Illinois Upholds Public Carry Ban on Weapons


Eugene Volokh explains and contextualizes a crummy Second Amendment decision just out of Illinois in Shepard v. Madigan:

Illinois basically bans private citizens from carrying guns outside the home in any way that's useful for immediate self-defense. Shepard v. Madigan (S.D. Ill. Mar. 30, 2012), has just upheld this ban; other courts, in California, Illinois, Maryland, and Massachusetts have done the same, though the federal district courts in Maryland and North Carolina, as well as an appellate court in Puerto Rico have held the opposite.

Volokh goes on to try to untangle the question of judicial scrutiny as it is unfolding in various lower court decisions about the Second Amendment post-Heller. 

The district court reasoned that even a total ban on carrying guns for self-defense outside the home should be judged under "intermediate scrutiny," and the ban passes because "[t]he State of Illinois has determined that, for purposes of protection of its residents, a citizen's interest in carrying a firearm in public should be subject to the governmental interest in safeguarding the welfare of the public at large from the inherent dangers in a loaded firearm."…  

The court doesn't discuss whether — as the Maryland federal district court recently suggested — intermediate scrutiny can only be satisfied by regulations of the carrying of guns outside the home, rather than by total prohibitions…..

The court also says that, as to "laws that impact the right to bear arms outside the home," "the Seventh Circuit has determined that intermediate scrutiny would apply. See, Ezell, 651 F.3d at 703-04 (collecting cases applying intermediate standard in the Third, Fourth, and Tenth Circuits)." But I don't see how that is a correct reading of Ezell v. City of Chicago (7th Cir. 2011)…:

Volokh then quotes Ezell:

"The approach outlined here does not undermine Skoien, 614 F.3d at 639-43, or United States v. Williams, 616 F.3d 685, 691-93 (7th Cir.2010), both of which touched on the historical "scope" question before applying a form of intermediate scrutiny. And this general framework has been followed by the Third, Fourth, and Tenth Circuits in other Second Amendment cases.

For all other cases, however, we are left to choose an appropriate standard of review from among the heightened standards of scrutiny the Court applies to governmental actions alleged to infringe enumerated constitutional rights; the answer to the Second Amendment "infringement" question depends on the government's ability to satisfy whatever standard of means-end scrutiny is held to apply."

But there were specific reasons that Ezell's decision found "intermediate scrutiny" appropriate in Skoien and Williams, as Volokh goes on to explain:

But, as the Ezell court noted, "Intermediate scrutiny was appropriate in Skoien because the claim was not made by a 'law-abiding, responsible citizen' as in Heller, 554 U.S. at 635, 128 S.Ct. 2783; nor did the case involve the central self-defense component of the right, Skoien, 614 F.3d at 645.

And Williams similar involved a challenge brought by someone who wasn't a "law-abiding, responsible citizen" (indeed, Williams was a convicted felon). So in context, the Ezell passage quoting above is simply (1) noting that Skoien and Williams are consistent with the notion that some "standard of means-end scrutiny" must be chosen in each kind of case, and (2) mentioning that this doesn't undermine the decision in Skoien and Williams to choose intermediate scrutiny. The court is not, I think, silently concluding that "intermediate scrutiny" is the proper test even as to claims that are "made by a 'law-abiding, responsible citizen.'"….

I'm not claiming that Ezell clearly selected "a more rigorous" standard than intermediate scrutiny for law-abiding-citizen Second Amendment claims….But I am saying that Ezell did not select "intermediate scrutiny" as the general standard for law-abiding citizen Second Amendment claims outside the home, and the district court was mistaken in concluding that Ezell did so. Rather, the district court should have recognized that the issue had not been decided by the Seventh Circuit, and the court should have accepted the responsibility for itself making the choice, rather than asserting that the choice was made for it.

The full decision in Shepard, a case filed by the Illinois State Rifle Association.

Previous writings by me about Ezell, and about the Maryland federal court case Volokh mentioned above in which it decided that "intermediate scrutiny can only be satisfied by regulations of the carrying of guns outside the home, rather than by total prohibitions."

My book Gun Control on Trial on how the Second Amendment got to where it is today post-Heller. Questions of "scrutiny" will continue to require scrutiny as more Second Amendment cases arise from the lower courts.