Judge Posner’s opinion for a 2-1 panel of the 7th Circuit. Illinois
is the only state which forbids gun carrying in public as a matter of
law. There is no provision for the issuance of licenses for concealed
carry, or for open carry. Both are banned. There are some exceptions for
particular activities (e.g., while hunting), and for persons with a
special occupational status (e.g., licensed security guard, some
According to the Supreme Court, 1791 (year of ratification) is the
crucial year for the Second Amendment’s original meaning. The usual
suspects (Saul Cornell, etc.) claim that there was no generally
recognized right to carry in 1791. But the “Supreme Court rejected the
argument. The appellees ask us to repudiate the Court’s historical
analysis. That we can’t do. Nor can we ignore the implication of the
analysis that the constitutional right of armed self defense is broader
than the right to have a gun in one’s home. . . .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.” Besides English
precedents about restrictions on carrying in certain places or in
certain ways were not general prohibitions. Discussion of frontier
conditions, and observation that today,
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
Judge Posner then surveys the social science evidence about gun
carrying, and concludes that it is, on net, indeterminate, and besides
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 counts. 554 U.S. at 636. 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.
The State cannot win the case by showing a mere rational basis for
the law. Another 7th Circuit case, Skoien, upheld the federal gun ban
for convicted domestic violence misdemeanants, and in doing so used
intermediate scrutiny, and required the government to produce lots of
empirical evidence. In the instant case, the government “would have to
make a stronger showing” than in Skoien, since the Illinois
carry ban applies to everyone, whereas Skoien involved “a class
of persons who present a higher than average risk of misusing a gun.”
“Remarkably, Illinois is the only state that maintains a flat ban on
carrying ready-to-use guns outside the home, though many states used to
ban carrying concealed guns outside the home, [James] Bishop [Note,
“Hidden or on the Hip: The Right(s) to Carry After Heller,” 97 Cornell
L. Rev. 907 (2012)], supra, at 910; David B. Kopel, “The
Second Amendment in the Nineteenth Century,” 1998 BYU L. Rev. 1359,
1432–33 (1998)—a more limited prohibition than Illinois’s, however.”
Illinois offers no evidence why it has some unique need to ban gun
carrying; if Illinois’s carry ban were such a great idea, then at least
one or two states would have emulated it.
Reiterates Heller’s exceptions: “children, felons, illegal aliens,
lunatics, and in sensitive places such as public schools.” Notes with
approval that some states sensibly require that an applicant for
a handgun permit establish his competence in handling firearms.
In Kachalsky v. Westchester County, the 2d Circuit recently
upheld NY State licensing law that requires a carry permit applicant to
prove that he suffers from some unique or unusual threat. Posner chides
the 2d Circuit for re-opening historical issues that were settled by
Heller. But “Our principal reservation about the Second Circuit ’s
analysis.” Posner writes, “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.” In support, the 2d Circuit cited Lawrence v. Texas.
Posner replies: “Well of course—the interest in having sex inside one’s
home is much greater than the interest in having sex on the sidewalk in
front of one’s home. But the interest in self-protection is as
great outside as inside the home.”
Moreover, Posner writes, the main purpose of Kachalsky’s
inside/outside distinction was to justify intermediate scrutiny for
restrictions on guns outside the home. In Madigan, “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.” [Study
tip for law students: 3-tier scrutiny doesn't explain everything. If a
government prohibited everyone from speaking out loud in public places,
a court does not need to use strict or intermediate scrutiny to decide
if the ban is constitutional. Blanket bans on speaking in public places
are per se void, and so are blanket bans on bearing arms in
Judge Posner addresses the concern of 4th Circuit Judge Harvie
Wilkinson [US v. Masciandaro, 638 F.3d 458, 475 (4th Cir. 2011)] that
delineating the constitutional boundaries of the right to bear arms
takes judges into “a vast terra incognita.” Posner agrees, but
points out that the new world “has been opened to judicial exploration
by Heller and McDonald. There is no turning back by
the lower federal courts.”
The Illinois carry ban is illegal. The Court’s mandate will be 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.”
Ernst Freund was one of the Founding Fathers of progressive
constitutionalism. His 1904 book The Police Power: Public Policy and
Constitutional Rights argued for a vastly expanded understanding of
the police power. (The police power, broadly defined, is a government’s
power to regulate health, safety, welfare and morals. It is distinct
from other government powers, such as the tax power, or the military
power. In the U.S. system, the federal government does not have a police
power, except as to federal territories, but the States do have a police
Freund’s expansive view of the police power aimed to overthrow the
then-prevailing (at least in theory) view, articulated by Christopher
Tiedeman in his 1886 A Treatise on the Limitations of the
Police Power in the United States, that the police power could only
be used to prevent people from harming others or violating their rights.
In the long run, Freund’s view became the mainstream.
So what would Freund, that great advocate for loosening the
restraints on big government, have to say about laws which prohibit the
medical use of marijuana? Here’s what he wrote about liquor prohibition:
All prohibitory laws make an exception in favor of sales for
medical purposes. This is not a legislative indulgence but a
constitutional necessity, since the state could not validly prohibit
the use of valuable curative agencies on account of remote
possibility of abuse. “[T]he power of the legislature to prohibit
the prescription and sale of liquor to be used as medicine does not
exist, and its exercise would be as purely arbitrary as the
prohibition of its sale for religious purposes....” The right to an
adequate supply of medicines cannot be cut off by the legislature,
and when legal provisions would have such effect they must that
extent be inoperative.
Freund, at 210-11, quoting Sarrls v. Commonwealth, 83 Ky. 327, 332-33
(1885) (interpreting physician exception in statutory ban on liquor
The Evolving Police Power: Some Observations for a New Century (27
Hastings Const’l L.Q. 511 (Spring 2000)), Glenn Reynolds and examined
the trend in some courts towards judicial recognition of an issue on
which Freund and Tiedman agreed: however one defines the boundaries of
the police power, it is not infinite, and there are some personal zones
into which it cannot reach.
Earlier this week, the Senate rejected the proposed U.N.
Convention on the Rights of Persons with Disabilities. Among the reasons
for the rejection was fear that, even if the Convention’s language
itself was acceptable, the future interpretation of the Convention would
be in the hands of a U.N. bureaucracy, which might invent novel or
excessive interpretations. Therefore, I respectfully request commenters
to describe previous situations in which a UN body has, in the
commenter’s view, made an inappropriate interpretation or application of
a Convention of Treaty.
And since the CRPD was modeled, in part on the U.S. Americans with
Disabilities Act, commenters are also welcome to point out some of what
they consider to be the most extreme, inappropriate, or unexpected
applications and interpretations of the ADA itself.
Only reporting results which represent a change.
U.S. Senate. Gains: Indiana (Donnelly replaces Lugar). NM
(Heinrich replaces Bingaman). ND (Heitkamp replaces Conrad).
Senate losses: Mass., Warren defeats Brown (-.5 with NRA C-rated
Senator replaced by an F). Virginia, Kaine replaces Webb.
Senate net: +1.5. Ted Cruz’s win in Texas won’t change Senate voting
patterns, but the former Texas Solicitor General will be an outstanding
and very well-informed leader on Second Amendment issues.
House losses: AZ 9. CA 7 (C-rated Lungren ousted), 26, 36 (Mary Bono
Mack), 41, 52. FL 18 (Alan West), 22 (Bloomberg-funded extremist wins),
26. Il 8, 18. MD 6. MN 8. NH 1 & 2. NY 18, 24.
House gains: AZ 2. IA 3 (incumbent vs. incumbent). NC 13 (F-rated
incumbent retired). OH 16 (incumbent vs. incumbent).
House net: -12.5.
Governor Loss: Montana (although not officially called yet; winner
Steve Bullock has a B- rating). Waiting for results in WA, a possible
Ballot issues. Strengthen Louisiana state right to keep and bear
arms, to require strict scrutiny. Win, very important reform, that will
be a model in other states. Constitutional right to hunt and fish
passes overwhelmingly in Kentucky, Nebraska, and Idaho.
In short, as Barack Hussein Obama, the Juan Domingo Peron of the 21st
century, leads America to fiscal collapse, you can at least keep your
As the results come in tonight, I will blog here about the results as
they affect the Second Amendment. In an
article last week for National Review Online, I previewed all the
Senate and Governor races, and all the competitive House races. Election
night starts with a net +3 for the Second Amendment in the Senate,
regardless of which party wins the Senate races in New Mexico, North
Dakota, and Indiana. In all these states, both major party candidates
are strong on Second Amendment issues, so the winner will replace
retiring anti-gun Senators (Bingaman in N.M., Conrad in N.D.) or an
anti-gun Senator who lost in the primary (Lugar in Ind.). To summarize
The three gubernatorial races that are close and that feature
major differences between the candidates on Second Amendment issues
are Washington, Montana, and New Hampshire.
. . . In four states — Arizona, Massachusetts, Nevada, and
Virginia — there are serious risks that Senate seats could be taken
by new senators hostile to gun rights. Plausible opportunities to
gain seats for the Second Amendment exist in Maine, Missouri, Ohio,
and Wisconsin. In these eight swing Senate states considered
together, the possibility of a net loss probably exceeds the
possibility of a net gain.
As for the U.S. House, a rough estimate would be that if the net
gain for Democrats is x, then the net loss for gun owners will be
about one-half or two-thirds of x. In swing districts, most
candidates are unwilling to forgo the 5 percent of the vote that can
be lost by opposing Second Amendment rights. So, in these districts,
candidates of both parties tend to support the Second Amendment.
Thus, the net change in House composition on the gun issue tends to
be smaller than the net party change in any given year.
In addition, Louisiana has a ballot referendum to strengthen the
state constitution’s right to arms. Idaho, Kentucky, and Nebraska will
vote on adding the right to hunt and fish to the state constitution.