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Cook County Forest Preserve District ban on licensed concealed carry overturned partly because it would’ve been allowed in the year 1791 - But ruling stayed to give legislature time to respond

Tuesday, Sep 14, 2021

* United States District Judge Robert M. Dow, Jr...

Plaintiff Simon Solomon challenges a state law and a forest preserve ordinance that prevent concealed carry license holders from carrying concealed weapons in the Forest Preserve District of Cook County. He alleges that the statute and the ordinance violate the Second Amendment of the United States Constitution, as well as the Due Process and Equal Protection Clauses of the Fourteenth Amendment. He sued various Cook County entities and officials, who, along with Intervenor-Defendant the State of Illinois, vigorously defend the statute and the ordinance on the grounds that the entire Forest Preserve District is a “sensitive place” on which firearms regulations are presumptively lawful, and that the regulations pass intermediate scrutiny because they are substantially related to public safety. […]

To sum up, under the Seventh Circuit’s framework for analyzing firearms regulations, Defendants bear the burden of showing that Section 65(a)(14) and Ordinance 3-3-6 prohibit activity that was understood in 1791 to be outside the scope of the Second Amendment. If the activity was within the scope of the Second Amendment at that time, or if the historical evidence is inconclusive, Defendants must then offer evidence showing that the regulations’ burden on Second Amendment rights is justified by the ends the government achieves through the regulation. In analyzing that evidence, the Court considers the strength the governmental interest that the regulation serves and the “fit” between that end and the chosen means, including whose rights the regulation affects and how severely the regulation burdens rights within or close to the core of the Second Amendment. The more law-abiding people it affects or the heavier the burden on a right close to the core, the closer the scrutiny the regulation receives.

At the first step, Defendants bear the burden of demonstrating that the regulated activity is categorically outside the scope of the Second Amendment as it was understood in 1791. Moore, 702 F.3d at 935; Ezell I, 651 F.3d at 702-03. Defendants articulate this position in two ways: first, by citing a pair of 18th century statutes to argue that carrying weapons in wooded areas was forbidden in 1791, and second, by asserting that all of the Forest Preserve District is a “sensitive area,” the regulation of which they say is beyond the bounds of the Second Amendment. Neither argument is convincing. […]

Nonetheless, in support of its argument that the regulated activity is outside the scope of the Second Amendment, the State of Illinois points to two colonial laws that prohibited carrying firearms in wooded areas, [103 at 6], one from Pennsylvania9 and one from New Jersey,10 but neither takes Defendants’ argument very far. First, both statutes exempt anyone carrying a firearm or hunting if that person has a license, but there is no licensing or permitting scheme that allows concealed carry on FPDCC property (and the Court expresses no opinion on whether any hypothetical permitting scheme would allow the law to pass constitutional muster). Second, both statutes primarily regulated hunting, not carrying for self-defense, and applied to private property—regulating a person’s action on “the improved or inclosed lands of any plantation other than his own”—not public spaces. […]

Even if these statutes had addressed carrying firearms for self-defense in public recreational areas, they would likely not be enough to carry the day. The Seventh Circuit has previously found that offering two historical statutes “falls far short of establishing that [a regulated activity] is wholly outside the Second Amendment as it was understood” in 1791. […]

In sum, the Seventh Circuit has recognized a right to carry firearms outside the home for self-defense purposes, and the record contains little evidence about the history of that right on publicly owned land, whether developed into a public recreational space or undeveloped and left as wilderness. The historical and textual evidence does not persuade the Court that licensed concealed carry of firearms for self-defense in public recreational areas was categorically outside the scope of the Second Amendment as it was understood in 1791. […]

In determining how closely to examine the fit between a regulation and its purported goal—the government’s chosen means and the ends it pursues—courts should consider whose rights the regulation affects and how severely the regulation burdens rights within or close to the core of the Second Amendment. The more law-abiding people it affects or the heavier the burden on a right close to the core, the stricter the scrutiny the regulation receives. […]

While Heller and its progeny primarily recognized a right to possess handguns for purposes of self-defense in the home, those cases and subsequent Seventh Circuit precedent strongly suggest a closely related right to carry handguns for self-defense outside of the home. Heller itself observed that the right to “bear arms” historically referred to a right to “wear, bear, or carry upon the person or in the clothing or in a pocket, for the purpose of being armed and ready for offensive or defensive action in a case of conflict with another person.” […]

Barring concealed carry by CCL holders across all FPDCC properties is not, under the evidence submitted by the parties, substantially related to the government’s interest in protecting Forest Preserve District visitors. […]

Almost none of the data in the record concerns CCL holders, or if it does, the parties have not disaggregated CCL holders from non-CCL holders. Defendants rely heavily on crime statistics from Cook County and the City of Chicago, but amidst all the violent crimes that the record lists and that Defendants argue show a threat to public safety, no one identifies any violent crimes committed by CCL holders. Turning to the FPDCC in particular, of all the crimes committed in the Forest Preserve between 2014 and 2019, only 4 were committed by CCL holders, [94 at ¶ 63], and those were all violations of Section 65(a)(14)—the crimes committed by CCL holders were only unlawful concealed carry, not murder, assault, armed robbery, or other violent crimes. … The record does not contain evidence that CCL holders committed other crimes in or out of the FPDCC, which makes the link between regulating their conduct and public safety tenuous. Nor does the record contain evidence that prohibiting CCL holders from carrying firearms in the FPDCC will otherwise reduce crime, prevent injury, or save lives. […]

This is not to say that the government necessarily must justify such a restriction on a site- by-site basis. See Kanter, 919 F.3d at 450 (rejecting plaintiff’s suggestion that ban on felons possessing firearms should be based on “highly-individualized” determinations rather than categories of convictions because it raised “serious institutional and administrative concerns”). It may be able to do so for categories of sites or activities, such as—hypothetically—nature centers or athletic facilities. Nor are Defendants persuasive in their argument that it would be impossible or unworkable for them to identify places within the Forest Preserve where children are present, perhaps even in a way that would qualify as a “sensitive place” under Heller. Contrary to their response briefs, nothing in the caselaw suggests that they would have to write regulations that vary by time of day or that apply only when children are present; school zone laws without such variance have been upheld despite children not being physically on school grounds twenty-four hours per day, seven days per week, three hundred and sixty-five days per year. In fact, the Illinois General Assembly has already made these kinds of distinctions. […]

Accepting that Section 65(a)(14) is unconstitutional as written does not resolve all questions about whether or how to regulate concealed carry of firearms in different places in the FPDCC going forward, and, even if the Court had the authority to answer those questions, it could not do so with the information currently before it. More fundamentally, those are judgments best left to the legislature, and the legislature ought to have an opportunity to make those judgments. Therefore, the Court temporarily stays enforcement of its ruling for a period of six months—i.e., until March 15, 2022—to provide the General Assembly an opportunity to act on this matter if it chooses to do so. […]

Plaintiff also asserts claims under the Due Process and the Equal Protection Clauses of the Fourteenth Amendment. Defendants argue that both claims must fail, and they are correct.

Emphasis added. The date “1791″ appears ten times in the opinion.

- Posted by Rich Miller        

34 Comments »
  1. - Donnie Elgin - Tuesday, Sep 14, 21 @ 12:19 pm:

    great point here…

    “but amidst all the violent crimes that the record lists and that Defendants argue show a threat to public safety, no one identifies any violent crimes committed by CCL holders”


  2. - Keyrock - Tuesday, Sep 14, 21 @ 12:21 pm:

    The Supreme Court’s Heller decision was bad history as well as bad law. Judge Dow’s convoluted opinion illustrates the flaws in Heller.

    Thanks for calling attention to this.


  3. - walker - Tuesday, Sep 14, 21 @ 12:26 pm:

    “”that was understood in 1791 to be outside the scope of the Second Amendment.”"

    You mean in 1791 they must have understood multi-million population cities/counties with enclosed public forest preserves for these laws to be enforced today? That’s quite a standard.


  4. - Donnie Elgin - Tuesday, Sep 14, 21 @ 12:30 pm:

    “The Supreme Court’s Heller decision was bad history as well as bad law”

    The Supreme Court’s Heller decision is settled law. There fixed it for you


  5. - Amalia - Tuesday, Sep 14, 21 @ 12:31 pm:

    I’m less concerned with concealed carry than I am with large guns that have no place outside of the military and the purchase of guns without a background check. change laws related to that nationally and there will be fewer shootings and less injury and death.


  6. - natty lite - Tuesday, Sep 14, 21 @ 12:42 pm:

    The Judge is just applying the 7th Circuit’s interpretation of the second amendment. He also offers the hypothetical that the law could pass muster if it limits the ban to nature centers or athletic facilities — which seems pretty reasonable.

    Interestingly, Judge Posner disagreed with the Heller decision, but he’s not on the 7th Circuit anymore.

    Now, about that desire of the GA to avoid any controversial topics next spring…


  7. - very old soil - Tuesday, Sep 14, 21 @ 12:45 pm:

    Neither the Forest Preserve District of Cook County nor the State of Illinois existed in 1791. Did the Judge consider that in his analysis. s/ (I think)


  8. - Donnie Elgin - Tuesday, Sep 14, 21 @ 12:49 pm:

    “the purchase of guns without a background check”

    In Illinois, every legal purchase/transfer of a firearm requires that the seller check that the buyer has a legal and valid FOID card. This includes retail sales, FFL agent sales, private sales, gun show sales, and inherited firearms. There is no gun show loophole in IL. Every FOID card is checked daily against a background search.


  9. - hisgirlfriday - Tuesday, Sep 14, 21 @ 12:58 pm:

    Bad history and bad law is right.

    And if they’re gonna apply a 1791 standard to the 2nd Amendment, apply it to all of the Bill of Rights.

    Would love to hear the tortured logic they come up with to explain what 1791 law means that corporations have 1st amendment rights.


  10. - Nagidam - Tuesday, Sep 14, 21 @ 1:01 pm:

    As a refresher here the 7th circuit court ordered the state of Illinois to enact a CCL law I think in 2013. The current law allows CCL in forest preserves in the entire state but Cook County. My guess is that is just how the sausage was made. But, parks where kids play are forbidden areas. Any action the GA takes is going to have to take this precedent into account.


  11. - Blue Dog - Tuesday, Sep 14, 21 @ 1:04 pm:

    We need more folks carrying their CCL and less restrictions on places to carry. If the judicial system will not protect its citizens, someone is going to have to.


  12. - SomeGuy - Tuesday, Sep 14, 21 @ 1:28 pm:

    ===There is no gun show loophole in IL===

    Do the gun shows know this? Last time I was at a gun show they looked at me like I had a 3rd arm growing out of my forehead when I tried to show them my FOID card. The gun I bought was too old for a serial number so they didn’t bother with any paperwork. I handed over the cash, they handed over the gun and that was that.


  13. - fs - Tuesday, Sep 14, 21 @ 1:42 pm:

    == Do the gun shows know this? Last time I was at a gun show they looked at me like I had a 3rd arm growing out of my forehead when I tried to show them my FOID card. The gun I bought was too old for a serial number so they didn’t bother with any paperwork. I handed over the cash, they handed over the gun and that was that.==

    You’re either leaving some key facts out, such as if it was so old (1800’s) that it was considered an antique or relic not covered by Illinois or federal background requirements, or you knowingly (since you seem so concerned) illegally purchased a firearm. If it’s the latter, and you clearly seem concerned, I’m assuming you dutifully reported this to law enforcement?


  14. - Ron Burgundy - Tuesday, Sep 14, 21 @ 1:45 pm:

    If we are going all in on 1791, they should only be able to conceal carry flintlock pistols and muskets.


  15. - VerySmallRocks - Tuesday, Sep 14, 21 @ 1:56 pm:

    That’s right, Ron Burgundy, not even percussion caps.


  16. - Nagidam - Tuesday, Sep 14, 21 @ 2:05 pm:

    ===If we are going all in on 1791, they should only be able to conceal carry flintlock pistols and muskets.===

    That’s a weak argument. Go to the brief on page 21 & 22 to see the argument that the Defendant made to say this issue is outside of the 2nd amendment.

    By your argument anything written other than with a quiver and ink is outside of the 1st amendment.


  17. - thisjustinagain - Tuesday, Sep 14, 21 @ 2:14 pm:

    Good to see the Federal court addressed this issue, since a) the 2nd Amendment applies today, not just in 1791, and b) crimes in forest preserves. The Cook County FPD “carve out” was a gimme to anti-gun people in the face of the purpose and intent of the 2nd Amendment to get a bill passed and signed before the Feds would have mandated permitless carry. And as to the weapons of 1791…surprise…a rifle is a rifle, is a rifle. Ammunition capacity doesn’t change the applicability of the 2nd Amendment.


  18. - Dozer - Tuesday, Sep 14, 21 @ 2:23 pm:

    So the GA has 6 months which lands us in march and we might have a decision in new york by then from scotus on carry and up and a good chunk of illinois’ law and they can fo back to the drawing board again

    And it looks like cook county/state is now going to be payong out damages on a 1983 claim to boot


  19. - Anonymous - Tuesday, Sep 14, 21 @ 2:52 pm:

    ===You’re either leaving some key facts out, such as if it was so old (1800’s) that it was considered an antique or relic not covered by Illinois or federal background requirements, or you knowingly (since you seem so concerned) illegally purchased a firearm. If it’s the latter, and you clearly seem concerned, I’m assuming you dutifully reported this to law enforcement?===

    It wasn’t an antique/relic. From what I can tell the gun was made in the late 1940’s.

    That was the first and only gun show I have been to, and I didn’t realize the seller wasn’t following the rules. I’m not running around trying to make citizens arrests. I just wanted to point out that it is possible to go into a gun show and walk out with a gun, in Illinois despite what the rules say.

    Also, can you say that a private party sale that doesn’t go through a FFL are performing a background check and following the waiting period rules?

    I’m not against guns or gun ownership, I just want to point out that the system we have in place does not work as it was designed to.


  20. - Suburban Mom - Tuesday, Sep 14, 21 @ 2:57 pm:

    Man, people flip out when DNR does deer culls in the Cook County Forest Preserves because so many schools back on to them and suburban parents DO NOT LIKE even trained professionals firing guns near their kids’ schools.

    I personally will be less likely to visit the CCFPs near me if people are allowed to carry guns in them. Why are Republicans so determined to destroy community safety and our ability to enjoy nice things?


  21. - SomeGuy - Tuesday, Sep 14, 21 @ 3:03 pm:

    Sorry, Anonymous @ 2:52pm was me


  22. - fs - Tuesday, Sep 14, 21 @ 3:07 pm:

    == Also, can you say that a private party sale that doesn’t go through a FFL are performing a background check and following the waiting period rules?==

    Private transactions require the buyer to provide their foid card/number to the seller, who is required to confirm the person has a valid foid card by verifying it through the State Police website for person to person transactions, and then retain that verification receipt for 10 years.

    So, to answer your question, if it is a lawful transaction: yes.


  23. - Publius - Tuesday, Sep 14, 21 @ 3:09 pm:

    The founders would be more worried today about our large standing army. That was why everyone needed a gun as us ordinary citizens would be needed in time of war.

    https://www.washingtonpost.com/news/made-by-history/wp/2018/02/22/what-the-second-amendment-really-meant-to-the-founders/


  24. - JS Mill - Tuesday, Sep 14, 21 @ 3:16 pm:

    =There fixed it for you=

    So…muskets.

    1791 you know.


  25. - JS Mill - Tuesday, Sep 14, 21 @ 3:20 pm:

    =That’s a weak argument.=

    To stay consistent with the “originalist” argument and the repeated 1791 reference and the understanding of the time the 2nd Amendment was written, the only firearms available were flint locks. So that is what would be allowed. You can’t use the 1791 understanding and then insert modern weaponry.

    And just for reference, I have my CCL, hunt, and have a number of firearms. So I am not anti-gun or hunter, but I am pro common sense.


  26. - Blue Dog - Tuesday, Sep 14, 21 @ 3:20 pm:

    Suburban mom. Do you go anywhere in chicago ir your worried about safety. Or for that matter anywhere?


  27. - fs - Tuesday, Sep 14, 21 @ 3:27 pm:

    == the only firearms available were flint locks==

    This is incorrect. Repeating rifles and air rifles were around in various forms well before 1791.


  28. - Rich Miller - Tuesday, Sep 14, 21 @ 3:32 pm:

    ===Repeating rifles and air rifles===

    And you conceal those… how?


  29. - Steve Rogers - Tuesday, Sep 14, 21 @ 3:40 pm:

    =By your argument anything written other than with a quiver and ink is outside of the 1st amendment.=

    (Spit take) A quiver holds arrows. A quill is a writing utensil.

    To the post, I’ve never understood originalist thought. By the logic above, slavery is still legal because the 13th amendment didn’t pass until 1861 (well after 1791). We shouldn’t be direct electing US Senators either. Shouldn’t have an income tax. I can do this all day.


  30. - Nagidam - Tuesday, Sep 14, 21 @ 3:44 pm:

    Jesus folks read the case please. The 1791 reference has precedent as that is the date the 2nd amendment was ratified. The defendant in this case was trying to argue Cook County ordinance was outside the 2nd amendment as there was an ordinance enacted to prohibit carrying concealed weapons that was in effect prior to 1791. The court did not buy that reasoning.


  31. - Nagidam - Tuesday, Sep 14, 21 @ 3:48 pm:

    @SoccerMom

    ===I personally will be less likely to visit the CCFPs near me if people are allowed to carry guns in them. Why are Republicans so determined to destroy community safety and our ability to enjoy nice things?===

    Read the case. This very issue is brought up. The data shows there have been no CCL arrests(other than carrying a conceal weapon)in the Forest Preserves in the last 6 years but many felonies committed by non CCL holders. Turns your worry on its’ ear.


  32. - Dozer - Tuesday, Sep 14, 21 @ 3:53 pm:

    Js. The 1791 argument refers to types of restrictions and law at the time the constitution was ratified to go along with test, history and such your argument that the 2A only applies to muskets was addressed and dismissed in heller

    “Some have made the argument, bordering on the frivo- lous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not in- terpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union, 521 U. S. 844, 849 (1997), and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U. S. 27, 35–36 (2001), the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.”

    They have used 1791 as to the types of restrictions on people owning or carrying arms and at the same time applied the right to modern arms your argument is in fact weak


  33. - fs - Tuesday, Sep 14, 21 @ 3:55 pm:

    == And you conceal those… how?==

    You could pretty easily conceal a blunderbuss, that could fire multiple rounds at once. Point is the term “arms” did not just mean “musket” as is often argued. Firearms technology was advancing pretty rapidly even during the late 1700’s.


  34. - Lakeviewresident - Tuesday, Sep 14, 21 @ 4:06 pm:

    For those who are concerned about people carrying guns in forest preserves, folks without CCLs are doing it now anyway. Allowing CCL holders to carry their guns is unlikely to make the preserves less safe.


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