Tuesday, December 11, 2012
A divided three-judge panel of the Seventh Circuit ruled today in Moore v. Madigan that Illinois's prohibition on carrying a ready-to-use gun outside the home violates the Second Amendment. The crux of the ruling is the majority's view that the Second Amendment protects the right to self defense even outside the home.
Judge Posner wrote a meandering opinion for the majority, examining history, text, precedent, social science, and even the fact that Illinois is the only state with a flat ban on carrying ready-to-use guns. Judge Posner wrote that the Second Amendment text ("keep" and "bear") and the language of both Heller and McDonald suggested that the right to self defense in those cases was not limited to the home.
Judge Posner applied the Seventh Circuit's "strong showing" standard from U.S. v. Skoien, 614 F.3d 638 (7th Cir. 2010), addressing the federal ban on firearm possession of any person "who has been convicted in any court of a misdemeanor crime of domestic violence." 18 U.S.C. Sec. 922(g)(9). Under that standard, the government has to make a "strong showing" that a gun ban was vital to public safety. Here, Illinois had to make an even stronger showing than the government in Skoien, because "the curtailment of gun rights [under Illinois law is] much narrower." Op. at 14. The standard is higher--maybe much higher--than rational basis review. The court explained:
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 place, 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. Similarly, the state can prevail with less evidence when, as in Skoien, guns are forbidden to a class of persons who present a higher than average risk of misusing a gun. And empirical evidence of a public safety concern can be dispensed with altogether when the ban is limited to obviously dangerous persons such as felons and the mentally ill. Illinois has lots of options for protecting its people from being shot without having to eliminate all possibility of armed self-defense in public.
Op. at 15.
Judge Posner said that Illinois failed to meet this standard. In particular, Judge Posner wrote that Illinois was alone among the 50 states in having such a restrictive law, and that "[i]f the Illinois approach were demonstrably superior, one would expect at least one or two other states to have emulated it." Op. at 16.
Judge Williams dissented, arguing that the Supreme Court in Heller and McDonald did not answer the question here--whether the Second Amendment protects the right to carry guns for self defense outside the home--and that the court should defer to the State unless and until the Supreme Court rules otherwise.