In a significant victory for civil rights, the Federal Appeals Court for the 7th Circuit has declared Illinois’ total ban on the carry of firearms outside the home to be unconstitutional.
Illinois is currently the only state in the nation to completely ban the carry of loaded firearms for personal defense by non-law enforcement personnel. Every other state makes some provision for citizens to carry firearms for purposes of personal protection, but Illinois has stubbornly held out against all efforts to pass carry legislation in the state. Until recently, handguns were totally banned – even in a person’s own home – in Chicago and several of its suburbs. Those bans were ruled unconstitutional with the U.S. Supreme Court’s ruling in McDonald v. Chicago in 2010. In that ruling, the Court determined that the constitutionally protected right to arms is a fundamental right the states may not violate under color of law. This decision is part of the fallout of the 2008 ruling in D.C. v. Heller, in which the Court recognized that the Second Amendment refers to an individual right to possess firearms for lawful purposes, including self-defense. Both of these landmark decisions were decided by a 5–4 majority on the high court.
This week’s 7th Circuit ruling delays implementation of the decision for 180 days in order to give the Illinois Legislature an opportunity to craft carry legislation “that will impose reasonable limitations, consistent with the public safety and the Second Amendment … on the carrying of guns in public.” While the decision doesn’t reach the constitutional standard of Arizona’s laws, which recognize citizens’ constitutional right to arms – visible or concealed – without any sort of license or permit from the government, it is still a significant improvement over the total ban on defensive carry in the state.
Both the Second Amendment Foundation and the National Rifle Association are claiming victory in Tuesday’s decision. Both organizations sponsored lawsuits against Illinois’ strict prohibition, and those suits were consolidated for oral arguments before the 7th Circuit panel. Alan Gura, the attorney who argued both the Heller and McDonald cases, successfully argued this case on behalf of the Second Amendment Foundation. Now, both the NRA and SAF cases have been remanded back to their respective courts for final resolution within the guidelines of the 7th Circuit and the Second Amendment.
Writing for the court, Judge Richard Posner noted that the idea of limiting guns to only self-defense in the home would make no sense, and reasoned that “A right to bear arms thus implies a right to carry a loaded gun outside the home.” Posner pointed out that a person was much more likely to be attacked on the streets of Chicago than in their own home and said, “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.”
We can expect that the Illinois Legislature will do its best to circumvent the clear intent of the court by making their new laws so strict, complicated and expensive as to be virtually impossible for average citizens to comply with. That’s what Chicago did after the McDonald decision, resulting in follow-up lawsuits attempting to force them into reasonable compliance. The big difference is that the 7th Circuit Court is much closer to home and much more connected to their area of jurisdiction than is the lofty Supreme Court. If Illinois lawmakers pass a highly restrictive or prohibitively expensive carry law, Posner and the 7th Circuit are much more likely to get directly involved. Still, that does not guarantee that the final result will be wholly satisfactory to rights advocates. Judge Posner was highly critical of the Supreme Court’s decision in Heller, arguing that the Court should have shown more “judicial modesty” and suggesting that they created a right from something that wasn’t clear.
“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.”
It seems to me that someone would have to really stretch to make that statement unclear, especially when read with an understanding of the terminology used at the time. The term “well regulated” meant properly functioning, or orderly. The “militia” was understood to be the people at large – any individual who was physically able – not just those who participated in drills and muster. And, most importantly, the active clause of the statement, the one that declares the right, is absolutely clear and unambiguous: “the right of the people to keep and bear arms shall not be infringed.” Again, in the definitions of the day, to “keep” meant to own, possess, or have readily available, and to “bear arms” meant to physically carry weapons. The term infringed was understood to mean touched, even in the most peripheral way. Trying to distort this clear language into something other than an individual right was a byproduct of the Civil War and the freeing of slaves. With the advent of so many newly endowed African-American citizens, there were efforts to institute limitations on rights – particularly the right to arms – but prior to that the Supreme Court had suggested that the Second Amendment was a compelling reason why blacks could not ever be considered citizens. It is clear that the right to keep and bear arms was once considered as fundamental as speech and assembly. In the infamous Dredd Scott decision, the Court declared what full citizenship for blacks would mean:
It would give to persons of the negro race … the right to enter every other State whenever they pleased … to sojourn there as long as they pleased, to go where they pleased … the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went.
Regardless of Judge Posner’s personal interpretation of the Second Amendment or his attitudes toward judicial constraint, clearly he is attempting to follow the Supreme Court’s holdings in Heller and McDonald, and he is not likely to take kindly to legislators ignoring or subverting his court’s ruling.
So, within 180 days, residents of the state of Illinois will at last join the other 49 states of the union and be able to carry guns for self-defense if they so choose. Liberty advances.