Moore v. Madigan

This case was a challenge to the constitutionality of Illinois’ complete ban on carrying firearms outside the home. Illinois is the last state to have such a ban, and the 7th Circuit has found it unconstitutional.

Judge Posner’s opinion is here [pdf]. There are three relevant points:

1. To deny the right to keep and bear arms outside the confines of the home is to divorce it from its purpose of self-defense, and that’s inconsistent with the Supreme Court’s findings in Heller and McDonald.
2. Rational basis doesn’t fly when it comes to the 2nd Amendment. Illinois needed to make a “strong showing” to justify a ban on carry, and they failed to do so.
3. Claims that public safety may be adversely affected (the “blood in the streets” argument) are unclear, inconclusive, and have little bearing.

This is a big win, and not just for Illinois. Congratulations are due to the 2nd Amendment Foundation and the Illinois State Rifle Association (ISRA). This wasn’t an easy one.

Posner’s somewhat irreverent writing style livens things up a bit, but his judgment is sound.

Twenty-first century Illinois has no hostile Indians. But a Chicagoan is a good deal more likely to be attacked on a sidewalk in a rough neighborhood than in his apartment on the 35th floor of the Park Tower. A woman who is being stalked or has obtained a protective order against a violent ex-husband is more vulnerable to being attacked while walking to or from her home than when inside. She has a stronger self-defense claim to be allowed to carry a gun in public than the resident of a fancy apartment building (complete with doorman) has a claim to sleep with a loaded gun under her mattress. But Illinois wants to deny the former claim, while compelled by McDonald to honor the latter. That creates an arbitrary difference. To confine the right to be armed to the home is to divorce the Second Amendment from the right of self-defense described in Heller and McDonald. It is not a property right–a right to kill a houseguest who in a fit of aesthetic fury tries to slash your copy of Norman Rockwell’s painting Santa with Elves. That is not self-defense, and this case, like Heller and McDonald is just about self-defense.  [p. 8]

I’d predicted that U.S. v. Skoien would have lasting ramifications, and Posner quotes it on the matter of review standards.

In Skoien we said that the government had to make a “strong showing” that a gun ban was vital to public safety–it was not enough that the ban was “rational.” 614 F.3d at 641. Illinois has not made that strong showing–and it would have to make a stronger showing in this case than the government did in Skoien, because the curtailment of gun rights was much narrower: there the gun rights of persons convicted of domestic violence, here the gun rights of the entire law-abiding adult population of Illinois.  [p. 14]

In conclusion, none of the state’s arguments hold much water, and they’ve got 180 days to come up with a working permit system.

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. 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. 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 Supreme Court’s interpretation of the Second Amendment therefore compels us to reverse the decisions in the two cases before us and remand them to their respective district courts for the entry of declarations of unconstitutionality and permanent injunctions. Nevertheless we order our mandate stayed for 180 days to allow the Illinois legislature to craft a new gun law that will impose reasonable limitations, consistent with the public safety and the Second Amendment as interpreted in this opinion, on the carrying of guns in public.  [pp. 20-21]

Now, where does this leave Illinois residents? It’s hard to say. Under the McDonald decision, Chicago was supposed to allow civilians to own handguns. They complied as little as possible and made the process as difficult as possible. I expect the same behavior when it comes to issuing carry permits.

Right now, I picture Mayor Emmanuel stomping around his office, throwing things and yelling at people while a little vein pulses visibly on his forehead. When the dust settles, he’s going to exactly what he has to and no more.

That’s fine. We’ve got the 7th Circuit holding that the 2nd Amendment is not confined to the home, and that flat-out bans won’t fly. As to the restrictiveness of laws passed in the wake of this, we’re on our way to the Supreme Court, possibly in the 2013 session.

The 2nd Circuit recently upheld New York’s restrictive Sullivan Act in Kachalsky v. County of Westchester, while the 4th Circuit is mulling over Woollard v. Gallagher regarding Maryland’s similar law. A split among Circuit courts is a quick way to get this matter before the Supreme Court.

All three are strong, solid cases, and any one of them is a winner.