Using the courts to remind Illinois of the 'bear' in 'keep and bear arms'

Last Thursday, the Second Amendment Foundation (SAF), Illinois Carry, and four individual Illinois residents moved for an injunction in the U.S. District Court for the Central District of Illinois, against the state's outright ban of armed self-defense in public. Writes Seattle Gun Rights Examiner Dave Workman:

Hot on the heels of its win before the Seventh Circuit Court of Appeals Wednesday that resulted in an order to the federal district court forcing the City of Chicago to allow gun ranges inside the city limits, the Bellevue-based Second Amendment Foundation has moved for a preliminary injunction against the State of Illinois to prevent further enforcement of that state’s prohibitions on firearms carry in public by law-abiding citizens.

The win to which Mr. Workman refers came just one day before last Thursday's motion, and resulted in the U.S. Seventh District Court of Appeals overturning a lower court's denial of a motion for an injunction against Chicago's ban of gun ranges within the city. That such a ban had been put in place is all the more unforgivable in light of the fact that Chicago requires range time for those wishing to legally possess a handgun in the city. SAF worked with the Illinois State Rifle Association (ISRA) and three individual Illinois residents in that case.

The day after SAF's motion for an injunction against the Illinois self-defense ban, the NRA, ISRA, and yet another individual Illinois resident filed a similar motion in the U.S. District Court for the Southern District of Illinois.

In other words, Illinois courts are getting in rather a lot of Second Amendment work lately. How they'll rule on the requested injunctions is, of course, hard to predict. It probably is fairly safe to assume that however the two district courts rule, the losing side will appeal it up to the Seventh Circuit Court of Appeals. The Seventh does not have an especially proud record of protecting the right to self-defense. As National Gun Rights Examiner David Codrea noted a couple summers ago, that court then ruled that an outright state ban of all self-defense would be Constitutionally permissible:

Suppose a state were to decide that people cornered in their homes must surrender rather than fight back—in other words, that burglars should be deterred by the criminal law rather than self help. That decision would imply that no one is entitled to keep a handgun at home for self-defense, because self-defense would itself be a crime, and Heller concluded that the second amendment protects only the interests of law-abiding citizens...

Our hypothetical is not as farfetched as it sounds. Self-defense is a common-law gloss on criminal statutes, a defense that many states have modified by requiring people to retreat when possible, and to use non-lethal force when retreat is not possible...An obligation to avoid lethal force in self-defense might imply an obligation to use pepper spray rather than handguns.

That, of course, was before McDonald v. Chicago established that state and local governments are constrained by the Second Amendment, and last week's action with regard to the Chicago shooting range ban indicates that the Seventh Circuit might have learned something since then. That ruling was unanimous, and contained some fairly strong wording, even to the point of placing the Second Amendment on a level with the First:

It’s hard to imagine anyone suggesting that Chicago may prohibit the exercise of a free-speech or religious-liberty right within its borders on the rationale that those rights may be freely enjoyed in the suburbs. That sort of argument should be no less unimaginable in the Second Amendment context.

That would seem to indicate that the Seventh Circuit Court of Appeals now does acknowledge that the right to keep and bear arms, as protected by the Second Amendment, is a fundamental right. Illinois is the only state to offer no means for legal firearms carry--open or concealed--for regular citizens. To deny the motion for an injunction against a total ban of defensive firearm carry, the court would have to edit "and bear" out of "keep and bear arms."

Editing inconvenient parts out of the Second Amendment might be acceptable for Brady Campaign legal director Dennis "What People?" Henigan, but it cannot be borne in the courts.