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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