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December 11, 2012

Split Seventh Circuit panel extended Second Amendment rights to outside home

I have not blogged much of late on Second Amendment jurisprudence, in part because it seems all lower courts have no qualms about saying the the purported "fundamental right" to "keep and bear arms" recognized by the Supreme Court in Heller and McDonald has no application whatsoever to non-violent felons or certain misdemeanants.  Still, a big Second Amendment ruling today from a Seventh Circuit panel in Moore v. Madigan, No. 12-1269 (7th Cir. Dec. 11, 2012) (available here), struck me as blog-worthy.  Here is the close of the majority opinion (per Judge Posner):

We are disinclined to engage in another round of historical analysis to determine whether eighteenth-century America understood the Second Amendment to include a right to bear guns outside the home.  The Supreme Court has decided that the amendment confers a right to bear arms for self-defense, which is as important outside the home as inside.  The theoretical and empirical evidence (which overall is inconclusive) is consistent with concluding that a right to carry firearms in public may promote self-defense.  Illinois had to provide us with more than merely a rational basis for believing that its uniquely sweeping ban is justified by an increase in public safety.  It has failed to meet this burden.  The Supreme Court’s interpretation of the Second Amendment therefore compels us to reverse the decisions in the two cases before us and remand them to their respective district courts for the entry of declarations of unconstitutionality and permanent injunctions.  Nevertheless we order our mandate stayed for 180 days to allow the Illinois legislature to craft a new gun law that will impose reasonable limitations, consistent with the public safety and the Second Amendment as interpreted in this opinion, on the carrying of guns in public.

December 11, 2012 at 04:19 PM | Permalink


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One of the more interesting quotes from the opinion:

"To confine the right to be armed to the home is to divorce the Second Amendment from the right of self-defense described in Heller and McDonald. It is not a property right—a right to kill a houseguest who in a fit of aesthetic fury tries to slash your copy of Norman Rockwell's painting Santa with Elves. That is not self-defense, and this case like Heller and McDonald is just about self-defense."

Maj. Slip Op. at 8.

Posted by: DEJ | Dec 11, 2012 4:37:45 PM

I find it interesting that the Seventh Circuit made sure to express its "reservation about the Second Circuit ’s analysis" in Kachalsky v. County of Westchester, Nos. 11-3642, -3962, 2012 WL 5907502 (2d Cir. Nov. 27, 2012) (upholding a NY law that requires an applicant for a permit to carry a concealed handgun in public to demonstrate “proper cause” to obtain a license).

Although the holdings are not directly contradictory, the two opinions have quite a conflicting view of the scope of the Second Amendment. Two opinions, two different outcomes, issued by two different circuits.

Given the closeness in time that both opinions were issued (two weeks apart from each other) and the similarity of the issue involved (the right to possess a firearm in public), any thoughts on whether Moore and Kachalsky demonstrate a compelling argument for the Supreme Court to grant cert in one or both cases? Perhaps they would make good companion cases for the Court to sort through these issues.

Posted by: DEJ | Dec 11, 2012 5:04:05 PM

That is a great quote, DEJ, though it makes me wonder yet again what is the foundation for concluding that kids or felons or the mentally ill (or anyone else, for that matter) is to be CATEGORICALLY excluded from this "right of self-defense described in Heller and McDonald." It is one thing to say that kids or felons or the mentally ill can (and should) face more restriction on their Second Amendment rights (just as we say they face more restrictions on their First and Fourth and Fifth Amendment rights). But when courts say these folks have no Second Amendment rights, this right looks like a very odd duck in the pantheon of "fundamental rights."

Posted by: Doug B. | Dec 11, 2012 5:12:50 PM

Doug --

As you correctly note, in the four and a-half years since Heller was handed down, the courts have uniformly rejected challenges to the felon-in-possession statute.

Occasionally the law draws bright lines. The categorical ban on felons possessing firearms is one of them. Since it's still around unscathed this much time after Heller, defense challenges have about as much life left in them as the Romney inauguration.

Posted by: Bill Otis | Dec 11, 2012 7:54:00 PM

Yea bill and i'm still trying to figure out how they found that line considerind for the first what 170-180 years of the life of this country it did not exist!

So still waiting to be told what invisible page of the constitution they found this so-called bright line?

What i really loved was this!

"We are disinclined to engage in another round of historical analysis to determine whether eighteenth-century America understood the Second Amendment to include a right to bear guns outside the home."

Talk about a no-brainer! Pitty the rest of the govt fucktard stooges on the bench are willing to follow ir. Or are you going to use your legal straight face and tell me the indians only attacked inside the home or the redcoats did. Or more important they manged to kill the meat that kept them alive was killed Only in the home.

Sorry this bullshit that americans were only allowed weapons Inside the home doesn't even pass the smell test.

They had a Right to have and posess weapons. PERIOD....END of STORY!

What the 2nd does is not control the people. They had that right Before that document was penned! It was desinged to tell the govt one thing and one thing Only. Keep your damn hands Off My Guns!

Because and get this! "I'm not really sure that at some point I'll Probabbly need to use them on Your ASS!"

Posted by: rodsmith | Dec 12, 2012 7:20:56 AM

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