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Second Amendment – Ban on public carrying of firearms

Moore v. Madigan, 7th Circuit Nos. 12-1269 & 12-1788, 12/11/12

7th Circuit court of appeals decision

Illinois’s broad ban forbidding most persons to carry a gun that is loaded, immediately accessible, and uncased violates the Second Amendment:

We are disinclined 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 Supreme Court [in District of Columbia v. Heller, 554 U.S. 570 (2008), and McDonald v. City of Chicago, 130 S. Ct. 3020 (2010)] 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.

No direct application to SPD practice, but notable as another milestone on the road through the gun law challenges that began with Heller. The majority and dissent argue extensively about the historical and policy questions involved, and the opinion is worth reading for those interested in those questions. As the majority notes (slip op. p. 2), Heller and McDonald do not explicitly address whether the Second Amendment creates a right of self-defense outside the home, so this case may be headed for the Supreme Court.

The court characterized the Illinois law as virtually a ban on public carrying altogether, given its “meager exceptions” allowed carrying by only some persons (e.g., police, security personnel, hunters) or in some places (e.g., a person’s own property or home or fixed place of business). Wisconsin’s statute prohibiting carrying a concealed weapon (§ 941.23) was once nearly as broad, but that is no longer true. After the adoption of the Wisconsin right to bear arms amendment in 1998 the statute was limited by the “constitutional defense” spelled out in State v. Hamdan, 2003 WI 113, ¶¶85-89, 264 Wis. 2d 433, 665 N.W.2d 785. And most recently, of course, the legislature adopted an extensive new law allowing the carrying of concealed weapons (2011 Wisconsin Act 35).

For those considering challenges to gun restrictions, the opinion reiterates the “heightened scrutiny” standard that has been applied to restrictions on the right to bear arms, saying (slip op. p. 14) “a ban as broad as Illinois’s can’t be upheld merely on the ground that it’s not irrational,” but instead that Illinois had to make a “‘strong showing’ that a gun ban was vital to public safety”—a showing the state failed to make. The court contrasts the broad ban on public carrying to the far narrower ban on possession by those convicted of domestic abuse reviewed in U.S. v. Skoien, 614 F.3d 638 (7th Cir. 2010), which was upheld because the state made a strong showing. In contrasting the two bans, the majority here makes it clear that the broader the restriction imposed, the stronger the showing the state will have to make to justify it.

Citing Skoien, our court of appeals applied this intermediate or heightened scrutiny test in upholding Wisconsin’s categorical ban on possession of a firearm by felons in State v. Pocian, 2012 WI App 158, ¶11, 341 Wis. 2d 380, 814 N.W.2d 894. On the other hand, in Hamdan—which predates Heller—the supreme court took a different approach with regard to § 941.23, saying (¶46) that its broad ban on concealed weapons was a facially valid exercise of the state’s broad police power to regulate firearms, and that it would be unconstitutional as applied “only if the public benefit in this exercise of the police power is substantially outweighed by an individual’s need to conceal a weapon in the exercise of the right to bear arms….” Again, after Act 35 our concealed carry prohibition is not as restrictive as it was when Hamdan was decided; but requiring a person to show his or her need to carry a concealed weapon outweighs the public benefit of the law seems questionable in light of the standard the 7th Circuit applied to Illinois’s broad ban on public carrying.

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