Federal appeals court: Second Amendment prevents states from completely banning concealed carry

posted at 6:00 pm on December 11, 2012 by Allahpundit

As with the Supreme Court gun-rights decision on which this one is based, it’s a win not because it changes a lot in and of itself but because it lays a foundation for future victories. Heller, the SCOTUS case, said only that guns couldn’t be banned entirely, not that they couldn’t be heavily regulated. It’s a starting point for lower courts to figure out where the line can be drawn legally in state gun-grabbing. Answer: Not at total prohibition, but maybe someplace close to that. Same here with the Seventh Circuit’s concealed-carry decision. Illinois is the one and only state in the union that absolutely prohibits carrying outside the home. Too far, says the court. If, per the Supremes, the Second Amendment guarantees a basic right of self-defense, then it’s only logical that that right travels with you to some extent outside your home. It’s a right to protect yourself, not just your property:

David Sigale, an attorney who represented the Second Amendment Foundation in the lawsuit, called the decision by the appeals court in Chicago “historic.”

“What we are most pleased about is how the court has recognized that the Second Amendment is just as, if not at times more, important in public as it is in the home,” he said. “The right of self-defense doesn’t end at your front door.”

In the opinion, Posner wrote that “Twenty-first century Illinois has no hostile Indians. 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.”

Clear enough. No outright bans on carrying outside the home. But … what if the state bans carrying outside the home for everyone except a handful of people who can show they’re under special threat and need to protect themselves? That’s not an outright ban. In fact, that’s how New York does it. And, per Posner’s opinion, that might be okay:

The New York gun law upheld [by the Second Circuit] in Kachalsky, although one of the nation’s most restrictive such laws (under the law’s “proper cause” standard, an applicant for a gun permit must demonstrate a need for self-defense greater than that of the general public, such as being the target of personal threats, id. at *3, *8), is less restrictive than Illinois’s law. Our principal reservation about the Second Circuit’s analysis … is its suggestion that the Second Amendment should have much greater scope inside the home than outside simply because other provisions of the Constitution have been held to make that distinction. For example, the opinion states that “in Lawrence v. Texas, the [Supreme] Court emphasized that the state’s efforts to regulate private sexual conduct between consenting adults is especially suspect when it intrudes into the home.” 2012 WL 5907502, at *9. Well of course—the interest in having sex inside one’s home is much greater than the interest in having sex on the sidewalk in front of one’s home. But the interest in self-protection is as great outside as inside the home. In any event the court in Kachalsky used the distinction between self-protection inside and outside the home mainly to suggest that a standard less demanding than “strict scrutiny” should govern the constitutionality of laws limiting the carrying of guns outside the home; our analysis is not based on degrees of scrutiny, but on Illinois’s failure to justify the most restrictive gun law of any of the 50 states.

Do we each have the right to carry in certain places outside the home or can the state say that only certain people who meet a necessity threshold have the right? (Which means it’s not much of a “right.”) And if the state can restrict carry only to those who show “proper cause,” what constitutes proper cause and who gets to decide? I’m thinking there are an awful lot of Chicagoans who have good cause to want to pack heat, and I’m not the only one:

Ald. Howard Brookins, 21st, chairman of the City Council black caucus, welcomed the decision, saying allowing Chicagoans to carry concealed weapons would help level the playing field in neighborhoods where law-abiding citizens feel like they need firearms to protect themselves.

“Certain people will have a sense of safety and peace of mind in the ability to do it,” Brookins said of conceal-carry. “I know that even people, for example, just trying to see that their loved ones get homes safely are in technical violation of all sorts of weapons violations. If you just walk out to your garage and see that your wife is coming in the house safely, and you happen to have your gun on you, you’re in technical violation of our ordinance. So I would hope all these ordinances would be consolidated so there’s one set of rules and people would know where the bright line is to what they can and cannot do with respect to carrying a weapon.”

An interesting footnote to all this, via NRO’s Robert VerBruggen: Although Posner is generally right of center, he took an awfully dim view of SCOTUS’s gun-rights decision in Heller four years ago. Nonetheless, he’s following that precedent to its logical conclusion in today’s ruling rather than trying to rein it in according to his own jurisprudential preferences. A commendable example of restraint; mull it over while you watch the left’s newest gun-control hero sounding off with Piers Morgan. Exit question: Should gun-grabbers appeal this decision to the Supreme Court or let it lie? If they let it lie, they lose the power to ban carry in Illinois. If they appeal and lose before SCOTUS, they may lose the power to ban carry in all 50 states.


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I get tired of these idiots telling us we can’t carry or own weapons but on a regular basis they themselves turn up as gun owners ….much like the gun grabber in Chicago who was busted for trying to board a plane with a 25 auto in his bag

Aggie95 on December 11, 2012 at 6:06 PM

Packed.

Bmore on December 11, 2012 at 6:07 PM

Molon labe

Philly on December 11, 2012 at 6:07 PM

The Chi(Town)Coms will make sure to be as obstructive as possible. They’ll follow DC’s foot-dragging responses to Heller. CA is ‘MAY Issue’, which means the more heavily populated half of our 58 counties refuse to issue permits to the common man.
It’s disgusting to see the black politicians in these Blue shitholes deny arms to their desperate fellows in the same manner as the Democrat-KKK did in the post-reconstruction South with their Jim Crow laws.
Having seen more commentary from that Foxsports assclown that Costas was quoting, it’s plain that these black racists are grossly and incompetently ignorant about their own people’s history regarding arms. And more than willing to sit on the Democrats’ porch and parrot gross lies about firearms, in service to their masters’ agenda.

rayra on December 11, 2012 at 6:12 PM

They fled the plantations of the south, just to become once again enslaved in their ghettos in the north, both physically and particularly mentally. Enslaved by the ruinous politics of Johnson’s Great Society garbage, butchered by the eugenics program of Margaret Sanger with her ‘Planned Parenthood’ shops planted in black neighborhoods specifically to kill black babies. Their family structures deliberately torn apart by biased sentencing guidelines and perpetual welfare parasitism, which pays ghetto queens to have more and more illegitimate children and thus make men disposable, nothing more than ‘baby daddy’ sperm donors.

And all of it is completely intertwined with Democrat positions on ‘Gun Control’.

rayra on December 11, 2012 at 6:17 PM

I cannot believe this is still being argued. Guns are whats wrong with our society. They, like unions, have outlived their usefulness.

Having a gun makes its owner feel invincible and much more likely to harm others.

Its another thing America doesn’t need in the 21srt century with civilized presidents to solve all our problems.
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You can give all those evil guns to me. I will take care of them.

Man, writing that hurt.

PTA and range practice tonight. I will leave it to a minion to find GOTD. Mrs. ccozmo has taken to range practice.

cozmo on December 11, 2012 at 6:22 PM

The Illinois legislature will enact ‘may issue’ laws like CA and NYC where ‘may issue’ means ‘if they Sherriff feels like it, mkay?’.

In Illinois they will issue permits to dead people.

CorporatePiggy on December 11, 2012 at 6:27 PM

WWBCD?

Galt2009 on December 11, 2012 at 6:29 PM

Let’s get to the real meat of the discussion – M1911A1 or Glock?

9mm vs. ?

Galt2009 on December 11, 2012 at 6:33 PM

Anything with an exposed hammer. Never trust a striker!

WryTrvllr on December 11, 2012 at 6:34 PM

cozmo on December 11, 2012 at 6:22 PM

Haha. You may want to be careful when it comes to trolling in gun control threads. My rear end still hurts from the Costas thread a few days ago. :-)

JimLennon on December 11, 2012 at 6:36 PM

Here’s the interesting question: What happens if IL doesn’t pass a carry law in the next 180 days?

Looks to me like their current law disappears, and they have no restrictions at all. So, can the pro-carry side muster enough power to block a bad law?

Greg Q on December 11, 2012 at 6:37 PM

9mm, .45, .40? LOL

SBR saiga 12ga shotty with 20rnd drum

tom daschle concerned on December 11, 2012 at 6:38 PM

JimLennon on December 11, 2012 at 6:36 PM

I live for gun threads! But, dang, I gotta’ go.

SBR saiga 12ga shotty with 20rnd drum

tom daschle concerned on December 11, 2012 at 6:38 PM

Tried it, go with the MKA-1919

cozmo on December 11, 2012 at 6:40 PM

If they let it lie, they lose the power to ban carry in Illinois. If they appeal and lose before SCOTUS, they may lose the power to ban carry in all 50 states.

Do you feel lucky? Well do you, punk?

Cindy Munford on December 11, 2012 at 6:42 PM

Haha. You may want to be careful when it comes to trolling in gun control threads. My rear end still hurts from the Costas thread a few days ago. :-)

JimLennon on December 11, 2012 at 6:36 PM

I don’t think that was trolling per se – it more like sarcasm that needed to be clearly identified as such. Most will pick that up but it can be unfortunate when some don’t.

Galt2009 on December 11, 2012 at 6:44 PM

9mm, .45, .40? LOL

SBR saiga 12ga shotty with 20rnd drum

tom daschle concerned on December 11, 2012 at 6:38 PM

Me likely, but that’s kind of hard to do with concealed carry – but the way the country is going, I don’t know..

Galt2009 on December 11, 2012 at 6:47 PM

The 2nd amendment to the Constitution of the United States brokers zero room what so ever for any gun regulation laws.

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.

infringed

in·fringe
[in-frinj] Show IPA verb, in·fringed, in·fring·ing.
verb (used with object)
1.
to commit a breach or infraction of; violate or transgress: to infringe a copyright; to infringe a rule.
verb (used without object)
2.
to encroach or trespass (usually followed by on or upon ): Don’t infringe on his privacy.
Origin:
1525–35; < Latin infringere to break, weaken, equivalent to in- in-2 + -fringere, combining form of frangere to break

Related forms
in·fring·er, noun.
un·in·fringed, adjective.

Can be confused: infringe, impinge.

Synonyms
1. break, disobey. 2. poach. See trespass.

Definition and meanings of “shall not”

I am looking for all the meanings of “shall not”. Is it closer to “must not” or “might not”?

In this example:

The circuit-breaker shall not trip.

does this mean must not happen or might not happen?
meaning meaning-in-context modal-verbs
shareimprove this question


“Shall” derives from the Old English “sceal” meaning “must”. “Should” is the past simple and conditional form of “shall”, just like “would” is the past simple and conditional form of “will”. Should is used with a sense of quasi-obligation, synonymous with ought to.

So archetypal uses are statements like, “This shall not stand.” The meaning is very much “must.”

No matter what the progressive liberal or anyone else might like to claim, the 2nd amendment to the United States Constitution makes it indisputably clear, that their MUST NOT be any laws enacted which would encroach upon, restrict or in any other fashion hamper the private ownership or possession on ones person of a firearm.

That any case involving whether any free American Citizen may own or carry on their person a firearm ever comes before a court of law is in fact nothing short of a violation of that individuals constitutional rights and constitutes a criminal action by the law enforcement agency responsibly and the court that hears the case.

SWalker on December 11, 2012 at 6:53 PM

I’d be willing to bet that, if concealed carry is the law in Chicago, the murder rate will go down.

bflat879 on December 11, 2012 at 6:58 PM

I’d be willing to bet that, if concealed carry is the law in Chicago, the murder rate will go down.

bflat879 on December 11, 2012 at 6:58 PM

I don’t doubt that one bit.
All the evidence supports that notion.

justltl on December 11, 2012 at 7:02 PM

If you don’t read this book, at least read the reviews.

PrepperMark (formerly known as SailorMark)

SailorMark on December 11, 2012 at 7:07 PM

Striker fired weapons are fine.
Not many pistols can compete with a Glock in terms of reliability.
Especially if you don’t over-lubricate it or get lube in the firing pin channel.
Even then, it’s very easy to disassemble the slide on the Glocks and give them a good preventative cleaning.

I’m not a Glock fanatic, but they are very reliable, durable, accurate and an excellent value.

justltl on December 11, 2012 at 7:09 PM

Let’s get to the real meat of the discussion – M1911A1 or Glock?
9mm vs. ?
Galt2009 on December 11, 2012 at 6:33 PM

1911. :)

jawkneemusic on December 11, 2012 at 7:10 PM

My 1911′s have been super reliable. There are easier guns for cleaning however. Glocks are not my thing. Sigs, yes.

Bmore on December 11, 2012 at 7:13 PM

Has anyone noticed that it’s always and solely the democrat rats that deny freedoms even constitutional ones. That the rats always know what”s best for it’s slaves, knaves and fief dwellers.

Never addressing the fact that this is still the USA and that their laws/ outright bans never work as they interpret them.

Chicago-stan is a city totally out of control and virtually run by thugs, hoodlums. Yet the infantile nanny states still believes that you are not entitled to protect yourself…more importantly, outside your home?

Ignoring every provable fact that states with “shall issue” have consistently lower crime stats. And that licensed CCW carriers….have less violations of gun laws than the smarmy scum who carries it illegally?

Demrats are the problem…and the real threat and enemies of this country. Everywhere they go…some flak in a dress wants to deny you your rights and freedom


In the opinion, Posner wrote that “Twenty-first century Illinois has no hostile Indians. 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.”

Finally a black robe with guts and common sense…FINALLY.

Twana on December 11, 2012 at 7:44 PM

Ever notice that gun grabbers or those who sound off about the evil 2nd Amendment usually have hired bodyguards……..WHO CARRY WEAPONS?

GarandFan on December 11, 2012 at 7:44 PM

I don’t think that was trolling per se – it more like sarcasm that needed to be clearly identified as such. Most will pick that up but it can be unfortunate when some don’t.

Galt2009 on December 11, 2012 at 6:44 PM

Next time then I’ll end the post with /sarcasm instead of /troll.

BTW,

Definitely 1911. A 1911 is as much a part of American cultural history as Coca-Cola, Ford, and Levis. My first 1911 was an Auto-Ordnance, when I figured it was pretty close to what my grandfather must have had in World War II.

I love me an HK USP 45, as well.

JimLennon on December 11, 2012 at 7:47 PM

Ever notice that gun grabbers or those who sound off about the evil 2nd Amendment usually have hired bodyguards……..WHO CARRY WEAPONS?

Thanks…I forgot to add that to their long list fraudulent lies and hypocrisy.

“It’s do what I say…not what I do” for these rats.

Twana on December 11, 2012 at 7:48 PM

Looks to me like their current law disappears, and they have no restrictions at all. So, can the pro-carry side muster enough power to block a bad law?

That’s what I’d like to know. All of a sudden, the Republicans would be in a very strong bargaining position. Do nothing, and *anyone* can conceal-carry. What are the Democrats willing to give up in order to restrict that to those of sound mind?

Mohonri on December 11, 2012 at 7:51 PM

Even though this is good news, its unfortunate that there was a shooting at a mall in Oregon. Prayers go out to the victims and their families.

Conservative Samizdat on December 11, 2012 at 8:01 PM

Slightly o/t: My GP asked me if I owned a weapon today. I was stunned. What business is it of my doctor’s if I have a weapon?

(Alexandria, VA)

Washington Nearsider on December 11, 2012 at 8:22 PM

A 1911 is as much a part of American cultural history as Coca-Cola, Ford, and Levis.

Glock is America’s recent handgun cultural history, Austrian born or not.

CorporatePiggy on December 11, 2012 at 8:23 PM

Slightly o/t: My GP asked me if I owned a weapon today. I was stunned. What business is it of my doctor’s if I have a weapon?

(Alexandria, VA)

Washington Nearsider on December 11, 2012 at 8:22 PM

That’s a ‘standards and practices’ campaign pushed by the AMA. Particualrly in Pediatrics. Been going on for years. ‘safety hazard’, ‘depression’, lead poisoning. They argue they have several grounds to ask and dispense advice about disarmament. It’s compelte leftist crap and one of the reasons the AMA membership is dropping steadily, even before their Obamacare support.

rayra on December 11, 2012 at 8:31 PM

Let’s get to the real meat of the discussion – M1911A1 or Glock?

9mm vs. ?

Galt2009 on December 11, 2012 at 6:33 PM

I thou8ght that was all resolved a long time ago. It is the 1911 and it should have a .45 hole in the end. At least until someone makes a 1911 in a .46.

MikeA on December 11, 2012 at 8:42 PM

Politicians, the elite of Holly Wood, athletes, and others of notoriety that have armed body guards want all others weaponless except their guards. Ya’gotta love it.

mixplix on December 11, 2012 at 8:43 PM

What’s most puzzling about Costas is that he donated $8,000 to GWB in 2004. And his other donation was to the RNC in 2007. Is he a Chris Christie Republican?

IL will find a way to keep guns illegal. (tax ammo, make gun owners buy insurance). This ruling means nothing to these lawless zealots.

Raquel Pinkbullet on December 11, 2012 at 8:44 PM

I got Costas confused with someone else.. Disregard my comment @8:44pm

Raquel Pinkbullet on December 11, 2012 at 9:06 PM

Let’s get to the real meat of the discussion – M1911A1 or Glock?

9mm vs. ?

Galt2009 on December 11, 2012 at 6:33 PM

I’m a 9mm guy because I just have never been able to get as accurate shooting a pistol as my rifles. (More chances with my Beretta) :-)

Wider spray with my Judge and 410 rounds.

hawkdriver on December 11, 2012 at 9:07 PM

Invade this country and the worlds largest army will put a bullet in your ass.

The worlds largest army being every American with a gun, and their no soldier on earth braver or more determined.

Speakup on December 11, 2012 at 9:09 PM

The 2nd Amendment is the ONLY permit necessary. ALL local regulatory laws are un Constitutional. These little dictatorships are bound and determined to undermine the Bill of Rights. Why?…Because the despotic idiots don’t stand a chance in hell to get the 2nd Amendment repealed or changed. Americans should NOT have to be continually arrested, mug shots, defiled, and/or go through countless court appeals to have this clause upheld.

byteshredder on December 11, 2012 at 9:27 PM

the Second Amendment guarantees a basic right of self-defense

It guarantees a basic right to own weapons.

It just presupposes all that that means, like occasionally using them to defend oneself, as though everyone already knows it and no one has ever argued about it — sort of like “marriage” in the Bible.

Axe on December 11, 2012 at 9:45 PM

That’s a ‘standards and practices’ campaign pushed by the AMA. Particualrly in Pediatrics. Been going on for years. ‘safety hazard’, ‘depression’, lead poisoning. They argue they have several grounds to ask and dispense advice about disarmament. It’s compelte leftist crap and one of the reasons the AMA membership is dropping steadily, even before their Obamacare support.

rayra on December 11, 2012 at 8:31 PM

rayra, is this information legally actionable? I go in for a blood draw, get asked if I have any firearms in my household…Do I lie, deflect, tell the truth?

Can they go after you for your answer?

tom daschle concerned on December 11, 2012 at 9:46 PM

Finally something good out of Illinois…all their thugs and thug politicians have guns now honest law abiding folk can too…oh by the way: Hey costas…bite me…..

crosshugger on December 11, 2012 at 9:58 PM

Striker fired weapons are fine.
Not many pistols can compete with a Glock in terms of reliability.
Especially if you don’t over-lubricate it or get lube in the firing pin channel.
Even then, it’s very easy to disassemble the slide on the Glocks and give them a good preventative cleaning.

I’m not a Glock fanatic, but they are very reliable, durable, accurate and an excellent value.

justltl on December 11, 2012 at 7:09 PM

For those who argue 9 vrs 45 there is an answer. 10mm. Glock 20, Kimber, STI, others too. They call it the .40 short and weak for a reason.

For those who like glocks, that firing pin channel also gets gummed up with powder residue, and after less than 100 rounds I get light primer strikes. And back in the day, their instruction manuals didn’t show how to open the channel. Answer…Sig.

Like Strikers?? Keep in mind that police officers wear theirs exposed. Anything mechanical eventually fails. Not in my belt.

just sayin.

WryTrvllr on December 11, 2012 at 11:38 PM

I keep the back of the slide on my Glock 17 pretty dry-other than for a light lube with grease inside the slide rails and a small drop of oil in the “sweet spot”. I especially make sure to keep lube and moisture away from the breech face, so that it doesn’t sneak into the firing pin channel, where it can attract powder residue or even brass shavings and gum things up. I also detail strip and clean the slide every few hundred rounds just for fun.

No question- SIGs are superb.
I also have an HK45C that I love.
All good guns!

justltl on December 12, 2012 at 2:18 AM

rayra on December 11, 2012 at 8:31 PM

Thanks for the head’s up.

I went in for a physical (I haven’t seen a GP in 6 years, so I figure I’m due) and got asked about gun ownership.

Their justification was depression and abuse, as in: those who suffer from either of them will get a speech about gun ownership.

My GP was more apologetic than I expected, but still… doctors talking about guns?

Not your business, doc.

Washington Nearsider on December 12, 2012 at 7:11 AM

The New York gun law upheld [by the Second Circuit] in Kachalsky, although one of the nation’s most restrictive such laws (under the law’s “proper cause” standard, an applicant for a gun permit must demonstrate a need for self-defense greater than that of the general public, such as being the target of personal threats, id

That may be true in The People’s Republic of New York City, but when I got my unrestricted concealed carry permit in an upstate county, I never had to prove any such thing. I had to successfully complete a handgun safety course and undergo a criminal background check. Not all that onerous. It’s Bloomie that has things AFU.

Mr. Grump on December 12, 2012 at 9:56 AM

Apologies beforehand for the long comment, so…

Since the gun grabbers, aka liberals, oft like to quote Jefferson on some of the rights laid out in the Constitution, let’s see what Jefferson wrote in regards to the 2nd:

I would rather be exposed to the inconveniences attending too much liberty, than those attending too small a degree of it.

(That’s a fav of liberals, except when it’s an inconvience.)

The strongest reason for the people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyrany in government.

(Who knew Ice-T was paraphrasing Jefferson.)

No freeman shall ever be debarred the use of arms.

Laws that forbid the carrying of arms disarm only those who are neither inclined nor determined to commit crimes. Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage then to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man.

A strong body makes the mind strong. As to the species of exercises, I advise the gun. While this gives moderate exercise to the body, it gives boldness, enterprise and independence to the mind. Games played with the ball and others of that nature, are too violent for the body and stamp no character on the mind. Let your gun therefore be the constant companion of your walks.

(Guess Jefferson wouldn’t be a fan of football.)

On every question of construction (of the Constitution) let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or intended against it, conform to the probable one in which it was passed.

Hmm, looks like Jefferson is pro-ownership and pro-carry. I haven’t found any writing where he advocated the need for a permit. Oh, and stop trying to twist the Constitution and read something into that isn’t there. So the 2nd says we can own and carry, then that’s what it meant. Nothing more, nothing less. And to be clear, it cedes that particular right to the individual – not the state.

Wonder what others thought…

Without either the first or second amendment, we would have no liberty; the first allows us to find out what’s happening, the second allows us to do something about it! The second will be taken away first, followed by the first and then the rest of our freedoms. — Andrew Ford

To disarm the people (is) the best and most effectual way to enslave them. — George Mason, 3 Elliot, Debates at 380

If cowardly and dishonorable men sometimes shoot unarmed men with army pistols or guns, the evil must be prevented by the penitentiary and gallows, and not by a general deprivation of constitutional privilege. — Arkansas Supreme Court, Wilson v. State (1878)

And just because:
A fear of weapons is a sign of retarded sexual and emotional maturity. — Sigmond Freud, General Introduction to Psychoanalysis

raz0r on December 12, 2012 at 1:17 PM