The U.S.
Supreme Court’s landmark Heller
decision declared an individual right to possess a firearm at home, but left
open the question of gun rights in public. The high court could be asked to
weigh in soon on this open question, which has split federal appellate courts
and again been part of the national conversation since the Newtown shootings.
In a December
opinion,
Judge Richard Posner of the U.S. Court of Appeals for the 7th Circuit, writing
for himself and Judge Joel Flaum, honed in on the words “keep and bear” in the
Second Amendment, drawing meaning from each one.
“The right to
‘bear’ as distinct from the right to ‘keep’ arms is unlikely to refer to the
home,” Posner stated. “A right to bear arms thus implies a right to carry a
loaded gun outside the home.” This reading, Posner concluded, is consistent
with Heller. The majority struck down
an Illinois ban on carrying guns in public.
Dissenting, Judge
Ann Claire Williams was not convinced that Heller
implied a “right to have ready-to-use firearms” outside the home.
Williams looked
to “a long history of regulating arms in public,” including state laws adopted
during the founding era. Predating those laws, the 1328 Statute of Northampton
provided that no one may “go nor ride armed by night nor by day, in Fairs,
markets, nor in the presence of the Justices or other Ministers, nor in no part
elsewhere.”
Both Posner
and Williams cited recent decisions from the 2nd and 4th Circuits, which upheld
public-carry restrictions (a New York law and a National Park Service
regulation, respectively).
In November, a
unanimous 2nd
Circuit panel found “a longstanding tradition of states regulating firearm
possession and use in public because of the dangers posed to public safety.”
A unanimous 4th
Circuit held in 2011 that “as we move outside the home, firearm rights have
always been more limited, because public safety interests often outweigh
individual interests in self-defense.” As to extending Heller, two of the three judges said it is “prudent to await direction from the [Supreme]
Court.”
Posner
questioned both opinions and distinguished the Illinois ban as “the most
restrictive gun law of any of the 50 states.” Along these lines and in an
unusual move, Posner gave the Illinois legislature 180 days to revise the ban.
The new law can “impose reasonable limitations, consistent with the public
safety and the Second Amendment,” he explained.
If Illinois
takes this option, it could lessen the practical impact of the circuit split.
The revised restrictions could be similar to those upheld; in fact, the Supreme
Court declined to review the 4th Circuit public-carry decision. A petition for
certiorari is pending in the 2nd Circuit case.
For now,
Illinois continues to fight the 7th Circuit ruling.
On January 8,
Illinois Attorney General Lisa Madigan filed a petition for rehearing en banc. In
a press release that same day, Madigan said: “In ruling that Illinois must
allow individuals to carry ready-to-use firearms in public, the 7th Circuit
Court’s decision goes beyond what the U.S. Supreme Court has held and conflicts
with decisions by two other federal appellate courts.”
If the full
7th Circuit decides to rehear the case, any Supreme Court review would be
delayed. However, a quick denial by the 7th Circuit, followed by a petition for
certiorari is just as likely.
