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Saturday, December 9, 2023
Courthouse News Service
Saturday, December 9, 2023 | Back issues
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Ban on Illinois Concealed Weapons Overturned

CHICAGO (CN) - Illinois cannot ban citizens from carrying guns in public, the 7th Circuit ruled, finding that the right to self-defense extends outside one's home.

Under Illinois law, uncased, "ready-to-use" guns may be kept in a person's home, apartment or permanent place of business, but they may not be carried in public. Illinois is the only state with such a ban.

Federal judges in central and southern Illinois dismissed separate challenges to the law under the Second Amendment earlier this year. A three-judge panel of the federal appeals court consolidated the cases for review.

Noting that there is no Supreme Court ruling that directly addresses the issue presented by the Illinois law, the panel found precedent implies that the right to self-defense extends outside of the home.

This interpretation accords with the written text of the Second Amendment, according to the ruling.

"The right to 'bear' as distinct from the right to 'keep' arms is unlikely to refer to the home," according to the majority opinion authored by Judge Richard Posner and joined by Judge Joel Flaum. "To speak of 'bearing' arms within one's home would at all times have been an awkward usage. A right to bear arms thus implies a right to carry a loaded gun outside the home."

In the 2008 resolution of District of Columbia v. Heller, the U.S. Supreme Court held that Washington's prohibition on handgun possession violated a constitutional right to possess a firearm for lawful purposes, such as self-defense.

Since Heller applied only to federal districts, such as the District of Columbia, the court later expanded application to cities and states in McDonald v. Chicago.

Supporters of the Illinois law had presented historical evidence that there was no private right to carry arms in public at the time of the Second Amendment's passage. But the appeals court disagreed, noting that similar arguments failed to pass muster in Heller.

"We are disinclined to engage in another round of historical analysis to determine whether eighteenth-century America understood the Second Amendment to include a right to bear guns outside the home," Posner wrote. "The Supreme Court has decided that the amendment confers a right to bear arms for self-defense, which is as important outside the home as inside."

Noting that most Chicago murders occur outside the home, the majority concluded that Illinois' ban denies the right to self-defense where it is most needed. While the state could still legitimately regulate gun possession, it must prove that legitimate public safety concerns are at stake.

Posner and Flaum determined that this burden had not been met.

Lawmakers can serve Illinois interests, without unconstitutionally curtailing constitutional rights, by enforcing restrictions, such as banning guns from schools and government buildings, requiring a permitting process, and forbidding the sale of guns to former felons and the mentally unstable.

"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," Posner wrote. "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 panel issued a permanent injunction against the law but stayed its order for 120 days to give the Illinois Legislature to tailor the gun-control law more narrowly.

In a 25-page dissent, Judge Ann Claire Williams disagreed that the Supreme Court had foreclosed the issue.

"Heller's approach suggests that judges are to examine the historical evidence and then make a determination as to whether the asserted right, here the right to carry ready-to-use arms in public (in places other than those permitted by the Illinois statute) for potential self-defense, is within the scope of the Second Amendment," Williams wrote.

"History might be ambiguous as to whether there is a right to carry loaded firearms for potential self-defense outside the home," she added.

As such, Williams said the panel should have deferred to the state Legislature.

The extensive ban in Illinois allows law enforcement to proactively combat violent crime, Williams also noted.

"Under a law like the Illinois law, an officer with some reasonable belief that a person is carrying a firearm can stop that person and remove the gun from the street because the officer has a reasonable belief that a crime is taking place," the dissent states. "The ability to use stops and arrests upon reasonably suspecting a gun as a law enforcement tactic to ultimately protect more citizens does not work if guns can be freely carried."

Five Illinois residents, the Second Amendment Foundation and the Illinois State Rifle Association served as plaintiffs in the suit.

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