Berron v. Illinois Concealed Carry Licensing Review Board
825 F.3d 843
| 7th Cir. | 2016Background
- After McDonald v. Chicago recognized that the Second Amendment applies to the states, Illinois enacted a concealed-carry permitting system; four applicants who were denied permits sued in federal court after law-enforcement agencies objected to their applications but did not disclose the bases.
- Initial Illinois administrative regulations required no disclosure of objecting agencies’ reasons; plaintiffs argued this prevented meaningful administrative or judicial review, invoking Simmons/Gonzales precedent requiring at least a fair summary of adverse agency reasons.
- Illinois revised its regulations (effective Jan. 6, 2015) to require the Concealed Carry Licensing Review Board to notify applicants of the basis of objections and the objecting agency, provide 15 days to respond, and permit hearings when facts are disputed (20 Ill. Admin. Code §2900.140(e)).
- Plaintiffs did not reapply under the new rules (one plaintiff sought and obtained relief in state court and was remitted moot); remaining plaintiffs contend the new disclosure rule is facially unconstitutional and predict the Board will act unconstitutionally in practice.
- Plaintiffs also advanced broader challenges: (1) that licensing to carry is a prior restraint on Second Amendment rights, (2) that denials must be supported by clear and convincing evidence, and (3) that the Board is structurally biased because a majority of members must have law-enforcement backgrounds.
- The Seventh Circuit affirmed the district courts (except vacating and remanding the now-moot Ghantous appeal), holding challenges to the amended regulation were premature and rejecting the broader constitutional claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of disclosure under §2900.140(e) | Rule required no disclosure; deprives applicants of meaningful review | New regulation requires notice of the basis and agency, 15-day reply, and hearing when disputed | Challenge unripe; courts should evaluate the rule as applied, not facially; plaintiffs should reapply under new rules |
| Concealed-carry licensing as a prior restraint | Requiring a license to carry is equivalent to unconstitutional prior restraint on Second Amendment rights | Licensing is a permissible means to enforce substantive disqualifications for carrying | Licensing is permissible; Second Amendment allows regulation and licensing to distinguish home possession from public carry |
| Burden / standard of proof for denial | Denials must be supported by clear and convincing evidence | Administrative disputes ordinarily use preponderance; applicants bear burden of entitlement; Illinois places burden on state to justify denial by preponderance | Preponderance is appropriate; state may assign burden to applicants or use preponderance; clear-and-convincing not required |
| Board composition / bias | Majority law-enforcement background creates structural bias violating due process | Experience is not disqualifying; conflicts-of-interest rules bar participation only for current conflicting activities | No due-process violation; expertise does not equal disqualifying bias; statutory conflict rules address direct conflicts |
Key Cases Cited
- McDonald v. Chicago, 561 U.S. 742 (application of Second Amendment to the states)
- Moore v. Madigan, 702 F.3d 933 (7th Cir.) (Second Amendment requires states to permit carrying loaded weapons in public by law-abiding, mentally healthy persons)
- Simmons v. United States, 348 U.S. 397 (agency must disclose at least a fair summary of an adverse objection to permit meaningful hearing)
- Gonzales v. United States, 348 U.S. 407 (companion decision on disclosure requirements in agency adverse findings)
- District of Columbia v. Heller, 554 U.S. 570 (individual right to possess firearms and permissible limits on that right)
- United States v. Skoien, 614 F.3d 638 (7th Cir.) (substantive disqualifications under Heller)
- Civil Service Commission v. Letter Carriers, 413 U.S. 548 (agency adjudication can flesh out vague statutory schemes)
- Broadrick v. Oklahoma, 413 U.S. 601 (facial challenges disfavored; evaluate statutes as applied)
- Director, OWCP v. Greenwich Collieries, 512 U.S. 267 (preponderance is the usual civil standard for entitlement)
- Morrissey v. Brewer, 408 U.S. 471 (due process requires impartial administrative adjudicators)
- Goldberg v. Kelly, 397 U.S. 254 (procedural due process protections in administrative hearings)