7th Circuit Finds Constitutional Right to Carry Guns

Until today, Illinois was the only state that prohibited virtually all residents from carrying firearms, either openly or concealed, outside the home or other narrowly circumscribed locations. This morning a panel of the 7th Circuit Court of Appeals ruled the Illinois statute unconstitutional under two recent Supreme Court cases, District of Columbia v. Heller, 554 U.S. 570 (2008), and McDonald v. City of Chicago, 130 S. Ct. 3020 (2010). The 7th Circuit case, Moore, et al. v. Madigan, was decided on a 2-1 vote with Judge Richard Posner writing the majority opinion.

Here are a few excerpts that illustrate the court’s logic:

The first sentence of the McDonald opinion states that “two years ago, in District of Columbia v. Heller, we held that the Second Amendment protects the right to keep and bear arms for the purpose of self-defense,” McDonald v. City of Chicago, supra, 130 S. Ct. at 3026….

Heller repeatedly invokes a broader Second Amendment right than the right to have a gun in one’s home, as when it says that the amendment “guarantee[s] the individual right to possess and carry weapons in case of confrontation.” 554 U.S. at 592. Confrontations are not limited to the home. …

The right to “bear” as distinct from the right to “keep” arms is unlikely to refer to the home. To speak of “bearing” arms within one’s home would at all times have been an awkward usage. A right to bear arms thus implies a right to carry a loaded gun outside the home. …

A blanket prohibition on carrying gun in public prevents a person from defending himself anywhere except inside his home; and so substantial a curtailment of the right of armed self-defense requires a greater showing of justification than merely that the public might benefit on balance from such a curtailment, though there is no proof it would. In contrast, when a state bans guns merely in particular places, such as public schools, a person can preserve an undiminished right of self-defense by not entering those places; since that’s a lesser burden, the state doesn’t need to prove so strong a need. Similarly, the state can prevail with less evidence when, as in Skoien, guns are forbidden to a class of persons who present a higher than average risk of misusing a gun.

Consistent with the rationale of Heller, the court reviewed the rights of Englishmen to keep and bear arms as of 1791, “the critical year for determining the amendment’s historical meaning.” The court gave Illinois’ legislature 180 days to craft a new statute consistent with its opinion and with Heller.

Moore represents, I think, the most significant victory for gun rights since Heller.


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