The Seventh Circuit Keeps “Bear” in 2nd Amendment

Since Heller, I have maintained that Illinois’s ban on carrying guns violates the plain meaning of “bear” arms. The Second Amendment creates two distinct rights: “keeping” and “bearing,” one for the home, one for the street.

Today the Seventh Circuit agreed, holding Illinois’ carry ban unconstitutional. Judge Posner held that “bearing” is a right that only makes sense in public, and thus must allow for carrying outside the home.

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.

Indeed, the Second Amendment is about self-defense, and the need for that is greater outside the home, where one cannot as easily rely on passive defense mechanisms like locks and alarms. As Judge Posner put it: “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.”

The Seventh Circuit’s opinion is important for rooting a right to carry in the plain text of the Constitution, and eschewing elaborate historical or originalist inquiries. The next important question for a textualist is the scope of “arms.” But before then, this issue may be headed to the Supreme Court – the Second Circuit upheld a similar ban, attaching no particular import to the word “bear.” (Instead, it relied heavily on 19th century state gun laws, which seem inapposite given that no one then would have thought the 2nd Amendment applied to the states.)