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The Hollow Impact of Moore v. Madigan on Gun Control?

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Yesterday the 7th Circuit Court of Appeals handed down a landmark decision, striking down Illinois's statute prohibiting citizens from carrying "a gun ready to use" for the purpose of self-defense. Docketed as Moore v. Madigan, it is the first Circuit Court opinion, post-District of Columbia v. Heller and McDonald v. City of Chicago, to state the Second Amendment extends beyond the home. In Judge Richard Posner's words, "To speak of 'bearing' arms within one's home would at all times have been awkward usage. A right to bear arms thus implies a right to carry a loaded gun outside the home."

The decision is undoubtedly a moral victory (and perhaps political victory) for gun rights advocates, especially the Second Amendment Foundation (SAF) and National Rifle Association (NRA) which brought the respective suits against Illinois. However, the victory may prove hollow for two reasons. The first being the opinion left much unanswered in terms of the scope of permissible regulation. Judge Posner indeed placed a burden on the Illinois legislature to show more of a justification than "merely that the public might benefit" from gun control laws. At the same time, Posner tipped his cap to the New York regulatory model (arguably the strictest in the United States), which was recently held constitutional by the 2nd Circuit Court of Appeals in Kachalsky v. Westchester.

New York only issues public carry licenses to individuals who have met a number of prerequisites and have provided "proper cause" to a government official. This form of gun licensing is otherwise referred to as "may issue." This is important, for in other pending lawsuits the SAF and NRA claim "may issue" laws are unconstitutional. While the SAF and NRA concede legislatures may stipulate a number of prerequisites before granting a gun carry license, they deny can be done at the discretion of government officials. Thus, it seems Posner's decision, along with the holding in Kachalsky, conflicts with the SAF and NRA's end goal -- to eliminate "may issue" laws from the books.

The second reason the Moore victory may prove hollow is it has a fair shot of being overturned by the Supreme Court of the United States (SCOTUS). There can be little doubt that the SAF and NRA would be thrilled if the case was appealed and granted certiorari. However, they will be fighting an uphill battle. Moore's rationale rests on questionable grounds. For one, the decision is worrisome in that it did not defer to the findings of the legislature. Despite agreeing a "gun is a potential danger to more people if carried in public than just kept in the home," and acknowledging a number of studies that support this conclusion, Posner thought this "fails to establish a pragmatic defense."

Posner's conclusion led Judge Ann Claire Williams to write a powerful dissent, declaring:

"It is common sense, as the majority recognizes, that a gun is dangerous to more people when carried outside the home. When firearms are carried outside the home, the safety of a broader range of citizens is at issue.The risk of being injured or killed now extends to strangers, law enforcement personnel, and other private citizens who happen to be in the area."

Williams then provided a number of studies expounding her point. What Williams particularly found unsettling was the manner by which the majority conflicts with SCOTUS precedent. She wrote, "To the extent the majority opinion's studies draw different conclusions, the Supreme Court had made clear 'the possibility of drawing two inconsistent conclusions from the evidence' does not prevent a finding from being supported by substantial evidence."

The decision is also questionable in terms of historical legitimacy -- a fact Judge Williams additionally detailed. At oral argument Judge Posner expressed doubt as to whether the Illinois legislature could forbid the carrying of loaded firearms in the public concourse for self-defense. He asked the defendants' counsel to use their "historical imagination" as to whether a right to armed self-defense extended outside the home and leaned on the unsettled frontier as an example. In the opinion, Posner incorporated this rationale, writing, "[O]ne 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 have rationally been limited to the home." As working examples, Posner provided the "wild west" and "Ohio Valley," and differentiated these unsettled areas from England on the grounds that the latter maintained "no wilderness and there were no hostile Indians." Today the comparison is moot, for what was once America's unsettled frontier is now settled. It does not help Posner's case seeing that public arms carrying regulations date back to mid-thirteenth century England, which was later codified in the 1328 Statute of Northampton. The statute not only made it unlawful to bring a force affray, but also prohibited the act of going armed "by night or day, in fairs, markets, nor in the presence of the King's Justices, or other ministers, nor in no part elsewhere." It was a public concourse prohibition that extended across the Atlantic to the American Colonies, and survived the ratification of the Constitution. At a minimum, one would assume this offers a historical presumption of public regulation as the Kachalsky court found, yet did not hold true in Moore.

Posner indeed acknowledged the existence of the Statute of Northampton, its survival, and its application to "loaded guns worn or carried by persons not doing the King's business," yet stepped around this fact by claiming there were no specifications as to "the circumstances what would make the exercise of such authority proper, let alone would warrant prosecution." As I have detailed in a law review article cited in Judge Williams' dissent, a number of historical sources prove otherwise. Whatever the case, Posner felt any regulatory history findings were moot seeing that the Circuit Court is bound by SCOTUS's historical findings:

"We are disinclined to engage in another round of historical analysis to determine whether eighteenth-century Americans understood the Second Amendment to include a right to bear guns outside the home. The Supreme Court has decided the amendment confers a right to bear arms for self-defense, which is as important outside the home as inside... The Supreme Court's interpretation of the Second Amendment therefore compels us to reverse and remand... "

On the one hand, Posner's reliance on Heller and McDonald's broad historical dicta is proper. When SCOTUS proclaims historical paradigm "X" or "Y" to be true, it props up the assumption that it is legitimate history. As any law student knows, the first lesson is precedent is more persuasive than secondary source (i.e., a common law approach to constitutional jurisprudence). Whether the secondary source is the legislative record, legal dictionary, legal treatise or law review article, precedent is the foremost guidepost by which the judiciary, especially lower courts, decides cases and controversies. And when it is SCOTUS precedent there is no higher source from which to argue.

On the other hand, Posner's approach conflicts with important portions of Heller and McDonald. In Heller, Associate Justice Antonin Scalia wrote the Court's historical analysis was not taken as "exhaustive," and the Court would "expound upon the historical justifications" in future cases or controversies. Here, Scalia left open the question as to how historical evidence was to be utilized for future Second Amendment controversies, but in McDonald he elaborated on the use of history for constitutional adjudication:

"Historical analysis can be difficult; it sometimes requires resolving threshold questions, and making nuanced judgments about which evidence to consult and how to interpret it. I will stipulate to that. But the question to be decided is not whether the historically focused method is a perfect means of restraining aristocratic judicial Constitution-writing; but whether it is the best means available in an imperfect world."

Again, in terms of precedent, it is understandable why Judge Posner deferred to Heller and McDonald's historical dicta. Yet, Heller and McDonald also infer that lower courts should attempt accurate historical analysis. To put it another way, seeing that jurisprudence relies on history for accuracy, it is also important that the judiciary make the attempt to get history right (or at least weigh the evidence). It is for this reason that the Moore majority opinion lacks historical legitimacy and is ripe for SCOTUS review. As Judge Williams wrote in her dissenting opinion, "the history might be ambiguous as to whether there is a right to carry loaded firearms for potential self-defense outside the home. But if that is the case, then it does not seem there was a 'venerable, widely understood' right to do so."

In summary, only time will tell the actual impact of the Moore decision. As it stands today, Illinois cannot completely prohibit the carrying or arms for personal self-defense. However, according to Judge Posner, the State can reasonably regulate the time, place and manner of public carrying. He even hints that Illinois could adopt New York's scheme to survive further constitutional challenges, which may lead to Chicago following the scheme adopted by New York City. Furthermore, Illinois has 180 days to alter its laws, meaning the impact will not be immediate. It gives Illinois time to see how other Circuit Courts decide the "may issue" versus "shall issue" debate," and it also allows time to consider an appeal to SCOTUS. If it is the latter and certiorari is granted, Moore's rationale and holding could be overturned.

Of course, that is if history truly matters. If only the operative text -- particularly any assumptions that can be made from that text -- of the Second Amendment matters, SCOTUS will uphold Moore as proper.