Gun Control

Illinois' Ban on Carrying Weapons Overturned; The Second Amendment Applies in Public


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.

All the filings in the case. One of the plaintiffs was represented by Alan Gura, who won both Heller and McDonald. A 2009 interview with him about the legal future of the Second Amendment.

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.

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  1. Illinois should not [sic] that most states have done fine with a simple “anyone can carry a gun without a really strong reason to deny them.”

    I believe it should be “Illinois should note […]”

    1. Yes, thanks. Fixed if you refresh.

  2. …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.

    And if the legislature passes a new law with different wording that still steps all over the Second Amendment and Heller and McDonald, what then? Would the court have to bless the new law or does it have to be challenged in court after it’s implemented?

    1. There are interesting politics at play here. If the legislature does not pass any bill in 180 days, there will presumably be no restrictions on carry, so the gun haters are going to be scrambling like heck to get something passed, and the gun rights crowd is in the driver’s seat.

      The current legislature, or the previous one (I do not know when the sessions change) came very close to passing a concealed carry bill over the governor’s veto. About the only thing holding them back is that most of them do want some minimal restrictions, such as no carry by felons or children or mentally insane people, no carry in schools or courthouses, etc, so they will come up with some bill, and the hoplophobes have almost no say in the matter.

      1. no carry by felons or children or mentally insane people, no carry in schools or courthouses, etc

        Both mentally ill and schools are already taken care of by federal law. Well, maybe not non-federal courthouses.

  3. The right to “bear” as distinct from the right to “keep” arms is unlikely to refer to the home.

    Does this mean I won’t be hearing people tell me I can’t read? That the text of the Second Amendment isn’t an argument unto itself?

    No, but it’s nice to dream.

    1. The argument will always come back to “militia”. So of course it says “bear”, because when you’re in possession of arms in the service of the militia, you need to bear them.

      1. Except every able-bodied citizen from the age of 18-45 is already a memember of the militia, which is legally distinct from the National Guard and US military.

        1. What about the Militia Act of 1903?

          And Article 2, Section 2 of the constitution?

      2. While the Second Amendment would seem to be stronger, it would be kind of funny to see a court strike down a gun ban on 14th Amendment Due Process grounds. Just quote Roe, Lawrence, and Griswold, do a handwave about personal liberty and self-determination, and watch the lefty screaming begin.

        1. “it would be kind of funny to see a court strike down a gun ban on 14th Amendment”

          That was Thomas’s take on it. (14th P&I)

      3. That would require a reading that flatly contradicts Heller. If bearing only applies to militia service, so does keeping.

  4. That guy in the picture needs to work on his gun control, two hands if fine, but that gangster side shooting needs to go.

    1. Lou: Hey, Chief, can I hold my gun sideways? It looks so cool.

      Chief Wiggum: Sure, whatever you want, birthday boy.

      1. Yeah, but he had a revolver. No ejection problems to worry about.


    3. He should only be using one hand. And should hold it over his head

    4. It’s actually often the correct way to shoot when behind cover, as it exposes less of your hand and makes contact between the slide and the cover less likely.

      1. When shooting one handed, it is always proper to cant the sights such that your arm is in a natural position. Forcing your arm to hold the gun vertically induces unbalanced forces that will shift you natural point of aim undesirably. Those forces are generally balanced when shooting two-handed.

        At a demonstration: stick your strong hand out infront of you, fist closed. Do not attempt to twist it –kep it as relaxed as possible while in your line of sight. The natural angle at which your hand rests is the angle you should hold the gun at. Adjust your sight picture accordingly: at any range appropriate for a pistol, the point of impact will be approximately that which corrsponsds to your normal sight picture (i.e. above the dot along a line normal to the line connecting the rear sight halves)

        1. Also, when shooting one-handed, close the fist of your opposite hand and draw it close to your body, against your sternum and keep your arm tucked against your trunk. This minimizes shifts in your point of aim from a flailing non-shooting arm.

        2. Canting the sights is going to throw your aim off, and hence is a no-no.

          You ever see bullseye shooters canting their sights? Fuck no. And there’s a good reason for that; it’s far worse than any possible “unbalanced forces that shift your point of aim”.

          1. They’re not firing one handed and not using cover, are they?

            1. Yes, bullseye shooters shoot exclusively one-handed.

          2. Let me put it this way: The windage and elevation system on a gun’s sights ONLY work when perfectly horizontal. The greater the cant, the further it’s off. If you have your gun sideways you might as well be using just a front post or simply point shooting; your sights will be worthless.

            1. At short range you probably aren’t using the sights much anyway. Just going by the NRA-PPITH class I took last year.

              1. At very short range, sure. But it’s still a bad idea, simply because you shoot how you train and in a stressful situation you may default to it when the ranges are longer; I’ve never heard of anyone reputable seriously suggesting that you shoot gangster style.

                1. How many USPSA Master or Grand Master shooters have you seen?

                  It it not at all a bad idea. You can shoot how you train, and you can be just as accurate with a canted pistol as with a vertically held pistol.

            2. I shoot fucking blindfolded, cause then when I can see I’ll be that much better. I was taught that by a former delta-Army-seal operator at a close quarters combat and weight loss camp.

              1. The best sex I ever had came when I was blindfolded too. Though after I put the blindfold on, my girlfriend’s voice got way lower and she didn’t smell as good. Plus I started noticing hairs where I hadn’t before — maybe my sensation of touch was compensating for the blindness?

                1. Was your girlfriend a Army-Seal?

                  1. No, a Seabee.

          3. Explain how it is “going to throw your aim off?”

            Bullseye is shot at 25 and 50 yards. Every long range stage I have ever shot in USPSA competition that has required single hand shooting I have shot with a canted pistol. If you think that by canting the gun you magically lose accuracy you are wrong. You can train yourself to shoot that way, and be just as accurate. Whatever works best for you, but reducing the twisting moment on your arm that can offset your natural point of aim only helps accuracy and reduces fatigue.

            Have you ever been told that the right way to shoot a rifle offhand is to line of 5 degrees off the target center and then force your sights against your body’s natural posture onto the target? No. You line up such that your natural point of aim is as close to the desired point of impact as possible, and then make small adjustments.


              The effect worsens as ranges get longer. Canting is absolutely a bad idea. Maybe you can shoot USPSA matches like that (though I sure as hell would like to see some documentation on it), but it absolutely hurts your accuracy, again far worse than anything that holding your gun vertically will.

              1. You’re absolutely correct, for rifle shooting at long range. Note, however, that the accuracy effect of canting is also related to the offset distance between the bore axis and the sight axis. On handguns, this offset is usually less than a few bullet diameters. On scoped rifles, offsets are usually at least about 1.7″ which amplifies the effect greatly. The effect is just not as pronounced for handguns.

            2. I’m supposed to go shootin’ with my pa this weekend. I’m gonna give it a try.

            3. Also, please note I’m really not trying to be a dick here. Whatever technique works best for you is what you should use. I know several Master and GM-class shooters who use the cant technique and have phenomenal accuracy at close and long ranges. I am an A-class shooter (one step below Master) and have been shooting like that one-handed for many years.

              I apologize if I came off a little too strongly here; I was only trying to offer helpful advice, not look like a know-it-all.

              1. I tried looking up some videos of people shooting with a cant on the toob, but this was all I found.

                Pretty funny.

                1. Okay db, like I said above I am going to try your method this weekend.

                  I want to be sure on the stance beforehand though. Please correct or add anything.

                  1 Hold pistol parallel (or at an angle?) to the ground with arm straight out without locking my elbow. Should my elbow be bent, or should I just see what feels natural?

                  2 My other hand should be in a fist and be pressed against my sternum area

                  3 I assume the legs should be wherever feels best.

                  I’m trying this now (unloaded) and my hand wants the gun in its usual place, also it’s hard to acquire the sights. I’ll do some exercises before the weekend so I’m not trying this totally new; as to get a unbiased try at this.

                  1. The gun should not be held horizontally unless that is the most natural position for your hand. Holding it parallel to the ground is going to unnaturally twist your arms the opposite way, negating the benefit. For me, the angle is something just about 30 degrees from vertical. I tend not to lock my elbow.

                    The other hand should be held close to the torso and the arm held close as well. I keep mine at the base of my sternum because it provides a sort of natural “pocket” for my hand. This is mainly useful when shooting while moving because it keeps your torso and shooting hand from being disturbed by your off hand waving about but it offers additional stability when stationary as well.

                    Legs: wherever as long as your center of mass is stabilized but i tend to stand with my body not square to the target when shooting one handed. I tend to keep the foot on my shooting side forward, with my weight distributed mostly evenly across both feet.

                    1. or me, the angle is something just about 30 degrees from vertical.

                      Yeah, trying it this way it’s way easier to acquire the sites, and is more comfortable.

                    2. Part of the benefit of this stance and cant is that when the pistol recoils, it will follow a more linear path when it flips. Try shooting a few rounds with the pistol held in your strong hand vertically. The pistol will usually recoil up and outward slightly because your muscles are twinting the gun that direction already.

                      Then try witg a natural cant. The pistol should recoil as if your arm were simply bending at the elbow. The pistol will be easier to bring back on target (it will “bounce” better) and your follow up shots will come more quickly because it takes less effort to bring the sight picture back into line.

                      As you fire more and more rounds this way, you’ll be able to watch the slide cycle and the sights move in the same way you should see it when shooting two handed.

                    3. Sweet, I’ll let you know how it goes.

              2. I developed a unique individual style – pull out 9mm while saying “ohshitohshitohshit” over and over and try not to tremble while pointing at large group of AK armed men.

                1. That is a situation for which I have not trained, and which I fervently hope never to experience.

  5. I sure do envy your Second Amendment and the general trends of loosening gun control in the US. Would that it happen here, too.

  6. Illinois’ Ban on Carrying Weapons Overturned; The Second Amendment Applies in Public

    Chaos will ensue; robbers, murderers and rapists will protest on the streets to seek better work safety conditions.

    And I am talking about the Illinois police. Who knows what their colleagues and competitors will do!

  7. Kachalsky v. County of Westchester upheld a tough New York law requiring proof of unique need for a carry permit

    Hmm. Interesting.

    I went to high school in Westchester. My dentist carried a gun. i wonder what his excuse was.

    (“Your honor, my ex wife is one crazy bitch. I mean, seriously. She set fire to my mercedes. With my dog in it.”)

    1. It’s up to certain judges in each county. He was probably friends with an issuing judge.

      1. Would you deny your dentist a carry permit before you get a filling?

  8. 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”.

    But this was written by people who had muskets in mind. That eminent Constitutional scholar, Piers Morgan, told me so!

    1. My favorite response:
      By that logic, the 2nd Amendment gives everyone in America the right to own a nuclear weapon.

    2. I used to debate the second w/ a math teacher in highschool. It always ended the same. He would ask “are you in the Militia?” I would smile and say “when the time comes.”

      1. Were you an able-bodied male over 17 at the time? If so, by the Militia Act of 1903, you were.

        All able bodied men, 17 to 45 of age, are ultimately eligible to be called up into military service and belong to the class known as the reserve militia, also known as the unorganized militia (10 USC). Able bodied men who are not eligible for inclusion in the reserve militia pool are those aliens not having declared their intent to become citizens of the United States (10 USC 311) and former regular component veterans of the armed forces who have reached the age of 64 (32 USC 313). All female citizens who are members of National Guard units are also included in the reserve militia pool (10 USC 311).

      2. He would ask “are you in the Militia?”

        What? He never heard of Selective Service?

    3. If that’s how the second amendment rolls in modern times, then the first amendment protects only manually powered flatbed printing presses. Not the web, not xeroxed copies, not computer printouts, not typewriters, not even modern newspapers.

  9. Libertarians should recognize the legitimacy of democracy and should not support using the courts to shove their agenda down the throats of people who live somewhere else…

    Or some such bullshit that a statist douchebag would post on this web site.

    1. Assuming you’re referring to gay marriage, the difference is that gun bans/carry bans are explicitly unconstitutional. The gay marriage question is much more cloudy.

    2. Good point, particularly since the Illinois legislature would have easily passed a concealed carry law last session, were it not for Chicago.

  10. The court may want to brush up on their facts here:…..fallacies/

    1. Stop the presses: somebody has a dissenting opinion about gun laws!

      1. If it’s not abortion it’s not a right. It’s right there in the constitution!

  11. Holy shit. I never quite thought this day would come. I need to buy a carry gun. My .357 is too big and heavy for a pocket.

    1. Don’t get your hopes up. He didn’t say may-issue was unconstitutional.

  12. YAY! Now we can have more incidents like Oregon just now.
    Good jerb ‘Mericans

    1. Now, all the facts may not be in yet, but I’m sure that whatever the gunman did was legal under Oregon law.

      1. I’m more or less local to the shooting. Basically, from what’s being reported by the local newsies, the guy had a specific target; there is only one person dead (excluding the gunman) and one critically injured. He had plenty of opportunities to increase the body count, apparently, and didn’t take them. Eyewitnesses are saying most of the shots (about 15 or so) were up in the air.

        The guy would have been just as deadly with a double barrel shotgun, although he probably wouldn’t have done quite as much property damage.

        1. There’s a bunch of assholes in the media that are itching for gun control so look for every shooting to have big publicity. You’ll notice key words like, “concealed weapon permit owner”, “assault rifle”, “automatic weapon”, “military grade” “stand your ground law” “massacre”. These phrases will, and have been, bandied about with no relation to their actual meaning or relation to the incident at hand.

          Think I’m paranoid, watch this.

          That fucking guy is our ‘top cop’, and we are so fucked.

          1. Yeah; there are a lot of people are throwing around terms like assault rifle and machine gun, though it definitely seems to be a semi-auto of some kind or another. Surprisingly, though, it seems to be mostly people who were witnesses and seem to be ignorant of guns; at least some of the news reporters actually seem to be doing a decent job and are reporting specifically that it was a semi-auto and are staying away from the inaccurate terms.

            1. “All of a sudden I heard something similar to a .22 popping, probably eight times, and people dropping everywhere, people screaming,” witness Christina Fisher said in an interview aired on CNN. “It was chaos.”

              What do you want to bet the “semiautomatic rifle” is a 10/22 or something similar.

              .22 or .223, it’s close enough for journalism work.

              1. Could be. Some of the people who were there saying it sounded like “balloons popping”, which sounds more like a .22 than a .223.

                1. Yeah, it would have to be a hell of a balloon to sound like an AR when it pops.

              2. My dad has 2 10/22s. One has a wood stock and usually has the 10 round magazine that it came with in it, the other has a folding stock, synthetic furniture, 30rd magazine, and a stainless barrel; it’s fun to play “Which one is the assault rifle” with those guns. For some reason people think the plastic one is eviler.

                1. If it does turn out to be a 10/22, I can see the howling when the media discovers that the newest version can fit in a backpack and takes 5 seconds to assemble.

                  1. If it does turn out to be a 10/22, I can see the howling when the media discovers that the newest version can fit in a back assault pack and takes 5 seconds to assemble.

        2. According to the latest reports, he killed 2 and then himself (three deaths total). Though the Chicago Tribune closes with the following WTF line:

          The incident marked the latest in a string of shooting
          rampages this year that included the killing of 12 people and
          wounding of 58 others at a midnight screening of “The Dark
          Knight Rises” in Colorado.

          Other than the Aurora one, none that I’m aware of have killed more than 2 people.

          1. well so long as nobody gets hurt.

          2. I wonder if the person who was critically injured died? The news was still reporting only two dead half an hour ago…

            1. They’re still reporting that the shooter was wearing body armor, which seems awfully strange considering he apparently intended to kill himself.

              1. I haven’t heard anything like that from the local news media. There’s also a guy on a forum I frequent whose an EMT with the organization that got called out for it (though I don’t think he went himself), and he didn’t mention anything about it either.

                I’m thinking the body armor thing is an invention, trying to tie it in with the Aurora shooting.

                1. I heard he had on a hockey mask and camo.

                  1. and Ron Paul sweatpants.

    2. Let’s wait to see if there was a “no concealed handguns allowed” sign on the mall’s entrance. There usually is in an active killing.

      1. The Tucson Safeway shootings didn’t have one.

        1. the sign didn’t help?

  13. Uh oh.

    At least one person dead in Oregon mall shooting

    One witness told KOIN she saw a man wearing a hockey mask jogging through Macy’s and wielding an assault rifle.

    That was probably just a cop.

    1. An assault rifle?

      What asshole goes out and spends $15k, plus all the legal hassle on an old select fire m16 just to shoot up a mall?

      Oh wait, I forgot words don’t mean anything anymore.

      1. I could totally see a person who doesn’t know firearms thinking a 10/22 with a pistol grip and 25-round magazine is an assault rifle, since it has roughly the same outline as an AK47.

        1. I could too, but it’d be about as stoopid as calling a harley a dumptruck*.

          *some will claim this is hyperbole, but I would posit that the difference between a full auto m4 and ruger 10/22 reallu is that vast

          1. AKs and ARs are assault rifles in modern parlance.

            1. Assault rifle has a fucking meaning, not just what some bedwetting reporter wants it to be.

              Biggest thing is that they MUST be automatic. Caliber can be debated, but an assault weapon MUST be automatic. How about a markIII is that an assault rifle? I say it is so it must be!

              1. Uh oh, I feel a semantics argument coming on.

                The enemy is out there, Butt!

              2. It’s got to be select fire (which means capable of either full auto or 3-round burst and semi-auto), and it has to be chambered in an intermediate cartridge (less powerful than 7.62×51 or .30-06, but more powerful than standard pistol cartridges).

              3. Man, I love that term “assault weapon”. I mean, if some object is a weapon (tomahawk, mace, dagger, etc) then just by definition what could its purpose be other than to assault somebody? Do these people also say “eating spoon” or “writing pen”?

                1. A high-powered assault pen, with extended ink magazines!

                  The children, won’t somebody think of the CHILDREN!

      2. At least it wasn’t a “high-powered” “assault” bow and arrow. Remember that one?

      1. You’re right. Guns are never used in self defense…..-intruder/

  14. Who cares what some stupid kangaroo court says!

  15. You mean… I might get to wear a holster? Outside?!?

  16. What would Bob Costas say?

    1. Something stupid, as usual.

    2. He won’t say nuthin’. He’ll crap his pants, then continue masturbating to his secret stash of naked Mike Ditka pics.

      Milk it Bob, you sick bastard.

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