Ban on Carrying Guns Within 1,000 Feet of Park Struck Down

...by the Illinois Supreme Court in a decision this morning.

|The Volokh Conspiracy |

The Illinlois Supreme Court had already held that the Second Amendment protects a right to carry guns in most public places, and in today's People v. Chairez it likewise rejected a ban focused on carrying within 1000 feet of parks:

The State argues that the conduct of possessing a firearm within 1000 feet of a public park is unprotected by the second amendment because the prohibition falls within Heller's declaration that "laws forbidding the carrying of firearms in sensitive places such as schools and government buildings" do not violate the second amendment rights of those prosecuted under such laws….

Beyond Heller's two examples of "sensitive places," i.e., "schools and government buildings," the Supreme Court has not yet provided a list of additional sensitive places that fall outside the second amendment protection or given any guidance on the breadth of its statement…. We, however, need not address whether the 1000-foot firearm restriction falls outside of the ambit of the second amendment because we agree with the approach taken by other courts that assume some level of scrutiny must apply to Heller's "presumptively lawful" regulations….

[This] analysis begins with a balance of considerations where the quantity and persuasiveness of the State's evidence required to justify the challenged restrictions varies depending on how much it affects the core second amendment right to armed self-defense and whose right it affects. The rigor of this means-end analysis "depends on 'how close the law comes to the core of the Second Amendment right and the severity of the law's burden on the right.'" The closer in proximity the restricted activity is to the core of the second amendment right and the more people affected by the restriction, the more rigorous the means-end review. If the State cannot proffer evidence establishing both the law's strong public-interest justification and its close fit to this end, the law must be held unconstitutional….

[N]either Heller nor McDonald expressly limited the second amendment protections to the home…. We find that the 1000-foot firearm restriction … directly implicates the core right to self-defense …. [It] prohibits the carriage of weapons in public for self-defense, thereby reaching the core of the second amendment. Although the firearm restriction at issue is not a comprehensive statewide ban, like in Moore or Aguilar, the restriction is not minimal. The firearm restriction not only covers a vast number of public areas across the state, it encompasses areas this court held in Mosley to be areas where an individual enjoys second amendment protection, i.e., public ways….

As to the second variable on the sliding scale, the severity of the law's burden on the right, the law at issue affects the gun rights of the entire law-abiding population of Illinois …. As in those cases, the law functions as a categorical prohibition without providing an exception for law-abiding individuals. It is therefore a severe burden on the recognized second amendment right of self-defense.

All of this suggests that elevated intermediate scrutiny should apply. And under this more rigorous review, the government bears the burden of showing a very strong public-interest justification and a close fit between the government's means and its end, as well as proving that the "public's interests are strong enough to justify so substantial an encumbrance on individual Second Amendment rights." That means the State must establish a close fit between the 1000-foot firearm restriction around a public park and the actual public interests it serves….

We certainly accept the general proposition that preventing crime and protecting children are important public concerns. After all, "[g]uns are inherently dangerous instrumentalities." The State, however, cannot simply invoke these interests in a general manner and expect to satisfy its burden…. [T]he State provides no evidentiary support for its claims that prohibiting firearms within 1000 feet of a public park would reduce the risks it identifies. Without specific data or other meaningful evidence, we see no direct correlation between the information the State provides and its assertion that a 1000-foot firearm ban around a public park protects children, as well as other vulnerable persons, from firearm violence….

There is another flaw in the State's position. The State claims that the restriction is not overly burdensome because there are areas throughout Illinois where one could exercise their core second amendment right…. Indeed an individual can preserve an undiminished right of self-defense by not entering one of the restricted areas. But the State conceded at oral argument that the 1000-foot firearm restriction zone around a public park would effectively prohibit the possession of a firearm for self-defense within a vast majority of the acreage in the city of Chicago because there are more than 600 parks in the city. Aside from the sheer number of locations and public areas that would qualify under the law, not only in the City of Chicago, but throughout Illinois, the most troubling aspect is the lack of any notification where the 1000-foot restriction zone starts and where it would end.

Innocent behavior could swiftly be transformed into culpable conduct if an individual unknowingly crosses into a firearm restriction zone. The result could create a chilling effect on the second amendment when an otherwise law-abiding individual may inadvertently violate the 1000-foot firearm-restricted zones by just turning a street corner. Likewise, in response to a question at oral argument, the State conceded that an individual who lives within 1000 feet of a public park would violate [the law] every time that individual possessed a firearm for self-defense and walked to his or her vehicle parked on a public street.

To remain in compliance with the law, the State said that the individual would need to disassemble his or her firearm and place it in a case before entering the restricted zone. This requirement, however, renders the ability to defend oneself inoperable and is in direct contradiction to this court's decisions in Aguilar, which recognized that the right to carry firearms for self-defense may be especially important when traveling outside of the home, and perhaps even more important than while at home. Moreover, the State's proposition conflicts with Heller's decision that struck down the requirement that firearms be kept "unloaded and disassembled or bound by a trigger lock" because it "makes it impossible for citizens to use them for the core lawful purpose of self-defense."

Note that lower coutrs remain divided on whether the Second Amendment secures a right to carry guns in public places at all—since the Heller decision, the Florida and Illinois Supreme Courts, and the federal appellate courts for the Seventh and D.C. Circuits have said "yes," and the First, Second, Third, and Fourth Circuits and the Maryland, Massachusetts, and D.C. high courts have in effect said "no" (by upholding restrictions that basically denied the great bulk of the public the right to carry guns in public places). The Supreme Court recently declined to resolve this question.

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  1. This is a great outcome for man-children who play cowboys and Indians at the park.

    1. Did you bother to read the decision, or this article? The question was not about carrying inside a park, but within a 1000 foot radius of a park.

      1. It is just the anti-gun cult being dishonest as usual.

        1. What’s wrong with keeping the dream alive?

          1. Your unconstitutional dream of banning guns? Or your dream of ruling over others like Stalin?

            1. Why not both?

              1. No, no, no…. my dream of playing cowboys and Indians on the playground with real guns and ammo! It’s just not the same as VR. In VR, you can’t smell of gun smoke and feel the splatter.

                If I may be allowed to wax philosophical… the 2nd Amendment is of foundational importance to the rule of law. The founders, for obvious reasons, acknowledged we live in a “might makes right” world, and the rights legislated to us in the constitution were won by force.

                Therefore, government is only “by the people” so long as the people maintain the original means by which the government was first established.

                Our leviathan is not a swamp monster that crawled out of the murky depths, obtaining power by only having the will to “stoop down and pick it up”, as Dostoevsky says. It is the collective force of all citizens together, bound by common cause of defending against the swamp leviathan, which is capable of unimaginable atrocities.

                1. While it is true our government has a de facto monopoly on legitimate use of force , the government ought suffer this monopoly on lethal force not be absolute.

                  1. Precision, please — this is NOT true. What is true is that government has a de facto monopoly on legitimate INITIATION of force. Any person defending himself from a valid threat of great bodily harm has a right to legitimate use of force.

                    1. I guess what I was referring to was the disgressionary use of force, sorry.

                    2. “disgressionary”

                      That’s not a word. That’s not a word!

                    3. In trying instances such as these I must be reminded to ask myself – – what would Socrates do?

                      The free speech history podcast is wonderful, by the way.

                    4. It is now.

                      disgressionary: A tendency by a speaker to drift off topic.

    2. Ah, so you can predict the future. Great. Care to give me next weeks winning lotto numbers? Oh, you believe the “police will protect me”? Lotsa luck wid that one.

  2. A great ruling, but as you underscore, the Supreme court doesn’t at present seem to be interested in taking any more 2nd amendment cases, regardless of any circuit splits or important issues.

    1. I like to think it’s because the more cautious Justices are waiting for Granny Nanny to take her final dive (she’s publicly ruled out any voluntary retirement).

      1. I expect Justice Ginsburg to remain in office longer than President Trump does, if only because of the chance there is a God.

        1. . . . the chance there is a God or the fat content in KFC chicken finally takes its toll.

          1. Fat is a dietary requirement for everyone.

          2. Ah, but what kind of God? I see that you seem to believe that the God in charge of Justice Ginsburg’s lifespan to be the kind that HP Lovecraft liked to write about.

            1. Choose reason.

              Every time.

              Especially over sacred ignorance or dogmatic intolerance.

              Most especially if you are older than 12 or so. By then, childhood indoctrination fades as an excuse for backwardness, superstition, bigotry, and belligerent ignorance.

              By ostensible adulthood it is no excuse.

              Choose reason. And education, tolerance, science, progress, and inclusivity. This means rejecting ignorance, bigotry, dogma, backwardness, and insularity, even in Alabama.

              Choose reason. Be an adult. Or, at least, try.

        2. I think there is a good chance that she lives to be 100. How amazing would it be to have a 100-year old Supreme Court judge.

          1. While I’m all in favor of people living to old age, I don’t think senility in a sitting Justice is anything to root for

        3. Liberals do not believe in God. They believe in government.

  3. The Illinois court has a good track record of actually enforcing Heller/McDonald. Surprising.

    1. I expect it helps that Chicago isn’t particularly subtle in their efforts to violate the 2nd amendment.

      1. Neither is San Francisco, and the 9th Circuit has no issue upholding those.

        1. Yes, but that’s the 9th circuit. California could start shipping gun owners off to death camps, and the 9th circuit would at least hesitate before enjoining it.

    2. The Illinois court has a good track record of actually enforcing Heller/McDonald.

      Enforcing Heller as written, or enforcing right-wing and gun nut aspirations for Heller?

      1. No, as written. It says that gun rights are fundamental, which means that they should be subjected to strict scrutiny. It doesn’t mean that a state militia has a right to own weapons.

    3. What is even more surprising is that these opinions are unanimous. You’d expect some of the more liberal judges from Chicago would dissent.

  4. Welch missed the big story about the 2020 Census, The Trump Admin did away with the Obama plan of adding a new MENA (Middle Eastern/Northern African) racial category.

    https://tinyurl.com/y7yxfn63

    1. Perhaps because it was another Obama “pen & phone” addition instead of Congressional change to the law.

    2. This is not the thread you thought you were posting in

  5. “[T]he State provides no evidentiary support for its claims that prohibiting firearms within 1000 feet of a public park would reduce the risks it identifies.”

    I’m curious if the State provided evidentiary supports for prohibiting firearms in a public park. Seems that striking down that restriction would be another logical outcome if it can’t support it. Why is a public park any more sensitive than a public sidewalk?

    1. I don’t support banning guns in parks, as it’s not sensitive (if everything is sensitive, then nothing is). That said, there’s at least an argument that parks are a destination as opposed to a pathway to something else. It’s easier to avoid parks than avoid sidewalks.

      1. And, this was a factor: 1000 feet from a park in Chicago was almost all of the city, encompassing a lot of homes and most major roads. So the ban directly deprived a large fraction of the population, those living within 1000 feet of a park, of their rights, and indirectly almost everybody else, who’d have to pass near a park to go anywhere.

        If the parks had been further apart, they’d have made it 2000 feet; The effect on everybody outside the parks was deliberate.

        1. Of course. And that was Congress’ intent with the 1000 foot buffer pursuant to the GFSZA. At least that though is inapplicable if you have a permit, although there’s a question as to whether out of state permits that the state in questions grants reciprocity to count.

          1. I know some places where I’d love to see them try to enforce that 1000 ft buffer. Namely, a number of neighborhoods where houses are well within that 1000 ft. zone.

            1. Go here to see maps of what this actually means in several major cities:

              http://gunlaws.com/Gun_Free_School_Zones.htm

              It’s absolutely ludicrous. Armed citizens driving along interstates(!) are felons under this law. And yes, the feds have stated that home schools count, too, even though they are not marked.

              And the law seems pretty clear that a permit to carry exempts the holder only if it is that state’s permit. So reciprocity doesn’t cover you.

              1. Does IL even have reciprocity agreements with any other State(s)?

                1. No, it doesn’t

      2. But why should I have to avoid a public place if I’m carrying a gun? Whether I can avoid it or not is irrelevant, why am I forbidden from entering it?

        1. Again, I’m not justifying the ban.

      3. The problem with your analysis is that many parks are, in fact, pathways. There are a lot of trail systems in the Chicago area, and those trails are considered parks. So think of a spider-web of trails running throughout the whole area, and then color in a zone of 1000 feet extending out from those trails, and you end up coloring almost everything.

  6. > The Illinlois Supreme Court had already held that the Second Amendment protects a right to carry guns in most public places

    I thought that was the federal 7th Circuit, now the Illinois Supreme Court?

    1. People v. Aguilar was the case decided by the Illinois SC.

    2. You are correct that the 7th Circuit held that the 2d Amendment extends to carrying guns in public places. But, the Illinois Supreme Court is not bound by 7th Circuit opinions (or any other federal appellate courts). So, in Aguilar, the Illinois Supreme Court looked at the issue as well, and decided to adopt the 7th Circuit’s analysis.

  7. I just read this decision and there’s something odd about that. They only ruled against the clause about parks, not the other ones about schools, courthouses, public housing, and public transportation, on the grounds that he was only accused of violating that clause.

    That’s like having a law which says that it is illegal to publish on legal paper, notebook paper, newsprint, notepad paper, and magazine paper and having the court only strike down one of the clauses because the accused only used newsprint. The law shouldn’t be able to make it harder to overturn itself by dividing a conceptually single restriction into multiple clauses this way.

    1. While I understand the appeal of that approach, it ignores the fact that none of the participants in the case presented evidence or argued about the other clauses. Maybe there’s something about schools, courthouses, public housing or public transportation that really does make one of them fundamentally different from parks. And maybe, if the case had been in that other context, the decision would have come out differently. The court ought not to be making that decision without the benefit of actual argument on the point in both directions.

      Now, I happen to agree that the law is bad as applied to all the alternatives you rattled off. But it’s the Legislature’s job to have the open-ended debates and ultimately to make that broader fix, not the Courts. Laws are supposed to be hard to overturn because the courts were not supposed to be our primary means of getting bad laws fixed. The Founders thought that it was your job to hold your legislators accountable.

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