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Tuesday, December 11, 2012

Illinois' Concealed Carry Ban Found Unconstitutional

In a Second Amendment challenge to the constitutionality of Illinois’ ban on carrying concealed guns, the Seventh Circuit Court of Appeals found that the state failed to meet its burden to provide “more than merely a rational basis for believing that its uniquely sweeping ban is justified by an increase in public safety.” Moore v. Madigan, Nos. 12-1269, 12-1788 (7th Cir. Dec. 11, 2012).  Illinois was the only remaining state that maintained a flat ban on carrying ready-to-use guns outside the home.

As we discussed in June, the Supreme Court decision in District of Columbia v. Heller, first recognized a personal right to possess a handgun for self-defense, especially in the home. 554 U.S. 570 (2008).  In Moore v. Madigan, the district court had concluded that, based on Heller, the core Second Amendment right only exists inside the home. On appeal, the Seventh Circuit disagreed.  

The Seventh Circuit noted that Heller simply indicated that the need for defense of self, family, and property is most acute in the home.  Therefore, “[a] right to bear arms this implies a right to carry a loaded gun outside the home.” In applying this right to the ban on carrying concealed weapons outside the home, the Court concluded that the state failed to make the required “strong showing” of empirical evidence to show that its gun ban was vital to public safety.  Bans that focus on particular places or dangerous people can be upheld with less evidence. 

The Seventh Circuit’s decision is stayed 180 days to allow the Illinois General Assembly an opportunity to craft a new gun law consistent with the Court’s opinion. The Court had some suggestions, stating that “Illinois has lots of options for protecting its people from being shot without having to eliminate all possibility of armed self-defense in public.” These might include:

  • allowing “open carry” of guns in public;
  • “minimal” permit restrictions;
  • bans limited to particular places and obviously or empirically dangerous people;
  • training requirements; and
  • requiring applicants to demonstrate a need for a handgun to ward off dangerous persons.
While Second Amendment jurisprudence is still developing, it is increasingly clear that local governments should be prepared to produce evidence that their local gun regulations actually accomplish their asserted public safety goals.

Post Authored by Dan Bolin, Ancel Glink


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