Moore v. Madigan

Decision Date11 December 2012
Docket Number12–1269.,Nos. 12–1788,s. 12–1788
Citation702 F.3d 933
PartiesMichael MOORE, et al., and Mary E. Shepard, et al., Plaintiffs–Appellants, v. Lisa MADIGAN, Attorney General of Illinois, et al., Defendants–Appellees.
CourtU.S. Court of Appeals — Seventh Circuit

OPINION TEXT STARTS HERE

Held Unconstitutional

S.H.A. 720 ILCS 5/24–1, 5/24–1.6

Alan Gura (argued), Attorney, Gura & Possessky, Alexandria, VA, David D. Jensen, Attorney, David Jensen PLLC, New York City, David G. Sigale, Attorney, Glen Ellyn, IL, for PlaintiffsAppellants in No. 12–1269.

Charles J. Cooper (argued), Attorney, Cooper & Kirk, Washington, DC, William N. Howard, Attorney, Freeborn & Peters LLP, Chicago, IL, for PlaintiffsAppellants in No. 12–1788.

Karl R. Triebel (argued), Attorney, Office of the Attorney General, Civ. Appeals Div., Chicago, IL, Joseph A. Bleyer, Attorney, Bleyer & Bleyer, Marion, IL, for DefendantsAppellees.

Suzanne M. Loose, Attorney, City of Chicago Law Department, Jonathan Klee Baum, Attorney, Katten Muchin Rosenman LLP, Stephen L. Wood, Attorney, Chicago Transit Authority, Law Department, Alexander David Marks, Attorney, Burke, Warren, MacKay & Serritella, P.C., Patrick J. Rocks, Jr., Attorney, Chicago Board of Education, Chicago, IL, Todd Sunhwae Kim, Attorney, Office of the Attorney General for the District of Columbia, Office of the Solicitor General, Washington, DC, Brian S. Koukoutchos, Attorney, Mandeville, LA, for Amici Curiae.

Before POSNER, FLAUM, and WILLIAMS, Circuit Judges.

POSNER, Circuit Judge.

These two appeals, consolidated for oral argument, challenge denials of declaratory and injunctive relief sought in materially identical suits under the Second Amendment. An Illinois law forbids a person, with exceptions mainly for police and other security personnel, hunters, and members of target shooting clubs, 720 ILCS 5/24–2, to carry a gun ready to use (loaded, immediately accessible—that is, easy to reach—and uncased). There are exceptions for a person on his own property (owned or rented), or in his home (but if it's an apartment, only there and not in the apartment building's common areas), or in his fixed place of business, or on the property of someone who has permitted him to be there with a ready-to-use gun. 720 ILCS 5/24–1(a)(4), (10), –1.6(a); see People v. Diggins, 235 Ill.2d 48, 335 Ill.Dec. 608, 919 N.E.2d 327, 332 (2009); People v. Laubscher, 183 Ill.2d 330, 233 Ill.Dec. 639, 701 N.E.2d 489, 490–92 (1998); People v. Smith, 71 Ill.2d 95, 15 Ill.Dec. 864, 374 N.E.2d 472, 475 (1978); People v. Pulley, 345 Ill.App.3d 916, 281 Ill.Dec. 332, 803 N.E.2d 953, 957–58, 961 (2004). Even carrying an unloaded gun in public, if it's uncased and immediately accessible, is prohibited, other than to police and other excepted persons, unless carried openly outside a vehicle in an unincorporated area and ammunition for the gun is not immediately accessible. 720 ILCS 5/24–1(a)(4)(iii), (10)(iii), –1.6(a)(3)(B).

The appellants contend that the Illinois law violates the Second Amendment as interpreted in District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), and held applicable to the states in McDonald v. City of Chicago, ––– U.S. ––––, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010). Heller held that the Second Amendment protects “the right of law-abiding, responsible citizens to use arms in defense of hearth and home.” 554 U.S. at 635, 128 S.Ct. 2783. But the Supreme Court has not yet addressed the question whether the Second Amendment creates a right of self-defense outside the home. The district courts ruled that it does not, and so dismissed the two suits for failure to state a claim.

The parties and the amici curiae have treated us to hundreds of pages of argument, in nine briefs. The main focus of these submissions is history. The supporters of the Illinois law present historical evidence that there was no generally recognized private right to carry arms in public in 1791, the year the Second Amendment was ratified—the critical year for determining the amendment's historical meaning, according to McDonald v. City of Chicago, supra, 130 S.Ct. at 3035 and n. 14. Similar evidence against the existence of an eighteenth-century right to have weapons in the home for purposes of self-defense rather than just militia duty had of course been presented to the Supreme Court in the Heller case. See, e.g., Saul Cornell, A Well–Regulated Militia 2–4, 58–65 (2006); Lois G. Schwoerer, “To Hold and Bear Arms: The English Perspective,” 76 Chi.-Kent L.Rev. 27, 34–38 (2000); Don Higginbotham, “The Second Amendment in Historical Context,” 16 Constitutional Commentary 263, 265 (1999). The District of Columbia had argued that “the original understanding of the Second Amendment was neither an individual right of self-defense nor a collective right of the states, but rather a civic right that guaranteed that citizens would be able to keep and bear those arms needed to meet their legal obligation to participate in a well-regulated militia.” Cornell, supra, at 2; see also Paul Finkelman, ‘A Well Regulated Militia’: The Second Amendment in Historical Perspective,” 76 Chi.-Kent L.Rev. 195, 213–14 (2000); Don Higginbotham, “The Federalized Militia Debate: A Neglected Aspect of Second Amendment Scholarship,” 55 William & Mary Q. 39, 47–50 (1998); Roy G. Weatherup, “Standing Armies and Armed Citizens: An Historical Analysis of the Second Amendment,” 2 Hastings Constitutional L.Q. 961, 994–95 (1975).

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. The first sentence of the McDonald opinion states that “two years ago, in District of Columbia v. Heller, we held that the Second Amendment protects the right to keep and bear arms for the purpose of self-defense,” McDonald v. City of Chicago, supra, 130 S.Ct. at 3026, and later in the opinion we read that Heller explored the right's origins, noting that the 1689 English Bill of Rights explicitly protected a right to keep arms for self-defense, 554 U.S. at 593, 128 S.Ct. 2783, and that by 1765, Blackstone was able to assert that the right to keep and bear arms was ‘one of the fundamental rights of Englishmen,’ id. at 594, 128 S.Ct. 2783.” 130 S.Ct. at 3037. And immediately the Court adds that “Blackstone's assessment was shared by the American colonists.” Id.

Both Heller and McDonald do say that “the need for defense of self, family, and property is most acute” in the home, id. at 3036 (emphasis added); 554 U.S. at 628, 128 S.Ct. 2783, but that doesn't mean it is not acute outside the home. Heller repeatedly invokes a broader Second Amendment right than the right to have a gun in one's home, as when it says that the amendment “guarantee[s] the individual right to possess and carry weapons in case of confrontation.” 554 U.S. at 592, 128 S.Ct. 2783. Confrontations are not limited to the home.

The Second Amendment states in its entirety that “a well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed” (emphasis added). The right to “bear” as distinct from the right to “keep” arms is unlikely to refer to the home. To speak of “bearing” arms within one's home would at all times have been an awkward usage. 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. Suppose one lived in what was then the wild west—the Ohio Valley for example (for until the Louisiana Purchase the Mississippi River was the western boundary of the United States), where there were hostile Indians. One would need from time to time to leave one's home to obtain supplies from the nearest trading post, and en route one would be as much (probably more) at risk if unarmed as one would be in one's home unarmed.

The situation in England was different—there was no wilderness and there were no hostile Indians and the right to hunt was largely limited to landowners, Schwoerer, supra, at 34–35, who were few. Defenders of the Illinois law reach back to the fourteenth-century Statute of Northampton, which provided that unless on King's business no man could “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.” 2 Edw. III, c. 3 (1328). Chief Justice Coke interpreted the statute to allow a person to possess weapons inside the home but not to “assemble force, though he be extremely threatened, to go with him to church, or market, or any other place.” Edward Coke, Institutes of the Laws of England 162 (1797). But the statute enumerated the locations at which going armed was thought dangerous to public safety (such as in fairs or in the presence of judges), and Coke's reference to “assemble force” suggests that the statutory limitation of the right of self-defense was based on a concern with armed gangs, thieves, and assassins rather than with indoors versus outdoors as such.

In similar vein Sir John Knight's Case, 87 Eng. Rep. 75, 76 (K.B.1686), interpreted the statute as punishing people who go armed to terrify the King's subjects.” Some weapons do not terrify the public (such as well-concealed weapons), and so if the statute was (as it may have been) intended to protect the public from being frightened or intimidated by the brandishing of weapons, it could not have applied to all weapons or all carriage of weapons. Blackstone's summary of the statute is similar: “the offence of riding or going armed, with dangerous or unusual weapons, is a crime against the public peace, by terrifying the good peo...

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