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Seventh Circuit orders new look at day care gun case in light of Supreme Court ruling

A three-judge panel sided with an Illinois couple who want to run an in-home day care while also keeping loaded guns in their home.

CHICAGO (CN) — An Illinois couple who want to keep loaded guns around children received a boon to their case Friday afternoon, when the Chicago-based Seventh Circuit vacated a lower court ruling against them.

The couple, Jennifer and Darin Miller of Shelbyville, Illinois, sued the state's Department of Children and Family Services in April 2018 for the right to keep loaded guns in their home while also providing in-home day care services. Per current DCFS policy, 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.

The Millers, who have raised two foster children and are licensed to run a day care out of their family home, hoped to have these restrictions overturned. Their 2018 suit was backed by the Washington-based Second Amendment Foundation, the Illinois State Rifle Association and the gun rights nonprofit group Illinois Carry, which argued the DCFS rules violate the Second Amendment.

After four years of litigation, U.S. District Judge Sue Myerscough in the Central District of Illinois decided they didn't. The Barack Obama appointee tossed out the Millers' suit in March 2022, finding that per the U.S. Supreme Court's 2008 ruling in the gun rights case District of Columbia v. Heller, home day cares are places where additional gun control measures are warranted.

According to the U.S. Center for Disease Control and Prevention, firearms are currently among the top 10 causes of death among minors.

"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 wrote. "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."

After the Millers appealed Myercough's ruling, a Seventh Circuit appellate panel heard oral arguments in the case two weeks ago. The panel leaned conservative, consisting of Ronald Reagan appointee Joel Flaum, George H. W. Bush appointee Ilana Diamond Rovner and Donald Trump appointee Michael Brennan.

The trio's two-page order issued Friday vacates Myerscough's opinion, with specific instructions for the district court to reconsider the case in light of the 2022 Supreme Court ruling in New York State Rifle & Pistol Association v. Bruen. In Bruen, the conservative majority of the high court decided 6-3 that states cannot place restrictions on the right to publicly carry guns based solely on public safety concerns. The majority's originalist opinion, penned by Justice Clarence Thomas, found that attempts to implement stronger gun control measures were out of step with historical U.S. jurisprudence.

"Apart from a few late-19th-century outlier jurisdictions, American governments simply have not broadly prohibited the public carry of commonly used firearms for personal defense," Thomas wrote.

It's an argument the appellate panel explicitly cited as a reason for the lower court to reconsider the case.

"We now remand for additional proceedings to receive the full benefit of the district court’s decision applying the 'text, history, and tradition' test of Bruen," the order states. "On remand, the district court should allow the parties to engage in further discovery, including seeking additional expert reports. The district court should then evaluate any subsequent motions under Bruen’s text, history, and tradition framework."

The panel's order does not overturn the DCFS restrictions the Millers challenged, nor does it guarantee an ultimate district court ruling in their favor. It also instructs the lower court to consider the extent to which day cares can be considered "sensitive places" where stricter gun control is appropriate, as well as the context of a day care center being a place of employment.

The Millers' case is not the only Illinois gun rights litigation currently working its way through the courts. Several lawsuits at the state and federal level are currently challenging Illinois' recently enacted statewide ban of assault weapons, all of which similarly cite Bruen.

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