This article first appeared in the St. Louis Beacon, Dec. 11, 2012 - A federal appeals court in Chicago has thrown out Illinois' law against concealed weapons, concluding that there is a Second Amendment right for citizens to carry weapons on the street for self-defense.
The 2-1 decision would expand gun rights beyond those recognized by the U.S. Supreme Court four years ago in District of Columbia vs. Heller, when the court ruled that the Second Amendment protected the right of people to have a gun in their home for their safety.
"The Supreme Court has decided that the amendment confers a right to bear arms for self-defense, which is as important outside the home as inside," the court said.
If Tuesday's opinion, written by influential appeals court judge Richard Posner, becomes the law of the land, it will mark a remarkable expansion of gun rights in America. Before Heller, the Second Amendment had been interpreted by the Supreme Court to protect the right to have a gun as part of a state militia. Heller for the first time recognized a Second Amendment right to have a gun in the home. Posner's opinion would allow ordinary citizens to have a gun on the street.
Heller led to the invalidation of laws that Chicago and suburbs like Morton Grove had passed in the 1980s that banned handguns. Now Posner is saying that state laws against carrying concealed handguns on the street are also unconstitutional. The court gave the state 180 days to craft a new law regulating guns in public. Attorney General Lisa Madigan said she needed time to study the ruling before deciding whether to appeal.
Roger Goldman, a law professor at Saint Louis University law school, said that if Madigan appeals the result could come down to the justice at the ideological center of the court, Justice Anthony M. Kennedy. "As always (almost), it would come down to Kennedy who might draw the line on the front steps of a home, not on the street," he wrote in an email.
Gregory P. Magarian, a Washington University law professor who has written on the subject, said he had great respect for Posner but thought the opinion was disappointing and that dissenter, Ann Claire Williams, had the better of the argument.
"This may be the most important post-Heller Second Amendment decision by a lower court to date, and its author may be the most eminent legal mind on the federal bench. But it’s a hugely disappointing job," he wrote in an email. "I think this is a close case under Heller, and (the dissent) says the same thing. That dissent persuades me that the better arguments, filtered through appropriate respect for the legislature’s primacy in policymaking, favor upholding the Illinois law. It’s a shame that Judge Posner gave such casual consideration to those arguments and appears to have forgotten completely about the respect due the people’s representatives.
"It’s hard to recall an example of a recent decision where the dissent so thoroughly and conclusively put the majority opinion to shame, continued Magarian. "Judge Posner’s opinion is breezy to the point of being cavalier. He gives almost no consideration to the question, emphasized by Judge Williams in dissent, whether the Illinois law at issue requires a different historical framing than the handgun ban at issue in Heller. His review of the literature on concealed carry and crime rates is poorly framed and cursory in execution; Judge Williams pokes multiple holes in the majority’s analysis. The majority cites legal scholarship in support of some of its points, but in dismissing the state’s argument that the home is special for Second Amendment purposes, the majority ignores two prominent articles by outstanding legal scholars (Michael Dorf and Darrel Miller) that extensively develop versions of that argument."
Joining Posner was Judge Joel Martin Flaum. Both Posner and Flaum were appointed by President Ronald Reagan. Williams was an appointee of President Bill Clinton, so the decision comes down along ideological lines.
House Majority leader Barbara Flynn Currie, a gun-control advocate, told the Chicago Tribune that she hoped the state would appeal the ruling. (Click here to read the Chicago Tribune's coverage.)
Currie, D-Chicago, said that “justices surely do not mean that we would have to have wide-open” laws in Illinois. “If we need to change the law, let us at least craft a law that is very severely constrained and narrowly tailored so that we don’t invite guns out of control on each of our city’s streets. I don’t want people out of control wandering the streets with guns that are out of control.”
After Wisconsin recently changed its law, Illinois became the last state in the country with a concealed gun law in effect.
The Heller decision did not require the result that Posner reached. Justice Antonin Scalia wrote then that even though the Second Amendment protected the right of a person to have a gun in his or her home, it did not guarantee "a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the amendment or state analogues."
But Posner wrote that the historical analysis used by the majority in the Heller decision in 2008 was just as applicable to the right to have a gun on the street as in the home. In addition, he wrote that people on the streets of Chicago have more of a right to a gun to defend themselves on mean streets than do wealthy residents in their apartment towers.
"Twenty-first century Illinois has no hostile Indians," he wrote. "But a Chicagoan is a good deal more likely to be attacked on a sidewalk in a rough neighborhood than in his apartment on the 35th floor of the Park Tower. A woman who is being stalked or has obtained a protective order against a violent ex-husband is more vulnerable to being attacked while walking to or from her home than when inside. She has a stronger self-defense claim to be allowed to carry a gun in public than the resident of a fancy apartment building (complete with doorman) has a claim to sleep with a loaded gun under her mattress. But Illinois wants to deny the former claim, while compelled by (Supreme Court decisions) to honor the latter."
Posner said it was not enough for Illinois to present a rational argument in favor of its law. He the state should have to make some "heightened" showing of a reason for the law.
Magarian strongly criticized this part of the opinion as well. "Perhaps most mystifying," he wrote, "the majority rejects the empirical evidence in support of the state’s position based on a heightened standard of review, but it never explicates what that standard is, what exactly the government would need to show in order to justify the statute, or how the standard (whatever it is) relates to the court’s conception of the Second Amendment."
(New:) Michael Wolff, former chief justice of the Missouri Supreme Court and a law professor at Saint Louis University law school, said that Missouri's 1821 Constitution -- written 30 years after the Second Amendment -- said that the right to bear arms did not justify carrying concealed weapons. The Missouri Supreme Court held that the provision meant that the legislature could regulate concealed weapons for ordinary citizens.
Since Second Amendment language parallels First Amendment language, Wolff added, "Wouldn't it be appropriate for legislation that within reason controls the time, place and manner of bearing weapons?" The First Amendment permits government to pass reasonable laws regulating the time, place and manner of speech.
"If Congress can ban bazookas," wrote Wolff, "which I believe it can, may the Illinois legislature ban concealed weapons?" (End new material.)