Wednesday, December 12, 2012

The Second Amendment - Outside the Home

The United States Court of Appeals for the Seventh Circuit ruled 2-1 on December 11 in Moore v. Madigan, 12-169 and 12-1788 that Illinois' ban on carrying a weapon ready to use in public was unconstitutional.  Ready to use means loaded, easy to reach, and uncased.  Carrying an unloaded weapon in public was also illegal if it was uncased and readily accessible.  The law had allowed carrying a weapon ready to use on the person's own property, home, the property of another with the owner's permission, or the person's fixed place of business.  The law did exempt certain groups including Police, security personnel, hunters, and target shooting club members.  Judge Posner wrote the opinion of the court. 

The United States Supreme Court has held that the Second Amendment allows a law abiding citizen to bear arms for self-defense in the home.  District of Columbia v. Heller, 554 U.S. 570 (2008) (applicable to the federal government); McDonald v. City of Chicago, 561 U.S. 3025 (2010) (applicable to the states).  Judge Posner noted that the Supreme Court has not addressed the applicability of the Second Amendment outside of the home.  The lower courts ruled that it did not apply outside of the home.

The Seventh Circuit held that the Second Amendment created a right to bear arms for self-defense and that Heller contemplated a right that was broader than just self-defense in the home.  Judge Posner declined to revisit the issue of the historical nature of of the right to bear arms and noted that the court could not ignore the Supreme Court's holdings in Heller and McDonald on that point.  The language of the Second Amendment in creating distinct rights to 1) keep and 2) bear arms  provided some guidance to the court.  Judge Posner ruled that the word bear would be awkward to use if the Amendment only applied within the home and decided that the wording implied the right to carry a loaded gun outside of the home.  As it may be necessary to defend one's self both in and outside of the home, the law was unconstitutional.  Posner noted that a person was more likely to be attacked outside of the home in Chicago than inside it.   To confine the right to the home would "divorce the Second Amendment from the right of self-defense described in Heller and McDonald."  He also wrote, "A gun is a potential danger to more people if carried in public than just kept in the home.  But the other side of this coin is that knowing that many law-abiding citizens are walking the streets armed may make criminals timid.  Given that in Chicago, at least, most murders occur outside the home, the net effect on crime rates in general and murder rates in particular of allowing the carriage of guns in public is uncertain both as a matter of theory and empirically."  (citations omitted).   The court found that restrictions on gun rights must not only be rational, but also include a strong showing that the restriction is vital to public safety over and above body counts.  The greater the restriction is then the greater the burden is on the government to justify it.

The court stayed its ruling for six months to give the Illinois legislature time to consider concealed weapon legislation that does not violate the Second Amendment.

Judge Williams dissented from the majority.  He also noted that Heller required a historical analysis of the status of the right dating from 1791.  Rather than apply the Supreme Court's historical conclusions from Heller, Williams would have held that Heller merely mandated the historical analysis.  However, Williams decided that it did not mandate that the court reach the same conclusions as the right to carry a weapon publicly is different right than the right asserted in Heller.  He felt that it was a close question and that the matter was unsettled.  Under these circumstances and given the state's interest in regulating the safety of its citizens, Judge Williams would have deferred to the judgment of the Illinois state legislature and allowed the law to stand.

s/ Kurt Koehler
308 1/2 S. State Street Suite 36
Ann Arbor, Michigan 48198
(Washtenaw County)

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