The Last Outright Ban on Concealed Weapons Goes Down

The law, lawyers, and the court.
Dec. 15 2012 3:14 PM

The Last Outright Ban on Concealed Weapons Goes Down

Illinois’ law falls to the Second Amendment right to bear arms.

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A gun ownership supporter outside of the Supreme Court prior to its landmark 2008 decision inDistrict of Columbia v. Heller.

Photo by MANDEL NGAN/AFP/Getty Images

Illinois’ efforts to distinguish itself on gun control legislation have once again been thwarted. On Tuesday, the U.S. Court of Appeals for the 7th Circuit struck down, by a vote of 2 to 1, the state’s ban on carrying concealed firearms. The ruling by Judge Richard Posner forces Illinois—the only state in the nation that had such a sweeping ban—to fall in line with the national trend permitting citizens to carry concealed weapons in at least some circumstances.

A little background: In District of Columbia v. Heller, the Supreme Court ruled in 2008 that the Second Amendment protects “the right of law-abiding, responsible citizens to use arms in defense of hearth and home.” The question before Judge Posner and two other appellate judges—which the Supreme Court has not yet addressed—was whether the Second Amendment also protects a right of self-defense outside the home.

Judge Posner said yes, stressing the part of Heller that says the Second Amendment guarantees people the right to possess and carry weapons “in case of confrontation.” After all, confrontations are not limited to the home. Posner turned to the text of the Second Amendment to buttress this argument, positing that the right to “bear” arms (as opposed to “keep” them) takes on a strange meaning if the amendment’s application is limited to the home.

Posner also addressed Illinois’ argument that keeping loaded weapons out of public spaces is good for public safety and welfare. Reviewing studies about the relationship between allowing versus restricting concealed weapons and firearm violence, Posner said it’s a wash—there’s no clear evidence that fewer concealed guns means fewer shootings, or vice versa. He also noted that “if the mere possibility of allowing guns to be carried in public would increase the crime or death rates sufficed to justify a ban,” Heller would have come out the other way. In other words, perhaps even strong empirical evidence justifying the wisdom of Illinois’ law wouldn’t save it.

While Judge Joel Flaum agreed with Posner, Judge Ann Williams dissented. She looked at the history of the Second Amendment history and found it less than clear that the Founders gave the nod to private citizens roaming public streets with loaded weapons. The Supreme Court made clear in Heller that certain limitations on the Second Amendment—such as those that forbid carrying firearms in schools and government buildings—are beyond attack. Williams reasoned this means states can pass laws barring firearms from a large number of public spaces, even if that makes a meaningful Second Amendment right to self-defense elusive. Indeed, that may be precisely the strategy Illinois adopts when the legislature returns to the drawing board.

Katie Mesner-Hage is a recent graduate of Yale Law School.

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