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Illinois 7th Circuit, Moore/Shepard v. Madigan

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  1. In the
  2. United States Court of Appeals
  3. For the Seventh Circuit
  4. Nos. 12-1269, 12-1788
  5. MICHAEL MOORE, et al., and
  6. MARY E. SHEPARD, et al.,
  7. Plaintiffs-Appellants,
  8. v.
  10. OF ILLINOIS, et al.,
  11. Defendants-Appellees.
  12. Appeals from the United States District Courts for the
  13. Central District of Illinois and the Southern District of Illinois.
  14. Nos. 3:11-cv-3134-SEM-BGC and 3:11-cv-405-WDS-PMF—
  15. Sue E. Myerscough and William D. Stiehl, Judges.
  16. ARGUED JUNE 8, 2012—DECIDED DECEMBER 11, 2012
  17. Before POSNER, FLAUM, and WILLIAMS, Circuit Judges.
  18. POSNER, Circuit Judge. These two appeals, consolidated
  19. for oral argument, challenge denials of declaratory and
  20. injunctive relief sought in materially identical suits under
  21. the Second Amendment. An Illinois law forbids a person,
  22. with exceptions mainly for police and other security
  23. personnel, hunters, and members of target shooting clubs,
  24. 2 Nos. 12-1269, 12-1788
  25. 720 ILCS 5/24-2, to carry a gun ready to use (loaded,
  26. immediately accessible—that is, easy to reach—and
  27. uncased). There are exceptions for a person on his
  28. own property (owned or rented), or in his home (but if
  29. it’s an apartment, only there and not in the
  30. apartment building’s common areas), or in his fixed
  31. place of business, or on the property of someone who
  32. has permitted him to be there with a ready-to-use gun.
  33. 720 ILCS 5/24-1(a)(4), (10), -1.6(a); see People v.
  34. Diggins, 919 N.E.2d 327, 332 (Ill. 2009); People v. Laubscher,
  35. 701 N.E.2d 489, 490–92 (Ill. 1998); People v. Smith,
  36. 374 N.E.2d 472, 475 (Ill. 1978); People v. Pulley, 803
  37. N.E.2d 953, 957–58, 961 (Ill. App. 2004). Even
  38. carrying an unloaded gun in public, if it’s uncased
  39. and immediately accessible, is prohibited, other than to
  40. police and other excepted persons, unless carried
  41. openly outside a vehicle in an unincorporated area
  42. and ammunition for the gun is not immediately accessible.
  43. 720 ILCS 5/24-1(a)(4)(iii), (10)(iii), -1.6(a)(3)(B).
  44. The appellants contend that the Illinois law violates
  45. the Second Amendment as interpreted in District of Columbia
  46. v. Heller, 554 U.S. 570 (2008), and held applicable to
  47. the states in McDonald v. City of Chicago, 130 S. Ct.
  48. 3020 (2010). Hel l e r held that t he Second
  49. Amendment protects “the right of law-abiding,
  50. responsible citizens to use arms in defense of hearth
  51. and home.” 554 U.S. at 635. But the Supreme Court has
  52. not yet addressed the question whether the
  53. Second Amendment creates a right of self-defense
  54. outside the home. The district courts ruled that it does
  55. not, and so dismissed the two suits for failure to state
  56. a claim.
  57. Nos. 12-1269, 12-1788 3
  58. The parties and the amici curiae have treated us
  59. to hundreds of pages of argument, in nine briefs.
  60. The main focus of these submissions is history. The
  61. supporters of the Illinois law present historical evidence
  62. that there was no generally recognized private right
  63. to carry arms in public in 1791, the year the Second
  64. Amendment was ratified—the critical year for determining
  65. the amendment’s historical meaning, according to McDonald
  66. v. City of Chicago, supra, 130 S. Ct. at 3035 and n. 14.
  67. Similar evidence against the existence of an eighteenthcentury
  68. right to have weapons in the home for purposes
  69. of self-defense rather than just militia duty had
  70. of course been presented to the Supreme Court in
  71. the Heller case. See, e.g., Saul Cornell, A Well-Regulated
  72. Militia 2–4, 58–65 (2006); Lois G. Schwoerer, “To Hold and
  73. Bear Arms: The English Perspective,” 76 Chi.-Kent L. Rev.
  74. 27, 34–38 (2000); Don Higginbotham, “The Second Amendment
  75. in Historical Context,” 16 Constitutional Commentary
  76. 263, 265 (1999). The District of Columbia had
  77. argued that “the original understanding of
  78. the Second Amendment was neither an individual right
  79. of self-defense nor a collective right of the states, but rather
  80. a civic right that guaranteed that citizens would be able
  81. to keep and bear those arms needed to meet their legal
  82. obligation to participate in a well-regulated militia.”
  83. Cornell, supra, at 2; see also Paul Finkelman, “ ’A Well
  84. Regulated Militia’: The Second Amendment in Historical
  85. Perspective,” 76 Chi.-Kent L. Rev. 195, 213–14 (2000);
  86. Don Higginbotham, “The Federalized Militia Debate:
  87. A Neglected Aspect of Second Amendment Scholarship,”
  88. 55 William & Mary Q. 39, 47–50 (1998); Roy G. Weatherup,
  89. 4 Nos. 12-1269, 12-1788
  90. “Standing Armies and Armed Citizens: An Historical
  91. Analysis of the Second Amendment,” 2 Hastings Constitutional
  92. L.Q. 961, 994–95 (1975).
  93. The Supreme Court rejected the argument. The
  94. appellees ask us to repudiate the Court’s historical analysis.
  95. That we can’t do. Nor can we ignore the implication
  96. of the analysis that the constitutional right of armed selfdefense
  97. is broader than the right to have a gun
  98. in one’s home. The first sentence of the McDonald
  99. opinion states that “two years ago, in District of
  100. Columbia v. Heller, we held that the Second Amendment
  101. protects the right to keep and bear arms for the purpose
  102. of self-defense,” McDonald v. City of Chicago, supra, 130 S.
  103. Ct. at 3026, and later in the opinion we read
  104. that “Heller explored the right’s origins, noting that the
  105. 1689 English Bill of Rights explicitly protected a right
  106. to keep arms for self-defense, 554 U.S. at 593, and that
  107. by 1765, Blackstone was able to assert that the right
  108. to keep and bear arms was ‘one of the fundamental rights
  109. of Englishmen,’ id. at 594.” 130 S. Ct. at 3037. And immediately
  110. the Court adds that “Blackstone’s assessment
  111. was shared by the American colonists.” Id.
  112. Both Heller and McDonald do say that “the need
  113. for defense of self, family, and property is most acute”
  114. in the home, id. at 3036 (emphasis added); 554 U.S. at
  115. 628, but that doesn’t mean it is not acute outside the home.
  116. Heller repeatedly invokes a broader Second
  117. Amendment right than the right to have a gun in
  118. one’s home, as when it says that the amendment
  119. “guarantee[s] the individual right to possess and
  120. Nos. 12-1269, 12-1788 5
  121. carry weapons in case of confrontation.” 554 U.S. at 592.
  122. Confrontations are not limited to the home.
  123. The Second Amendment states in its entirety that “a
  124. well regulated Militia, being necessary to the security
  125. of a free State, the right of the people to keep and
  126. bear Arms, shall not be infringed” (emphasis added).
  127. The right to “bear” as distinct from the right to “keep”
  128. arms is unlikely to refer to the home. To speak of “bearing”
  129. arms within one’s home would at all times have been
  130. an awkward usage. A right to bear arms thus implies
  131. a right to carry a loaded gun outside the home.
  132. And one doesn’t have to be a historian to realize that
  133. a right to keep and bear arms for personal self-defense
  134. in the eighteenth century could not rationally
  135. have been limited to the home. Suppose one lived in
  136. what was then the wild west—the Ohio Valley for example
  137. (for until the Louisiana Purchase the Mississippi
  138. River was the western boundary of the United States),
  139. where there were hostile Indians. One would
  140. need from time to time to leave one’s home to
  141. obtain supplies from the nearest trading post, and en
  142. route one would be as much (probably more) at risk
  143. if unarmed as one would be in one’s home unarmed.
  144. The situation in England was different—there was
  145. no wilderness and there were no hostile Indians and
  146. the right to hunt was largely limited to
  147. landowners, Schwoerer, supra, at 34–35, who were
  148. few. Defenders of the Illinois law reach back to the
  149. fourteenth-century Statute of Northampton, which provided
  150. that unless on King’s business no man could “go nor
  151. 6 Nos. 12-1269, 12-1788
  152. ride armed by night nor by day, in Fairs, markets, nor in
  153. the presence of the Justices or other Ministers, nor in no
  154. part elsewhere.” 2 Edw. III, c. 3 (1328). Chief Justice Coke
  155. interpreted the statute to allow a person to possess weapons
  156. inside the home but not to “assemble force, though he
  157. be extremely threatened, to go with him to church,
  158. or market, or any other place.” Edward Coke, Institutes of
  159. the Laws of England 162 (1797). But the statute enumerated
  160. the locations at which going armed was thought
  161. dangerous to public safety (such as in fairs or
  162. in the presence of judges), and Coke’s reference to “assemble
  163. force” suggests that the statutory limitation of the
  164. right of self-defense was based on a concern with armed
  165. gangs, thieves, and assassins rather than with indoors
  166. versus outdoors as such.
  167. In similar vein Sir John Knight’s Case, 87 Eng. Rep. 75,
  168. 76 (K.B. 1686), interpreted the statute as punishing
  169. “people who go armed to terrify the King’s subjects.”
  170. Some weapons do not terrify the public (such
  171. as well-concealed weapons), and so if the statute was (as
  172. it may have been) intended to protect the public
  173. from being frightened or intimidated by the
  174. brandishing of weapons, it could not have applied to
  175. all weapons or all carriage of weapons. Blackstone’s
  176. summary of the statute is similar: “the offence of riding
  177. or going armed, with dangerous or unusual weapons, is
  178. a crime against the public peace, by terrifying the good
  179. people of the land.” 4 Commentaries on the Law of England
  180. 148–49 (1769) (emphasis added). Heller treated
  181. Blackstone’s reference to “dangerous or unusual weapons”
  182. as evidence that the ownership of some types of
  183. Nos. 12-1269, 12-1788 7
  184. firearms is not protected by the Second Amendment,
  185. 554 U.S. at 627, but the Court cannot have thought all
  186. guns are “dangerous or unusual” and can be banned,
  187. as otherwise there would be no right to keep a handgun
  188. in one’s home for self-defense. And while another
  189. English source, Robert Gardiner, The Compleat Constable
  190. 18–19 (3d ed. 1707), says that constables “may seize
  191. and take away” loaded guns worn or carried by persons
  192. not doing the King’s business, it does not specify
  193. the circumstances that would make the exercise of
  194. such authority proper, let alone would warrant a prosecution.
  195. Blackstone described the right of armed self-preservation
  196. as a fundamental natural right of Englishmen, on
  197. a par with seeking redress in the courts or petitioning
  198. the government. 1 Blackstone, supra, at 136,
  199. 139–40. The Court in Heller inferred from this that
  200. eighteenth-century English law recognized a right
  201. to possess guns for resistance, self-preservation, selfdefense,
  202. and protection against both public and
  203. private violence. 554 U.S. at 594. The Court said that
  204. American law was the same. Id. at 594–95. And in
  205. contrast to the situation in England, in less peaceable
  206. America a distinction between keeping arms for selfdefense
  207. in the home and carrying them outside the home
  208. would, as we said, have been irrational. All this is debatable
  209. of course, but we are bound by the Supreme
  210. Court’s historical analysis because it was central
  211. to the Court’s holding in Heller.
  212. 8 Nos. 12-1269, 12-1788
  213. Twenty-first century Illinois has no hostile Indians.
  214. But a Chicagoan is a good deal more likely to be
  215. attacked on a sidewalk in a rough neighborhood than in
  216. his apartment on the 35th floor of the Park Tower.
  217. A woman who is being stalked or has obtained a
  218. protective order against a violent ex-husband is more
  219. vulnerable to being attacked while walking to or from
  220. her home than when inside. She has a stronger self-defense
  221. claim to be allowed to carry a gun in public than
  222. the resident of a fancy apartment building (complete with
  223. doorman) has a claim to sleep with a loaded gun under
  224. her mattress. But Illinois wants to deny the former claim,
  225. while compelled by McDonald to honor the latter.
  226. That creates an arbitrary difference. To confine
  227. the right to be armed to the home is to divorce the Second
  228. Amendment from the right of self-defense described
  229. in Heller and McDonald. It is not a property right—a right
  230. to kill a houseguest who in a fit of aesthetic fury tries
  231. to slash your copy of Norman Rockwell’s painting
  232. Santa with Elves. That is not self-defense, and this case
  233. like Heller and McDonald is just about self-defense.
  234. A gun is a potential danger to more people if carried
  235. in public than just kept in the home. But the other
  236. side of this coin is that knowing that many law-abiding
  237. citizens are walking the streets armed may make criminals
  238. timid. Given that in Chicago, at least, most murders
  239. occur outside the home, Chicago Police Dep’t, Crime at
  240. a Glance: District 1 13 (Jan.–June 2010), the net effect
  241. on crime rates in general and murder rates in particular
  242. of allowing the carriage of guns in public is
  243. uncertain both as a matter of theory and empirically.
  244. Nos. 12-1269, 12-1788 9
  245. “Based on findings from national law assessments, crossnational
  246. comparisons, and index studies, evidence is
  247. insufficient to determine whether the degree or intensity
  248. of firearms regulation is associated with decreased (or
  249. increased) violence.” Robert A. Hahn et al., “Firearms
  250. Laws and the Reduction of Violence: A Systematic Review,”
  251. 28 Am. J. Preventive Med. 40, 59 (2005); cf.
  252. John J. Donohue, “The Impact of Concealed-Carry Laws,”
  253. in Evaluating Gun Policy Effects on Crime and Violence
  254. 287, 314–21 (2003). “Whether the net effect of relaxing
  255. concealed-carry laws is to increase or reduce the
  256. burden of crime, there is good reason to believe that the
  257. net is not large…. [T]he change in gun carrying appears
  258. to be concentrated in rural and suburban areas
  259. where crime rates are already relatively low, among people
  260. who are at relatively low risk of victimization—white,
  261. middle-aged, middle-class males. The available data
  262. about permit holders also imply that they are at fairly
  263. low risk of misusing guns, consistent with the relatively
  264. low arrest rates observed to date for permit holders.
  265. Based on available empirical data, therefore, we
  266. expect relatively little public safety impact if courts
  267. invalidate laws that prohibit gun carrying outside
  268. the home, assuming that some sort of permit system
  269. for public carry is allowed to stand.” Philip J. Cook,
  270. Jens Ludwig & Adam M. Samaha, “Gun Control After
  271. Heller: Threats and Sideshows from a Social Welfare
  272. Perspective,” 56 UCLA L. Rev. 1041, 1082 (2009); see
  273. also H. Sterling Burnett, “Texas Concealed Handgun
  274. Car r i e r s ; Law-Abiding Public Benefa c to r s , ”
  275. www.ncpa.org/pdfs/ba324.pdf (visited Oct. 29, 2012).
  276. But we note with disapproval that the opening brief
  277. 10 Nos. 12-1269, 12-1788
  278. for the plaintiffs in appeal no. 12-1788, in quoting the
  279. last sentence above from the article by Cook and
  280. his colleagues, deleted without ellipses the last
  281. clause—“assuming that some sort of permit system
  282. for public carry is allowed to stand.”
  283. If guns cannot be carried outside the home, an
  284. officer who has reasonable suspicion to stop and
  285. frisk a person and finds a concealed gun on him can
  286. arrest him, as in United States v. Mayo, 361 F.3d 802, 804-
  287. 08 (4th Cir. 2004), and thus take the gun off the
  288. street before a shooting occurs; and this is argued
  289. to support the ban on carrying guns outside the home. But
  290. it is a weak argument. Often the officer will have
  291. no suspicion (the gun is concealed, after all). And a state
  292. may be able to require “open carry”—that is,
  293. require persons who carry a gun in public to carry
  294. it in plain view rather than concealed. See District of
  295. Columbia v. Heller, supra, 554 U.S. at 626; James
  296. Bishop, Note, “Hidden or on the Hip: The Right(s) to
  297. Carry After Heller,” 97 Cornell L. Rev. 907, 920–21
  298. (2012). Many criminals would continue to conceal the
  299. guns they carried, in order to preserve the element
  300. of surprise and avoid the price of a gun permit; so
  301. the police would have the same opportunities (limited
  302. as they are, if the concealment is effective and the
  303. concealer does not behave suspiciously) that they do
  304. today to take concealed guns off the street.
  305. Some studies have found that an increase in gun ownership
  306. causes an increase in homicide rates. Mark
  307. Duggan’s study, reported in his article “More Guns, More
  308. Nos. 12-1269, 12-1788 11
  309. Crime,” 109 J. Pol. Econ. 1086, 1112 (2001), is
  310. exemplary; and see also Philip J. Cook & Jens
  311. Ludwig, “The Social Costs of Gun Ownership,” 90 J.
  312. Pub. Econ. 379, 387 (2006). But the issue in this case
  313. isn’t ownership; it’s carrying guns in public.
  314. Duggan’s study finds that even the concealed
  315. carrying of guns, which many states allow, doesn’t lead
  316. to an increase in gun ownership. 109 J. Pol. Econ.
  317. at 1106–07. Moreover, violent crime in the United
  318. States has been falling for many years and so
  319. has gun ownership, Patrick Egan, “The Declining Culture
  320. o f Gun s an d Vi o l e n c e in t h e Un i t e d
  321. States,” www.themonkeycage.org/blog/2012/07/21/thedeclining-
  322. culture-of-guns-and-violence-in-the-unitedstates
  323. (visited Oct. 29, 2012); see also Tom W.
  324. Smith, “Public Attitudes Towards the Regulation
  325. of Firearms” 10 (University of Chicago Nat’l
  326. Op i n i o n R e s e a r c h Cen t e r , Ma r . 2 0 0 7 ) ,
  327. 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
  328. Oct. 29, 2012)—in the same period in which gun laws
  329. have become more permissive.
  330. A few studies find that states that allow concealed
  331. carriage of guns outside the home and impose minimal
  332. restrictions on obtaining a gun permit have experienced
  333. increases in assault rates, though not in homicide
  334. rates. See Ian Ayres & John J. Donohue III, “More Guns,
  335. Less Crime Fails Again: The Latest Evidence From
  336. 1977–2006,” 6 Econ. J. Watch 218, 224 (2009). But it has
  337. not been shown that those increases persist.
  338. Of another, similar paper by Ayres and Donohue, “Shooting
  339. Down the ‘More Guns, Less Crime’ Hypothesis,”
  340. 12 Nos. 12-1269, 12-1788
  341. 55 Stan. L. Rev. 1193, 1270–85 (2003), it has been said
  342. that if they “had extended their analysis by one more year,
  343. they would have concluded that these laws
  344. [laws allowing concealed handguns to be carried
  345. in public] reduce crime.” Carlisle E. Moody & Thomas B.
  346. Marvell, “The Debate on Shall-Issue Laws,” 5 Econ. J.
  347. Watch 269, 291 (2008). Ayres and Donohue disagree
  348. that such laws reduce crime, but they admit that
  349. data and modeling problems prevent a strong claim
  350. that they increase crime. 55 Stan. L. Rev. at 1281–82, 1286–87;
  351. 6 Econ. J. Watch at 230–31.
  352. Concealed carriage of guns might increase the death
  353. rate from assaults rather than increase the number
  354. of assaults. But the studies don’t find that laws
  355. that allow concealed carriage increase the death
  356. rate from shootings, and this in turn casts doubt on
  357. the finding of an increased crime rate when concealed
  358. carriage is allowed; for if there were more confrontations
  359. with an armed criminal, one would expect more shootings.
  360. Moreover, there is no reason to expect Illinois
  361. to impose minimal permit restrictions on carriage
  362. of guns outside the home, for obviously this is not a state
  363. that has a strong pro-gun culture, unlike the
  364. states that began allowing concealed carriage before Heller
  365. and MacDonald enlarged the scope of Second Amendment
  366. rights.
  367. Charles C. Branas et al., “Investigating the Link
  368. Between Gun Possession and Gun Assault,” 99 Am. J.
  369. of Pub. Health 2034, 2037 (2009), finds that assault
  370. victims are more likely to be armed than the rest
  371. Nos. 12-1269, 12-1788 13
  372. of the population is, which might be thought evidence
  373. that going armed is not effective self-defense. But
  374. that finding does not illuminate the deterrent effect
  375. of knowing that potential victims may be armed.
  376. David Hemenway & Deborah Azrael, “The Relative
  377. Frequency of Offensive and Defensive Gun Uses:
  378. Results from a National Survey,” 15 Violence & Victims
  379. 257, 271 (2000), finds that a person carrying a gun
  380. is more likely to use it to commit a crime than
  381. to defend himself from criminals. But that is like saying
  382. that soldiers are more likely to be armed than civilians.
  383. And because fewer than 3 percent of gun-related
  384. deaths are from accidents, Hahn et al., supra, at
  385. 40, and because Illinois allows the use of guns in hunting
  386. and target shooting, the law cannot plausibly be defended
  387. on the ground that it reduces the accidental
  388. death rate, unless it could be shown that allowing guns to
  389. be carried in public causes gun ownership to increase,
  390. and we have seen that there is no evidence of that.
  391. In sum, the empirical literature on the effects
  392. of allowing the carriage of guns in public fails to establish
  393. a pragmatic defense of the Illinois law. Bishop,
  394. supra, at 922–23; Mark V. Tushnet, Out of Range: Why the
  395. Constitution Can’t End the Battle over Guns 110–11
  396. (2007). Anyway the Supreme Court made clear
  397. in Heller that it wasn’t going to make the right to bear
  398. arms depend on casualty counts. 554 U.S. at 636.
  399. If the mere possibility that allowing guns to be carried
  400. in public would increase the crime or death rates
  401. sufficed to justify a ban, Heller would have been
  402. decided the other way, for that possibility was as great
  403. in the District of Columbia as it is in Illinois.
  404. 14 Nos. 12-1269, 12-1788
  405. And a ban as broad as Illinois’s can’t be upheld
  406. merely on the ground that it’s not irrational. Ezell
  407. v. City of Chicago, 651 F.3d 684, 701 (7th Cir.
  408. 2011); United States v. Yancey, 621 F.3d 681, 683 (7th
  409. Cir. 2010) (per curiam); see also Heller v. District of Columbia,
  410. supra, 554 U.S. at 628 n. 27; United States v. Chester,
  411. 628 F.3d 673, 679–80 (4th Cir. 2010). Otherwise
  412. this court wouldn’t have needed, in United States v.
  413. Skoien, 614 F.3d 638, 643–44 (7th Cir. 2010) (en banc),
  414. to marshal extensive empirical evidence to justify the
  415. less restrictive federal law that forbids a person “who
  416. has been convicted in any court of a misdemeanor crime
  417. of domestic violence” to possess a firearm in
  418. or affecting interstate commerce. 18 U.S.C. § 922(g)(9).
  419. In Skoien we said that the government had to make a
  420. “strong showing” that a gun ban was vital to
  421. public safety—it was not enough that the ban was “rational.”
  422. 614 F.3d at 641. Illinois has not made that
  423. strong showing—and it would have to make a stronger
  424. showing in this case than the government did
  425. in Skoien, because the curtailment of gun rights was
  426. much narrower: there the gun rights of persons convicted
  427. of domestic violence, here the gun rights of the entire lawabiding
  428. adult population of Illinois.
  429. A blanket prohibition on carrying gun in public
  430. prevents a person from defending himself anywhere
  431. except inside his home; and so substantial a curtailment
  432. of the right of armed self-defense requires a
  433. greater showing of justification than merely that the
  434. public might benefit on balance from such a curtailment,
  435. though there is no proof it would. In contrast,
  436. Nos. 12-1269, 12-1788 15
  437. when a state bans guns merely in particular places, such
  438. as public schools , a person can preserve
  439. an undiminished right of self-defense by not
  440. entering those places; since that’s a lesser burden, the
  441. state doesn’t need to prove so strong a need. Similarly,
  442. the state can prevail with less evidence when, as
  443. in Skoien, guns are forbidden to a class of
  444. persons who present a higher than average risk of misusing
  445. a gun. See also Ezell v. City of Chicago, supra, 651 F.3d
  446. at 708. And empirical evidence of a public safety concern
  447. can be dispensed with altogether when the ban is
  448. limited to obviously dangerous persons such as felons
  449. and the mentally ill. Heller v. District of Columbia,
  450. supra, 554 U.S. at 626. Illinois has lots of options for protecting
  451. its people from being shot without having to eliminate
  452. all possibility of armed self-defense in public.
  453. Remarkably, Illinois is the only state that maintains
  454. a flat ban on carrying ready-to-use guns outside
  455. the home, though many states used to ban
  456. carrying concealed guns outside the home, Bishop,
  457. supra, at 910; David B. Kopel, “The Second Amendment
  458. in the Nineteenth Century,” 1998 BYU L. Rev. 1359,
  459. 1432–33 (1998)—a more limited prohibition than Illinois’s,
  460. however. Not even Massachusetts has so flat a ban
  461. as Illinois, though the District of Columbia does, see D.C.
  462. Code §§ 22-4504 to -4504.02, and a few states did
  463. during the nineteenth century, Kachalsky v. County
  464. of Westchester, Nos. 11-3642, -3962, 2012 WL 5907502, at
  465. *6 (2d Cir. Nov. 27, 2012)—but no longer.
  466. It is not that all states but Illinois are indifferent to
  467. the dangers that widespread public carrying of guns
  468. 16 Nos. 12-1269, 12-1788
  469. may pose. Some may be. But others have decided
  470. that a proper balance between the interest in self-defense
  471. and the dangers created by carrying guns in public is
  472. to limit the right to carry a gun to responsible persons
  473. rather than to ban public carriage altogether, as Illinois
  474. with its meager exceptions comes close to doing. Even
  475. jurisdictions like New York State, where officials have
  476. broad discretion to deny applications for gun
  477. permits, recognize that the interest in self-defense
  478. extends outside the home. There is no suggestion
  479. that some unique characteristic of criminal activity
  480. in Illinois justifies the state’s taking a different approach
  481. from the other 49 states. If the Illinois approach
  482. were demonstrably superior, one would expect at least
  483. one or two other states to have emulated it.
  484. Apart from the usual prohibitions of gun ownership
  485. by children, felons, illegal aliens, lunatics, and in
  486. sensitive places such as public schools, the propriety
  487. of which was not questioned in Heller (“nothing in
  488. this opinion should be taken to cast doubt on longstanding
  489. prohibitions on the possession of firearms by felons
  490. and the mentally ill, or laws forbidding the carrying
  491. of firearms in sensitive places such as schools and
  492. government buildings,” 554 U.S. at 626), some
  493. states sensibly require that an applicant for a
  494. handgun permit es t abl i s h his competence
  495. in handling firearms. A person who carries a
  496. gun in public but is not well trained in the use of firearms
  497. is a menace to himself and others. See Massad
  498. Ayoob, “The Subtleties of Safe Firearms Handling,”
  499. Backwoods Home Magazine, Jan./Feb. 2007, p.
  500. Nos. 12-1269, 12-1788 17
  501. 30; Debra L. Karch, Linda L. Dahlberg & Nimesh
  502. Patel, “Surveillance for Violent Deaths—National
  503. Violent Death Reporting System, 16 States, 2007,” Morbidity
  504. 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 ,
  505. www.cdc.gov/mmwr/pdf/ss/ss5904.pdf (visited Oct.
  506. 29, 2012). States also permit private businesses and
  507. other private institutions (such as churches) to ban
  508. guns from their premises. If enough private
  509. institutions decided to do that, the right to carry a
  510. gun in public would have much less value and might
  511. rarely be exercised—in which event the invalidation of
  512. the Illinois law might have little effect, which opponents of
  513. gun rights would welcome.
  514. Recently the Second Circuit upheld a New York state
  515. law that requires an applicant for a permit to carry
  516. a concealed handgun in public to demonstrate
  517. “proper cause” to obtain a license. Kachalsky v. County
  518. of Westchester, supra. This is the inverse of laws
  519. that forbid dangerous persons to have handguns;
  520. New York places the burden on the applicant to show
  521. that he needs a handgun to ward off dangerous persons.
  522. As the court explained, 2012 WL 5907502, at *13, New
  523. York “decided not to ban handgun possession, but to
  524. limit it to those individuals who have an actual
  525. reason (’proper cause’) to carry the weapon. In this
  526. vein , licensing is orient ed to the Second
  527. Ame n dme n t ’ s pr o t e c t i o ns…. [I ] n s t e ad of
  528. forbidding anyone from carrying a handgun in
  529. public, New York took a more moderate approach
  530. to fulfilling its important objective and reasonably concluded
  531. that only individuals having a bona fide reason
  532. 18 Nos. 12-1269, 12-1788
  533. to possess handguns should be allowed to introduce
  534. them into the public sphere.”
  535. The New York gun law upheld in Kachalsky, although
  536. one of the nation’s most restrictive such laws (under
  537. the law’s “proper cause” standard, an applicant for a
  538. gun permit must demonstrate a need for self-defense
  539. greater than that of the general public, such as being
  540. the target of personal threats, id. at *3, *8), is less restrictive
  541. than Illinois’s law. Our principal reservation about
  542. the Second Circuit ’s analy s i s (apart from
  543. disagreement, unnecessary to bore the reader with,
  544. with some of the historical analysis in the opinion—
  545. we regard the historical issues as settled by Heller)
  546. is its suggestion that the Second Amendment should
  547. have much greater scope inside the home than
  548. outside simply because other provisions of the Constitution
  549. have been held to make that distinction. For example,
  550. the opinion states that “in Lawrence v. Texas, the
  551. [Supreme] Court emphasized that the state’s efforts to
  552. regulate private sexual conduct between consenting adults
  553. is especially suspect when it intrudes into the home.”
  554. 2012 WL 5907502, at *9. Well of course—the interest in
  555. having sex inside one’s home is much greater than
  556. the interest in having sex on the sidewalk in front of
  557. one’s home. But the interest in self-protection is as great
  558. outside as inside the home. In any event the court in
  559. Kachalsky used the distinction between self-protection
  560. inside and outside the home mainly to suggest that a
  561. standard less demanding than “strict scrutiny” should
  562. govern the constitutionality of laws limiting the carrying
  563. of guns outside the home; our analysis is not
  564. Nos. 12-1269, 12-1788 19
  565. based on degrees of scrutiny, but on Illinois’s failure to
  566. justify the most restrictive gun law of any of the 50 states.
  567. Judge Wilkinson expressed concern in United States
  568. v. Masciandaro, 638 F.3d 458, 475 (4th Cir. 2011), that
  569. “there may or may not be a Second Amendment right
  570. in some places beyond the home, but we have no
  571. idea what those places are, what the criteria for selecting
  572. them should be, what sliding scales of scrutiny
  573. might apply to them, or any one of a number
  574. of other questions. It is not clear in what
  575. places public authorities may ban firearms altogether
  576. without shouldering the burdens of litigation.
  577. The notion that ‘self-defense has to take place wherever
  578. [a] person happens to be,’ appears to us to portend
  579. all sorts of litigation over schools, airports,
  580. parks, public thoroughfares, and various additional
  581. government facilities…. The whole matter strikes us
  582. as a vast terra incognita that courts should enter only
  583. upon necessity and only then by small degree” (citation
  584. omitted). Fair enough; but that “vast terra incognita”
  585. has been opened to judicial exploration by Heller and
  586. McDonald. There is no turning back by the lower federal
  587. courts, though we need not speculate on the limits
  588. that Illinois may in the interest of public safety constitutionally
  589. impose on the carrying of guns in public; it
  590. is enough that the limits it has imposed go too far.
  591. The usual consequence of reversing the dismissal of
  592. a suit (here a pair of suits) is to remand the case for evidentiary
  593. proceedings preparatory to the filing of motions
  594. for summary judgment and if those motions fail to an
  595. 20 Nos. 12-1269, 12-1788
  596. eventual trial. But there are no evidentiary issues in
  597. these two cases. The constitutionality of the challenged
  598. statutory provisions does not present factual questions
  599. for determination in a trial. The evidence marshaled in
  600. the Skoien case was evidence of “legislative facts,” which
  601. is to say facts that bear on the justification for legislation,
  602. as distinct from facts concerning the conduct of parties
  603. in a particular case (“adjudicative facts”). See Fed. R. Evid.
  604. 201(a); Advisory Committee Note to Subdivision (a) of
  605. 1972 Proposed Rule [of Evidence] 201. Only adjudicative
  606. facts are determined in trials, and only legislative facts
  607. are relevant to the constitutionality of the Illinois gun law.
  608. The key legislative facts in this case are the effects
  609. of the Illinois law; the state has failed to show
  610. that those effects are positive.
  611. We are disinclined to engage in another round of historical
  612. analysis to determine whether eighteenth-century
  613. America understood the Second Amendment to include
  614. a right to bear guns outside the home. The Supreme
  615. Court has decided that the amendment confers
  616. a right to bear arms for self-defense, which is as
  617. important outside the home as inside. The theoretical
  618. and empirical evidence (which overall is inconclusive)
  619. is consistent with concluding that a right to
  620. carry firearms in public may promote self-defense. Illinois
  621. had to provide us with more than merely a rational basis
  622. for believing that its uniquely sweeping ban is justified
  623. by an increase in public safety. It has failed to meet
  624. this burden. The Supreme Court’s interpretation of
  625. the Second Amendment therefore compels us to reverse
  626. the decisions in the two cases before us and remand
  627. Nos. 12-1269, 12-1788 21
  628. them to their respective district courts for the entry
  629. of dec la ra tions of unconst itut ional it y and
  630. permanent injunctions. Nevertheless we order our mandate
  631. stayed for 180 days to allow the Illinois
  632. legislature to craft a new gun law that will
  633. impose reasonable limitations, consistent with the public
  634. safety and the Second Amendment as interpreted in
  635. this opinion, on the carrying of guns in public.
  638. WILLIAMS, Circuit Judge, dissenting. The Supreme
  639. Court’s decisions in Heller and McDonald made clear
  640. that persons in the state of Illinois (unless otherwise
  641. disqualified) must be allowed to have handguns
  642. in their homes for self-defense. But those cases
  643. did not resolve the question in this case—whether the
  644. Second Amendment also requires a state to allow persons
  645. to carry ready-to-use firearms in public for potential selfdefense.
  646. The majority opinion presents one reading
  647. of Heller and McDonald in light of the question presented
  648. here, and its reading is not unreasonable. But I
  649. think the issue presented is closer than the majority
  650. makes it out to be. Whether the Second Amendment
  651. 22 Nos. 12-1269, 12-1788
  652. protects a right to carry ready-to-use firearms in public
  653. for potential self-defense requires a different analysis from
  654. that conducted by the Court in Heller and McDonald.
  655. Ultimately, I would find the result here
  656. different as well and would affirm the judgments of
  657. the district courts.
  658. Heller’s approach suggests that judges are to examine
  659. the historical evidence and then make a determination
  660. as to whether the asserted right, here the right to carry
  661. ready-to-use arms in public (in places other than
  662. those permitted by the Illinois statute) for potential selfdefense,
  663. is within the scope of the Second Amendment.
  664. (Heller has been criticized for reasons including that judges
  665. are not historians.) In making this historical inquiry,
  666. and in assessing whether the right was a generally recognized
  667. one, I agree with the majority that the relevant
  668. date is 1791, the date of the Second Amendment’s ratification.
  669. See Maj. Op. at 3. But I do not agree that the Supreme
  670. Court in Heller rejected the argument that the State
  671. makes here, nor do I think the State’s argument
  672. effectively asks us to repudiate Heller’s historical analysis.
  673. The historical inquiry here is a very different
  674. one. Heller did not assess whether there was a pre-existing
  675. right to carry guns in public for self-defense. By asking
  676. us to make that assessment, the State is not asking
  677. us to reject the Court’s historical analysis in Heller;
  678. rather, it is being true to it. As I see it, the State embraces
  679. Heller’s method of analysis and asks us to conduct it
  680. for the different right that is being asserted. I am not
  681. the only one to think that Heller did not settle the
  682. Nos. 12-1269, 12-1788 23
  683. historical issues. The Second Circuit’s recent
  684. unanimous decision upholding New York’s “proper cause”
  685. prerequisite to obtaining a license to carry a handgun
  686. in publ ic r e cogn ized and dis cu ss ed the
  687. different historical inquiry that occurs when the
  688. asserted right is to possess a handgun in public.
  689. See Kachalsky v. County of Westchester, 2012 WL 5907502,
  690. at *6-7, *10-11 (2d Cir. Nov. 27, 2012). (Under the New York
  691. law that the Second Circuit upheld, “[a] generalized
  692. desire to carry a concealed weapon to protect one’s
  693. person and property does not constitute ‘proper cause,’ ”
  694. and “[g]ood moral character plus a simple desire
  695. to carry a weapon is not enough.” Id. at *3 (internal citations
  696. and quotations omitted)).
  697. Heller tells us that “the Second Amendment was
  698. not intended to lay down a novel principle
  699. but rather codified a right inherited from our English
  700. ancestors.” Heller, 554 U.S. at 599 (internal quotations
  701. omitted). For our English ancestors a man’s home
  702. was his castle, and so he had broad powers to
  703. defend himself there. See 4 William Blackstone, Commentaries
  704. on the Laws of England 223 (1769). The focus of Heller’s
  705. historical examination was on whether the Second Amendment
  706. included an individual right to bear arms
  707. or whether that right was limited to militia service.
  708. Once the Heller majority found that the Second Amendment
  709. was personal, the conclusion that one could
  710. possess ready-to-use firearms in the home for selfdefense
  711. there makes sense in light of the home-as-castle
  712. history.
  713. 24 Nos. 12-1269, 12-1788
  714. It is less clear to me, however, that a widely
  715. understood right to carry ready-to-use arms in
  716. public for potential self-defense existed at the time of
  717. the founding. Cf. Heller, 554 U.S. at 605 (rejecting argument
  718. by dissenters and stating, “That simply does not comport
  719. with our longstanding view that the Bill of Rights
  720. codified venerable, widely understood liberties.”).
  721. In contrast to inside the home, where one could largely
  722. do what he wished, there was a long history of regulating
  723. arms in public. The 1328 Statute of Northampton,
  724. quoted by the majority on page 6, provided in relevant
  725. part that no man could “go nor ride armed by night
  726. nor by day, in Fairs, markets, nor in the presence of
  727. the Justices or other Ministers, nor in no part elsewhere.”
  728. 2 Edw. III, c. 3 (1328). If the words of a statute
  729. are supreme, the words of the Statute of Northampton
  730. expressly prohibit going or riding while “armed,” whether
  731. at night or in the day, whether the arms are visible
  732. or hidden. And the statute contains no intent requirement.
  733. So the Statute of Northampton, by its terms, prohibited
  734. going armed in public.
  735. This matters because the Statute of Northampton and
  736. its principles did not disappear after its enactment in
  737. 1328. The leading scholars relied upon at the time
  738. of our country’s founding also turned to the Statute
  739. of Northampton as they discussed criminal offenses
  740. . Massachusetts, North Carol ina, and
  741. Virginia incorporated the Statute of Northampton
  742. in the years immediately after the Constitution’s adoption.
  743. See Patrick J. Charles, The Faces of the Second
  744. Amendment Outside the Home: Historical Versus
  745. Nos. 12-1269, 12-1788 25
  746. Ahistorical Standards of Review, 60 Clev. St. L. Rev. 1, 31-
  747. 32 (2012). Although the plaintiffs suggest that later generations
  748. did not view the Statute of Northampton
  749. to mean what its terms said, whether that is true
  750. is not obvious. William Blackstone, cited frequently
  751. by the Heller majority, for example, summarized the
  752. Statute of Northampton as he explained public
  753. wrongs. He wrote, “[t]he offense of riding or going armed
  754. with dangerous or unusual weapons, is a crime against
  755. the public peace, by terrifying the good people of the
  756. land; and is particularly prohibited by the Statute
  757. of Northampton, upon pain of forfeiture of the
  758. arms, and imprisonment during the king’s pleasure:
  759. in like manner as, by the laws of Solon, every Athenian
  760. was finable who walked about the city in armour.”
  761. 4 Blackstone, supra, 148-49 (internal citation omitted);
  762. see also Eugene Volokh, The First and Second Amendments,
  763. 109 Colum. L. Rev. Sidebar 97, 101 (2009) (recognizing
  764. that Blackstone summarized the Statute of Northampton
  765. in this passage).
  766. Some, like the plaintiffs, read Blackstone to mean that the
  767. Statute of Northampton was understood to
  768. cover only those circumstances where the carrying of
  769. arms was unusual and therefore terrifying. But that
  770. seems to be a strained reading of Blackstone’s words.
  771. The more natural reading is that Blackstone states
  772. that riding or going armed with dangerous weapons
  773. is an offense and is a crime against the public peace.
  774. He then explains why the offense of riding or
  775. going armed with dangerous weapons is a crime against
  776. the public peace—because doing so makes people terrified
  777. or nervous. Notably, Blackstone compares going
  778. 26 Nos. 12-1269, 12-1788
  779. armed with dangerous weapons to the mere act of
  780. walking around a city in armor, which was prohibited
  781. in ancient Greece. The comparison suggests that just
  782. as seeing a person walking around a city in
  783. armor would cause other citizens to be nervous, regardless
  784. of any affirmative action, so would the reaction be
  785. to seeing another carrying dangerous weapons in a populated
  786. area.
  787. It is true as the majority states that Sir John Knight’s
  788. Case, 87 Eng. Rep. 75 (K.B. 1686), stated that the meaning
  789. of the Statute of Northampton “was to punish people
  790. who go armed to terrify the King’s subjects.” But it immediately
  791. followed that statement by saying that
  792. “[i]t is likewise a great offence at the common law, as
  793. if the King were not able or willing to protect
  794. his subjects; and therefore this Act is but an affirmance
  795. of that law.” The case is consistent with the idea that
  796. going armed in the public arena with dangerous
  797. weapons without government permission, by its nature,
  798. terrifies the people, whether the arms can be seen
  799. or not. See Charles, supra, at 28 (examining background
  800. and implications of case and explaining that persons
  801. who were the “King’s Officers and Ministers in doing
  802. their Office” were exempt from punishment under
  803. the Statute, which explains Sir Knight’s acquittal).
  804. Robert Gardiner’s The Compleat Constable, written
  805. for seventeenth- and eighteenth-century British
  806. constables, comports with the understanding that
  807. the Statute of Northampton’s intent was to prohibit
  808. the carrying of any weapon that might “endanger
  809. Nos. 12-1269, 12-1788 27
  810. society among the concourse of the people,” Charles,
  811. supra, at 23, and that it was an affirmation of governmental
  812. police authority, as well as that “dangerous weapons”
  813. included guns, id. at 23-24. The Compleat
  814. Constable stated, with a specific reference to “guns,”
  815. that a British constable could arrest upon seeing
  816. any person ride or go armed offensively, “in Fairs or
  817. Markets or elsewhere, by Day or by Night, in affray of Her
  818. Majesties Subjects, and Breach of the Peace; or wear
  819. or carry any Daggers, Guns, or Pistols Charged.”
  820. Robert Gardiner, The Compleat Constable 18-19 (3d
  821. ed. 1707). The only exceptions were for persons serving
  822. Her Majesty, sheriffs and their officers, and those “pursuing
  823. Hue and Cry, in Case of Felony, and other Offences
  824. against the Peace.” Id. at 19.
  825. Sir Edward Coke also discussed the Statute
  826. of Northampton, and he interpreted it to allow
  827. persons to keep weapons inside the home, explaining
  828. that a man’s home was his castle. As the majority
  829. notes, Coke also stated that one could not assemble force to
  830. go out in public. But that does not necessarily mean
  831. that persons were free to carry arms for potential
  832. personal self-defense. Indeed, in Coke’s explanation of
  833. the Statute, he recounted the case of Sir Thomas
  834. Figett, who was arrested after he “went armed under
  835. his garments, as well as in the palace, as before
  836. the justice of the kings bench.” Edward Coke, Institutes of
  837. the Laws of England 161-62 (1797). In his defense, Figett
  838. said there “had been debate” between him and
  839. another earlier in the week, “and therefore for
  840. doubt of danger, and safeguard of his life, he went so
  841. 28 Nos. 12-1269, 12-1788
  842. armed.” Id. at 162. Nonetheless, he was ordered to
  843. forfeit his arms and suffer imprisonment at the king’s
  844. pleasure. Id.
  845. I also note that in examining the contours of the proposed
  846. right, the majority looks to the perspective of
  847. an Ohio frontiersman. But it seems that when
  848. evaluating the rights originally embodied in the
  849. Second Amendment, looking to the margins should
  850. not be the inquiry. Cf Heller, 554 U.S. at 605. We have
  851. already observed that there were a number of laws
  852. in our country around the time of the founding that
  853. limited the discharge of firearms in public cities.
  854. See Ezell v. City of Chicago, 651 F.3d 684, 705 (7th Cir. 2011)
  855. (“The City points to a number of founding-era, antebellum,
  856. and Rec ons t ruc t ion state and local laws
  857. that limited discharge of firearms in urban environments.”);
  858. id. at 705-06 & nn.13-14; id. at 713-14 (Rovner, J.,
  859. concurring) (observing that “none of the 18th and 19th
  860. century jurisdictions cited by the City . . . were apparently
  861. concerned that banning or limiting the discharge
  862. of firearms within city limits would seriously impinge
  863. the rights of gun owners” and that some of the early
  864. laws’ concern with fire suppression reflected that
  865. “public safety was a paramount value to our ancestors”
  866. that sometimes trumped a right to discharge
  867. a firearm in a particular place). So while there are a
  868. variety of other sources and authorities, the ones I
  869. have discussed suggest that there was not a clear
  870. historical consensus that persons could carry guns
  871. in public for self-defense. See also Kachalsky, 2012
  872. WL 5907502, at *6 (stating that unlike the ban
  873. Nos. 12-1269, 12-1788 29
  874. on handguns in the home at issue in Heller, “[h]istory
  875. and tradition do not speak with one voice” regarding
  876. scope of right to bear arms in public and that
  877. “[w]hat history demonstrates is that states often
  878. disagreed as to the scope of the right to bear arms
  879. [in public]”).
  880. I will pause here to state that I am not convinced
  881. that the implication of the Heller and McDonald decisions
  882. is that the Second Amendment right to have ready-to-use
  883. firearms for potential self-defense extends beyond
  884. the home. That the Second Amendment speaks
  885. of the “right of the people to keep and bear arms”
  886. (emphasis added) does not to me imply a right to carry
  887. a loaded gun outside the home. Heller itself
  888. demonstrates this. The Court interpreted “bear” to mean
  889. to “carry” or to “wear, bear, or carry,” upon one’s person,
  890. for the purpose of being armed and ready in
  891. case of conflict. Heller, 554 U.S. at 584. And we know
  892. that Heller contemplated that a gun might only be carried
  893. in the home because it ordered the District of Columbia
  894. to permit Heller to do precisely that: it directed
  895. that unless Heller was otherwise disqualified, the District
  896. must allow him “to register his handgun and
  897. must issue him a license to carry it in the home.” Id. at 635
  898. (emphasis added). Mr. Heller did not want simply
  899. “to keep” a gun in his closet. He wanted to be able
  900. “to bear” it in case of self-defense, and the Supreme
  901. Court said he could.
  902. We have warned against “treat[ing] Heller as containing
  903. broader holdings than the Court set out to establish:
  904. 30 Nos. 12-1269, 12-1788
  905. that the Second Amendment creates individual rights,
  906. one of which is keeping operable handguns at home
  907. for self-defense. . . . Judicial opinions must not be
  908. confused with statutes, and general expressions must
  909. be read in light of the subject under consideration.”
  910. See United States v. Skoien, 614 F.3d 638, 640 (7th
  911. Cir. 2010) (en banc). The Supreme Court made clear in
  912. Heller and McDonald that its holdings only applied
  913. to handguns in the home for self-defense. See, e.g.,
  914. id.; Heller, 554 U.S. at 635 (“And whatever else it leaves
  915. to future evaluation, it surely elevates above all
  916. other interests the right of law-abiding, responsible
  917. citizens to use arms in defense of hearth and home.”).
  918. The Court’s language must be read in that light.
  919. The plaintiffs point, for example, to Heller’s statement
  920. t ha t the operative clause of the Second
  921. Amendment guarantees “the individual right to
  922. possess and carry weapons in case of confrontation.”
  923. 554 U.S. at 592. But Heller makes this statement in
  924. the portion of its opinion supporting the conclusion
  925. that the Second Amendment included a personal right,
  926. as compared to one solely related to the militia. See id.
  927. at 592-95. The plaintiffs also point out that Heller
  928. stated that the need for self-defense is “most acute”
  929. in the home, which they argue implies that there is
  930. a Second Amendment right to possess ready-to-use
  931. firearms in places outside the home. See id. at 628. But
  932. the Court made this comment in the context of its conclusion
  933. that the District of Columbia handgun ban applied
  934. in the home; the fact that the need was acute in the
  935. home emphasized that the fatal flaw in the handgun
  936. ban was that it applied in the home. See id. at 628-30.
  937. Nos. 12-1269, 12-1788 31
  938. By all this I do not mean to suggest that historical
  939. evidence definitively demonstrates there was not a right
  940. to carry arms in public for self-defense at the time
  941. of the founding. The plaintiffs point to other authorities
  942. that they maintain reveal the opposite. At best,
  943. the history might be ambiguous as to whether there is
  944. a right to carry loaded firearms for potential self-defense
  945. outside the home. But if that is the case, then it
  946. does not seem there was “a venerable, widely understood”
  947. right to do so. That may well mean that the right
  948. the plaintiffs seek here is outside the scope of the Second
  949. Amendment. Perhaps under Heller’s rationale
  950. that the Second Amendment codified a preexisting
  951. right, with history not seeming to clearly support a generally
  952. recognized right, the analysis ends right here.
  953. II.
  954. We said in Ezell that “if the historical evidence is inconclusive
  955. or suggests that the regulated activity is not categorically
  956. unprotected—then there must be a second
  957. inquiry into the strength of the government’s
  958. justification for restricting or regulating the exercise
  959. of Second Amendment rights.” 651 F.3d at 703. In
  960. doing so, we stated that “the rigor of this judicial
  961. review will depend on how close the law comes to the
  962. core of the Second Amendment right and the severity
  963. of the law’s burden on the right.” Id. Any right to
  964. carry firearms in public for potential self-defense, if
  965. there is one, is not at the “core” of the Second Amendment.
  966. See Kachalsky, 2012 WL 5907502, at *9; United States
  967. v. Marzzarella, 614 F.3d 85, 92 (3d Cir. 2010).
  968. 32 Nos. 12-1269, 12-1788
  969. The Supreme Court made clear in Heller that “nothing
  970. in [its] opinion should be taken to cast doubt on longstanding
  971. prohibitions on the possession of firearms by
  972. felons and the mentally ill, or laws forbidding the carrying
  973. of firearms in sensitive places such as schools and government
  974. buildings . . . .” 554 U.S. at 626. McDonald
  975. made sure to “repeat those assurances.” McDonald, 130 S.
  976. Ct. at 3047. That a legislature can forbid the carrying
  977. of firearms in schools and government buildings
  978. means that any right to possess a gun for self-defense
  979. outside the home is not absolute, and it is not absolute
  980. by the Supreme Court’s own terms.
  981. Indeed, the Supreme Court would deem it presumptively
  982. permissible to outright forbid the carrying of firearms
  983. in certain public places, but that does not mean that a selfdefense
  984. need never arises in those places. The
  985. teacher being stalked by her ex-husband is susceptible
  986. at work, and in her school parking lot, and on the
  987. school playground, to someone intent on harming her.
  988. So why would the Supreme Court reassure us that
  989. a legislature can ban guns in certain places? It must be
  990. out of a common-sense recognition of the risks that
  991. arise when guns are around.
  992. Any right to carry loaded firearms outside the home for
  993. self-defense is, under Heller’s own terms, susceptible to a
  994. legislative determination that firearms should not
  995. be allowed in certain public places. The Supreme
  996. Court tells us that a state can forbid guns in schools.
  997. That probably means it can forbid guns not just inside
  998. the school building, but also in the playground and
  999. Nos. 12-1269, 12-1788 33
  1000. parking lot and grassy area on its property too. And if
  1001. a state can ban guns on school property, perhaps it can
  1002. ban them within a certain distance of a school too. Cf.
  1003. 18 U.S.C. § 922(q)(2)(A). The Supreme Court also
  1004. tells us that a state can ban guns in government buildings.
  1005. The list of such buildings would seem to include
  1006. post offices, courthouses, libraries, Department of Motor
  1007. Vehicle facilities, city halls, and more. And the legislature
  1008. can ban firearms in other “sensitive places” too.
  1009. So maybe in a place of worship. See GeorgiaCarry.Org
  1010. v. Georgia, 687 F.3d 1244 (11th Cir. 2012) (upholding
  1011. ban on firearms in places of worship). Maybe too on
  1012. the grounds of a public university. See DiGiacinto
  1013. v. Rector & Visitors of George Mason Univ., 704 S.E.2d
  1014. 365 (Va. 2011) (upholding regulation prohibiting possession
  1015. of guns in university facilities and at campus events).
  1016. Or in an airport, or near a polling place, or in a bar. And
  1017. if the latter is true then perhaps a legislature could
  1018. ban loaded firearms any place where alcohol is sold,
  1019. so in restaurants and convenience stores as well.
  1020. The resulting patchwork of places where loaded guns
  1021. could and could not be carried is not only odd but
  1022. also could not guarantee meaningful self-defense, which
  1023. suggests that the constitutional right to carry ready-to-use
  1024. firearms in public for self-defense may well not exist.
  1025. It is difficult to make sense of what Heller means
  1026. for carrying guns in public for another notable reason.
  1027. Immediately before the sentence giving a presumption of
  1028. lawfulness to bans on guns for felons and the like, Heller
  1029. states: “Like most rights, the right secured by the Second
  1030. Amendment is not unlimited. From Blackstone through
  1031. 34 Nos. 12-1269, 12-1788
  1032. the 19th-century cases, commentators and courts routinely
  1033. explained that the right was not a right to keep and carry
  1034. any weapon whatsoever in any manner whatsoever and for
  1035. whatever purpose. For example, the majority of the 19thcentury
  1036. courts to consider the question held that prohibitions on
  1037. carrying concealed weapons were lawful under the Second
  1038. Amendment or state analogues.” 554 U.S. at 626 (emphasis
  1039. added and internal citations omitted). The implication of
  1040. the Supreme Court’s statement would seem to be that
  1041. concealed carry is not within the scope of the Second
  1042. Amendment (or at the least that that is the presumption).
  1043. See, e.g., Nelson Lund, The Second Amendment, Heller, and
  1044. Originalist Jurisprudence, 56 UCLA L. Rev. 1343, 1359
  1045. (2009) (“This appears to be an endorsement of yet
  1046. another exception to the constitutional right.”);
  1047. Hightower v. City of Boston, 693 F.3d 61, 73 (1st Cir.
  1048. 2012) (interpreting this language to mean that laws prohibiting
  1049. the carrying of concealed weapons are
  1050. an example of presumptively lawful restrictions);
  1051. Eugene Volokh, Implementing the Right to Keep and
  1052. Bear Arms for Self-Defense: An Analytical Framework and
  1053. a Research Agenda, 56 UCLA L. Rev. 1443, 1523-24 (2009).
  1054. That would not be the first time the Supreme Court
  1055. had made such a statement. See Robertson v. Baldwin,
  1056. 165 U.S. 275, 281-82 (1897) (stating in dicta that
  1057. Second Amendment right “is not infringed by laws prohibiting
  1058. the carrying of concealed weapons”).
  1059. If carrying concealed weapons is outside the scope
  1060. of the Second Amendment, the consequence would
  1061. be significant. “‘In the nineteenth century, concealed
  1062. carry was often considered outside the scope of the
  1063. Nos. 12-1269, 12-1788 35
  1064. right to bear arms. Today, it is the most common way
  1065. in which people exercise their right to bear
  1066. arms.’ ” Joseph Blocher, The Right Not to Keep or Bear
  1067. Arms, 64 Stan. L. Rev. 1, 45 (2012) (quoting David B. Kopel,
  1068. The Right to Arms in the Living Constitution, 2010 Cardozo
  1069. L. Rev. 99, 136 (2010)). And, as the Moore plaintiffs acknowledge
  1070. in their brief, “today, openly carrying handguns
  1071. may alarm individuals unaccustomed to firearms.”
  1072. The implication, as explained by Nelson
  1073. Lund (author of the Second Amendment Foundation’s
  1074. amicus curiae brief in Heller in support of Mr. Heller):
  1075. “In some American jurisdictions today, for example,
  1076. openly carrying a firearm might plausibly be thought
  1077. to violate the ancient common law prohibition
  1078. against ‘terrifying the good people of the land’ by
  1079. going about with dangerous and unusual weapons.
  1080. If courts were to conclude that open carry violates
  1081. this common law prohibition (and thus is not within
  1082. the preexisting right protected by the Second Amendment),
  1083. after Heller has decreed that bans on concealed carry
  1084. are per se valid, the constitutional right to bear
  1085. arms would effectively cease to exist.” Lund, supra, at 1361-
  1086. 62. (To be clear, if there is a Second Amendment right
  1087. to carry arms outside the home for potential selfdefense
  1088. in Illinois as my colleagues have found, I
  1089. am not suggesting that Illinois should not implement
  1090. concealed carry laws.)
  1091. If there is any right to carry ready-to-use firearms
  1092. among the public for potential self-defense,
  1093. the plaintiffs contend the Illinois statutes must be unconstitutional
  1094. because their ban is far-reaching. But I
  1095. see the question as somewhat more nuanced.
  1096. 36 Nos. 12-1269, 12-1788
  1097. Protecting the safety of its citizens is unquestionably a
  1098. sign if icant sta t e intere s t. United States v.
  1099. Salerno, 481 U.S. 739, 748 (1987); Kelley v. Johnson, 425
  1100. U.S. 238, 247 (1976). Illinois chose to enact the statutes
  1101. here out of concern for the safety of its citizens. See
  1102. People v. Marin, 795 N.E.2d 953, 959-62 (Ill. App. Ct. 2003).
  1103. Given the State’s obvious interest in regulating the safety
  1104. of its citizens, the question is who determines the contours
  1105. of any right to carry ready-to-use firearms for self-defense
  1106. in public when they are unsettled as a matter
  1107. of both original history and pol icy. The
  1108. Heller majority concluded that “enshrinement of constitutional
  1109. rights necessarily takes certain policy choices off
  1110. the table . . . includ[ing] the absolute prohibition of handguns
  1111. held and used for self-defense in the home.”
  1112. 554 U.S. at 636. But “as we move outside the home, firearm
  1113. rights have always been more limited, because public
  1114. safety interests often outweigh individual interests in selfdefense.”
  1115. United States v. Masciandro, 638 F.3d 458, 470
  1116. (4th Cir. 2011).
  1117. The Supreme Court has told us that we
  1118. must “accord substant ial deference to the
  1119. predictive judgments of [the legislature].” Turner
  1120. Broad. Sys., Inc. v. F.C.C., 520 U.S. 180, 195 (1997). “In
  1121. the context of firearm regulation, the legislature is
  1122. ‘far better equipped than the judiciary’ to make
  1123. sensitive policy judgments (within constitutional limits)
  1124. concerning the dangers in carrying firearms
  1125. and the manner to combat those risks.” Kachalsky,
  1126. 2012 WL 5907502, at *12. The legislature knows the statisNos.
  1127. 12-1269, 12-1788 37
  1128. 1State courts that have addressed a state constitutional right to
  1129. bear arms have used a “reasonable regulation” standard, a test
  1130. that is more deferential than intermediate scrutiny but
  1131. that, unlike the interest-balancing test proposed in Justice
  1132. Breyer’s Heller dissent, does not permit states to prohibit all
  1133. firearm ownership. See, e.g., State v. Hamdan, 665 N.W.2d 785,
  1134. 798-801 (Wis. 2003); Adam Winkler, Scrutinizing the Second
  1135. Amendment, 105 Mich. L. Rev. 683, 686-87 (2007) (discussing
  1136. “hundreds” of state court opinions using this test).
  1137. tics and is in a far better position than we are to
  1138. weigh their import. Illinois reasonably wants to try
  1139. to reduce the incidence of death and injury
  1140. by firearms, both those which come from affirmative acts
  1141. of violence and also the many deaths and injuries that
  1142. occur accidentally, and doing so by taking them off the
  1143. streets is a legislative judgment substantially related to
  1144. its important governmental objective of reducing injury
  1145. and death by firearms.1
  1146. It is common sense, as the majority recognizes, that a
  1147. gun is dangerous to more people when carried outside
  1148. the home. See Maj. Op. at 8. When firearms are
  1149. carried outside of the home, the safety of a broader
  1150. range of citizens is at issue. The risk of being injured
  1151. or kil led now extends to s t rangers , law
  1152. enforcement personnel, and other private citizens
  1153. who happen to be in the area. Cf. David
  1154. Hemenway & Deborah Azrael, The Relative Frequency of
  1155. Offensive and Defensive Gun Uses: Results from a National
  1156. Survey, 15 Violence & Victims 257, 271 (2000) (finding
  1157. that guns are used “far more often to kill and wound
  1158. 38 Nos. 12-1269, 12-1788
  1159. innocent victims than to kill and wound criminals”).
  1160. Indeed, the Illinois legislature was not just concerned
  1161. with “crime rates” and “murder rates” when it passed
  1162. the law. Cf. Maj. Op. at 8. It also sought to “prevent
  1163. situations where no criminal intent existed, but criminal
  1164. conduct resulted despite the lack of intent, e.g., accidents
  1165. with loaded guns on public streets or the escalation
  1166. of minor public altercations into gun battles or . . . the
  1167. danger of a police officer stopping a car with a loaded
  1168. weapon on the passenger seat.” See Marin, 795 N.E.2d at
  1169. 962. The danger of such situations increases if guns may
  1170. be carried outside the home.
  1171. That the percentage of reported accidental gun-related
  1172. deaths is lower as compared to suicide (which accounts for
  1173. the majority of firearms-related deaths) and murder,
  1174. see Robert A. Hahn et al., Firearms Laws and the Reduction
  1175. of Violence: A Systematic Review, 28 Am. J. Preventive
  1176. Med. 40, 40 (2005), does not make the Illinois law invalid.
  1177. First, in those statistics, “[u]nintentional firearm-related
  1178. deaths appear to be substantially undercounted
  1179. (i.e., misclassified as due to another cause),” id. at 47, and
  1180. in any event the State has a significant interest in
  1181. reducing the risk of accidental firearms-related deaths
  1182. as well as accidental injuries. The majority says the
  1183. law cannot be justified on the ground that it reduces
  1184. the accidental death rate unless it could be shown
  1185. that allowing guns to be carried in public causes
  1186. gun ownership to increase. See Maj. Op. at 13. But
  1187. whether gun ownership increases is not the question. See
  1188. id. at 10-11. It is not the number of guns owned that
  1189. matters but where the guns are carried. Illinois already
  1190. Nos. 12-1269, 12-1788 39
  1191. allows people to own and have guns in their homes;
  1192. however, they cannot carry them in public. The Illinois
  1193. legislature reasonably concluded that if people are allowed
  1194. to carry guns in public, the number of guns carried in
  1195. public will increase, and the risk of firearms-related injury
  1196. or death in public will increase as well. Cf. Marin, 795
  1197. N.E.2d at 959-62.
  1198. And it is also common sense that the danger is a great
  1199. one; firearms are lethal. Cf. Skoien, 614 F.3d at 642
  1200. (“guns are about five times more deadly than knives,
  1201. given that an attack with some kind of weapon has occurred”)
  1202. (citing Franklin E. Zimring, Firearms, Violence,
  1203. and the Potential Impact of Firearms Control, 32 J. L. Med.
  1204. & Ethics 34 (2004)). For that reason too the focus simply
  1205. on crime rates misses the mark. As Philip J. Cook, a
  1206. Duke University professor cited twice by the majority,
  1207. put it: “My research over 35 years demonstrates that
  1208. the effect of gun availability is not to increase the
  1209. crime rate but to intensify the crime that exists and convert
  1210. assaults into murders.” Ethan Bronner, Other States,
  1211. and Other Times, Would Have Posed Obstacles for
  1212. Gunman, N.Y. Times, July 25, 2012, at A12.
  1213. The majority’s response to the fact that guns are a
  1214. potential lethal danger to more people when carried in
  1215. public seems to be to say that knowing potential
  1216. victims could be armed may have a deterrent effect
  1217. or make criminals timid. See Maj. Op. at 8, 13. Yet even
  1218. an article relied upon by the majority cautions that
  1219. the effect on criminals may well be more gun use: “Twothirds
  1220. of prisoners incarcerated for gun offenses reported
  1221. 40 Nos. 12-1269, 12-1788
  1222. that the chance of running into an armed victim was
  1223. very or somewhat important in their own choice to use a
  1224. gun. Currently, criminals use guns in only about 25
  1225. percent of noncommercial robberies and 5 percent of
  1226. assaults. If increased gun carrying among potential
  1227. victims causes criminals to carry guns more often themselves,
  1228. or become quicker to use guns to avert armed selfdefense,
  1229. the end result could be that street crime
  1230. becomes more lethal.” Philip J. Cook, Jens Ludwig &
  1231. Adam M. Samaha, Gun Control After Heller: Threats
  1232. and Sideshows from a Social Welfare Perspective, 56 UCLA
  1233. L. Rev. 1041, 1081 (2009).
  1234. On the other side of the lethal danger to the
  1235. State’s citizens is the asserted interest in carrying guns
  1236. for self-defense, yet even the majority does not
  1237. contend that carrying guns in public has been shown to
  1238. be an effective form of self-defense. For example, as
  1239. the majority acknowledges, University of Pennsylvania
  1240. researchers found that assault victims are more likely to
  1241. be armed than the rest of the population. See Maj. Op. at
  1242. 12-13 (citing Charles C. Branas et al., Investigating the
  1243. Link Between Gun Possession and Gun Assault, 99 Am. J.
  1244. of Pub. Health 2034, 2037 (2009)). The researchers examined
  1245. shootings in Philadelphia and concluded that
  1246. “gun possession by urban adults was associated with a
  1247. significantly increased risk of being shot in an assault,”
  1248. id., which suggests, if anything, that carrying a gun is
  1249. not effective self-defense. The researchers posited
  1250. that possible reasons for their findings included that a
  1251. gun may falsely empower its possessor to overreact, that
  1252. persons with guns may increase the risk of harm by
  1253. Nos. 12-1269, 12-1788 41
  1254. 2The majority cites Moody and Marvell’s 2008 paper
  1255. suggesting that Ayres and Donohue should have extended
  1256. their 2003 analysis by one more year. But extending their
  1257. data is just what Ayres and Donohue did in their May
  1258. 2009 piece, More Guns, Less Crime Fails Again: The Latest
  1259. Evidence from 1977-2006. And after extending their state panel
  1260. data by six additional years, they again concluded that “the
  1261. best evidence to date suggests that [right-to-carry] laws
  1262. at the very least increase aggravated assault.” Id. at 231.
  1263. They also thoroughly responded to Moody and Marvell’s
  1264. criticism that their initial 2003 analysis evaluated the trend for
  1265. five years rather than six, explaining in part:
  1266. “We would have thought, though, that one would want to
  1267. be very cautious in evaluating trends beyond five years
  1268. when 14 of the 24 states have no post-passage data
  1269. beyond three years.” Id. at 218-19. They also criticized Moody
  1270. and Marvell’s conclusions and demonstrated that the two
  1271. had incorrectly graphed the estimates from Donohue’s table and
  1272. (continued...)
  1273. entering dangerous environments that they normally
  1274. would have avoided, and that persons bringing guns to an
  1275. otherwise gun-free conflict may have those guns wrested
  1276. away and turned on them. Id. at 2037-38.
  1277. Other studies have found that in states with broad
  1278. concealed-carry laws there is an increased chance that one
  1279. will be a victim of violent crime. Yale Law School Professors
  1280. Ian Ayres and John J. Donohue III concluded that “the
  1281. evidence is most supportive of the claim that [right-tocarry]
  1282. laws increase aggravated assault.” More Guns, Less
  1283. Crime Fails Again: The Latest Evidence from 1977-2006, 6
  1284. Econ. J. Watch 218, 220 (May 2009).2 (Donohue is now at
  1285. 42 Nos. 12-1269, 12-1788
  1286. (...continued)
  1287. misinterpreted the estimates. Id. at 219.
  1288. Stanford.) Similarly, another study showed that “an
  1289. increase in gun prevalence causes an intensification
  1290. of criminal violence–a shift toward a greater lethality,
  1291. and hence greater harm to a community.” Philip J. Cook
  1292. & Jens Ludwig, The Social Costs of Gun Ownership, 90 J.
  1293. Pub. Econ. 379, 387 (2006). Other researchers have concluded
  1294. that guns are “used far more often to intimidate
  1295. and threaten than they are used to thwart crimes.”
  1296. Hemenway & Azrael, supra, at 271.
  1297. The ban on firearms in public is also an important
  1298. mechanism for law enforcement to protect the public.
  1299. With guns banned in public an officer with
  1300. reasonable suspicion to stop and frisk a person can,
  1301. upon finding a gun, take the gun off the street before
  1302. a shooting occurs. The majority says that a state may
  1303. be able to require “open carry,” where persons who
  1304. carry guns in public must carry them in plain view.
  1305. Maj. Op. at 10. Living with the open carrying of loaded
  1306. guns on the streets of Chicago and elsewhere
  1307. would certainly be a big change to the daily lives of Illinois
  1308. citizens. Even the plaintiffs do not seem to want Illinois
  1309. to take that drastic a step, recognizing that “openly carrying
  1310. handguns may alarm individuals unaccustomed
  1311. to firearms” and that Heller “does not force states to
  1312. allow the carrying of handguns in a manner that may
  1313. cause needless public alarm.” Moore Br. at 35.
  1314. The majority also suggests that with open
  1315. carry the police could still arrest persons who carry
  1316. Nos. 12-1269, 12-1788 43
  1317. Chicago Police Dep’t A 3 nnual Report 2010, at 34, available at
  1318. https://portal.chicagopolice.org/portal/page/portal/ClearPath
  1319. /News/Statistical%20Reports/Annual%20Reports/10AR.pdf.
  1320. concealed guns. This is true but seems contradictory
  1321. to its statement two sentences earlier that in its
  1322. view, under the current law police will often lack reasonable
  1323. suspicion to stop a person with a concealed gun
  1324. since it is concealed. See Maj. Op. at 10. To the latter,
  1325. guns are not allowed now, so theoretically persons
  1326. are attempting to conceal them. Nonetheless, Chicago’s
  1327. Police Department made over 4,000 arrests on
  1328. weapons violations in 2009, though some of these
  1329. arrests could have been made in conjunction with
  1330. other crimes as well.3 More importantly, “concealed”
  1331. does not mean “invisible.” An officer who
  1332. reasonably suspects he sees a gun in a car when he
  1333. pulls someone over, or notices what he reasonably
  1334. suspects to be a gun bulging out of someone’s
  1335. clothes, can under the law as it currently stands arrest that
  1336. person and take the gun off the street.
  1337. Allowing open (or concealed) carry does not address
  1338. the fundamental point about law enforcement’s ability
  1339. to protect the public: if guns are not generally legal
  1340. to have in public, officers can remove them from
  1341. the streets before a shooting occurs whenever they
  1342. come across a gun. Under a law like the Illinois law,
  1343. an officer with some reasonable belief that a person
  1344. is carrying a firearm can stop that person and remove
  1345. the gun from the street because the officer has a
  1346. 44 Nos. 12-1269, 12-1788
  1347. reasonable belief that a crime is taking place. The ability
  1348. to use stops and arrests upon reasonably suspecting a
  1349. gun as a law enforcement tactic to ultimately protect
  1350. more citizens does not work if guns can be freely carried.
  1351. To the extent the majority opinion’s studies draw
  1352. different conclusions, the Supreme Court has made
  1353. clear that “the possibility of drawing two inconsistent
  1354. conclusions from the evidence” does not prevent
  1355. a finding from being supported by substantial evidence.
  1356. Turner Broad., 520 U.S. at 211; see also Kachalsky, 2012
  1357. WL 5907502, at *13 (recognizing different studies concerning
  1358. relationship between handgun access and
  1359. violent crime, and handgun access and safety and character
  1360. of public places, and stating, “It is the legislature’s
  1361. job, not ours, to weigh conflicting evidence and
  1362. make policy judgments.”). Moreover, it is not necessary
  1363. for “the statute’s benefits” to be “first established by
  1364. admissible evidence” or by “proof, satisfactory to a court.”
  1365. Skoien, 614 F.3d at 641. Nor would the State need to make
  1366. a s tronge r showing here than in S k o ien .
  1367. Skoien concerned the prohibition on firearm possession
  1368. by misdemeanant s wi t h domes t i c violence
  1369. convictions, a ban that also applies to the core Second
  1370. Amendment right of gun possession in the home. As
  1371. such, the “strong showing” the government acknowledged
  1372. it needed to demonstrate there made sense. See id.
  1373. I would note too that the 2005 paper “Firearms Laws
  1374. and the Reduction of Violence: A Systematic Review,”
  1375. quoted by the majority for its statement that based
  1376. on its review, evidence was insufficient to determine
  1377. Nos. 12-1269, 12-1788 45
  1378. whether the degree of firearms regulation is associated
  1379. with decreased or increased violence, Maj. Op. at 9,
  1380. did not limit that conclusion to the degree of firearms
  1381. regulation. The paper found the evidence available
  1382. from identified studies “insufficient to determine” the
  1383. effectiveness of any of the laws it reviewed, even including
  1384. acquisition restrictions (e.g., felony convictions
  1385. and personal histories including persons adjudicated
  1386. as “mental defective”), and firearms registration
  1387. and licensing—propositions that even the plaintiffs seem
  1388. to favor. And, the paper cautioned that “[a] finding that
  1389. evidence is insufficient to determine effectiveness
  1390. means that we do not yet know what effect, if any, the law
  1391. has on an outcome—not that the law has no effect on the
  1392. outcome.” Hahn et al., supra, at 40.
  1393. The Illinois statutes safeguard the core right to
  1394. bear arms for self-defense in the home, as well as the carry
  1395. of ready-to-use firearms on other private property
  1396. when permitted by the owner, along with the corollary
  1397. right to transport weapons from place to place. See 720
  1398. Ill. Comp. Stat. 5/24-2; 720 Ill. Comp. Stat. 5/24-
  1399. 1.6(a)(1). Guns in public expose all nearby to risk, and
  1400. the risk of accidental discharge or bad aim has
  1401. lethal consequences. Allowing public carry of ready-to-use
  1402. guns means that risk is borne by all in Illinois, including
  1403. the vast majority of its citizens who choose not to
  1404. have guns. The State of Illinois has a significant interest
  1405. in maintaining the safety of its citizens and police officers.
  1406. The legislature acted within its authority when it concluded
  1407. that its interest in reducing gun-related
  1408. deaths and injuries would not be as effectively
  1409. 46 Nos. 12-1269, 12-1788
  1410. served through a licensing system. For one, every criminal
  1411. was once a law-abiding citizen, so strategies for
  1412. preventing gun violence that bar prior criminals
  1413. from having firearms do not do enough. See Philip J. Cook,
  1414. et al., Criminal Records of Homicide Offenders, 294 J.
  1415. Am. Med. Ass’n 598, 600 (2005) (homicide prevention
  1416. strategies targeted toward prior offenders “leave a large
  1417. portion of the problem untouched”). Nor could the
  1418. State ensure that guns in public are discharged
  1419. only, accurately, and reasonably in instances of selfdefense.
  1420. See People v. Mimes, 953 N.E.2d 55, 77 (Ill. App.
  1421. Ct. 2011) (“The extensive training law enforcement officers
  1422. undergo concerning the use of firearms attests to
  1423. the degree of difficulty and level of skill necessary
  1424. to competently assess potential threats in public situations
  1425. and moderate the use of force.”).
  1426. The Supreme Court has “long recognized the role
  1427. of the States as laboratories for devising solutions
  1428. to difficult legal problems,” and courts “should not
  1429. diminish that role absent impelling reason to do
  1430. so.” Oregon v. Ice, 555 U.S. 160, 171 (2009). Indeed, “[i]t
  1431. is one of the happy incidents of the federal system that a
  1432. single courageous State may, if its citizens choose,
  1433. serve as a laboratory; and try novel social and economic
  1434. experiments without risk to the rest of the country.”
  1435. New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932)
  1436. (Brandeis, J., dissenting). (And to the extent it matters,
  1437. Illinois is not the only place that has and enforces strict
  1438. gun laws. New York City, for example, has gun laws that
  1439. are in effect like those of Illinois; while technically a “may
  1440. issue” location where the city may issue permits
  1441. Nos. 12-1269, 12-1788 47
  1442. for handgun carry outside the home, New York City
  1443. rarely does so and so has been characterized as maintaining
  1444. a virtual ban on handguns. See Lawrence Rosenthal,
  1445. Second Amendment Plumbing after Heller: Of
  1446. Standards of Scrutiny, Incorporation, Well-Regulated Militias,
  1447. and Criminal Street Gangs, 41 Urb. Lawyer 1, 39 (2009)).
  1448. Reasonable people can differ on how guns should
  1449. be regulated. Illinois has chosen to prohibit most forms
  1450. of public carry of ready-to-use guns. It reaffirmed that
  1451. just last year, when its legislature considered and
  1452. rejected a measure to permit persons to carry concealed
  1453. weapons in Illinois. See Dave McKinney, Concealed-Carry
  1454. Measure: Shot Down in Springfield, Chicago Sun-Times,
  1455. 2011 WLNR 9215695 (May 6, 2011). In the absence
  1456. of clearer indication that the Second Amendment codified
  1457. a generally recognized right to carry arms in public for self defense,
  1458. I would leave this judgment in the hands of
  1459. the State of Illinois.
  1460. 12-11-12
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