In December, the Seventh Circuit Court of Appeals held in a 2-1 decision that an Illinois ban on carrying a weapon in public is unconstitutional.
In striking the law, Judge Richard Posner said that Illinois had to provide the court with more than merely a rational basis for asserting that its sweeping ban was justified by an increase in public safety. The court, however, stayed its ruling for 180 days to allow the Illinois legislature to craft a new gun law.
The decision was controversial, particularly after the Sandy Hook school shooting that happened only three days later, but controversy isn't enough to guarantee en banc rehearing. Last week, the Seventh Circuit declined to reconsider its decision.
The Illinois law in question barred people from carrying loaded, accessible guns, though it provided exceptions for police and other security personnel, hunters, and members of target shooting clubs. There were also exceptions for a person on his own property or in his home. An apartment dweller could have a gun in his unit, but not in the building's common areas. Carrying an unloaded gun in public was prohibited, unless carried openly outside a vehicle in an unincorporated area without accessible ammo.
Parties challenging the concealed carry law argued that it violated the Second Amendment -- as interpreted in District of Columbia v. Heller, and held applicable to the states in McDonald v. City of Chicago -- but the Seventh Circuit noted that the case presented an unresolved question: Does the Second Amendment create a right of self-defense outside the home?
According to the appellate court, Second Amendment rights are really about a desire for self-preservation, and that desire extends outside the home.
Illinois Attorney General Lisa Madigan asked the Seventh Circuit to rehear the case, but the court voted 5-4 to deny her request, The Wall Street Journal reports.
Judge David Hamilton, joined by Judges Diane Wood, Ilana Rovner, and Ann Williams, wrote in a dissental, "The Supreme Court has not yet decided whether the post-Heller individual right to keep and bear arms at home under the Second Amendment extends beyond the home. The panel's split decision in these cases goes farther than the Supreme Court has gone and is the first decision by a federal court of appeals striking down legislation restricting the carrying of arms in public. Until the Supreme Court faces the issue, the state of the law affecting people in Illinois, Wisconsin, and Indiana is an important question worthy of en banc consideration."
- Moore v. Madigan (Seventh Circuit Court of Appeals)
- New York Can Demand 'Proper Cause' for Concealed Carry Permit (FindLaw's Second Circuit Blog)
- Sheriff Seeks Opinion on Gun Permits for Medical Pot Users (FindLaw's Supreme Court Blog)