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In the wake of the tragedy in Connecticut, there is much talk about gun control in the news. Diane Feinstein of California intends to reintroduce an assault rifle ban which expired in 2004 mainly because it was largely ineffective in its intended results when it was in effect. I am quite sure that there will be many more such laws introduced and contemplated as the weeks and months unfold. Most of this, of course, will be at the insistence of liberal legislators who live by the rule “never pass up an emergency or crisis.” The fact is that liberals within the Obama Administration’s Justice Department have been chomping at the bit to enact stronger national gun control laws. This was the whole political motivation behind the ill-fated Fast and Furious program that Holder likely approved and for which he must take responsbility.
Before we get to that point, cooler heads will likely prevail and no one will rush into knee-jerk legislation. But, there is another dimension to the gun control debate that may very well press the issue before any law is written or signed by Obama. That dimension is the legal or constitutional issue which may visit the Supreme Court soon based on recent lower court decisions.
Most states allow some variation of a concealed carry provision for firearms. Many of the most populous states, however, make it extremely difficult to obtain a permit to do so. Illinois, on the other hand, has no such provisions and has, in fact, an outright ban on carrying concealed weapons in public. That law was recently struck down by the Seventh Circuit Court of Appeals. In a 2-1 decision, Judge Richard Posner noted that the right to bear arms, as guaranteed by the 2nd Amendment and affirmed by the Supreme Court in the Heller and McDonald decisions, extends not only to the home, but also outside the home where the likelihood of a situation requiring self-defense is higher. Of course, as Posner noted, your chances of needing a firearm in self-defense is greater on the sidewalks of some neighborhoods in Chicago than in the home. The same can be said of any large city although as Connecticut proves, gun-related death and violence is not limited to urban areas, just more likely.
Most of the press coverage of this decision has been under the radar and when it exists, it is generally critical of Posner and his attitude. What they fail to criticize is his reasoning. What the critics fail to note is that Illinois is basically an outcast when it comes to concealed-carry laws. They are the only state which has an outright ban on the practice. Even very liberal states with strict gun control laws like New York, New Jersey, California and Connecticut allow permits, but make the process so onerous that it is virtually impossible and non-existent. This was the point Richard Posner was trying to make. And his points about the public versus home possession of firearms for self-defense was, admittedly, somewhat flippant, but the point is that the carrying of firearms for self-defense- a recognized constitutional right- should not involve somewhat unrelated privacy rights considerations.
The state of Illinois has three options as concerns this ruling. The Circuit Court of Appeals for the 7th Circuit placed the legislature under a 180-day mandate to change the law. That is the first option for the state- simply change their law to comply with the ruling. This would entail lifting the absolute ban on concealed carry in public laws and allow permits. If they go this route, then they can conceivably pass new legislation along the lines of that in any other liberal state.
The second choice would be to appeal for an en banc review of the full 7th Circuit. There is currently one vacancy on that court. Of the ten judges, seven are Republican appointees dating back to the days of Reagan. Should Illinois go this route, it is very likely that they would simply affirm the 2-1 decision, although that is not always a given. Just based upon an understanding of the existing judges, however, leads one to believe that they would affirm the decision.
The third choice is a direct appeal to the United States Supreme Court. If they fail to change the law, then this would be the more likely appeal than going for en banc review. The main reason is that it would create a split among circuits at the least and present a unique constitutional question at the most. In both the Heller and McDonald decisions- the two most recent 2nd Amendment cases- the Court left open the option for gun control laws. Hence, like all rights, they come with some limits. The question would be how far those limits can extend and if they can extend to the outright ban of firearm possession in public. At the least, Posner’s decision goes further than any court has ever gone on the issue. Although the Illinois law is the outlier as concerns gun control legislation, the Posner decision stands as the outlier in gun control jurisprudence. A good way to get a case before the Supreme Court is to have disagreement among lower circuits.
That disagreement may have occurred with a decision out of the Second Circuit based in New York. In that decision, a unanimous court ruled that the state has the right to place onerous restrictions on concealed carry permits. They note that one’s constitutional right to “bear arms” takes on less importance the further one leaves their property. In fact, the Heller decision tacitly left open that option. Basically, the 2nd Circuit determined that public safety concerns trumped the unfettered exercise of the right to bear arms in public. There is a second case from the 4th Circuit based in Richmond challenging a Maryland statute. Basically, an applicant must demonstrate that they are in imminent threat of danger and need a gun in self-defense. Of course, they can simply say they walk through a certain area of Baltimore after dark, but that would not be reason enough. In effect, they have to more or less prove (1) they were a victim of a crime, (2) that the risk of future victimization of a crime is imminent and (3) that carrying a weapon would deter that risk.
In fact, the original Heller decision stated that the right is not absolute. Specifically, they (Scalia) stated that one cannot possess “any weapon whatsoever in any manner whatsoever for whatever purpose.” Obviously, this appears to be tacit approval of bans on possession of certain types of weapons like assault rifles. Since assault rifles are not traditionally used for self-defense (although they could be) and the right to self-defense is central to the constitutional right, a ban on assault rifles would likely be constitutional. Furthermore, throughout the 19th century and into the 20th, states banned the carrying of concealed weapons and all those laws were consistently upheld by the courts.
Although a lot of the discussion of this issue somewhat dismisses the McDonald decision in this context, I believe it actually underscores the importance of the original meaning of Heller. In McDonald, the constitutional right was extended to actions by the state and local governments. The Court, especially a conservative one, is wont to extend these “rights” to the states through the 14th Amendment. They will do so when the right is so fundamental that it is warranted. The McDonald decision did just that which underscores how fundamental the right is in the first place. This is a point that Posner was also making.
But, ironically, Judge Richard Posner was originally a huge critic of Scalia’s decision in the Heller case. He equated it with Roe v. Wade and accused conservatives and conservative judges of resorting to the very tactics and techniques used by liberals. Namely, they were bypassing the voting booth and legislature and coming to the courts. His argument in 2008 was that the better way to address the issue would have been for Congress to pass a law overturning the handgun ban in DC and for the citizens of Illinois and Chicago to do the same in their respective areas. Another conservative judge, J. Harvie Wilkinson (of the 4th Circuit) echoed Posner’s sentiments.
As in anything Illinois, this constitutional showdown over guns pits Chicago against basically the rest of the state. Chicago politicians hold most of the power in Springfield and it is at their insistence that the absolute ban on concealed firearms exist. This is kind of hypocritical since despite this ban, there is open gun warfare between rival gangs in Chicago and they, like Washington DC, have seen increases in gun violence and deaths despite these bans.
In fact, it is the state legislators from Chicago who are advocating an appeal to the Supreme Court of this ruling. Downstate legislators intend to introduce legislation to comply with the 180-day mandate which would basically be a “shall carry” law. That, they believe, would force the Chicago contingent to the bargaining table to place restrictions on concealed carry provisions. The final law may very well end up looking like the New York or Maryland laws. Thus far, the matter of an appeal is left up to the state attorney general. Even if there is no appeal and Springfield passes a law of some type, Chicago aldermen- many of whom cannot properly construct a sentence let alone an ordinance- intend to pass a city-wide ban under the concept of “home rule.” If struck down, they further intend to appeal that hypothetical decision. Appeals to the Supreme Court are costly endeavors and one would think that a city with huge fiscal problems, high crime rates, low-performing schools, and large pockets of urban blight would find a better use for that money.
For its part, should there be an appeal, the Supreme Court is running out of time to take the case and schedule it for briefing, argument and a decision this term. They can, because of the 180-day mandate, take the case on an expedited basis. Illinois can ask for an injunction on the mandate pending review. Most likely, that request would go to the Supreme Court Justice assigned to that circuit and the request granted since it is Elena Kagan. As a law clerk and as a Clinton Administration official, we know that Kagan was not particularly sympathetic to the rights of gun owners.
If they eventually take the case, they will have to confront the issue of how far the “right to bear arms” extends beyond the home. Furthermore, they must determine the correct level of scrutiny afforded gun control efforts. Not taking the case would simply let stand the lower court ruling. The surefire way of getting a review- circuit court disagreement- may not actually come into play here since the laws in question in New York and Maryland are qualitatively different than the Illinois law which is an outright ban. Since it takes only four justices to grant review, it is likely they will take the case since the liberal wing- Breyer, Ginsberg, Kagan and Sotomayor- have all expressed misgivings about even the Heller decision regarding gun possession in the home.
Hence, should they take the case and looking into the crystal ball one gets the impression that the original conservative coalition will hold with Kennedy being the swing vote. My guess is that the lower court decision would be upheld and that an outright ban would be unconstitutional, but that states can place restrictions on the right to carry concealed weapons as long as they are not an undue burden. The question is how far they want to carry the fundamentalness of the right to bear arms for self defense. In effect, they are likely to apply a standard much like that used in analyzing abortion laws and that litigation is likely in this area for years to come as states push the envelope on outright bans.
It is hypocritical that Governor Quinn of Illinois and Mayor Emanuel of Chicago are such advocates of strict gun control laws and the state’s ban on concealed carry. They argue that allowing the carrying of concealed weapons would only increase crime. Of course, they are ignorant of the body of research which shows that these laws either have no effect on crime rates at worst and actually decrease the incidence of violent crime at best. Most importantly, they need to be asked if, as they claim, carrying a concealed weapon does not deter crime and is not a viable means of self defense, then why do their bodyguards carry concealed weapons?