The Bellevue-based Second Amendment Foundation today scored another victory for concealed carry when the entire Seventh Circuit Court of Appeals let stand a December ruling by a three-judge panel that forces Illinois to adopt a concealed carry statute.
The SAF case, known as Moore v. Madigan, was actually decided in December with Judge Richard Posner writing the majority opinion. In the process, the judge affirmed that the right to bear arms exists outside the home. That ruling now stands, leaving the Illinois legislature no alternative but to write a statute that enables citizens to carry outside the home, without a lot of red tape, for their personal protection. This column earlier covered the ruling, which also applies to a similar case filed by the National Rifle Association called Shepard v. Madigan.
It’s a particularly sweet development for SAF founder and Executive Vice President Alan Gottlieb. Chastised by some gun activists earlier this week for having spoken with some state lawmakers in Olympia about background check legislation, this time he’s knocked one out of the park.
While the case applies to Illinois, it has some major implications for the entire country. Here’s what Posner noted about self-defense and carry outside the home: “The right to ‘bear’ as distinct from the right to ‘keep’ arms is unlikely to refer to the home. To speak of ‘bearing’ arms within one’s home would at all times have been an awkward usage. A right to bear arms thus implies a right to carry a loaded gun outside the home.”
He further noted, “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.”
And Judge Posner also had this observation: “…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.”
When he handed down the ruling in December, Judge Posner stayed it for 180 days, thus giving the legislature six months to come up with a carry law. Friday morning after learning of the full court’s decision, Gottlieb noted that “the clock is ticking.”
“Illinois lawmakers need to create some kind of licensing system or face the prospect of not having any regulations at all when Judge Posner’s deadline arrives,” Gottlieb said. “They need to act. They can no longer run and hide from this mandate.”
This is not the only big win for concealed carry that SAF has under its belt. Almost a year ago, in SAF's Maryland case of Woollard v. Sheridan, U.S. District Court Judge Benson Everett Legg noted, “In addition to self-defense, the (Second Amendment) right was also understood to allow for militia membership and hunting. To secure these rights, the Second Amendment‘s protections must extend beyond the home: neither hunting nor militia training is a household activity, and ‘self-defense has to take place wherever [a] person happens to be’.”
In that ruling, striking down Maryland’s system of issuing carry permits, Judge Legg observed that concealed carry statutes that are so discretionary in nature as to be arbitrary do not pass constitutional muster.
Perhaps Judge Legg’s most important contribution to the right to bear arms was when he stated, “A citizen may not be required to offer a ‘good and substantial reason’ why he should be permitted to exercise his rights. The right’s existence is all the reason he needs.”
Gottlieb, and his legal point man, attorney Alan Gura – winner of both the Heller and McDonald Supreme Court cases – have been carefully working on these cases for a long time. In the Moore case, Gura had excellent teamwork from a pair of other rising Second Amendment legal beagles, David Sigale and David Jensen. If you’re an anti-gun politician, those are the last three guys on the planet you would want coming through the door.
One amusing result of this collaboration is that this team is sometimes referred to as “the two Alans and the two Davids.”
As Gottlieb likes to explain it, the high court has now ruled that the Second Amendment affirms and protects (it doesn’t “give”) an individual civil right to keep and bear arms, and that this right extends to citizens in all 50 states. The next step is to have the Supreme Court affirm that the right to bear arms applies outside the home, thus demolishing yet another specious argument by gun prohibitionists that the right to own a gun is confined to the home.
Today’s decision by the Seventh Circuit moves the ball that much closer to the goal line.
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