FEDERAL APPELLATE COURT VOIDS ILLINOIS’ BAN ON CONCEALED WEAPONS
On December 12, 2012, the Seventh Circuit U.S. Court of Appeals ruled, in Moore et al. v. Madigan (which consolidated two cases for oral argument) that the total ban on carrying concealed weapons, in public, is unconstitutional. The State of Illinois had a law which prohibited virtually anyone from carrying a concealed gun which was ready to use (loaded, immediately accessible, uncased). There were exceptions for police, security personnel, hunters, members of target shooting clubs, a person on his own property, in his home, 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.
The district court denied declaratory and injunctive relief sought, in materially identical suits, under the Second Amendment. The district court held that the Second Amendment does not create a right of self-defense outside the home. The Seventh Circuit reversed, but stayed its mandate for 180 days to allow the legislature time to draft new restrictions.
The Seventh Circuit spends a substantial amount of time discussing history and addressing the arguments, from both sides, of the potential increase in assaults and deaths if people are permitted to carry weapons, open or concealed, in public. Ultimately, the Court concludes that, “the empirical literature on the effects of allowing the carriage of guns in public fails to establish a pragmatic defense of the Illinois law.”
Scope of Illinois’ Ban
“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 . . . .” Several states, California included, permit carrying a concealed weapon when authorized by a police chief or sheriff, based upon, among other things, good cause.
“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.” Therefore, such an absolute restriction must be justified, said the Court.
“A blanket prohibition on carrying a 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. In contrast when a state bans guns merely in particular places, such as public schools , a person can preserve an undiminished right of self-defense by not entering those places; since that’s a lesser burden, the state doesn’t need to prove so strong a need.”
The Court acknowledges the “good cause” requirements of other states. Referring to New York, which is very restrictive regarding possession of handguns, the Court says, “(r)ecently 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. [I]nstead of forbidding anyone from carrying a handgun in public, New York took a more moderate approach to fulfilling its important objective and reasonably concluded that only individuals having a bona fide reason to possess handguns should be allowed to introduce them into the public sphere.”
“The New York gun law. . . 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), is less restrictive than Illinois’s law.”
The Court concluded that “(t)he 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 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.”
HOW THIS AFFECTS YOUR AGENCY
This decision should not have any impact on California and its laws regarding carrying concealed weapons. First, it comes from the Seventh Circuit U.S. Court of Appeals and we are governed by the Ninth Circuit. Secondly, and most importantly, the Illinois law contained a virtual ban on all persons carrying concealed weapons in public; California does not do that.
The Seventh Circuit appears to acknowledge, and support, a state’s right to establish reasonable restrictions on the carrying of weapons in public – whether concealed on not. It points out the legitimacy of the good cause requirement contained in the law in New York state. In its conclusion, when it remands the case back to the lower court, the Seventh Circuit
provides “180 days to allow the Illinois legislature to craft a new gun law that will impose reasonable limitations . . . on the carrying of guns in public.”
That would appear to be totally consistent with the language of the U.S. Supreme Court in both the Heller and McDonald cases where it also acknowledges the right and need of states to establish reasonable limitations of when, where, and how weapons can be carried in public.
It is important to consult with your agency’s legal counsel to secure advice and guidance on complicated legal issues such as this one. As always, if you wish to discuss the case in greater detail, please do not hesitate to contact me at (714) 446 – 1400 or via email atmjm@jones-mayer.com.
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