In Moore v. Madigan, the state of Illinois claimed that there was no historical evidence of a “generally recognized private right to carry arms in public in 1791, the year the Second Amendment was ratified.” The Seventh Circuit rejected that view, criticizing the state for asking the court to repudiate the Supreme Court’s historical analysis in District of Columbia v. Heller (2008) and McDonald v. City of Chicago (2010).
Heller held that the Second Amendment protects “the right of law-abiding, responsible citizens to use arms in defense of hearth and home.” McDonald held that the Second Amendment is applicable to the states. But as the Seventh Circuit noted, neither case directly addressed whether the Second Amendment creates “a right of self-defense outside the home.”
Illinois’s law was one of the strictest in the county, forbidding anyone from carrying a weapon “ready to use (loaded, immediately accessible—that is, easy to reach—and uncased)” with limited exceptions for police, hunters, and members of target shooting clubs. The ban did not apply to a person on his own property or in his own home or place of business. But even carrying an unloaded gun in public is prohibited.
The Seventh Circuit refused to “engage in another round of historical analysis to determine whether eighteenth-century America understood the Second Amendment to include a right to bear guns outside the home.” The court concluded that self-defense “is as important outside the home as inside.” Illinois had failed to meet the burden of justifying its “uniquely sweeping ban” by an increase in public safety.
Although the court found the Illinois statute unconstitutional, it stayed its finding 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…on the carrying of guns in public.”
This decision sets up a likely split in the federal courts of appeal. Last week, a three-judge panel of the U.S. Second Circuit in Kachalsky v. County of Westchester refused to overturn a New York law that limits concealed carry permits only to those who can show a “proper cause” for a weapon. Although the statute does not define “proper cause,” state courts have established that “proper cause” requires demonstrating “a special need for self-protection distinguishable from that of the general community or of persons engaged in the same profession.” The Second Circuit found that limiting handgun possession in public “to those who show a special need for self-protection” does not violate the Second Amendment.
One can imagine a strained way to harmonize those two federal court rulings, since the Illinois and New York statutes are somewhat different, but the most logical reading is that one court applied the Second Amendment correctly and the other did not. The lawyer who lost in the Second Circuit, Alan Gura, prevailed in the Supreme Court in Heller and McDonald. Gura will now either ask the entire Second Circuit en banc to reconsider its erroneous panel opinion or file a petition for certiorari with the Supreme Court to hear the case. Illinois has the same options in the Seventh Circuit.
Assuming neither court changes its opinion, the split makes it much more likely that the Supreme Court will accept at least one of the cases for review, perhaps as early as next fall. Thus, we may soon find out whether the Second Amendment protects the right to both keep (inside the home) and bear (outside the home) arms, as a plain reading of the text and history seems to provide.
Source material can be found at this site.