This column by ACRU Senior Legal Analyst Ken Klukowski was published on December 5, 2012 on Breitbart.com.
The National Rifle Association just won a major court case in Chicago, providing a huge victory for Second Amendment proponents and gun owners.
Illinois is one of the most anti-gun states in America. Its hostility toward the Second Amendment right to keep and bear arms is demonstrated in a state law that forbids the carrying of firearms outside the home. There are narrow exceptions for classes of persons such as police officers, or under restrictions that keep the firearm from being readily usable, such as being kept unloaded in a locked case.
Two cases brought by gun owners supported by the NRA challenged this restriction that leaves people defenseless outside their homes, suing Illinois Attorney General Lisa Madigan.
On Tuesday, a three-judge panel of the U.S. Court of Appeals for the Seventh Circuit issued its two-to-one decision in Chicago, siding with gun owners in Moore v. Madigan.
The opinion was written by Judge Richard Posner, a Reagan appointee who often leans left on some issues (including guns) but is also regarded as one of the most brilliant minds on the federal bench.
Posner noted that in D.C. v. Heller, the Supreme Court held the Second Amendment secures an individual’s right against the federal government to possess a firearm in one’s home, and that in McDonald v. Chicago the justices held this is a fundamental right that also applies against state and local governments.
He went on to concede “the Supreme Court has not yet addressed whether the Second Amendment creates a right of self-defense outside the home.”
Nonetheless, he continued, Attorney General Madigan and the other defendants:
…ask us to repudiate the Court’s historical analysis. That we can’t do. Nor can we ignore the implication of the analysis that the constitutional right of armed self-defense is broader than the right to have a gun in one’s home… Both Heller and McDonald say that “the need for defense of self, family, and property is most acute” in the home, but that doesn’t mean it is not acute outside the home.
Acknowledging that the Supreme Court holds the Second Amendment must be understood according to its scope in 1791 when it was adopted by the American people, Posner added that “one doesn’t need to be a historian to realize that a right to keep and bear arms for personal self-defense in the eighteenth century could not rationally have been limited to the home.”
Applying this principle to today, the court reasoned, “Twenty-first century Illinois has no hostile Indians. But a Chicagoan is a good deal more likely to be attacked on a sidewalk than in his apartment on the 35th floor.”
As a result, the Seventh Circuit struck down the Illinois law but put its ruling on hold for 180 days to allow state legislators to enact a new set of restrictions short of another complete ban. The opinion expressly allows that the legislature might say citizens can carry a gun openly (such as in a hip holster) but that it is still a crime to carry concealed, since it’s not clear in history that concealed carry is secured by the Second Amendment.
Expect the far-left Illinois legislature to pass a system as restrictive as possible, with licensing, eye exams, heavy registration fees, fingerprinting, marksmanship tests, limiting what sorts of firearms you can have, and so on. While many of these restrictions are almost certainly unconstitutional, this legislature is almost sure to enact them, and we’ll be right back in federal court.
Nonetheless, this is definitely a major victory for the Second Amendment. The NRA’s Chris Cox strikes exactly the right balance in saying, “This is a step in the right direction for all gun owners. We know it probably won’t be the end of this case, and we’re ready to keep fighting until the courts fully protect the entire Second Amendment.”
Other courts will now consider what the Seventh Circuit has done. NRA CEO Wayne LaPierre declared, “Today’s ruling is a victory for all law-abiding citizens in Illinois and gun owners throughout the country.”
The Seventh Circuit has jurisdiction over three states: Illinois, Wisconsin, and Indiana. In 180 days, this opinion will be the law in those states, unless Madigan persuades the U.S. Supreme Court to take the case.