By David Crane
defrev (at) gmail (dot) com
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December 13, 2012
On Tuesday, December 11, a 7th U.S. Circuit Court of Appeals panel in Chicago "affirmed a constitutional right to have ready-to-use firearms for self-defense outside the home," as reported by both the Chicago Tribune and Chicago Sun-Times. This is no small thing, particularly in Chicago, a city with some of the most stringent gun control, i.e., citizen-control laws, in the United States.
The following are individual excerpts from the decision written by Judge Richard Posner, and reported by both newspapers:
We are disinclined to engage in another round of historical analysis to determine whether eighteenth-century America understood the Second Amendment to include a right to bear guns outside the home. The Supreme Court has decided that the amendment confers a right to bear arms for self-defense, which is as important outside the home as inside.
The theoretical and empirical evidence (which overall is inconclusive) is consistent with concluding that a right to carry firearms in public may promote self-defense. Illinois had to provide us with more than merely a rational basis for believing that its uniquely sweeping ban is justified by an increase in public safety. It has failed to meet this burden.
A 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 gun is a potential danger to more people if carried in public than just kept in the home. He continues, But the other side of this coin is that knowing that many law-abiding citizens are walking the streets armed may make criminals timid.
What's so significant about the decision, aside from the fact that it was made by an appellate court located within Chicago city limits, is that it logically extends the right to bear arms outside one's home, so that one may defend one's person while out on the street. This decision will therefore make it all but impossible for Chicago's outright ban on concealed carry (CCW) of firearms. It also puts Illinois Attorney General Lisa Madigan and gun control activists in general in a real pickle, not only in Illinois, but also around the country. First, it would seem logical that Second Amendment/concealed carry proponents in other states can now use this decision as a potent weapon (excuse the pun) against any other state's laws that make it difficult or impossible for citizens in those states to obtain concealed carry licenses.
Second, if the losing party in the Illinois case (the gun controllers) appeal the decision to the U.S. Supreme Court, and they lose, concealed carry would be confirmed as a Constitutional right under the Second Amendment by the U.S. Supreme Court (SCOTUS), the highest court in the land. So, there would be no more appeals that could be made. Since the Second Amendment has already been incorporated, federal law would supercede all state laws, and concealed carry would have to be allowed by all states, period.
The bottom line is that Illinois Attorney General Madigan is now in a real legal spot. This would appear to be a HUGE win for the Second Amendment in general, and concealed carry, specifically. It would also appear that there's at least the theoretical potential for one or two eventual scenarios: 1) Nationalized concealed carry and/or open carry, where a concealed weapons license or permit from one state must be honored by all states, just like a driver's license, or 2) Firearms carry licenses become less necessary or altogether unnecessary, where either concealed carry or open carry (or both) becomes legal for all citizens without the license/permit requirement. The concealed carry versus open carry issue makes things a bit more complex, so it's difficult to determine how SCOTUS would decide on it.
DefenseReview will continue to monitor the situation and update our readers accordingly. This case feels like a Second Amendment Foundation (SAF) case. In fact, it has SAF, written all over it, but DR has no idea whether or not they were actually involved in it. If they're not already involved, they probably will be by the time it reaches SCOTUS (pure speculation). DR will attempt to contact SAF to find out whether or not they were involved in the Illinois case or plan to get involved if the case goes to SCOTUS.
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