I’ve now had an opportunity to read the opinion of the U.S. Court of Appeals for the Seventh Circuit in the Illinois concealed-carry case I mentioned yesterday, and I offer a few additional observations. (You can download a .pdf version of court’s decision in Michael Moore, et al. v. Lisa Madigan, et al. Nos. 12-1269 and 12-1788 (7th Cir. Dec. 11, 2012), from the Court’s website, here.)
First: Interestingly enough, news reports on the case, including the WBEZ story I linked to yesterday, erroneously refer to the law in question as a “ban on concealed weapons.” In fact, the law at issue prohibited not only carrying weapons in a concealed state, but carrying weapons in public in any manner, concealed or not, in a wide variety of circumstances. The Seventh Circuit described the challenged statute this way:
An Illinois law forbids a person, with exceptions mainly for police and other security personnel, hunters, and members of target shooting clubs, 720 ILCS 5/24-2, to carry a gun ready to use (loaded, immediately accessible—that is, easy to reach—and uncased). … Even carrying an unloaded gun in public, if it’s uncased and immediately accessible, is prohibited, other than to police and other excepted persons, unless carried openly outside a vehicle in an unincorporated area and ammunition for the gun is not immediately accessible.720 ILCS 5/24-1(a)(4)(iii), (10)(iii), -1.6(a)(3)(B).
Moore v. Madigan, slip op. at 1-2, citing Sections 1, 1.6, and 2 of Article 24 of the Illinois Criminal Code of 1961 (“Deadly Weapons”), 720 ILCS 5/24-1, 24-1.6, and 24-2.
So the issue isn’t whether the state can prevent you from concealing your weapon when you’re walking around with it, but whether the state can prevent you from walking around with it at all. In fact, the Seventh Circuit explicitly stated that “a state may be able to require ‘open carry’ — that is, require persons who carry a gun in public to carry it in plain view rather than concealed.” Moore v. Madigan, slip op. at 10, citing District of Columbia v. Heller, 554 U.S. 570, 626 (2008). Moore v. Madigan didn’t answer that question because the challenged statute prohibited much more than concealing weapons in public.
Second: Yesterday’s opinion by the Seventh Circuit emphasized that the Supreme Court in Heller and in McDonald v. City of Chicago, ___ U.S. ___, 103 S. Ct. 3020 (2010), couched its Second Amendment analysis not simply in terms of a personal right to own certain types of weapons, but a broader a right to self-defense that includes the right to keep and bear arms for that purpose. According to the Seventh Circuit:
Heller held that the Second Amendment protects “the right of law-abiding, responsible citizens to use arms in defense of hearth and home.” 554 U.S. at 635. But the Supreme Court has not yet addressed the question whether the Second Amendment creates a right of self-defense outside the home.
Moore v. Madigan, slip op. at 2.
Before the Supreme Court’s decision in Heller, I suspect that most of us who hadn’t studied the history of the Second Amendment in excruciating detail, but nonetheless had more than a passing familiarity with that period of American history, would have said that the Amendment was not grounded in concerns over personal safety so much as protecting the Republic itself and the liberties secured by the Constitution and the Bill of Rights. Most of us, I suspect, would have thought that the drafters of the Second Amendment were less concerned about cutthroats and highway robbers than they were about foreign countries invading our shores, or future tyrants usurping power and trashing the Constitution.
But the Supreme Court did not tie the right to keep and bear arms solely to the Framers’ desire to have a ready fighting force to protect the nation and the Constitution. As Moore v. Madigan says, the Court determined that the right to keep and bear arms was grounded instead in a more general right to self-defense that dates all the way back to seventeenth century England.
Accordingly, the bulk of the analysis in Moore v. Madigan focuses on whether the right to own and to carry guns for the purpose of self-defense extends outside the home, and the court concludes, not altogether illogically, that it does.
And so that leads me to my third point: While Moore v. Madigan says that if you have a right to keep weapons in your home for self-defense, it makes no sense to prevent you from carrying those weapons outside the home for self-defense, Heller, discussing the limitations on the individual right conferred by the Second Amendment, specifically stated, “nothing in our opinion should be taken to cast doubt on … laws forbidding the carrying of firearms in sensitive places such as schools and government buildings … .” 554 U.S. at 626. In other words, while yesterday’s ruling says, in effect, you can’t impose arbitrary geographical limitations on where a person can carry a weapon for purposes of self-defense, the Supreme Court in Heller said, of course the government can keep handguns out of government buildings, for Pete’s sake!
So you have “the right to armed self-defense,” to use the Seventh Circuit’s term, on the street, in your neighbor’s home, in a tavern … but not where judges and government officials sit. No, because it would be too dangerous to allow you to bring your guns there!
In any event, I’m sure the Seventh Circuit’s decision in Moore v. Madigan will generate a lot more discussion – and possibly another Supreme Court decision – but one thing is clear to me: In the wake of this newfound “right to armed self-defense” stemming from the Heller and McDonald decisions, it will be very difficult to determine when and under what circumstances the government can ask you to check your weapons at the door.