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.