Michael MOORE, et al., and Mary E. Shepard, et al. v. Lisa MADIGAN, Attorney General of Illinois, et al.
Nos. 12-1269, 12-1788
United States Court of Appeals, Seventh Circuit
Feb. 22, 2013
708 F.3d 901
Alan Gura, Attorney, Gura & Possessky, Alexandria, VA, David D. Jensen, Attorney, David Jensen PLLC, New York, NY, David G. Sigale, Attorney, Glen Ellyn, IL, for Plaintiffs-Appellants in No. 12-1269.
Charles J. Cooper, Attorney, Cooper & Kirk, Washington, DC, William N. Howard, Attorney, Freeborn & Peters LLP, Chicago, IL, for Plaintiffs-Appellants in No. 12-1788.
Karl R. Triebel, Attorney, Office of the Attorney General, Civil Appeals Division, Chicago, IL, for Defendants-Appellees.
Joseph A. Bleyer, Attorney, Bleyer & Bleyer, Marion, IL, for Defendants-Appellees in No. 12-1788.
Suzanne M. Loose, Attorney, City of Chicago Law Department, Chicago, IL, for Amici Curiae City of Chicago and Board of Education of the City of Chicago.
Johnathan Klee Baum, Attorney, Katten Muchin Rosenman LLP, Chicago, IL, for Amici Curiae Legal Community Against Violence and Major Cities Chiefs Association.
Todd Sunhwae Kim, Attorney, Office of the Attorney General for the District of Columbia, Office of the Solicitor General, Washington, DC, for Amicus Curiae District of Columbia, Washington, D.C.
Stephen L. Wood, Chicago Transit Authority, Law Department, Chicago, IL, for Amicus Curiae Chicago Transit Authority.
Alexander David Marks, Attorney, Burke, Warren, MacKay & Serritella, P.C., Chicago, IL, for Amici Curiae Brady Center to Prevent Gun Violence, National Black Police Association, Tracy Martin, parent of Trayvon Martin, Sybrina Fulton, parent of Trayvon Martin, Ron Davis, parent of Jordan Davis, Lucia McBath, parent of Jordan Davis, and International Brotherhood of Police Officers.
Brian S. Koukoutchos, Attorney, Mandeville, LA, for Amici Curiae Michael Hall, Kenneth Pacholski, Kathryn Tyler, and National Rifle Association of America, Incorporated.
Judge DAVID F. HAMILTON‘s dissent from the denial of rehearing en banc, joined by Judges ROVNER, WOOD and WILLIAMS, is appended.
ORDER
On January 8, 2013, defendants-appellees filed a petition for rehearing en banc, and on January 23, 2013, plaintiffs-appellants filed answers to the petition. A vote of the active members of the court on whether to grant rehearing en banc was requested and a majority of the judges have voted to deny the petition.* The petition is therefore DENIED.
HAMILTON, Circuit Judge, joined by ROVNER, WOOD, and WILLIAMS, Circuit Judges, dissenting.
I respectfully dissent from the denial of rehearing en banc in these cases. The Supreme Court has not yet decided whether the post-Heller individual right to keep and bear arms at home under the Second Amendment extends beyond the home. The panel‘s split decision in these cases goes farther than the Supreme Court has gone and is the first decision by a federal court of appeals striking down legislation restricting the carrying of arms in public. Until the Supreme Court faces the issue, the state of the law affecting people in Illinois, Wisconsin, and Indiana is an important question worthy of en banc consideration to decide whether to affirm, reverse, or remand for further factual development. Without undue repetition of Judge Williams’ persuasive panel dissent, three points deserve emphasis at this en banc stage of the proceedings.
First, extending the right to bear arms outside the home and into the public sphere presents issues very different from those involved in the home itself, which is all that the Supreme Court decided in District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), and McDonald v. City of Chicago, — U.S. —, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010). I will not repeat the debate in the panel opinions reviewing the historical and empirical evidence, for that debate was, in the majority‘s view, essentially dicta. The core of the panel majority‘s reasoning is that because there is a need for self-defense outside the home as well as in, Heller and McDonald should extend to public carrying of loaded firearms. Moore v. Madigan, 702 F.3d 933, 935-38 (7th Cir.2012). The logic has some appeal, but its simplicity overlooks qualitative differences between a private home and public streets and buildings that must be considered as we try to interpret Heller and McDonald. See Kachalsky v. County of Westchester, 701 F.3d 81, 94 (2d Cir.2012).
In so many public settings, carrying and using firearms present lethal risks to innocent bystanders. Yet when people go about their daily lives in public places, they have no choice about whether to consent to the dangers posed by firearms in public. We can all choose whether to visit homes where firearms are present.
To illustrate the dangers posed by lawful use of firearms in public, consider a
Moreover, the panel majority makes its constitutional point about self-defense outside the home by relying on the need for weapons on the early American frontier. The reliance misses the point. See Moore, 702 F.3d at 936. It would have been foolish for any frontier government to prohibit carrying weapons from homestead to trading post. But we do not usually test constitutional doctrine by asking whether all foolish laws would be banned. The real constitutional question is whether there is a right to bear arms in public so rigid that it must strike down duly enacted laws that apply in the downtown streets of modern Chicago, Washington, or New York. It need not be.
Second, despite my disagreement with the panel majority, it‘s important to keep in mind what the panel did not decide. The panel majority opinion is now the law of the circuit, and Illinois has 180 days to decide how to amend its laws. Those of us in the lower federal courts are understandably reluctant to commit to a particular standard of constitutional scrutiny that should be applied to Second Amendment issues after Heller and McDonald, or even to the idea that the standard should be the same for all issues. Nevertheless, it‘s reasonably clear at this point that the standard is more demanding than rational-basis review and less demanding than strict scrutiny. The panel majority leaves the State a good deal of constitutional room for reasonable public safety measures concerning public carrying of firearms:
(a) Illinois will still be able to establish reasonable limits on who may carry a loaded firearm in public. Heller itself made clear that the right to keep and bear arms may be denied based on a felony conviction or mental illness. 554 U.S. at 626, 128 S.Ct. 2783; see also United States v. Skoien, 614 F.3d 638 (7th Cir.2010) (en banc) (upholding conviction for possession of firearm by person convicted of domestic violence misdemeanor). Reasonable requirements for firearms training and proficiency, including safe and responsible
(b) Illinois will still be able to set reasonable limits on where qualified persons may legally carry firearms in public. Heller itself endorsed restrictions in “sensitive” places, such as schools and government buildings. 554 U.S. at 626, 128 S.Ct. 2783. It should not be difficult to make reasonable arguments to support extending that reasoning to areas around schools, courthouses, other government buildings, public universities,2 public libraries, hospitals, medical offices, public parks and forests, churches and other places of worship, banks, shopping centers, public transportation facilities and vehicles, and venues for sporting events, concerts, and other entertainment, among many possible examples.
(c) Privately owned bars, nightclubs, and restaurants also could fit into that reasoning, and surely the federal Constitution would not prevent a private owner of a business from imposing a ban on carrying firearms in or around the business. See GeorgiaCarry.Org, Inc. v. Georgia, 687 F.3d 1244, 1264–66 (11th Cir.2012) (upholding state law giving private property owners right to exclude firearms). Places of employment could pose similar issues, and again, it‘s hard to see how the federal Constitution would prohibit a private employer from banning firearms on its premises.
(d) The panel opinion also does not prevent Illinois from setting reasonable limits on how qualified persons may carry firearms in public places where they are not prohibited. Should loaded firearms in public be carried openly? Should they be concealed? Should the answer differ depending on place and circumstance? Heller noted that a majority of nineteenth-century courts upheld prohibitions on carrying concealed weapons in favor of carrying weapons openly, 554 U.S. at 626, 128 S.Ct. 2783, but open carrying of firearms in our modern society can be intimidating and even disruptive.
(e) Finally, the panel opinion, Heller, and McDonald do not prevent Illinois from imposing reasonable limits on which arms may be carried in public. See Heller, 554 U.S. at 627, 128 S.Ct. 2783. We can be reasonably confident that the Second Amendment rights are not limited to arms known to the Framers of the amendment, but also confident that the rights do not extend to all the arms that a modern militia might need.
In other words, the panel‘s holding that the current Illinois laws are too restrictive leaves room for many reasonable steps to protect public safety. That takes me to my third point, which concerns how future Second Amendment litigation should proceed. The panel decided to reverse dismissals under
The panel majority views the current Illinois restrictions as simply too broad to survive no matter what the empirical or historical evidence might show. The panel‘s reasoning on that point does not extend, as I read it, to future challenges to narrower, better-tailored restrictions such as those described above. Under some
Where the law is genuinely in doubt, as it is likely to remain for some time under the Second Amendment, a trial court can do a great service by ensuring the development of a thorough and complete record that provides a reliable, accurate factual foundation for constitutional adjudication. The federal courts are likely to do a better job of constitutional adjudication if our considerations are based on reliable facts rather than hypothesized and assumed facts.