* Most of the media coverage of yesterday’s appellate ruling was about concealed carry. But the case was about much more than that, as Justice Posner outlined in his opening paragraph…
An Illinois law forbids a person, with exceptions mainly for police and other security personnel, hunters, and members of target shooting clubs… 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… 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.
This appears to be about everything to do with carrying a weapon outside one’s home - in your car, in your briefcase as well as on your person. It looks to be a very broad decision, specifically referencing the state’s Unlawful Use of Weapons statute.
* Now, on to the reasoning behind the decision. We won’t delve into everything, but let’s start with this…
Both Heller and McDonald do say that “the need for defense of self, family, and property is most acute” in the home… 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.” 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.
* Some history was invoked…
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. […]
Twenty-first century Illinois has no hostile Indians. But a Chicagoan is a good deal more likely to be attacked on a sidewalk in a rough neighborhood than in his apartment on the 35th floor of the Park Tower. A woman who is being stalked or has obtained a protective order against a violent ex-husband is more vulnerable to being attacked while walking to or from her home than when inside. She has a stronger self-defense claim to be allowed to carry a gun in public than the resident of a fancy apartment building (complete with doorman) has a claim to sleep with a loaded gun under her mattress.
But Illinois wants to deny the former claim, while compelled by McDonald to honor the latter. That creates an arbitrary difference. To confine the right to be armed to the home is to divorce the Second Amendment from the right of self-defense described in Heller and McDonald.
It is not a property right—a right to kill a houseguest who in a fit of aesthetic fury tries to slash your copy of Norman Rockwell’s painting Santa with Elves. That is not self-defense, and this case like Heller and McDonald is just about self-defense.
* And the majority justices used a bit of wry humor to reject the reasoning of a New York case…
Our principal reservation about the Second Circuit’s analysis (apart from disagreement, unnecessary to bore the reader with, with some of the historical analysis in the opinion— we regard the historical issues as settled by Heller) is its suggestion that the Second Amendment should have much greater scope inside the home than outside simply because other provisions of the Constitution have been held to make that distinction.
For example, the opinion states that “in Lawrence v. Texas, the [Supreme] Court emphasized that the state’s efforts to regulate private sexual conduct between consenting adults is especially suspect when it intrudes into the home.”
Well of course—the interest in having sex inside one’s home is much greater than the interest in having sex on the sidewalk in front of one’s home. But the interest in self-protection is as great outside as inside the home.