Friday, February 22, 2013
The Seventh Circuit today denied en banc review of its earlier three-judge panel decision in Moore v. Madigan overturning Illinois's prohibition on carrying a ready-to-use gun outside the home. The panel held that the prohibition violated the Second Amendment. Today's denial reaffirms that ruling and sets the case up for potential Supreme Court review. (As of this writing, Illinois AG Lisa Madigan's press office couldn't say whether the state would seek Supreme Court review.)
Recall that the case challenged Illinois's prohibition on carrying guns outside the home. The earlier panel held that the text, history, and recent precedent on the Second Amendment all supported the conclusion that the Second Amendment right to self-defense extends outside the home. Judge Posner wrote that opinion; Judge Williams dissented.
Judge Hamilton, joined by Judges Rovner, Wood, and Williams, dissented from today's denial of en banc review. The dissent echoed Judge Williams's earlier dissent--that the majority's reading stretches the Supreme Court's holdings in Heller and McDonald, both of which turned on a right of self-defense in the home:
First, extending the right to bear arms outside the home and into the public sphere presents issues very different from those involved in the home itself, which is all that the Supreme Court decided in [Heller] and [McDonald]. I will not repeat the debate in the panel opinions reviewing the historical and empirical evidence, for that debate was, in the majority's view, essentially dicta. The core of the panel majority's reasoning is that because there is a need for self-defense outside the home as well as in, Heller and McDonald should extend to public carrying of loaded firearms. . . . The logic has some appeal, but its simplicity overlooks qualitative differences between a private home and public streets and buildings that must be considered as we try to interpret [those cases].
Judge Hamilton also noted that the majority's approach sets the Second Amendment test somewhere between rational basis review and strict scrutiny, thus allowing a range of gun regulation, even if not an outright ban on carrying guns outside the home:
- reasonable limits on who can carry a gun outside the home, including training and proficiency requirements;
- reasonable limits on where qualified persons can carry firearms in public;
- reasonable limits on how qualified persons may carry firearms (e.g., loaded or not, concealed, etc.);
- reasonable limits on which firearms may be carried; and
- allowing private bans (by bar owners, restaurant owners, and the like) on firearms.