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Broader gun right declared

Going further than the Supreme Court has explicitly gone, a federal appeals court in Chicago ruled Tuesday that the Second Amendment protects a broad public right to carry a ready-to-use gun in public, for self-defense.  The Seventh Circuit Court’s ruling in Moore v. Madigan (Circuit docket 12-1269) found that right in what it considered to be indications in prior Supreme Court rulings on the amendment’s breadth.  The decision struck down an Illinois law that the court called “the most restrictive gun law of any of the 50 states.”

In an unusual gesture, however, the Circuit Court postponed putting its decision into effect for 180 days, to give the Illinois legislature a chance to “craft a new gun law that will impose reasonable limitations” on publicly carrying a gun, so long as new restrictions do not violate the newly declared right.   The case could be headed to the Supreme Court, since the ruling appears to conflict with a recent decision by the Second Circuit Court in New York City.

The decision answers a question that has lingered since the Supreme Court’s two major rulings, in 2008 and 2010, establishing a personal right to have a gun under the Second Amendment’s guarantee of a “right to keep and bear arms.”  Most lower courts, however, have not extended that right beyond the home, interpreting the Supreme Court to have settled only that aspect of Second Amendment rights.   The Justices have turned aside at least a half-dozen cases seeking to test the scope of the right beyond one’s home.

The Seventh Circuit, in its two-to-one decision, noted that the Supreme Court “has not yet addressed the question whether the Second Amendment creates a right of self-defense outside the home.”  Nevertheless, the appeals court interpreted the Court’s prior review of the Amendment’s history to indicate that the right to “bear arms” must be interpreted to include a right to have a gun in public, to have it ready for use, and to have it for self-defense.  The majority opinion, written by Circuit Judge Richard A. Posner, also said that the factual reality is that one is more likely to face threats away from one’s home, and thus will have more need to carry a gun for self-protection while out in public.

The decision was supported by Circuit Judge Joel M. Flaum.  Circuit Judge Ann Claire Williams dissented, saying that she would have upheld the Illinois law, as two federal district judges had done, even though she conceded that the Posner opinion’s interpretation of prior Supreme Court rulings was “not unreasonable.”

The majority said that the Illinois law, with only “meager exceptions” to its ban, came close to imposing a complete prohibition on public carrying of a gun.  Judge Posner wrote: “A blanket prohibition on carrying a 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 greater showing of justification than merely that the public might benefit on balance from such a curtailment, though there is no proof it would.”

The law, the majority noted, makes exceptions to the public carry restrictions “mainly for police and other security personnel, hunters, and members of target shooting clubs.”  Otherwise, the law bars the carrying in public, for self-defense or otherwise, of a gun that is loaded, and is easy to reach and is not held in a casing.  Among the few exceptions, the law allows a person to have a gun on one’s own property, or in a private residence (though not in the common areas of an apartment building).  It also permits the open carrying of a gun in one’s “fixed place of business,” and on property where the owner has permitted it.

While the two federal judges who ruled in a pair of cases had concluded that the Supreme Court’s 2008 decision in District of Columbia v. Heller (establishing a personal constitutional right to have a gun) did not create a right of self-defense outside the home, the Circuit Court majority disagreed.   It found that the history of the Second Amendment, as analyzed by the Supreme Court, as well as the implication of the Court’s analysis, showed that “the constitutional right of armed self-defense is broader than the right to have a gun in one’s home.”

Circuit Judge Williams, in her dissent, argued that the Supreme Court’s Heller decision involved a different right from the one that gun owners had made in these two cases — the public carry right.   She said she was not repudiating the historical analysis that the Court had made in Heller, but was reading that analysis as applicable only to gun possession for self-defense in the home.    She wrote: “Once the Heller majority found that the Second Amendment was personal, the conclusion that one could possess ready-to-use firearms in the home for self-defense there makes sense in light of the home-as-castle history” as understood by “our English ancestors.”

(Thanks to Howard Bashman of How Appealing blog for the alert to this decision.)

Recommended Citation: Lyle Denniston, Broader gun right declared, SCOTUSblog (Dec. 11, 2012, 3:49 PM),