based on a concern with armed
gangs, thieves, and assassins rather than with indoors
versus outdoors as such.
In similar vein Sir John Knight’s Case, 87 Eng. Rep. 75,
76 (K.B. 1686), interpreted the statute as punishing
“people who go armed to terrify the King’s subjects.”
Some weapons do not terrify the public (such
as well-concealed weapons), and so if the statute was (as
it may have been) intended to protect the public
from being frightened or intimidated by the
brandishing of weapons, it could not have applied to
all weapons or all carriage of weapons. Blackstone’s
summary of the statute is similar: “the offence of riding
or going armed, with dangerous or unusual weapons, is
a crime against the public peace, by terrifying the good
people of the land.” 4 Commentaries on the Law of England
148–49 (1769) (emphasis added). Heller treated
Blackstone’s reference to “dangerous or unusual weapons”
as evidence that the ownership of some types of
Nos. 12-1269, 12-1788 7
firearms is not protected by the Second Amendment,
554 U.S. at 627, but the Court cannot have thought all
guns are “dangerous or unusual” and can be banned,
as otherwise there would be no right to keep a handgun
in one’s home for self-defense. And while another
English source, Robert Gardiner, The Compleat Constable
18–19 (3d ed. 1707), says that constables “may seize
and take away” loaded guns worn or carried by persons
not doing the King’s business, it does not specify
the circumstances that would make the exercise of
such authority proper, let alone would warrant a prosecution.
Blackstone described the right of armed self-preservation
as a fundamental natural right of Englishmen, on
a par with seeking redress in the courts or petitioning
the government. 1 Blackstone, supra, at 136,
139–40. The Court in Heller inferred from this that
eighteenth-century English law recognized a right
to possess guns for resistance, self-preservation, selfdefense,
and protection against both public and
private violence. 554 U.S. at 594. The Court said that
American law was the same. Id. at 594–95. And in
contrast to the situation in England, in less peaceable
America a distinction between keeping arms for selfdefense
in the home and carrying them outside the home
would, as we said, have been irrational. All this is debatable
of course, but we are bound by the Supreme
Court’s historical analysis because it was central
to the Court’s holding in Heller.
8 Nos. 12-1269, 12-1788
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. It is not a property right—a right
to kill a houseguest who in a fit of aesthetic fury tries
to slash your copy of Norman Rockwell’s painting
Santa with Elves. That is not self-defense, and this case
like Heller and McDonald is just about self-defense.
A gun is a potential danger to more people if carried
in public than just kept in the home. But the other
side of this coin is that knowing that many law-abiding
citizens are walking the streets armed may make criminals
timid. Given that in Chicago, at least, most murders
occur outside the home, Chicago Police Dep’t, Crime at
a Glance: District 1 13 (Jan.–June 2010), the net effect
on crime rates in general and murder rates in particular
of allowing the carriage of guns in public is
uncertain both as a matter of theory and empirically.
Nos. 12-1269, 12-1788 9
“Based on findings from national law assessments, crossnational
comparisons, and index studies, evidence is
insufficient to determine whether the degree or intensity
of firearms regulation is associated with decreased (or
increased) violence.” Robert A. Hahn et al., “Firearms
Laws and the Reduction of Violence: A Systematic Review,”
28 Am. J. Preventive Med. 40, 59 (2005); cf.
John J. Donohue, “The Impact of Concealed-Carry Laws,”
in Evaluating Gun Policy Effects on Crime and Violence
287, 314–21 (2003). “Whether the net effect of relaxing
concealed-carry laws is to increase or reduce the
burden of crime, there is good reason to believe that the
net is not large…. [T]he change in gun carrying appears
to be concentrated in rural and suburban areas
where crime rates are already relatively low, among people
who are at relatively low risk of victimization—white,
middle-aged, middle-class males. The available data
about permit holders also imply that they are at fairly
low risk of misusing guns, consistent with the relatively
low arrest rates observed to date for permit holders.
Based on available empirical data, therefore, we
expect relatively little public safety impact if courts
invalidate laws that prohibit gun carrying outside
the home, assuming that some sort of permit system
for public carry is allowed to stand.” Philip J. Cook,
Jens Ludwig & Adam M. Samaha, “Gun Control After
Heller: Threats and Sideshows from a Social Welfare
Perspective,” 56 UCLA L. Rev. 1041, 1082 (2009); see
also H. Sterling Burnett, “Texas Concealed Handgun
Car r i e r s ; Law-Abiding Public Benefa c to r s , ”
www.ncpa.org/pdfs/ba324.pdf (visited Oct. 29, 2012).
But we note with disapproval that the opening brief
10 Nos. 12-1269, 12-1788
for the plaintiffs in appeal no. 12-1788, in quoting the
last sentence above from the article by Cook and
his colleagues, deleted without ellipses the last
clause—“assuming that some sort of permit system
for public carry is allowed to stand.”
If guns cannot be carried outside the home, an
officer who has reasonable suspicion to stop and
frisk a person and finds a concealed gun on him can
arrest him, as in United States v. Mayo, 361 F.3d 802, 804-
08 (4th Cir. 2004), and thus take the gun off the
street before a shooting occurs; and this is argued
to support the ban on carrying guns outside the home. But
it is a weak argument. Often the officer will have
no suspicion (the gun is concealed, after all). And a state
may be able to require “open carry”—that is,
require persons who carry a gun in public to carry
it in plain view rather than concealed. See District of
Columbia v. Heller, supra, 554 U.S. at 626; James
Bishop, Note, “Hidden or on the Hip: The Right(s) to
Carry After Heller,” 97 Cornell L. Rev. 907, 920–21
(2012). Many criminals would continue to conceal the
guns they carried, in order to preserve the element
of surprise and avoid the price of a gun permit; so
the police would have the same opportunities (limited
as they are, if the concealment is effective and the
concealer does not behave suspiciously) that they do
today to take concealed guns off the street.
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
Nos. 12-1269, 12-1788 11
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. 109 J. Pol. Econ.
at 1106–07. Moreover, violent crime in the United
States has been falling for many years and so
has gun ownership, Patrick Egan, “The Declining Culture
o f Gun s an d Vi o l e n c e in t h e Un i t e d
States,” www.themonkeycage.org/blog/2012/07/21/thedeclining-
culture-of-guns-and-violence-in-the-unitedstates
(visited Oct. 29, 2012); see also Tom W.
Smith, “Public Attitudes Towards the Regulation
of Firearms” 10 (University of Chicago Nat’l
Op i n i o n R e s e a r c h Cen t e r , Ma r . 2 0 0 7 ) ,
h t t p : / / i c p g v .o r g /pdf/NORCP o l l .pd f (v i s i t e d
Oct. 29, 2012)—in the same period in which gun laws
have become more permissive.
A few studies find that states that allow concealed
carriage of guns outside the home and impose minimal
restrictions on obtaining a gun permit have experienced
increases in assault rates, though not in homicide
rates. See Ian Ayres & John J. Donohue III, “More Guns,
Less Crime Fails Again: The Latest Evidence From
1977–2006,” 6 Econ. J. Watch 218, 224 (2009). But it has
not been shown that those increases persist.
Of another, similar paper by Ayres and Donohue, “Shooting
Down the ‘More Guns, Less Crime’ Hypothesis,”
12 Nos. 12-1269, 12-1788
55 Stan. L. Rev. 1193, 1270–85 (2003), it has been said
that if they “had extended their analysis by one more year,
they would have concluded that these laws
[laws allowing concealed handguns to be carried
in public] reduce crime.” Carlisle E. Moody & Thomas B.
Marvell, “The Debate on Shall-Issue Laws,” 5 Econ. J.
Watch 269, 291 (2008). Ayres and Donohue disagree
that such laws reduce crime, but they admit that
data and modeling problems prevent a strong claim
that they increase crime. 55 Stan. L. Rev. at 1281–82, 1286–87;
6 Econ. J. Watch at 230–31.
Concealed carriage of guns might increase the death
rate from assaults rather than increase the number
of assaults. But the studies don’t find that laws
that allow concealed carriage increase the death
rate from shootings, and this in turn casts doubt on
the finding of an increased crime rate when concealed
carriage is allowed; for if there were more confrontations
with an armed criminal, one would expect more shootings.
Moreover, there is no reason to expect Illinois
to impose minimal permit restrictions on carriage
of guns outside the home, for obviously this is not a state
that has a strong pro-gun culture, unlike the
states that began allowing concealed carriage before Heller
and MacDonald enlarged the scope of Second Amendment
rights.
Charles C. Branas et al., “Investigating the Link
Between Gun Possession and Gun Assault,” 99 Am. J.
of Pub. Health 2034, 2037 (2009), finds that assault
victims are more likely to be armed than the rest
Nos. 12-1269, 12-1788 13
of the population is, which might be thought evidence
that going armed is not effective self-defense. But
that finding does not illuminate the deterrent effect
of knowing that potential victims may be armed.
David Hemenway & Deborah Azrael, “The Relative
Frequency of Offensive and Defensive Gun Uses:
Results from a National Survey,” 15 Violence & Victims
257, 271 (2000), finds that a person carrying a gun
is more likely to use it to commit a crime than
to defend himself from criminals. But that is like saying
that soldiers are more likely to be armed than civilians.
And because fewer than 3 percent of gun-related
deaths are from accidents, Hahn et al., supra, at
40, and because Illinois allows the use of guns in hunting
and target shooting, the law cannot plausibly be defended
on the ground that it reduces the accidental
death rate, unless it could be shown that allowing guns to
be carried in public causes gun ownership to increase,
and we have seen that there is no evidence of that.
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. Bishop,
supra, at 922–23; Mark V. Tushnet, Out of Range: Why the
Constitution Can’t End the Battle over Guns 110–11
(2007). Anyway the Supreme Court made clear
in Heller that it wasn’t going to make the right to bear
arms depend on casualty counts. 554 U.S. at 636.
If the mere possibility that allowing guns to be carried
in public would increase the crime or death rates
sufficed to justify a ban, Heller would have been
decided the other way, for that possibility was as great
in the District of Columbia as it is in Illinois.
14 Nos. 12-1269, 12-1788
And a ban as broad as Illinois’s can’t be upheld
merely on the ground that it’s not irrational. Ezell
v. City of Chicago, 651 F.3d 684, 701 (7th Cir.
2011); United States v. Yancey, 621 F.3d 681, 683 (7th
Cir. 2010) (per curiam); see also Heller v. District of Columbia,
supra, 554 U.S. at 628 n. 27; United States v. Chester,
628 F.3d 673, 679–80 (4th Cir. 2010). Otherwise
this court wouldn’t have needed, in United States v.
Skoien, 614 F.3d 638, 643–44 (7th Cir. 2010) (en banc),
to marshal extensive empirical evidence to justify the
less restrictive federal law that forbids a person “who
has been convicted in any court of a misdemeanor crime
of domestic violence” to possess a firearm in
or affecting interstate commerce. 18 U.S.C. § 922(g)(9).
In Skoien we said that the government had to make a
“strong showing” that a gun ban was vital to
public safety—it was not enough that the ban was “rational.”
614 F.3d at 641. Illinois has not made that
strong showing—and it would have to make a stronger
showing in this case than the government did
in Skoien, because the curtailment of gun rights was
much narrower: there the gun rights of persons convicted
of domestic violence, here the gun rights of the entire lawabiding
adult population of Illinois.
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. In contrast,
Nos. 12-1269, 12-1788 15
when a state bans guns merely in particular places, such
as public schools , a person can preserve
an undiminished right of self-defense by not
entering those places; since that’s a lesser burden, the
state doesn’t need to prove so strong a need. Similarly,
the state can prevail with less evidence when, as
in Skoien, guns are forbidden to a class of
persons who present a higher than average risk of misusing
a gun. See also Ezell v. City of Chicago, supra, 651 F.3d
at 708. And empirical evidence of a public safety concern
can be dispensed with altogether when the ban is
limited to obviously dangerous persons such as felons
and the mentally ill. Heller v. District of Columbia,
supra, 554 U.S. at 626. Illinois has lots of options for protecting
its people from being shot without having to eliminate
all possibility of armed self-defense in public.
Remarkably, Illinois is the only state that maintains
a flat ban on carrying ready-to-use guns outside
the home, though many states used to ban
carrying concealed guns outside the home, Bishop,
supra, at 910; David B. Kopel, “The Second Amendment
in the Nineteenth Century,” 1998 BYU L. Rev. 1359,
1432–33 (1998)—a more limited prohibition than Illinois’s,
however. Not even Massachusetts has so flat a ban
as Illinois, though the District of Columbia does, see D.C.
Code §§ 22-4504 to -4504.02, and a few states did
during the nineteenth century, Kachalsky v. County
of Westchester, Nos. 11-3642, -3962, 2012 WL 5907502, at
*6 (2d Cir. Nov. 27, 2012)—but no longer.
It is not that all states but Illinois are indifferent to
the dangers that widespread public carrying of guns
16 Nos. 12-1269, 12-1788
may pose. Some may be. But others have decided
that a proper balance between the interest in self-defense
and the dangers created by carrying guns in public is
to limit the right to carry a gun to responsible persons
rather than to ban public carriage altogether, as Illinois
with its meager exceptions comes close to doing. Even
jurisdictions like New York State, where officials have
broad discretion to deny applications for gun
permits, recognize that the interest in self-defense
extends outside the home. 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. If the Illinois approach
were demonstrably superior, one would expect at least
one or two other states to have emulated it.
Apart from the usual prohibitions of gun ownership
by children, felons, illegal aliens, lunatics, and in
sensitive places such as public schools, the propriety
of which was not questioned in Heller (“nothing in
this opinion should be taken to cast doubt on longstanding
prohibitions on the possession of firearms by felons
and the mentally ill, or laws forbidding the carrying
of firearms in sensitive places such as schools and
government buildings,” 554 U.S. at 626), some
states sensibly require that an applicant for a
handgun permit es t abl i s h his competence
in handling firearms. A person who carries a
gun in public but is not well trained in the use of firearms
is a menace to himself and others. See Massad
Ayoob, “The Subtleties of Safe Firearms Handling,”
Backwoods Home Magazine, Jan./Feb. 2007, p.
Nos. 12-1269, 12-1788 17
30; Debra L. Karch, Linda L. Dahlberg & Nimesh
Patel, “Surveillance for Violent Deaths—National
Violent Death Reporting System, 16 States, 2007,” Morbidity
a n d M o r t a l i ty W e e k l y R e p o r t , p . 1 1 ,
www.cdc.gov/mmwr/pdf/ss/ss5904.pdf (visited Oct.
29, 2012). States also permit private businesses and
other private institutions (such as churches) to ban
guns from their premises. If enough private
institutions decided to do that, the right to carry a
gun in public would have much less value and might
rarely be exercised—in which event the invalidation of
the Illinois law might have little effect, which opponents of
gun rights would welcome.
Recently the Second Circuit upheld a New York state
law that requires an applicant for a permit to carry
a concealed handgun in public to demonstrate
“proper cause” to obtain a license. Kachalsky v. County
of Westchester, supra. This is the inverse of laws
that forbid dangerous persons to have handguns;
New York places the burden on the applicant to show
that he needs a handgun to ward off dangerous persons.
As the court explained, 2012 WL 5907502, at *13, New
York “decided not to ban handgun possession, but to
limit it to those individuals who have an actual
reason (’proper cause’) to carry the weapon. In this
vein , licensing is orient ed to the Second
Ame n dme n t ’ s pr o t e c t i o ns…. [I ] n s t e ad of
forbidding anyone from carrying a handgun in
public, New York took a more moderate approach
to fulfilling its important objective and reasonably concluded
that only individuals having a bona fide reason
18 Nos. 12-1269, 12-1788
to possess handguns should be allowed to introduce
them into the public sphere.”
The New York gun law upheld in Kachalsky, although
one of the nation’s most restrictive such laws (under
the law’s “proper cause” standard, an applicant for a
gun permit must demonstrate a need for self-defense
greater than that of the general public, such as being
the target of personal threats, id. at *3, *8), is less restrictive
than Illinois’s law. Our principal reservation about
the Second Circuit ’s analy s i s (apart from
disagreement, unnecessary to bore the reader with,
with some of the historical analysis in the opinion—
we regard the historical issues as settled by Heller)
is its suggestion that the Second Amendment should
have much greater scope inside the home than
outside simply because other provisions of the Constitution
have been held to make that distinction. For example,
the opinion states that “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. In any event the court in
Kachalsky used the distinction between self-protection
inside and outside the home mainly to suggest that a
standard less demanding than “strict scrutiny” should
govern the constitutionality of laws limiting the carrying
of guns outside the home; our analysis is not
Nos. 12-1269, 12-1788 19
based on degrees of scrutiny, but on Illinois’s failure to
justify the most restrictive gun law of any of the 50 states.
Judge Wilkinson expressed concern in United States
v. Masciandaro, 638 F.3d 458, 475 (4th Cir. 2011), that
“there may or may not be a Second Amendment right
in some places beyond the home, but we have no
idea what those places are, what the criteria for selecting
them should be, what sliding scales of scrutiny
might apply to them, or any one of a number
of other questions. It is not clear in what
places public authorities may ban firearms altogether
without shouldering the burdens of litigation.
The notion that ‘self-defense has to take place wherever
[a] person happens to be,’ appears to us to portend
all sorts of litigation over schools, airports,
parks, public thoroughfares, and various additional
government facilities…. The whole matter strikes us
as a vast terra incognita that courts should enter only
upon necessity and only then by small degree” (citation
omitted). Fair enough; but that “vast terra incognita”
has been opened to judicial exploration by Heller and
McDonald. There is no turning back by the lower federal
courts, though we need not speculate on the limits
that Illinois may in the interest of public safety constitutionally
impose on the carrying of guns in public; it
is enough that the limits it has imposed go too far.
The usual consequence of reversing the dismissal of
a suit (here a pair of suits) is to remand the case for evidentiary
proceedings preparatory to the filing of motions
for summary judgment and if those motions fail to an
20 Nos. 12-1269, 12-1788
eventual trial. But there are no evidentiary issues in
these two cases. The constitutionality of the challenged
statutory provisions does not present factual questions
for determination in a trial. The evidence marshaled in
the Skoien case was evidence of “legislative facts,” which
is to say facts that bear on the justification for legislation,
as distinct from facts concerning the conduct of parties
in a particular case (“adjudicative facts”). See Fed. R. Evid.
201(a); Advisory Committee Note to Subdivision (a) of
1972 Proposed Rule [of Evidence] 201. Only adjudicative
facts are determined in trials, and only legislative facts
are relevant to the constitutionality of the Illinois gun law.
The key legislative facts in this case are the effects
of the Illinois law; the state has failed to show
that those effects are positive.
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
Nos. 12-1269, 12-1788 21
them to their respective district courts for the entry
of dec la ra tions of unconst itut ional it y 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.
REVERSED AND REMANDED, WITH DIRECTIONS;
BUT MANDATE STAYED FOR 180 DAYS.
WILLIAMS, Circuit Judge, dissenting. 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 selfdefense.
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
22 Nos. 12-1269, 12-1788
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.
Heller’s approach suggests that judges are to examine
the historical evidence and then make a determination
as to whether the asserted right, here the right to carry
ready-to-use arms in public (in places other than
those permitted by the Illinois statute) for potential selfdefense,
is within the scope of the Second Amendment.
(Heller has been criticized for reasons including that judges
are not historians.) In making this historical inquiry,
and in assessing whether the right was a generally recognized
one, I agree with the majority that the relevant
date is 1791, the date of the Second Amendment’s ratification.
See Maj. Op. at 3. But I do not agree that the Supreme
Court in Heller rejected the argument that the State
makes here, nor do I think the State’s argument
effectively asks us to repudiate Heller’s historical analysis.
The historical inquiry here is a very different
one. Heller did not assess whether there was a pre-existing
right to carry guns in public for self-defense. By asking
us to make that assessment, the State is not asking
us to reject the Court’s historical analysis in Heller;
rather, it is being true to it. As I see it, the State embraces
Heller’s method of analysis and asks us to conduct it
for the different right that is being asserted. I am not
the only one to think that Heller did not settle the
Nos. 12-1269, 12-1788 23
historical issues. The Second Circuit’s recent
unanimous decision upholding New York’s “proper cause”
prerequisite to obtaining a license to carry a handgun
in publ ic r e cogn ized and dis cu ss ed the
different historical inquiry that occurs when the
asserted right is to possess a handgun in public.
See Kachalsky v. County of Westchester, 2012 WL 5907502,
at *6-7, *10-11 (2d Cir. Nov. 27, 2012). (Under the New York
law that the Second Circuit upheld, “[a] generalized
desire to carry a concealed weapon to protect one’s
person and property does not constitute ‘proper cause,’ ”
and “[g]ood moral character plus a simple desire
to carry a weapon is not enough.” Id. at *3 (internal citations
and quotations omitted)).
Heller tells us that “the Second Amendment was
not intended to lay down a novel principle
but rather codified a right inherited from our English
ancestors.” Heller, 554 U.S. at 599 (internal quotations
omitted). For our English ancestors a man’s home
was his castle, and so he had broad powers to
defend himself there. See 4 William Blackstone, Commentaries
on the Laws of England 223 (1769). The focus of Heller’s
historical examination was on whether the Second Amendment
included an individual right to bear arms
or whether that right was limited to militia service.
Once the Heller majority found that the Second Amendment
was personal, the conclusion that one could
possess ready-to-use firearms in the home for selfdefense
there makes sense in light of the home-as-castle
history.
24 Nos. 12-1269, 12-1788
It is less clear to me, however, that a widely
understood right to carry ready-to-use arms in
public for potential self-defense existed at the time of
the founding. Cf. Heller, 554 U.S. at 605 (rejecting argument
by dissenters and stating, “That simply does not comport
with our longstanding view that the Bill of Rights
codified venerable, widely understood liberties.”).
In contrast to inside the home, where one could largely
do what he wished, there was a long history of regulating
arms in public. The 1328 Statute of Northampton,
quoted by the majority on page 6, provided in relevant
part that no man could “go nor ride armed by night
nor by day, in Fairs, markets, nor in the presence of
the Justices or other Ministers, nor in no part elsewhere.”
2 Edw. III, c. 3 (1328). If the words of a statute
are supreme, the words of the Statute of Northampton
expressly prohibit going or riding while “armed,” whether
at night or in the day, whether the arms are visible
or hidden. And the statute contains no intent requirement.
So the Statute of Northampton, by its terms, prohibited
going armed in public.
This matters because the Statute of Northampton and
its principles did not disappear after its enactment in
1328. The leading scholars relied upon at the time
of our country’s founding also turned to the Statute
of Northampton as they discussed criminal offenses
. Massachusetts, North Carol ina, and
Virginia incorporated the Statute of Northampton
in the years immediately after the Constitution’s adoption.
See Patrick J. Charles, The Faces of the Second
Amendment Outside the Home: Historical Versus
Nos. 12-1269, 12-1788 25
Ahistorical Standards of Review, 60 Clev. St. L. Rev. 1, 31-
32 (2012). Although the plaintiffs suggest that later generations
did not view the Statute of Northampton
to mean what its terms said, whether that is true
is not obvious. William Blackstone, cited frequently
by the Heller majority, for example, summarized the
Statute of Northampton as he explained public
wrongs. He wrote, “[t]he offense of riding or going armed
with dangerous or unusual weapons, is a crime against
the public peace, by terrifying the good people of the
land; and is particularly prohibited by the Statute
of Northampton, upon pain of forfeiture of the
arms, and imprisonment during the king’s pleasure:
in like manner as, by the laws of Solon, every Athenian
was finable who walked about the city in armour.”
4 Blackstone, supra, 148-49 (internal citation omitted);
see also Eugene Volokh, The First and Second Amendments,
109 Colum. L. Rev. Sidebar 97, 101 (2009) (recognizing
that Blackstone summarized the Statute of Northampton
in this passage).
Some, like the plaintiffs, read Blackstone to mean that the
Statute of Northampton was understood to
cover only those circumstances where the carrying of
arms was unusual and therefore terrifying. But that
seems to be a strained reading of Blackstone’s words.
The more natural reading is that Blackstone states
that riding or going armed with dangerous weapons
is an offense and is a crime against the public peace.
He then explains why the offense of riding or
going armed with dangerous weapons is a crime against
the public peace—because doing so makes people terrified
or nervous. Notably, Blackstone compares going
26 Nos. 12-1269, 12-1788
armed with dangerous weapons to the mere act of
walking around a city in armor, which was prohibited
in ancient Greece. The comparison suggests that just
as seeing a person walking around a city in
armor would cause other citizens to be nervous, regardless
of any affirmative action, so would the reaction be
to seeing another carrying dangerous weapons in a populated
area.
It is true as the majority states that Sir John Knight’s
Case, 87 Eng. Rep. 75 (K.B. 1686), stated that the meaning
of the Statute of Northampton “was to punish people
who go armed to terrify the King’s subjects.” But it immediately
followed that statement by saying that
“[i]t is likewise a great offence at the common law, as
if the King were not able or willing to protect
his subjects; and therefore this Act is but an affirmance
of that law.” The case is consistent with the idea that
going armed in the public arena with dangerous
weapons without government permission, by its nature,
terrifies the people, whether the arms can be seen
or not. See Charles, supra, at 28 (examining background
and implications of case and explaining that persons
who were the “King’s Officers and Ministers in doing
their Office” were exempt from punishment under
the Statute, which explains Sir Knight’s acquittal).
Robert Gardiner’s The Compleat Constable, written
for seventeenth- and eighteenth-century British
constables, comports with the understanding that
the Statute of Northampton’s intent was to prohibit
the carrying of any weapon that might “endanger
Nos. 12-1269, 12-1788 27
society among the concourse of the people,” Charles,
supra, at 23, and that it was an affirmation of governmental
police authority, as well as that “dangerous weapons”
included guns, id. at 23-24. The Compleat
Constable stated, with a specific reference to “guns,”
that a British constable could arrest upon seeing
any person ride or go armed offensively, “in Fairs or
Markets or elsewhere, by Day or by Night, in affray of Her
Majesties Subjects, and Breach of the Peace; or wear
or carry any Daggers, Guns, or Pistols Charged.”
Robert Gardiner, The Compleat Constable 18-19 (3d
ed. 1707). The only exceptions were for persons serving
Her Majesty, sheriffs and their officers, and those “pursuing
Hue and Cry, in Case of Felony, and other Offences
against the Peace.” Id. at 19.
Sir Edward Coke also discussed the Statute
of Northampton, and he interpreted it to allow
persons to keep weapons inside the home, explaining
that a man’s home was his castle. As the majority
notes, Coke also stated that one could not assemble force to
go out in public. But that does not necessarily mean
that persons were free to carry arms for potential
personal self-defense. Indeed, in Coke’s explanation of
the Statute, he recounted the case of Sir Thomas
Figett, who was arrested after he “went armed under
his garments, as well as in the palace, as before
the justice of the kings bench.” Edward Coke, Institutes of
the Laws of England 161-62 (1797). In his defense, Figett
said there “had been debate” between him and
another earlier in the week, “and therefore for
doubt of danger, and safeguard of his life, he went so
28 Nos. 12-1269, 12-1788
armed.” Id. at 162. Nonetheless, he was ordered to
forfeit his arms and suffer imprisonment at the king’s
pleasure. Id.
I also note that in examining the contours of the proposed
right, the majority looks to the perspective of
an Ohio frontiersman. But it seems that when
evaluating the rights originally embodied in the
Second Amendment, looking to the margins should
not be the inquiry. Cf Heller, 554 U.S. at 605. We have
already observed that there were a number of laws
in our country around the time of the founding that
limited the discharge of firearms in public cities.
See Ezell v. City of Chicago, 651 F.3d 684, 705 (7th Cir. 2011)
(“The City points to a number of founding-era, antebellum,
and Rec ons t ruc t ion state and local laws
that limited discharge of firearms in urban environments.”);
id. at 705-06 & nn.13-14; id. at 713-14 (Rovner, J.,
concurring) (observing that “none of the 18th and 19th
century jurisdictions cited by the City . . . were apparently
concerned that banning or limiting the discharge
of firearms within city limits would seriously impinge
the rights of gun owners” and that some of the early
laws’ concern with fire suppression reflected that
“public safety was a paramount value to our ancestors”
that sometimes trumped a right to discharge
a firearm in a particular place). So while there are a
variety of other sources and authorities, the ones I
have discussed suggest that there was not a clear
historical consensus that persons could carry guns
in public for self-defense. See also Kachalsky, 2012
WL 5907502, at *6 (stating that unlike the ban
Nos. 12-1269, 12-1788 29
on handguns in the home at issue in Heller, “[h]istory
and tradition do not speak with one voice” regarding
scope of right to bear arms in public and that
“[w]hat history demonstrates is that states often
disagreed as to the scope of the right to bear arms
[in public]”).
I will pause here to state that I am not convinced
that the implication of the Heller and McDonald decisions
is that the Second Amendment right to have ready-to-use
firearms for potential self-defense extends beyond
the home. That the Second Amendment speaks
of the “right of the people to keep and bear arms”
(emphasis added) does not to me imply a right to carry
a loaded gun outside the home. Heller itself
demonstrates this. The Court interpreted “bear” to mean
to “carry” or to “wear, bear, or carry,” upon one’s person,
for the purpose of being armed and ready in
case of conflict. Heller, 554 U.S. at 584. And we know
that Heller contemplated that a gun might only be carried
in the home because it ordered the District of Columbia
to permit Heller to do precisely that: it directed
that unless Heller was otherwise disqualified, the District
must allow him “to register his handgun and
must issue him a license to carry it in the home.” Id. at 635
(emphasis added). Mr. Heller did not want simply
“to keep” a gun in his closet. He wanted to be able
“to bear” it in case of self-defense, and the Supreme
Court said he could.
We have warned against “treat[ing] Heller as containing
broader holdings than the Court set out to establish:
30 Nos. 12-1269, 12-1788
that the Second Amendment creates individual rights,
one of which is keeping operable handguns at home
for self-defense. . . . Judicial opinions must not be
confused with statutes, and general expressions must
be read in light of the subject under consideration.”
See United States v. Skoien, 614 F.3d 638, 640 (7th
Cir. 2010) (en banc). The Supreme Court made clear in
Heller and McDonald that its holdings only applied
to handguns in the home for self-defense. See, e.g.,
id.; Heller, 554 U.S. at 635 (“And whatever else it leaves
to future evaluation, it surely elevates above all
other interests the right of law-abiding, responsible
citizens to use arms in defense of hearth and home.”).
The Court’s language must be read in that light.
The plaintiffs point, for example, to Heller’s statement
t ha t the operative clause of the Second
Amendment guarantees “the individual right to
possess and carry weapons in case of confrontation.”
554 U.S. at 592. But Heller makes this statement in
the portion of its opinion supporting the conclusion
that the Second Amendment included a personal right,
as compared to one solely related to the militia. See id.
at 592-95. The plaintiffs also point out that Heller
stated that the need for self-defense is “most acute”
in the home, which they argue implies that there is
a Second Amendment right to possess ready-to-use
firearms in places outside the home. See id. at 628. But
the Court made this comment in the context of its conclusion
that the District of Columbia handgun ban applied
in the home; the fact that the need was acute in the
home emphasized that the fatal flaw in the handgun
ban was that it applied in the home. See id. at 628-30.
Nos. 12-1269, 12-1788 31
By all this I do not mean to suggest that historical
evidence definitively demonstrates there was not a right
to carry arms in public for self-defense at the time
of the founding. The plaintiffs point to other authorities
that they maintain reveal the opposite. At best,
the history might be ambiguous as to whether there is
a right to carry loaded firearms for potential self-defense
outside the home. But if that is the case, then it
does not seem there was “a venerable, widely understood”
right to do so. That may well mean that the right
the plaintiffs seek here is outside the scope of the Second
Amendment. Perhaps under Heller’s rationale
that the Second Amendment codified a preexisting
right, with history not seeming to clearly support a generally
recognized right, the analysis ends right here.
II.
We said in Ezell that “if the historical evidence is inconclusive
or suggests that the regulated activity is not categorically
unprotected—then there must be a second
inquiry into the strength of the government’s
justification for restricting or regulating the exercise
of Second Amendment rights.” 651 F.3d at 703. In
doing so, we stated that “the rigor of this judicial
review will depend on how close the law comes to the
core of the Second Amendment right and the severity
of the law’s burden on the right.” Id. Any right to
carry firearms in public for potential self-defense, if
there is one, is not at the “core” of the Second Amendment.
See Kachalsky, 2012 WL 5907502, at *9; United States
v. Marzzarella, 614 F.3d 85, 92 (3d Cir. 2010).
32 Nos. 12-1269, 12-1788
The Supreme Court made clear in Heller that “nothing
in [its] opinion should be taken to cast doubt on longstanding
prohibitions on the possession of firearms by
felons and the mentally ill, or laws forbidding the carrying
of firearms in sensitive places such as schools and government
buildings . . . .” 554 U.S. at 626. McDonald
made sure to “repeat those assurances.” McDonald, 130 S.
Ct. at 3047. That a legislature can forbid the carrying
of firearms in schools and government buildings
means that any right to possess a gun for self-defense
outside the home is not absolute, and it is not absolute
by the Supreme Court’s own terms.
Indeed, the Supreme Court would deem it presumptively
permissible to outright forbid the carrying of firearms
in certain public places, but that does not mean that a selfdefense
need never arises in those places. The
teacher being stalked by her ex-husband is susceptible
at work, and in her school parking lot, and on the
school playground, to someone intent on harming her.
So why would the Supreme Court reassure us that
a legislature can ban guns in certain places? It must be
out of a common-sense recognition of the risks that
arise when guns are around.
Any right to carry loaded firearms outside the home for
self-defense is, under Heller’s own terms, susceptible to a
legislative determination that firearms should not
be allowed in certain public places. The Supreme
Court tells us that a state can forbid guns in schools.
That probably means it can forbid guns not just inside
the school building, but also in the playground and
Nos. 12-1269, 12-1788 33
parking lot and grassy area on its property too. And if
a state can ban guns on school property, perhaps it can
ban them within a certain distance of a school too. Cf.
18 U.S.C. § 922(q)(2)(A). The Supreme Court also
tells us that a state can ban guns in government buildings.
The list of such buildings would seem to include
post offices, courthouses, libraries, Department of Motor
Vehicle facilities, city halls, and more. And the legislature
can ban firearms in other “sensitive places” too.
So maybe in a place of worship. See GeorgiaCarry.Org
v. Georgia, 687 F.3d 1244 (11th Cir. 2012) (upholding
ban on firearms in places of worship). Maybe too on
the grounds of a public university. See DiGiacinto
v. Rector & Visitors of George Mason Univ., 704 S.E.2d
365 (Va. 2011) (upholding regulation prohibiting possession
of guns in university facilities and at campus events).
Or in an airport, or near a polling place, or in a bar. And
if the latter is true then perhaps a legislature could
ban loaded firearms any place where alcohol is sold,
so in restaurants and convenience stores as well.
The resulting patchwork of places where loaded guns
could and could not be carried is not only odd but
also could not guarantee meaningful self-defense, which
suggests that the constitutional right to carry ready-to-use
firearms in public for self-defense may well not exist.
It is difficult to make sense of what Heller means
for carrying guns in public for another notable reason.
Immediately before the sentence giving a presumption of
lawfulness to bans on guns for felons and the like, Heller
states: “Like most rights, the right secured by the Second
Amendment is not unlimited. From Blackstone through
34 Nos. 12-1269, 12-1788
the 19th-century cases, commentators and courts routinely
explained that the right was not a right to keep and carry
any weapon whatsoever in any manner whatsoever and for
whatever purpose. For example, the majority of the 19thcentury
courts to consider the question held that prohibitions on
carrying concealed weapons were lawful under the Second
Amendment or state analogues.” 554 U.S. at 626 (emphasis
added and internal citations omitted). The implication of
the Supreme Court’s statement would seem to be that
concealed carry is not within the scope of the Second
Amendment (or at the least that that is the presumption).
See, e.g., Nelson Lund, The Second Amendment, Heller, and
Originalist Jurisprudence, 56 UCLA L. Rev. 1343, 1359
(2009) (“This appears to be an endorsement of yet
another exception to the constitutional right.”);
Hightower v. City of Boston, 693 F.3d 61, 73 (1st Cir.
2012) (interpreting this language to mean that laws prohibiting
the carrying of concealed weapons are
an example of presumptively lawful restrictions);
Eugene Volokh, Implementing the Right to Keep and
Bear Arms for Self-Defense: An Analytical Framework and
a Research Agenda, 56 UCLA L. Rev. 1443, 1523-24 (2009).
That would not be the first time the Supreme Court
had made such a statement. See Robertson v. Baldwin,
165 U.S. 275, 281-82 (1897) (stating in dicta that
Second Amendment right “is not infringed by laws prohibiting
the carrying of concealed weapons”).
If carrying concealed weapons is outside the scope
of the Second Amendment, the consequence would
be significant. “‘In the nineteenth century, concealed
carry was often considered outside the scope of the
Nos. 12-1269, 12-1788 35
right to bear arms. Today, it is the most common way
in which people exercise their right to bear
arms.’ ” Joseph Blocher, The Right Not to Keep or Bear
Arms, 64 Stan. L. Rev. 1, 45 (2012) (quoting David B. Kopel,
The Right to Arms in the Living Constitution, 2010 Cardozo
L. Rev. 99, 136 (2010)). And, as the Moore plaintiffs acknowledge
in their brief, “today, openly carrying handguns
may alarm individuals unaccustomed to firearms.”
The implication, as explained by Nelson
Lund (author of the Second Amendment Foundation’s
amicus curiae brief in Heller in support of Mr. Heller):
“In some American jurisdictions today, for example,
openly carrying a firearm might plausibly be thought
to violate the ancient common law prohibition
against ‘terrifying the good people of the land’ by
going about with dangerous and unusual weapons.
If courts were to conclude that open carry violates
this common law prohibition (and thus is not within
the preexisting right protected by the Second Amendment),
after Heller has decreed that bans on concealed carry
are per se valid, the constitutional right to bear
arms would effectively cease to exist.” Lund, supra, at 1361-
62. (To be clear, if there is a Second Amendment right
to carry arms outside the home for potential selfdefense
in Illinois as my colleagues have found, I
am not suggesting that Illinois should not implement
concealed carry laws.)
If there is any right to carry ready-to-use firearms
among the public for potential self-defense,
the plaintiffs contend the Illinois statutes must be unconstitutional
because their ban is far-reaching. But I
see the question as somewhat more nuanced.
36 Nos. 12-1269, 12-1788
Protecting the safety of its citizens is unquestionably a
sign if icant sta t e intere s t. United States v.
Salerno, 481 U.S. 739, 748 (1987); Kelley v. Johnson, 425
U.S. 238, 247 (1976). Illinois chose to enact the statutes
here out of concern for the safety of its citizens. See
People v. Marin, 795 N.E.2d 953, 959-62 (Ill. App. Ct. 2003).
Given the State’s obvious interest in regulating the safety
of its citizens, the question is who determines the contours
of any right to carry ready-to-use firearms for self-defense
in public when they are unsettled as a matter
of both original history and pol icy. The
Heller majority concluded that “enshrinement of constitutional
rights necessarily takes certain policy choices off
the table . . . includ[ing] the absolute prohibition of handguns
held and used for self-defense in the home.”
554 U.S. at 636. But “as we move outside the home, firearm
rights have always been more limited, because public
safety interests often outweigh individual interests in selfdefense.”
United States v. Masciandro, 638 F.3d 458, 470
(4th Cir. 2011).
The Supreme Court has told us that we
must “accord substant ial deference to the
predictive judgments of [the legislature].” Turner
Broad. Sys., Inc. v. F.C.C., 520 U.S. 180, 195 (1997). “In
the context of firearm regulation, the legislature is
‘far better equipped than the judiciary’ to make
sensitive policy judgments (within constitutional limits)
concerning the dangers in carrying firearms
and the manner to combat those risks.” Kachalsky,
2012 WL 5907502, at *12. The legislature knows the statisNos.
12-1269, 12-1788 37
1State courts that have addressed a state constitutional right to
bear arms have used a “reasonable regulation” standard, a test
that is more deferential than intermediate scrutiny but
that, unlike the interest-balancing test proposed in Justice
Breyer’s Heller dissent, does not permit states to prohibit all
firearm ownership. See, e.g., State v. Hamdan, 665 N.W.2d 785,
798-801 (Wis. 2003); Adam Winkler, Scrutinizing the Second
Amendment, 105 Mich. L. Rev. 683, 686-87 (2007) (discussing
“hundreds” of state court opinions using this test).
tics and is in a far better position than we are to
weigh their import. Illinois reasonably wants to try
to reduce the incidence of death and injury
by firearms, both those which come from affirmative acts
of violence and also the many deaths and injuries that
occur accidentally, and doing so by taking them off the
streets is a legislative judgment substantially related to
its important governmental objective of reducing injury
and death by firearms.1
It is common sense, as the majority recognizes, that a
gun is dangerous to more people when carried outside
the home. See Maj. Op. at 8. When firearms are
carried outside of the home, the safety of a broader
range of citizens is at issue. The risk of being injured
or kil led now extends to s t rangers , law
enforcement personnel, and other private citizens
who happen to be in the area. Cf. David
Hemenway & Deborah Azrael, The Relative Frequency of
Offensive and Defensive Gun Uses: Results from a National
Survey, 15 Violence & Victims 257, 271 (2000) (finding
that guns are used “far more often to kill and wound
38 Nos. 12-1269, 12-1788
innocent victims than to kill and wound criminals”).
Indeed, the Illinois legislature was not just concerned
with “crime rates” and “murder rates” when it passed
the law. Cf. Maj. Op. at 8. It also sought to “prevent
situations where no criminal intent existed, but criminal
conduct resulted despite the lack of intent, e.g., accidents
with loaded guns on public streets or the escalation
of minor public altercations into gun battles or . . . the
danger of a police officer stopping a car with a loaded
weapon on the passenger seat.” See Marin, 795 N.E.2d at
962. The danger of such situations increases if guns may
be carried outside the home.
That the percentage of reported accidental gun-related
deaths is lower as compared to suicide (which accounts for
the majority of firearms-related deaths) and murder,
see Robert A. Hahn et al., Firearms Laws and the Reduction
of Violence: A Systematic Review, 28 Am. J. Preventive
Med. 40, 40 (2005), does not make the Illinois law invalid.
First, in those statistics, “[u]nintentional firearm-related
deaths appear to be substantially undercounted
(i.e., misclassified as due to another cause),” id. at 47, and
in any event the State has a significant interest in
reducing the risk of accidental firearms-related deaths
as well as accidental injuries. The majority says the
law cannot be justified on the ground that it reduces
the accidental death rate unless it could be shown
that allowing guns to be carried in public causes
gun ownership to increase. See Maj. Op. at 13. But
whether gun ownership increases is not the question. See
id. at 10-11. It is not the number of guns owned that
matters but where the guns are carried. Illinois already
Nos. 12-1269, 12-1788 39
allows people to own and have guns in their homes;
however, they cannot carry them in public. The Illinois
legislature reasonably concluded that if people are allowed
to carry guns in public, the number of guns carried in
public will increase, and the risk of firearms-related injury
or death in public will increase as well. Cf. Marin, 795
N.E.2d at 959-62.
And it is also common sense that the danger is a great
one; firearms are lethal. Cf. Skoien, 614 F.3d at 642
(“guns are about five times more deadly than knives,
given that an attack with some kind of weapon has occurred”)
(citing Franklin E. Zimring, Firearms, Violence,
and the Potential Impact of Firearms Control, 32 J. L. Med.
& Ethics 34 (2004)). For that reason too the focus simply
on crime rates misses the mark. As Philip J. Cook, a
Duke University professor cited twice by the majority,
put it: “My research over 35 years demonstrates that
the effect of gun availability is not to increase the
crime rate but to intensify the crime that exists and convert
assaults into murders.” Ethan Bronner, Other States,
and Other Times, Would Have Posed Obstacles for
Gunman, N.Y. Times, July 25, 2012, at A12.
The majority’s response to the fact that guns are a
potential lethal danger to more people when carried in
public seems to be to say that knowing potential
victims could be armed may have a deterrent effect
or make criminals timid. See Maj. Op. at 8, 13. Yet even
an article relied upon by the majority cautions that
the effect on criminals may well be more gun use: “Twothirds
of prisoners incarcerated for gun offenses reported
40 Nos. 12-1269, 12-1788
that the chance of running into an armed victim was
very or somewhat important in their own choice to use a
gun. Currently, criminals use guns in only about 25
percent of noncommercial robberies and 5 percent of
assaults. If increased gun carrying among potential
victims causes criminals to carry guns more often themselves,
or become quicker to use guns to avert armed selfdefense,
the end result could be that street crime
becomes more lethal.” Philip J. Cook, Jens Ludwig &
Adam M. Samaha, Gun Control After Heller: Threats
and Sideshows from a Social Welfare Perspective, 56 UCLA
L. Rev. 1041, 1081 (2009).
On the other side of the lethal danger to the
State’s citizens is the asserted interest in carrying guns
for self-defense, yet even the majority does not
contend that carrying guns in public has been shown to
be an effective form of self-defense. For example, as
the majority acknowledges, University of Pennsylvania
researchers found that assault victims are more likely to
be armed than the rest of the population. See Maj. Op. at
12-13 (citing Charles C. Branas et al., Investigating the
Link Between Gun Possession and Gun Assault, 99 Am. J.
of Pub. Health 2034, 2037 (2009)). The researchers examined
shootings in Philadelphia and concluded that
“gun possession by urban adults was associated with a
significantly increased risk of being shot in an assault,”
id., which suggests, if anything, that carrying a gun is
not effective self-defense. The researchers posited
that possible reasons for their findings included that a
gun may falsely empower its possessor to overreact, that
persons with guns may increase the risk of harm by
Nos. 12-1269, 12-1788 41
2The majority cites Moody and Marvell’s 2008 paper
suggesting that Ayres and Donohue should have extended
their 2003 analysis by one more year. But extending their
data is just what Ayres and Donohue did in their May
2009 piece, More Guns, Less Crime Fails Again: The Latest
Evidence from 1977-2006. And after extending their state panel
data by six additional years, they again concluded that “the
best evidence to date suggests that [right-to-carry] laws
at the very least increase aggravated assault.” Id. at 231.
They also thoroughly responded to Moody and Marvell’s
criticism that their initial 2003 analysis evaluated the trend for
five years rather than six, explaining in part:
“We would have thought, though, that one would want to
be very cautious in evaluating trends beyond five years
when 14 of the 24 states have no post-passage data
beyond three years.” Id. at 218-19. They also criticized Moody
and Marvell’s conclusions and demonstrated that the two
had incorrectly graphed the estimates from Donohue’s table and
(continued...)
entering dangerous environments that they normally
would have avoided, and that persons bringing guns to an
otherwise gun-free conflict may have those guns wrested
away and turned on them. Id. at 2037-38.
Other studies have found that in states with broad
concealed-carry laws there is an increased chance that one
will be a victim of violent crime. Yale Law School Professors
Ian Ayres and John J. Donohue III concluded that “the
evidence is most supportive of the claim that [right-tocarry]
laws increase aggravated assault.” More Guns, Less
Crime Fails Again: The Latest Evidence from 1977-2006, 6
Econ. J. Watch 218, 220 (May 2009).2 (Donohue is now at
42 Nos. 12-1269, 12-1788
(...continued)
misinterpreted the estimates. Id. at 219.
Stanford.) Similarly, another study showed that “an
increase in gun prevalence causes an intensification
of criminal violence–a shift toward a greater lethality,
and hence greater harm to a community.” Philip J. Cook
& Jens Ludwig, The Social Costs of Gun Ownership, 90 J.
Pub. Econ. 379, 387 (2006). Other researchers have concluded
that guns are “used far more often to intimidate
and threaten than they are used to thwart crimes.”
Hemenway & Azrael, supra, at 271.
The ban on firearms in public is also an important
mechanism for law enforcement to protect the public.
With guns banned in public an officer with
reasonable suspicion to stop and frisk a person can,
upon finding a gun, take the gun off the street before
a shooting occurs. The majority says that a state may
be able to require “open carry,” where persons who
carry guns in public must carry them in plain view.
Maj. Op. at 10. Living with the open carrying of loaded
guns on the streets of Chicago and elsewhere
would certainly be a big change to the daily lives of Illinois
citizens. Even the plaintiffs do not seem to want Illinois
to take that drastic a step, recognizing that “openly carrying
handguns may alarm individuals unaccustomed
to firearms” and that Heller “does not force states to
allow the carrying of handguns in a manner that may
cause needless public alarm.” Moore Br. at 35.
The majority also suggests that with open
carry the police could still arrest persons who carry
Nos. 12-1269, 12-1788 43
Chicago Police Dep’t A 3 nnual Report 2010, at 34, available at
https://portal.chicagopolice.org/portal/page/portal/ClearPath
/News/Statistical%20Reports/Annual%20Reports/10AR.pdf.
concealed guns. This is true but seems contradictory
to its statement two sentences earlier that in its
view, under the current law police will often lack reasonable
suspicion to stop a person with a concealed gun
since it is concealed. See Maj. Op. at 10. To the latter,
guns are not allowed now, so theoretically persons
are attempting to conceal them. Nonetheless, Chicago’s
Police Department made over 4,000 arrests on
weapons violations in 2009, though some of these
arrests could have been made in conjunction with
other crimes as well.3 More importantly, “concealed”
does not mean “invisible.” An officer who
reasonably suspects he sees a gun in a car when he
pulls someone over, or notices what he reasonably
suspects to be a gun bulging out of someone’s
clothes, can under the law as it currently stands arrest that
person and take the gun off the street.
Allowing open (or concealed) carry does not address
the fundamental point about law enforcement’s ability
to protect the public: if guns are not generally legal
to have in public, officers can remove them from
the streets before a shooting occurs whenever they
come across a gun. Under a law like the Illinois law,
an officer with some reasonable belief that a person
is carrying a firearm can stop that person and remove
the gun from the street because the officer has a
44 Nos. 12-1269, 12-1788
reasonable belief that a crime is taking place. The ability
to use stops and arrests upon reasonably suspecting a
gun as a law enforcement tactic to ultimately protect
more citizens does not work if guns can be freely carried.
To the extent the majority opinion’s studies draw
different conclusions, the Supreme Court has made
clear that “the possibility of drawing two inconsistent
conclusions from the evidence” does not prevent
a finding from being supported by substantial evidence.
Turner Broad., 520 U.S. at 211; see also Kachalsky, 2012
WL 5907502, at *13 (recognizing different studies concerning
relationship between handgun access and
violent crime, and handgun access and safety and character
of public places, and stating, “It is the legislature’s
job, not ours, to weigh conflicting evidence and
make policy judgments.”). Moreover, it is not necessary
for “the statute’s benefits” to be “first established by
admissible evidence” or by “proof, satisfactory to a court.”
Skoien, 614 F.3d at 641. Nor would the State need to make
a s tronge r showing here than in S k o ien .
Skoien concerned the prohibition on firearm possession
by misdemeanant s wi t h domes t i c violence
convictions, a ban that also applies to the core Second
Amendment right of gun possession in the home. As
such, the “strong showing” the government acknowledged
it needed to demonstrate there made sense. See id.
I would note too that the 2005 paper “Firearms Laws
and the Reduction of Violence: A Systematic Review,”
quoted by the majority for its statement that based
on its review, evidence was insufficient to determine
Nos. 12-1269, 12-1788 45
whether the degree of firearms regulation is associated
with decreased or increased violence, Maj. Op. at 9,
did not limit that conclusion to the degree of firearms
regulation. The paper found the evidence available
from identified studies “insufficient to determine” the
effectiveness of any of the laws it reviewed, even including
acquisition restrictions (e.g., felony convictions
and personal histories including persons adjudicated
as “mental defective”), and firearms registration
and licensing—propositions that even the plaintiffs seem
to favor. And, the paper cautioned that “[a] finding that
evidence is insufficient to determine effectiveness
means that we do not yet know what effect, if any, the law
has on an outcome—not that the law has no effect on the
outcome.” Hahn et al., supra, at 40.
The Illinois statutes safeguard the core right to
bear arms for self-defense in the home, as well as the carry
of ready-to-use firearms on other private property
when permitted by the owner, along with the corollary
right to transport weapons from place to place. See 720
Ill. Comp. Stat. 5/24-2; 720 Ill. Comp. Stat. 5/24-
1.6(a)(1). Guns in public expose all nearby to risk, and
the risk of accidental discharge or bad aim has
lethal consequences. Allowing public carry of ready-to-use
guns means that risk is borne by all in Illinois, including
the vast majority of its citizens who choose not to
have guns. The State of Illinois has a significant interest
in maintaining the safety of its citizens and police officers.
The legislature acted within its authority when it concluded
that its interest in reducing gun-related
deaths and injuries would not be as effectively
46 Nos. 12-1269, 12-1788
served through a licensing system. For one, every criminal
was once a law-abiding citizen, so strategies for
preventing gun violence that bar prior criminals
from having firearms do not do enough. See Philip J. Cook,
et al., Criminal Records of Homicide Offenders, 294 J.
Am. Med. Ass’n 598, 600 (2005) (homicide prevention
strategies targeted toward prior offenders “leave a large
portion of the problem untouched”). Nor could the
State ensure that guns in public are discharged
only, accurately, and reasonably in instances of selfdefense.
See People v. Mimes, 953 N.E.2d 55, 77 (Ill. App.
Ct. 2011) (“The extensive training law enforcement officers
undergo concerning the use of firearms attests to
the degree of difficulty and level of skill necessary
to competently assess potential threats in public situations
and moderate the use of force.”).
The Supreme Court has “long recognized the role
of the States as laboratories for devising solutions
to difficult legal problems,” and courts “should not
diminish that role absent impelling reason to do
so.” Oregon v. Ice, 555 U.S. 160, 171 (2009). Indeed, “[i]t
is one of the happy incidents of the federal system that a
single courageous State may, if its citizens choose,
serve as a laboratory; and try novel social and economic
experiments without risk to the rest of the country.”
New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932)
(Brandeis, J., dissenting). (And to the extent it matters,
Illinois is not the only place that has and enforces strict
gun laws. New York City, for example, has gun laws that
are in effect like those of Illinois; while technically a “may
issue” location where the city may issue permits
Nos. 12-1269, 12-1788 47
for handgun carry outside the home, New York City
rarely does so and so has been characterized as maintaining
a virtual ban on handguns. See Lawrence Rosenthal,
Second Amendment Plumbing after Heller: Of
Standards of Scrutiny, Incorporation, Well-Regulated Militias,
and Criminal Street Gangs, 41 Urb. Lawyer 1, 39 (2009)).
Reasonable people can differ on how guns should
be regulated. Illinois has chosen to prohibit most forms
of public carry of ready-to-use guns. It reaffirmed that
just last year, when its legislature considered and
rejected a measure to permit persons to carry concealed
weapons in Illinois. See Dave McKinney, Concealed-Carry
Measure: Shot Down in Springfield, Chicago Sun-Times,
2011 WLNR 9215695 (May 6, 2011). In the absence
of clearer indication that the Second Amendment codified
a generally recognized right to carry arms in public for self defense,
I would leave this judgment in the hands of
the State of Illinois.
12-11-12