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Illinois Right-to-Carry: Litigation Leads to Legislation

Monday, June 24, 2013

While recent state attacks on popular firearms and on firearm transfers have been the focus of attention, another major front in the battle involves Right-to-Carry litigation. The epicenter of this litigation is in Illinois—still, as this edition of Legal Update goes out, the only state with no law on the books to provide a legal way for residents to carry firearms for self-defense outside one’s home or business for self-defense. But that may be changing, in a way that shows the complex relationship between legislation and litigation.

First, in a major victory for the right of self-defense outside the home, on Dec. 11, 2012 the U.S. Court of Appeals for the Seventh Circuit struck down Illinois’ ban on carriage. In a decision covering the NRA-backed case of Shepard v. Madigan and a similar non-NRA case, Moore v. Madigan, the court rejected the often-heard claim that the Second Amendment’s protections apply inside the home but not outside, calling such a distinction “irrational.” 

The case was brought by Mary E. Shepard, who was seeking to exercise her right to self-defense following a brutal beating at the hands of a violent criminal. Joining her as a plaintiff was the NRA’s state affiliate, the Illinois State Rifle Association. The NRA Institute for Legislative Action fully funded the case.

In the court’s opinion, Judge Richard Posner relied heavily on the Supreme Court’s decisions in District of Columbia v. Heller and McDonald v. City of Chicago.  Writing that the defenders of Illinois’ law asked the Seventh Circuit to “repudiate the [Supreme] Court’s historical analysis,” he responded “that we can’t do.” Posner went on to note that Heller “repeatedly invokes a broader Second Amendment right than the right to have a gun in one’s home.” Noting the importance of the Second Amendment on the 18th-century frontier, he added, “Twenty-first century Illinois has no hostile Indians. But 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.”

Judge Posner went even further, in fact, suggesting that a stalked or battered woman might have “a stronger self-defense claim to be allowed to carry a gun in public” than at home: “To confine the right to be armed to the home is to divorce the Second Amendment from the right to self-defense described in Heller and McDonald.” He also discussed the Second Amendment’s reference to the right to “bear” arms: “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.” 

Not surprisingly, Judge Posner—a longtime academic himself, and the author of many books on law and economics—also examined scholarly literature by economists and criminologists who have examined the Right-to-Carry issue. Clearly unpersuaded that a carry ban benefits public safety, he wrote that “the empirical literature on the effects of allowing the carriage of guns in public fails to establish a pragmatic defense of the Illinois law.”

On February 22, the full Seventh Circuit refused Illinois’ request for a rehearing of the case. 

The December decision gave the Illinois legislature until June 9 to write a new law that complies with the decision, and the legislative wrangling began immediately. The result at the end of the session on May 31 was a restrictive “shall issue” permit bill. Contrary to the wishes of Chicago politicians, the bill would make permits valid throughout the state, and even preempt some local ordinances such as Chicago’s firearm permit scheme. But it would also impose major restrictions on where firearms may be carried, and leave intact many local restrictions.

Attorney General Lisa Madigan has received a 30-day extension of the court order in the Shepard case until July 9, supposedly to allow for review of the right-to-carry bill. But even if anti-gun Gov. Quinn signs the bill, the state has until July 22 to appeal the case to the U.S. Supreme Court. While the Illinois situation clearly shows how a smart litigation strategy can lead to legislative change, we hope that by the time of our next edition, Illinois residents will no longer be in suspense about these critical issues.

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Established in 1975, the Institute for Legislative Action (ILA) is the "lobbying" arm of the National Rifle Association of America. ILA is responsible for preserving the right of all law-abiding individuals in the legislative, political, and legal arenas, to purchase, possess and use firearms for legitimate purposes as guaranteed by the Second Amendment to the U.S. Constitution.