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It’s not just about concealed carry, and their reasoning

Wednesday, Dec 12, 2012

* 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.

- Posted by Rich Miller        


26 Comments
  1. - Fight for the Voyeurs - Wednesday, Dec 12, 12 @ 11:02 am:

    “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.”

    Justice Posner, sex in public is the mustard and mayo on the sandwich of life. Stop being a killjoy.


  2. - reformer - Wednesday, Dec 12, 12 @ 11:08 am:

    From Scalia’s opinion in Heller: “The Second Amendment right is not unlimited…It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues.”


  3. - reformer - Wednesday, Dec 12, 12 @ 11:12 am:

    I’m waiting to hear our conservative friends criticize unelected federal judges overruling the elected officials in Illinois, instead of providing due deference that conservatives such as Robert Bork preach. Ed Meese argues for judicial restraint and “a deeply rooted commitment to the idea of democracy.”

    When judges overrule the elected branches, they can be accused of judicial activism — at least when conservatives dislike the result.


  4. - wordslinger - Wednesday, Dec 12, 12 @ 11:22 am:

    Justice Posner is nothing if not a prolific writer.

    But if you’re going to get into history, you shouldn’t probably try to be complete.

    A few points:

    –Many states required that male citizens (those that could vote) to own a firearm for compulsory service in the militia. There were no police forces or large standing U.S. Army.

    The need for militia was brought home in Shay’s Rebellion, a catalyst for the Constitutional Convention.

    The greatest need for militia was the fear of slave revolts.

    –You certainly needed a gun to make your way down to the trading post or town, but once there, you were often required to check your gun with the local constable or sheriff. In areas where there was established law enforcement operating, the banning of carrying weapons was common practice.


  5. - Plutocrat03 - Wednesday, Dec 12, 12 @ 11:34 am:

    When the courts see legislators pass laws that do not meet constitutional muster, it is their job to step in. It is not judicial activism.

    Judicial activism is the process where judges create new rights, which had not existed before.


  6. - Plutocrat03 - Wednesday, Dec 12, 12 @ 11:43 am:

    “The greatest need for militia was the fear of slave revolts”

    What a bunch of claptrap. There were large parts of the country that did not partake in slavery. Have we forgotten the (recent) experience to tyranny the founders went through? Think it was far from their mind?


  7. - 60657 - Wednesday, Dec 12, 12 @ 11:46 am:

    Judge Posner, not Justice Posner — thankfully.


  8. - wordslinger - Wednesday, Dec 12, 12 @ 11:50 am:

    –Judicial activism is the process where judges create new rights, which had not existed before.–

    Since local jurisdictions have had the power to ban the carrying of weapons since 1789, what, exactly, are you talking about?

    I came across an interesting article by a prominent jurist last night regarding recent gun control cases and the Supreme Court. The opening paragraph:

    –At the end of June, the Supreme Court, in a case called District of Columbia v. Heller, invalidated the District’s ban on the private ownership of pistols. It did so in the name of the Second Amendment to the Constitution. The decision was the most noteworthy of the Court’s recent term. It is questionable in both method and result, and it is evidence that the Supreme Court, in deciding constitutional cases, exercises a freewheeling discretion strongly flavored with ideology. —

    The author is Richard A. Posner.

    http://www.tnr.com/article/books/defense-looseness


  9. - titan - Wednesday, Dec 12, 12 @ 12:12 pm:

    @reformer - Most of the conservatives who use the term “judicial activism” as a negative term refer to it as judges creating rights that weren’t there, not enforcing ones that are written into the law (or constitution).
    A court finding a law to be unconstitutional where it required a newspaper to get prior governmental approval to publish a story would not be viewed as judicial activism. It would be upholding the right provided under the 1st Amendmennt.
    Many conservatives will view the CA7 decision as a similar action - upholding a right provided by the 2nd Amendment.

    And the CA7 decision did not mandate CCW for Illinois. Open carry would likely pass muster. The court found it improper to totally prohibit both.


  10. - Lobo Y Olla - Wednesday, Dec 12, 12 @ 12:16 pm:

    Wordslinger-
    You are my favorite poster for the rest of this week. Fantastic find.

    At the end of June, the Supreme Court, in a case called District of Columbia v. Heller, invalidated the District’s ban on the private ownership of pistols. It did so in the name of the Second Amendment to the Constitution. The decision was the most noteworthy of the Court’s recent term. It is questionable in both method and result, and it is evidence that the Supreme Court, in deciding constitutional cases, exercises a freewheeling discretion strongly flavored with ideology. —

    The author is Richard A. Posner.


  11. - wordslinger - Wednesday, Dec 12, 12 @ 12:35 pm:

    –What a bunch of claptrap. There were large parts of the country that did not partake in slavery. Have we forgotten the (recent) experience to tyranny the founders went through? Think it was far from their mind?–

    Pluto you don’t have to rely on my claptrap at all. And I don’t have to “think” about what “was on their minds.” There are depositories of books called libraries where you can find out for sure.

    In the original 13 states, slavery was allowed in New York, New Jersey, Delaware, Maryland, Virginia, NC, SC and Georgia.

    Much of the drafting of the Constitution dealt with the protection of slavery. Slave revolts were a primal fear in the United States until the Civil War, and state militias were the instruments of protection from them.

    If you see it some other way after your close reading of the history, well, I don’t know what to say.


  12. - Plutocrat03 - Wednesday, Dec 12, 12 @ 12:36 pm:

    “ban the carrying of weapons since 1789″

    A great slogan… violating the Constitution since 1789


  13. - wordslinger - Wednesday, Dec 12, 12 @ 12:52 pm:

    Pluto, it would appear that from 1789 until recent years, citizens and the judiciary accepted the banning of the carrying of weapons as Constitution.

    Did you think they didn’t have access to the courts to decide Constitutional issues?

    We’ll try this one more time, just for you. From Scalia’s opinion in Heller:

    “The Second Amendment right is not unlimited…It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues.”


  14. - Todd - Wednesday, Dec 12, 12 @ 12:58 pm:

    Word — Posner did take issue with Heller and even did so in McDonald at the hearings. But his honor is living in a post Heller world and said as much during orals on Shepard. He also took a swipe at the 2nd District in their carry case.


  15. - titan - Wednesday, Dec 12, 12 @ 1:20 pm:

    @wordslinger - until Brown v Board of Education, we accpted racially segregated schools as constitutional. Until the Texas case, we accepted criminalizing homosexuality as constitutional.
    Periodically, we figure out we were wrong about something.


  16. - wordslinger - Wednesday, Dec 12, 12 @ 1:29 pm:

    –@wordslinger - until Brown v Board of Education, we accpted racially segregated schools as constitutional. Until the Texas case, we accepted criminalizing homosexuality as constitutional.
    Periodically, we figure out we were wrong about something.–

    Very true. My original point was in response to one that stated the recent Supreme Court gun rulings were not examples of “judicial activism.”

    It’s a silly argument, anyway. Since Marbury vs. Madison, the judiciary has always been “active” and “discovered” new powers and rights.

    In some quarters, it’s “judicial activism” when it doesn’t go your way, and “original intent” when it does.

    The Supremes have always been political animals. There’s no reason to pretend that they were ever anything else.


  17. - wordslinger - Wednesday, Dec 12, 12 @ 1:35 pm:

    Todd, the feud between Posner and Scalia has been pretty fierce over the years. I can’t help but wonder if there’s some sort of trick bag in Posner’s opinion that somehow undermines Scalia’s original opinion, or force him to address something within it.

    I imagine we might want find out. I don’t know that Scalia would like to have Posner’s interpretations of “Heller” stand as precedent.


  18. - reformer - Wednesday, Dec 12, 12 @ 1:44 pm:

    titan

    Leading conservatives such as Bork and Meese preach judicial deferrence to the elected branches. The Appellate Court didn’t show deference in this case. The use of the term “judicial activism” generally indicates disagreement with the result, not with the process.


  19. - walkinfool - Wednesday, Dec 12, 12 @ 1:53 pm:

    Word is right, as usual.

    I have been a close reader and fan of the Supreme Court for about 50 years. In my opinion, this court has been the most “activist” of any in my lifetime. Scalia himself has been an off-the-charts political activist, at the level of Wm. O. Douglas.

    I think it is a natural and worthwhile evolution for the Court. I just wish they wouldn’t fool themselves and others by calling themselves Conservative.


  20. - Pot calling kettle - Wednesday, Dec 12, 12 @ 1:56 pm:

    I posted this link late last night, but it seems appropriate for this thread in case you missed it: http://backstoryradio.org/straight-shot-guns-in-america-2/

    The hour-long program is well worth a listen and points out some very interesting aspects of the history of guns and gun ownership in the US. For example, the Black Panthers and Malcolm X were strong proponents of the idea that the 2nd Amendment gave blacks the right to bear arms to defend themselves against a hostile white majority. Also, well into the 1800’s the average citizen did not have a gun that would be useful in a military sense; the high quality fire arms were maintained in a local armory. It is also pointed out that in the late 1800’s “wild west” many towns had laws that banned carrying a gun in town and required guns to be kept in the sheriff’s office.

    The bearing of arms has evolved throughout the country’s history and will continue to do so; this is just one more stage.


  21. - titan - Wednesday, Dec 12, 12 @ 2:49 pm:

    @reformer - deference is one thing, but even a very conservative ‘non-activist’ court should be expected to overturn a statute that does something contrary to the consititution. No one would call overturning a statute requiring prior government approval of newspaper stories the act of an activist court. Overturning a statute that totally tramples the 2nd Amendment shouldn’t be viewed as any more activist as one overturning a statute that totally tramples the 1st Amendment. And here, the court didn’t impose it’s will by judicial fiat, it outlined the current law’s defects and gave the legislature time to craft something compliant.


  22. - Judgment Day - Wednesday, Dec 12, 12 @ 4:36 pm:

    “Judge Posner, not Justice Posner — thankfully.”

    In your opinion. Personally, I’d be absolutely fine with his decision making, especially if he was on SCOTUS. Not because I’m all about guns, but I loved his recent position and decision on patents/copyrights. Which long term, is going to be a far more important issue - not just for Illinois, but to the entire country.


  23. - Esquire - Wednesday, Dec 12, 12 @ 4:45 pm:

    @Reformer:

    Judge Posner previously issued judicial opinions which upheld the handgun bans in Chicago and Oak Park. His reversal is perfectly correct in light of US Supreme Court decisions being binding authority which he is obligated to follow.

    As for unelected judges legislating from the bench, I believe the Bill of Rights was enacted by the Congress and ratified by the States. Presumably, elected officials served in the Congress and the state legislatures.


  24. - western illinois - Wednesday, Dec 12, 12 @ 6:31 pm:

    I should have posted on this one. Posner is trying to create chaos and eventually see the overturn of Heller. It was 5-4 and in 1972 the SC ended the death penalty and that lasted until 1977


  25. - reformer - Wednesday, Dec 12, 12 @ 6:48 pm:

    If Posner was merely following Heller, why didn’t he follow this part of Scalia’s opinion?

    “The Second Amendment right is not unlimited…It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues.”


  26. - RonOglesby - Wednesday, Dec 12, 12 @ 8:19 pm:

    -reformer

    He is following heller. Heller pointed out prohibitions on CONCEALED CARRY. Not ALL CARRY. listen to the orals and READ the opinion. They are saying you have to give definition to “bear” arms.

    He even says in the opinion you can allow concealed carry or you can allow open carry, but you cant have a blanket ban. If a blanket ban on all carry would be fine Heller wouldnt have bothered to point out laws banning arms in sensitive place were probably valid. Heller did not say banning any carry is probably valid.


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