Appellate Court Dumps Illinois Gun Control, Puts Issue Squarely in Sites of Next General Assembly

Read the decision if you are really interested.

This decision comes with the backdrop of Chicago Police being incapable to stop people from getting shot on the street.

Here are some snippets:

“Even carrying an unloaded gun in public, if it’s uncased and immediately accessible, is prohibited, other than to police and other excepted persons, unless carried openly outside a vehicle in an unincorporated area and ammunition for the gun is not immediately accessible. 720 ILCS 5/24-1(a)(4)(iii), (10)(iii), -1.6(a)(3)(B).” (Page 2)

“But the Supreme Court has not yet addressed the question whether the Second Amendment creates a right of self-defense outside the home.” (Page 2)

“Nor can we ignore the implication of the analysis that the constitutional right of armed selfdefense is broader than the right to have a gun in one’s home.” (Page 4)

Heller explored the right’s origins, noting that the 1689 English Bill of Rights explicitly protected a right to keep arms for self-defense, 554 U.S. at 593, and that by 1765, Blackstone was able to assert that the right to keep and bear arms was ‘one of the fundamental rights of Englishmen,’ id. at 594.” 130 S. Ct. at 3037. And immediately the Court adds that ‘Blackstone’s assessment was shared by the American colonists.'” (Page 4)

“The Second Amendment states in its entirety that ‘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’ (emphasis added). The right to ‘bear’ as distinct from the right to ‘keep’ arms is unlikely to refer to the home.” (Page 5)

“And one doesn’t have 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.” (Page 5)

“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. 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 McDonald to honor the latter. That creates an arbitrary difference.” (Page 8)

“A gun is a potential danger to more people if carried in public than just kept in the home. But the other side of this coin is that knowing that many law-abiding citizens are walking the streets armed may make criminals timid. Given that in Chicago, at least, most murders occur outside the home, Chicago Police Dep’t, Crime at a Glance: District 1 13 (Jan.–June 2010), the net effect on crime rates in general and murder rates in particular of allowing the carriage of guns in public is uncertain both as a matter of theory and empirically.” (Page 8)

“Concealed carriage of guns might increase the death rate from assaults rather than increase the number of assaults. But the studies don’t find that laws that allow concealed carriage increase the death rate from shootings, and this in turn casts doubt on the finding of an increased crime rate when concealed carriage is allowed; for if there were more confrontations with an armed criminal, one would expect more shootings. Moreover, there is no reason to expect Illinois to impose minimal permit restrictions on carriage of guns outside the home, for obviously this is not a state that has a strong pro-gun culture, unlike the states that began allowing concealed carriage before Heller and MacDonald enlarged the scope of Second Amendment rights.” (Page 12)

“Charles C. Branas et al., “Investigating the Link Between Gun Possession and Gun Assault,” 99 Am. J. of Pub. Health 2034, 2037 (2009), finds that assault victims are more likely to be armed than the rest Nos. 12-1269, 12-1788 13 of the population is, which might be thought evidence that going armed is not effective self-defense. But that finding does not illuminate the deterrent effect of knowing that potential victims may be armed.” (Pages 12 + 13)

“David Hemenway & Deborah Azrael, “The Relative Frequency of Offensive and Defensive Gun Uses: Results from a National Survey,” 15 Violence & Victims 257, 271 (2000), finds that a person carrying a gun is more likely to use it to commit a crime than to defend himself from criminals. But that is like saying that soldiers are more likely to be armed than civilians.” (Page 13)

“In sum, the empirical literature on the effects of allowing the carriage of guns in public fails to establish a pragmatic defense of the Illinois law…Anyway the Supreme Court made clear in Heller that it wasn’t going to make the right to bear arms depend on casualty counts.” (Page 13)

“Illinois has not made that strong showing—and it would have to make a stronger showing in this case than the government did in Skoien, because the curtailment of gun rights was much narrower: there the gun rights of persons convicted of domestic violence, here the gun rights of the entire lawabiding adult population of Illinois.” (Page 14)

“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.” (Page 14)

“Illinois has lots of options for protecting its people from being shot without having to eliminate all possibility of armed self-defense in public.” (page 15)

“Remarkably, Illinois is the only state that maintains a flat ban on carrying ready-to-use guns outside the home, though many states used to ban carrying concealed guns outside the home…Not even Massachusetts has so flat a ban as Illinois, though the District of Columbia does…” (Page 15)

“It is not that all states but Illinois are indifferent to the dangers that widespread public carrying of guns 16 Nos. 12-1269, 12-1788 may pose. Some may be. But others have decided that a proper balance between the interest in self-defense and the dangers created by carrying guns in public is to limit the right to carry a gun to responsible persons rather than to ban public carriage altogether, as Illinois with its meager exceptions comes close to doing. Even jurisdictions like New York State, where officials have broad discretion to deny applications for gun permits, recognize that the interest in self-defense extends outside the home. There is no suggestion that some unique characteristic of criminal activity in Illinois justifies the state’s taking a different approach from the other 49 states. If the Illinois approach were demonstrably superior, one would expect at least one or two other states to have emulated it.” (Pages 15 + 16)

“If enough private institutions decided to do that [ban guns from their premises], the right to carry a gun in public would have much less value and might rarely be exercised—in which event the invalidation of the Illinois law might have little effect, which opponents of gun rights would welcome.” (Page 17)

“Recently the Second Circuit upheld a New York state law that requires an applicant for a permit to carry a concealed handgun in public to demonstrate “proper cause” to obtain a license.” (Page 17)

“…though we need not speculate on the limits that Illinois may in the interest of public safety constitutionally impose on the carrying of guns in public; it is enough that the limits it has imposed go too far.” (Page 19)

“…only legislative facts are relevant to the constitutionality of the Illinois gun law. The key legislative facts in this case are the effects of the Illinois law; the state has failed to show that those effects are positive.” (Page 20)

“The theoretical and empirical evidence (which overall is inconclusive) is consistent with concluding that a right to carry firearms in public may promote self-defense. Illinois had to provide us with more than merely a rational basis for believing that its uniquely sweeping ban is justified by an increase in public safety. It has failed to meet this burden. The Supreme Court’s interpretation of the Second Amendment therefore compels us to reverse the decisions in the two cases before us and remand them to their respective district courts for the entry of declarations of unconstitutionality and permanent injunctions.

“Nevertheless we order our mandate stayed for 180 days [June 9, 22013] to allow the Illinois legislature to craft a new gun law that will impose reasonable limitations, consistent with the public safety and the Second Amendment as interpreted in this opinion, on the carrying of guns in public.” (Pages 20 + 21)

Justice Williams filed at 25-page dissent.


Appellate Court Dumps Illinois Gun Control, Puts Issue Squarely in Sites of Next General Assembly — 17 Comments

  1. Here’s the overview.
    In the United States Court of Appeals For the Seventh Circuit

    Nos. 12-1269, 12-1788
    MICHAEL MOORE, et al., and MARY E. SHEPARD, et al.,

    Appeals from the United States District Courts for the Central District of Illinois and the Southern District of Illinois.
    Nos. 3:11-cv-3134-SEM-BGC and 3:11-cv-405-WDS-PMF—
    Sue E. Myerscough and William D. Stiehl, Judges.


    Before POSNER, FLAUM, and WILLIAMS, Circuit Judges.
    POSNER, Circuit Judge.

    These two appeals, consolidated for oral argument, challenge denials of declaratory and injunctive relief sought in materially identical suits under the Second Amendment.
    An Illinois law forbids a person, with exceptions mainly for police and other security personnel, hunters, and members of target shooting clubs, 720 ILCS 5/24-2, to carry a gun ready to use (loaded, immediately accessible—that is, easy to reach—and uncased).
    There are exceptions for a person on his own property (owned or rented), or in his home (but if it’s an apartment, only there and not in the apartment building’s common areas), or in his fixed place of business, or on the property of someone who has permitted him to be there with a ready-to-use gun.

  2. The ILGA has 180 days to pass a Constitutional right to carry bill.

    Really 49 other states can’t have it all wrong.

    Violence hasn’t gotten any worse in those states.

  3. The State of Illinois is clearly on the minority fringe in the concealed carry debate, with every other state allowing concealed carry.

    With the murder rate increasing in Chicago, the statistics don’t seem in the state’s favor.

    Settlers were worried about hostile Indian attacks.

    We have just as legitimate a threat, if not more, from US citizens.

    Could you imagine telling a settler he couldn’t carry a firearm to protect himself against hostile Indians?

  4. Just FYI Mark, “Settlers” did indeed carry firearms on the frontier for protection, but when those “settlers” actually settled and moved into towns, one of the first things they did was “check their guns” at the police station.

    It was illegal to carry a firearm in most of those “wild West” towns we think of a lawless blood-thirsty shoot-em-ups like Dodge City or Tombstone.

    And the murder rate averaged two per year (yes, 2) in those towns.

  5. Sounds like Chicago is more lawless blood thirsty shoot em up than Dodge City or Tombstone.

    Chicago residents need the right to protect themselves.

  6. Wish I still had my hat rack with the legend “No guns at the bar” burned into the wood holding the three pegs.

    In Colorado I always had my Colt .44-.40 & holster hanging on it just inside the front door.

    Cops loved it, when they came to visit.

  7. The “snippet” (“Even carrying an unloaded gun in public, if it’s uncased and immediately accessible, is prohibited, other than to police and other excepted persons, unless carried openly outside a vehicle in an unincorporated area
    and ammunition for the gun is not immediately accessible. 720 ILCS 5/24-1(a)(4)(iii), (10)(iii), -1.6(a)(3)(B).” (Page 2)) from the ruling is partially in error. It’s the ruling that is error, not the snippet.

    The “uncased” part is correct; it must be in a container. Illinois law does not define “container”. The person must have a FOID card. I read nothing in the Illinois law that said ammo cannot be immediately accessible. An unloaded pistol in a “container” (fanny pack, backpack, briefcase, lunch bag?) and ammo in a speedloader or magazine, even in the same container does not appear to violate Illinois law.

  8. What do you think Ritchie Daley and the rest of the Chicago Dems think about this development?

    Do they really care about stopping the gangs lawlessness in the hoods?

    I don’t think so.

  9. Maybe if the native americans were allowed to carry, we could have advoided the Trail of Tears???

    Let’s face it, X class felonies are going in states like FL with Shall Issue permits.

  10. There may yet be help for our Republic.

    A little self help.

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