CHICAGO (CN) — A central Illinois couple told a Seventh Circuit panel Thursday that a state law barring foster care and home day care providers from keeping assembled, loaded handguns in their homes violates their Second Amendment rights.
The couple, Jennifer and Darin Miller, have raised two foster children. Jennifer is also licensed to run a day care out of their family home in Shelbyville, Illinois, about an hour southeast of the state capital Springfield.
But because of that license, she can't keep a loaded handgun in her home safe like she wants to, nor can her husband keep a loaded, concealed gun on his person. Per regulations from the Illinois Department of Children and Family Services, any firearm kept in a foster home or home day care center must be kept unloaded and disassembled, and care providers must alert their clients that guns are being kept on the property.
Hoping to overturn these restrictions, the Millers sued the DCFS in federal court in April 2018. They were backed by the Washington-based Second Amendment Foundation, the Illinois State Rifle Association and the gun rights nonprofit group Illinois Carry.
Four years of litigation later, a federal judge in the Central District of Illinois threw their case out in March 2022.
"A number of courts have held or implied that the presence of children militates in favor of a given place being 'sensitive,'" U.S. District Judge Sue Myerscough wrote. The Barack Obama appointee found that, per the U.S. Supreme Court's 2008 ruling in the gun rights case District of Columbia v. Heller, foster homes and home day care centers are places where more strict gun control measures are warranted.
"The fact that day cares are designated spaces for the care of young children is a powerful indicator that they may be 'sensitive places,' Myerscough opined. "Moreover, a ban on firearms in day cares is closely analogous to a ban on firearms in schools, which is one of the core 'presumptively lawful' measures referenced in Heller."
The Millers filed for an appeal about 10 days after Myerscough gave summary judgment to the Illinois DCFS. On Thursday, their attorney Joe Masterman with Cooper & Kirk told a three-judge Seventh Circuit panel that it was the state's burden to show how the day care and foster care gun restrictions fit within the history of gun regulation in the U.S.. It is a burden, he argued, that the state has failed to meet.
"The state does not identify a single historical law that restricts firearm possession by adults, in their private homes, in order to prevent children from accessing those firearms," Masterman said.
U.S. Circuit Judge Ilana Rovner, a George H. W. Bush appointee, was skeptical of this argument. While the Millers' written briefs claimed that private homes were not considered "sensitive" places when the Second Amendment was ratified in 1791, she pointed out that even the super-conservative Supreme Court of 2022 held this past June in New York State Rifle & Pistol Association v. Bruen that schools and child care centers are places where a prohibition on firearms is reasonable.
"The Bruen court discussed and cited 18th and 19th century laws in reference to sensitive places," Rovner said.
Masterman dismissed Rovner's argument as academic, irrelevant to the legal question of whether the state can bar citizens from keeping guns in their homes. On this question he took an originalist stance, saying the scope of the Second Amendment must be interpreted as its authors intended it.
"Bruen was also very clear that in discussing evidence from after 1791, or after the founding period, the interest in that evidence is purely secondary... the critical question remains what the scope of the right was at the founding," Masterman said. Nothing in the original language of the Second Amendment, he added, mentions the kind of restrictions the Millers are challenging.
"Here, your honor, you have no analogous law to these regulations," Masterman said. "You have no law that limits adults from possessing firearms in their homes."
Masterman's originalist interpretation was countered by Illinois Deputy Solicitor General Sarah Hunger, representing the DCFS.
"Bruen was extraordinarily clear that it is settled as a historical matter that schools are sensitive places... it instructed lower courts to use analogies to those settled historical places in order to create or identify new and analogous places," Hunger said. "And that is what we are doing here in this case; this is a textbook application of Bruen."
She further insisted that daycare and foster care centers are analogous to schools, making Masterman's appeal to history a moot argument.
"All three facilities are facilities that revolve around the care, education and protection of children. They are licensed and overseen by the state; when children are there the state licensees are responsible for their care in a sort of in loco parentis setup," Hunger said. "That is a straightforward application of Bruen and this court should affirm on that basis alone."
Her line of argument was challenged by U.S. Circuit Judge Michael Brennan, a Donald Trump appointee, who proposed that care providers could use their guns to protect children from assailants.
Hunger replied that the state's collected research on the issue, known as the Miller-Azrael Report, found no evidence to support the idea that a caregiver with a gun offered children greater protection than an unarmed caregiver.
"I would note that we would put forward unrebutted evidence at the district court - the Miller-Azrael Report - that took into account whether there was a countervailing safety measure in having the foster parents armed, and they concluded... there was none. And the plaintiffs have not rebutted that," she said.
While Brennan and Rovner seemed split as to their sympathies, the third judge on the panel, the Ronald Reagan-appointed U.S. Circuit Judge Joel Flaum, remained mostly silent throughout the hearing. The panel took the case under advisement but did not say when they would issue a ruling.
The Millers' arguments come amid a nationwide rise in gun violence, with firearms now counted by the U.S. Centers for Disease Control and Prevention as one of the top 10 causes of death among minors.
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