The often-interesting Judge Richard Posner of the federal 7th Circuit Court of Appeals has come out with a zinger of an opinion on the Second Amendment, one that could if my read is correct set up the next opportunity for the Supreme Court to limn the shape of our right to possess and carry weapons in a post-Heller and McDonald world.
The opinion in Moore v. Madigan overturns (in 180 days) the state of Illinois' essential ban on carrying of weapons in public, generally even unloaded ones. The case Posner and his fellow judges heard was a consolidation of two appeals of two similar challenges to the carry ban, each of which had been defeated by District Courts, on the general grounds that the precise language of Heller applied only to commonly used weapons for self-defense in the home, not outside of it.
Now, quotation from and analysis of Posner's majority opinion:
Both Heller and McDonald do say that “the need for defense of self, family, and property is most acute” in the home...but that doesn’t mean it is not acute outside the home. Heller repeatedly invokes a broader Second Amendment right than the right to have a gun in one’s home, as when it says that the amendment “guarantee[s] the individual right to possess and carry weapons in case of confrontation.”...
Confrontations are not limited to the home. The Second Amendment states in its entirety that “a well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed”. 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. And one doesn’t have to be a historian to realize that a right to keep and bear arms for personal self-defense in the eighteenth century could not rationally have been limited to the home. .....
After much discussion of the historic rights of Englishmen and colonial history, Posner gets sharp:
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. 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. That creates an arbitrary difference. 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. It is not a property right—a right to kill a houseguest who in a fit of aesthetic fury tries to slash your copy of Norman Rockwell’s painting Santa with Elves. That is not self-defense, and this case like Heller and McDonald is just about self-defense. A gun is a potential danger to more people if carried in public than just kept in the home. But the other side of this coin is that knowing that many law-abiding citizens are walking the streets armed may make criminals timid. Given that in Chicago, at least, most murders occur outside the home...the net effect on crime rates in general and murder rates in particular of allowing the carriage of guns in public is uncertain both as a matter of theory and empirically.
After much detailed discussion of the criminological debate over whether more guns being carried leads to more crime or mayhem, Posner concludes:
In sum, the empirical literature on the effects of allowing the carriage of guns in public fails to establish a pragmatic defense of the Illinois law...Anyway the Supreme Court made clear in Heller that it wasn’t going to make the right to bear arms depend on casualty count...If the mere possibility that allowing guns to be carried in public would increase the crime or death rates sufficed to justify a ban, Heller would have been decided the other way, for that possibility was as great in the District of Columbia as it is in Illinois. ...
A blanket prohibition on carrying gun in public prevents a person from defending himself anywhere except inside his home; and so substantial a curtailment of the right of armed self-defense requires a greater showing of justification than merely that the public might benefit on balance from such a curtailment, though there is no proof it would.
After noting that the Second Circuit in Kachalsky v. County of Westchester upheld a tough New York law requiring proof of unique need for a carry permit, Posner writes (avoiding any attempt to settle the important question of what sort of "scrutiny" Second Amendment violations should receive from courts):
The New York gun law upheld in Kachalsky, although one of the nation’s most restrictive such laws...is less restrictive than Illinois’s law. Our principal reservation about the Second Circuit’s analysis...is its suggestion that the Second Amendment should have much greater scope inside the home than outside simply because other provisions of the Constitution have been held to make that distinction...But the interest in self-protection is as great outside as inside the home. In any event the court in Kachalsky used the distinction between self-protection inside and outside the home mainly to suggest that a standard less demanding than “strict scrutiny” should govern the constitutionality of laws limiting the carrying of guns outside the home; our analysis is not based on degrees of scrutiny, but on Illinois’s failure to justify the most restrictive gun law of any of the 50 states.
Finally, Judge Posner lays down the law:
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.
Illinois should note that most states have done fine with a simple "anyone can carry a gun without a really strong reason to deny them."
I wrote about the early days of this winning suit in May 2011. I blogged about the questions of scrutiny inherent in the earlier district court decision in the case that this Posner one overturns. Stephen Chapman at Reason on "The Unconcealed Truth About Carrying Guns." My book on Heller decision and the Second Amendment, Gun Control on Trial.
Speaking not as a lawyer, my initial read indicates that this decision and the Second Circuit Kachalsky decision might constitute a circuit split on the question of the limits of regulation on weapon carrying that might trigger a later Supreme Court case; gun scholar David T. Hardy says it's "something of a Circuit split...not a perfect split, but pretty close to one." Time will tell and a better lawyer than me might be able to decide for certain.