Culp v. Raoul, 17-2998

Citation921 F.3d 646
Decision Date12 April 2019
Docket NumberNo. 17-2998,17-2998
Parties Kevin W. CULP, et al., Plaintiffs-Appellants, v. Kwame RAOUL, in his official capacity as Attorney General of the State of Illinois, et al., Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

David G. Sigale, Attorney, Glen Ellyn, IL, for Plaintiffs-Appellants.

Sarah A. Hunger, Attorney, OFFICE OF THE ATTORNEY GENERAL, Civil Appeals Division, Chicago, IL, for Defendants-Appellees.

Deepak Gupta, Attorney, GUPTA WESSLER PLLC, Washington, DC, for Amicus Curiae EVERYTOWN FOR GUN SAFETY.

Simon J. Frankel, Attorney, COVINGTON & BURLING LLP, San Francisco, CA, for Amicus Curiae GIFFORDS LAW CENTER TO PREVENT GUN VIOLENCE.

Before Manion, Hamilton, and Scudder, Circuit Judges.

Scudder, Circuit Judge.

Before us is a challenge to the scheme Illinois has enacted to license the concealed carry of firearms. The plaintiffs are out-of-state residents who contend that Illinois law discriminates against them in a way that forecloses their receiving a license in violation of the Second Amendment and the Privileges and Immunities Clause of the U.S. Constitution. Two years ago we considered and rejected the same challenge from the same parties in an appeal from the denial of their request for a preliminary injunction. The case returns on the same evidentiary record following entry of summary judgment for the State.

Illinois has regulated the public carrying of firearms by enacting the Firearm Concealed Carry Act and seeking to ensure that licenses issue only to individuals—residents and nonresidents alike—without substantial criminal and mental health histories, with the State then undertaking regular and rigorous monitoring to verify ongoing compliance. Illinois monitors the compliance of in-state license holders by accessing the robust, real-time information available about its residents. But monitoring compliance of out-of-state residents is limited in material ways by Illinois’s inability to obtain complete and timely information about nonresidents—for example, about a recent arrest for domestic violence or a voluntary commitment for inpatient mental health treatment. Illinois cannot compel this information from other states, nor at this time do national databases otherwise contain the information.

The State has sought to overcome this information deficit not by holding out-of-state residents to different standards than residents for obtaining a concealed-carry license, but by issuing licenses only to nonresidents living in states with licensing standards substantially similar to those of Illinois. In this way, Illinois’s "substantially similar" requirement functions as a regulatory proxy, as the State’s indirect means of obtaining adequate assurances that individuals licensed to carry a firearm in public remain fit and qualified to do so.

We conclude that Illinois’s substantial-similarity requirement—the centerpiece of its approach to nonresident concealed-carry licensing—respects the Second Amendment without offending the anti-discrimination principle at the heart of Article IV’s Privileges and Immunities Clause.

I
A

The path to (and limitations on) the concealed carrying of firearms in Illinois owes much to the Supreme Court’s decision in District of Columbia v. Heller , 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008). There the Court held that the Second Amendment confers "the right of law-abiding, responsible citizens to use arms in the defense of hearth and home." Id. at 635, 128 S.Ct. 2783. Concluding that "the inherent right of self-defense has been central to the Second Amendment right," the Court invalidated a District of Columbia law banning handgun possession in the home, "where the need for defense of self, family, and property is most acute." Id. at 628, 128 S.Ct. 2783.

In so holding, the Supreme Court underscored that, "[l]ike most rights, the right secured by the Second Amendment is not unlimited," emphasizing that "the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose." Id. at 626, 128 S.Ct. 2783. The Court sounded the extra caution that "nothing in [its] opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms"—all "presumptively lawful measures." Id . at 626–27 & n.26, 128 S.Ct. 2783.

Two years later, the Court decided McDonald v. City of Chicago and held that "the Second Amendment right is fully applicable to the States." 561 U.S. 742, 750, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010). Echoing what it underscored in Heller , the Court "repeat[ed] th[e] assurances" that longstanding "prohibitions on the possession of firearms by felons and the mentally ill" remained unquestioned. Id . (quoting Heller , 554 U.S. at 626, 128 S.Ct. 2783 ).

In the wake of Heller and McDonald , we held that the Second Amendment right to "bear arms" extends beyond the home. See Moore v. Madigan , 702 F.3d 933, 936 (7th Cir. 2012), petition for rehearing en banc denied , 708 F.3d 901 (7th Cir. 2013). This conclusion resulted in our invalidating an Illinois law that imposed a near-categorical prohibition on the carrying of guns in public. See id. at 934. This "sweeping ban," we reasoned, could not be upheld by the State’s generalized reliance on "public safety," as Illinois had ample room to "limit the right to carry a gun to responsible persons rather than to ban public carriage altogether"—consistent with Heller ’s recognition of the propriety of restricting gun possession by children, felons, the mentally ill, and unlawful aliens. Id. at 940, 942.

We ended our opinion in Moore with an invitation to the "Illinois legislature to craft a new gun law that will impose reasonable limitations"—in a manner "consistent with the public safety and the Second Amendment""on the carrying of guns in public" within the State. Id. at 942. Illinois responded by enacting the Firearm Concealed Carry Act, 430 ILCS 66/1 to 66/999, authorizing the issuance of concealed-carry licenses to individuals who meet prescribed eligibility requirements. This new statute set the stage for this litigation.

B

Obtaining a license under the Illinois Concealed Carry Act requires an applicant to show, among other things, that he is not a clear and present danger to himself or a threat to public safety and, within the past five years, has not been a patient in a mental hospital, convicted of a violent misdemeanor or two or more violations of driving under the influence of drugs or alcohol, or participated in a residential or court-ordered drug or alcohol treatment program. See 430 ILCS 66/10(a)(4), 66/25(3), 66/25(5) ; 430 ILCS 65/4, 65/8.

These standards are identical for residents and nonresidents alike, and no provision of the Illinois statute imposes any additional requirement on nonresidents. Furthermore, no aspect of this case entails a Second Amendment (or any other) challenge to any substantive-eligibility requirements in the Illinois statute. To the contrary, this case is only about how the substantial-similarity requirement applies to out-of-state residents. Resolving the question requires an examination of the statutory scheme, most especially the State’s initial evaluation of applicants and its ongoing monitoring of a licensee’s continued eligibility.

The issuance of a license requires the State Police to conduct an extensive background check of each applicant. See 430 ILCS 66/35. This check includes a search of multiple national databases, including the FBI’s National Instant Criminal Background Check System and, for Illinois residents, of "all available state and local criminal history record information files," records pertaining to domestic violence restraining orders, and mental health files of the Illinois Department of Human Services. Id.

To enable the prompt identification of any disqualifying circumstances that may arise during the five-year licensing period, the Illinois statute requires ongoing monitoring. See 430 ILCS 66/70 ; 430 ILCS 65/8.1. The monitoring is substantial, with the State Police Firearms Services Bureau conducting a daily check of all resident licensees against the Illinois Criminal History Record Inquiry and Department of Human Services’s mental health system for any development that might disqualify a licensee from holding a concealed-carry license. To ensure that certain intervening and disqualifying events are reported, Illinois obligates the clerks of its circuit courts as well as state law enforcement agencies to notify the State Police of certain criminal arrests, charges, and disposition information. See 430 ILCS 65/8.1(a) ; 20 ILCS 2630/2.1 to 2630/2.2. Illinois law also mandates that physicians, law enforcement officials, and school administrators report persons suspected of posing a clear and present danger to themselves or others within 24 hours of that determination. See 430 ILCS 65/8.1(d)(1)(2).

This monitoring regime positions Illinois to revoke the license of an individual who poses a danger of misusing firearms. The State Police learning, for example, that a license holder had been arrested for domestic violence or committed involuntarily to inpatient mental health treatment results in a revocation of the license. See 430 ILCS 66/70(a) ; 430 ILCS 66/25(2) (incorporating 430 ILCS 65/4(2)(iv) ), 66/25(4).

The upshot of all of this is that eligibility for a concealed-carry license in Illinois turns on the continuing and verifiable absence of a substantial criminal record and mental health history for all applicants, regardless of residency. See 430 ILCS 66/25(2) (incorporating 430 ILCS 65/4(2)(ii)(xvii) ), 66/25(3). While this observation is simple, implementing it is not. The State’s ability to determine eligibility depends on...

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