A Federal Judge Says Carry-Permit Holders Have a Right to Armed Self-Defense on Public Transit

The ruling concludes that the government failed to show an Illinois ban is "consistent with this Nation's historical tradition of firearm regulation."

Two years ago in New York State Rifle & Pistol Association v. Bruen, the U.S. Supreme Court upheld the constitutional right to carry guns in public for self-defense. But in Illinois, people with concealed-carry permits are committing a misdemeanor if they bring their handguns with them when they use public transportation. Among other locations, that ban covers all Metra commuter trains in the Chicago area, all of the buses and trains operated by the Chicago Transit Authority (CTA), and all facilities, including parking lots, associated with them. Last Friday, a federal judge deemed those restrictions unconstitutional as applied to four permit holders.

Under Bruen, the government has the burden of showing that a law is "consistent with this Nation's historical tradition of firearm regulation" when it restricts conduct covered by the "plain text" of the Second Amendment. "The Court finds that Defendants have failed to meet their burden," U.S. District Judge Iain D. Johnston writes in Schoenthal v. Raoul. "That failure is dispositive."

Maintaining that the challenged provision of the 2013 Illinois Firearm Concealed Carry Act passes the Bruen test, Cook County State's Attorney Kimberly Foxx cited several historical precedents, none of which Johnston considered adequate. She argued, for example, that the 14th century Statute of Northampton, which forbade "force in affray of the peace" and going or riding "armed" in "fairs" or "markets," established a tradition of regulating arms in public that was continued in early American gun laws.

In Bruen, Johnston notes, the Supreme Court "found that the Statute of Northampton wasn't a general ban on bearing weapons; instead, the offense was arming oneself to terrify others." That motivation, he says, "is also reflected in the corresponding state statutes." A 1786 Virginia law, for example, made it a crime to "ride armed by night nor by day, in fairs or markets, or in other places, in terror of the county."

The Illinois plaintiffs, by contrast, "wish to carry concealed arms in self-defense, so the Firearm Concealed Carry Act's ban burdens Plaintiffs' Second Amendment right for a wholly different reason than the Statute of Northampton and similar state statutes did," Johnston writes. "A concealed arm doesn't terrorize; it's concealed. Consequently, these historical laws do not serve as an appropriate historical analogue."

Foxx also cited an 1821 Tennessee law, an 1837 Arkansas law, and an 1871 Texas law, all of which restricted public possession of weapons. The Texas law required that someone who carries a pistol have "reasonable grounds for fearing an unlawful attack on his person." In Bruen, Johnston notes, the Supreme Court viewed that law and two state court decisions upholding it as "outliers" that "provide little insight into how postbellum courts viewed the right to carry protected arms in public." Foxx, Johnston says, offers "nothing to the contrary."

The Arkansas law prohibited the carrying of concealed pistols "except upon a journey." The Tennessee law banned the carrying of "belt or pocket pistols" but made an exception for travelers, which the Illinois plaintiffs argued was relevant to their case. Johnston says it is not necessary to address that claim. "Left with only the Tennessee and Arkansas statutes," he writes, "Defendants have failed to meet their burden of showing a national tradition."

The government also argued that gun restrictions on 19th century railroads are relevantly analogous to the Illinois ban. "The private nature of these restrictions defeats State Defendants' attempt to show a national tradition that would support the Concealed Carry Act's prohibition," Johnston says. "The Second Amendment protects against governmental—not private—intrusion on rights and liberties."

Finally, the government argued that public transit vehicles and facilities qualify as "sensitive places" where guns can be banned without violating the Second Amendment. The Supreme Court has been hazy on exactly which places fall into that category.

In District of Columbia v. Heller, the 2008 case in which the Court first explicitly recognized a constitutional right to armed self-defense, it said "nothing in our opinion should be taken to cast doubt on longstanding prohibitions…forbidding the carrying of firearms in sensitive places such as schools and government buildings." The Court was not much more specific in Bruen: "Although the historical record yields relatively few 18th- and 19th-century 'sensitive places' where weapons were altogether prohibited—e.g., legislative assemblies, polling places, and courthouses—we are also aware of no disputes regarding the lawfulness of such prohibitions."

Foxx and the other Illinois defendants "argue that modern public transit systems are sensitive places because they are crowded spaces that are publicly accessible and publicly owned or operated," Johnston notes. But he thinks that rationale plainly goes too far.

In Bruen, New York argued that it is consistent with the Second Amendment to prohibit guns in "places where people typically congregate and where law-enforcement and other public-safety professionals are presumptively available." The Supreme Court concluded that "expanding the category of 'sensitive places' simply to all places of public congregation that are not isolated from law enforcement defines the category of 'sensitive places' far too broadly." That argument, it said, "would in effect exempt cities from the Second Amendment and would eviscerate the general right to publicly carry arms for self- defense….Put simply, there is no historical basis for New York to effectively declare the island of Manhattan a 'sensitive place' simply because it is crowded and protected generally by the New York City Police Department."

In light of that "admonition," Johnston says, "crowdedness alone is insufficient to qualify a location as sensitive." Nor does he think that adding public access and public ownership or control to the mix solves the problem identified in Bruen. "Those two added conditions still 'would in effect exempt cities from the Second Amendment and would eviscerate the general right to publicly carry arms for self-defense,'" he writes. "After all, the streets of Manhattan—or Chicago, to pick an example closer to home—are crowded, publicly accessible, and publicly owned."

The defendants likened the ban on gun possession by public transit riders to historical bans on guns in legislative assemblies and polling places. "This argument fails on account of the purposes of the regulations," Johnston says. "State Defendants ask the Court to find the regulations to be relevantly similar because of the shared purpose of protecting the public order." But "treating any place where the government would want to protect public order and safety as a sensitive place casts too wide a net," he writes. "This would seem to justify almost any gun restriction."

Foxx also maintained that government-operated buses and trains "are sensitive places
because they are enclosed, moving vehicles with no escape," Johnston notes. But she "neither analogizes to the enumerated sensitive places nor provides any evidence to support the creation of a new 'sensitive place' category, so this argument fails."

Johnson does not pay much attention to the practical impact of the Illinois ban. But he notes that the lead plaintiff, Benjamin Schoenthal, who lives in DeKalb County, "uses Metra to travel to Northwestern Medicine Delnor Hospital, DuPage County, and downtown Chicago." Mark Wroblewski, who lives in Woodridge, Illinois, "uses Metra to visit Chicago." Joseph Vesel, who lives in La Grange, Illinois, "hasn't taken public transportation for at least two years despite living less than half a mile from a Metra stop, but he wishes to take the CTA and Metra more frequently." Douglas Winston, who lives in Waukegan, Illinois, "has taken Metra (from the Ogilvie station) to travel to St. Louis" but "rarely takes public transit." Like Vesel, Winston said he would use public transportation more often but for the gun ban.

That ban not only deters permit holders from using public transit and makes them feel less safe when they do so. It also means they have to leave their guns at home whenever their quotidian excursions involve taking a bus or train at some point during the day, especially since the ban applies to parking areas. That poses a serious practical problem that makes it difficult to exercise the right recognized in Bruen.

"Sensitive place" restrictions in other states raise similar issues. After Bruen, states that required carry-permit applicants to demonstrate a "special need" had to amend their laws. Several responded by making permits easier to get but much harder to use, banning guns from long lists of newly identified "sensitive places," including not just public transportation but also parks, playgrounds, zoos, libraries, museums, banks, hospitals, houses of worship, stadiums, athletic facilities, casinos, bars, and restaurants that serve alcohol. Some states went so far as to ban firearms in all private businesses, including their parking lots, unless the owners explicitly give their permission or post conspicuous signs to that effect.

Constitutional challenges to those laws have been at least partly successful in several states, including New York, New Jersey, Maryland, Hawaii, and California. It is not hard to see why: A right that exists only in theory is not a right at all.