Illinois Supreme Court: Second Amendment Protects Carrying Outside the Home

From today’s unanimous decision in People v. Aguilar (Ill. Sept. 12, 2013):

As the Seventh Circuit correctly noted, neither Heller nor McDonald expressly limits the second amendment’s protections to the home. On the contrary, both decisions contain language strongly suggesting if not outright confirming that the second amendment right to keep and bear arms extends beyond the home. Moreover, if Heller means what it says, and “individual self-defense” is indeed “the central component” of the second amendment right to keep and bear arms, then it would make little sense to restrict that right to the home, as “[c]onfrontations are not limited to the home.” Indeed, Heller itself recognizes as much when it states that “the right to have arms *** was by the time of the founding understood to be an individual right protecting against both public and private violence.”

I think the result is correct, because Heller‘s reasoning does indeed apply to carrying for self-defense in most public places, and not just in the home. Indeed, Heller and McDonald v. City of Chicago had no occasion to squarely confront this question, because they dealt with total handgun bans, including on home possession. Heller does speak of “the right of law-abiding, responsible citizens to use arms in defense of hearth and home,” and stresses that the D.C. handgun ban extends “to the home, where the need for defense of self, family, and property is most acute.” Heller, 554 U.S. at 635, 629. And Heller also holds that bans on concealed carry in public are constitutional, because of the long tradition (dating back to the early 1800s) of such prohibitions.

But Heller did hold that “bear arms” includes carrying arms, and the very reference to bans on concealed carry suggests that some sort of carrying (e.g., open carrying) would be constitutionally protected. Likewise, the Court’s approval of historically recognized bans on carrying into particular “sensitive places such as schools and government buildings” implies that carrying in other places would be protected. Id. at 571. And the Court also labeled carry bans as “[coming] close to the severe restriction of the District’s handgun ban,” id. at 629, and cited favorably several 19th-century cases that recognized a right to carry (though not to carry concealed):

Few laws in the history of our Nation have come close to the severe restriction of the District’s handgun ban. And some of those few have been struck down. In Nunn v. State, the Georgia Supreme Court struck down a prohibition on carrying pistols openly (even though it upheld a prohibition on carrying concealed weapons). In Andrews v. State, the Tennessee Supreme Court likewise held that a statute that forbade openly carrying a pistol “publicly or privately, without regard to time or place, or circumstances,” violated the state constitutional provision (which the court equated with the Second Amendment). That was so even though the statute did not restrict the carrying of long guns. See also State v. Reid, 1 Ala. 612, 616-617 (1840) (“A statute which, under the pretence of regulating, amounts to a destruction of the right, or which requires arms to be so borne as to render them wholly useless for the purpose of defence, would be clearly unconstitutional”).

The one error in the Illinois Supreme Court’s reasoning, I think, comes in the last sentence of the first block quote above: “Indeed, Heller itself recognizes as much when it states that ‘the right to have arms *** was by the time of the founding understood to be an individual right protecting against both public and private violence.’” As I read that Heller passage, it is speaking of the right to bear arms both providing a last-ditch defense against government oppression (public violence) and of protecting against crime (private violence); it’s not speaking of carrying in public places vs. at the home. But the rest of the Illinois Supreme Court’s analysis, and the Seventh Circuit’s Moore v. Madigan analysis, which the court endorses, strikes me as right.

This deepens the lower appellate court on split on whether the Second Amendment secures a right to carry a gun in public. Most of the decisions say “no.” See, e.g., Kachalsky v. County of Westchester, 701 F.3d 81, 96 (2d Cir. 2012); Woolard v. Gallagher, 712 F.3d 865 (4th Cir. 2013); People v. Dykes, 209 P.3d 1, 49 (Cal. 2009); Little v. United States, 989 A.2d 1096 (D.C. 2010); People v. Dawson, 934 N.E.2d 598 (Ill. App. Ct. 2010); Williams v. State, 10 A.3d 1167 (Md. 2011); Commonwealth v. McCollum, 945 N.E.2d 937 (Mass. App. Ct. 2011); People v. Perkins, 880 N.Y.S.2d 209 (App. Div. 2009). Indeed, McCollum went so far as to say that possessing a gun in someone else’s home can be punished, without regard to whether the resident has allowed or even asked the gun owner to bring the gun.

On the other side are Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012), plus now the Illinois Supreme Court decision, Ex parte Roque Cesar Nido Lanausse, No. KLAN201000562 (P.R. Cir. 2011), http://www.volokh.com/?p=46217, which seems to hold the same, and People v. Yanna, 824 N.W.2d 241 (Mich. Ct. App. 2012), which so states, albeit in dictum.

Because of this split, I expect that if the state of Illinois chooses to petition for certiorari, there would be a good chance of the U.S. Supreme Court’s agreeing to review the case. But Illinois decided not to petition for review from Moore v. Madigan, so I suspect they wouldn’t do so here.

Note that the Illinois court also upheld the ban on handgun possession by under-18-year-olds. On this, the court is consistent with the other courts that have considered the question.