Seventh Circuit Court of Appeals Denies Motion for Re-hearing on Moore v. Madigan – Illinois Ban on Concealed Weapons Remains Unconstitutional
By R Tamara de Silva
February 22, 2013
Earlier today, the United States Court of Appeals for the Seventh Circuit rejected Illinois Attorney General Lisa Madigan’s petition that it reconsider its earlier three panel decision striking down Illinois’ law banning concealed weapons, en banc. Illinois was the only remaining state to have had a ban on carrying concealed weapons-it was also the murder capital of the nation in 2012. As I wrote
here, on December 11, 2012, Judge Richard A. Posner authored the court’s majority opinion, which was important because it expanded the Supreme Court’s landmark Second Amendment case,
McDonald v. Chicago to hold that the right to bear arms also applies outside one’s home. Judge Posner gave Illinois 180 days to come up with alternate legislation before his order striking down Illinois’ concealed weapon ban comes into effect. Also today, with 90 days remaining, Lisa Madigan’s powerful father and Illinois Speaker of the House Michael Madigan announced that the Illinois House would start considering various gun control proposals on February 26, 2013. Today’s ruling is a victory for the advocates of the Second Amendment and suggests that Ms. Madigan will be forced to appeal the Seventh Circuit’s landmark decision to the United States Supreme Court.
What is most interesting and universally missed about Judge Posner’s opinion is the naked admission, certain to disappoint both sides of the political spectrum and provide no fodder for either faction in the gun control debate—the fact that all existing studies seeking to draw a relationship between gun violence and gun regulations are in toto perfectly inconclusive.
As Judge Posner points out, after analyzing existing empirical evidence and all the studies presented to the court by both sides, it is discovered that reality does not side with the conclusion that more or less gun control leads to more or less death,
In sum, the empirical literature on the effects of allowing the carriage of guns in public fails to establish a pragmatic defense of the Illinois law. Bishop, supra, at 922–23; Mark V. Tushnet, Out of Range: Why the Constitution Can’t End the Battle over Guns 110–11 (2007). Anyway the Supreme Court made clear in Heller that it wasn’t going to make the right to bear arms depend on casualty counts. 554 U.S. at 636. If the mere possibility that allowing guns to be carried in public would increase the crime or death rates sufficed to justify a ban, Heller would have been decided the other way, for that possibility was as great in the District of Columbia as it is in Illinois.1
Empirically speaking, it is a wash.
Our nation does not seem to want to address the failure of the War on Drugs or the effects of drug trafficking on the trade in unlawfully trafficked guns. A tax on guns as proposed by Cook County Board President Toni Preckwinckle while appearing to be proactive and good-natured, is completely farcical in terms of a solution.
Gang bangers and drug runners generally do not pay taxes, nor will increased regulation lead to their regulatory capture. Their business model and infrastructure supports and sustains the trade in illegal firearms while increasing death tolls, and supporting sex trafficking. Moreover, if state and federal statutes against murder and racketeering do not deter drug rings, there is no rational basis on which to think even more laws criminalizing their way of life will. As a defense lawyer I can assure you, there is no tipping point in the criminal law or deterrence point where a criminal thinks he has broken an optimal number of laws and will suddenly cease illegal activity. There are between 16,000 to 20,000 gun regulations at the municipal, state and federal level. I would love to believe that adding just a dozen more will prevent children from being slaughtered while walking home from school or sitting on their front porch as they are in Chicago. Somehow, most politicians know that you can fool most of the people most of the time and saying you have a solution, will procure more votes than honestly admitting, there is a problem that is unsolvable without a complex and uncomfortable national debate.
Unless we are willing to have an honest debate about drug laws, we will never address the source of guns to the inner cities, nor will we prevent criminals from using them to kill as many children in Chicago as several Sandy Hooks each year. Other causes of gun violence are embedded in similarly taboo topics like culture and disenfranchisement, a consideration of which would require analysis of the social and economic forces that lead to inner city war zones in the third largest city boasting of greater death tolls for Americans than our war in Afghanistan. We have accepted the issues as framed by lobbyists and politicians but the solutions proposed are red-herrings. For instance, most of the murders in Chicago are caused by handguns, (which were banned in Chicago until 2010 and impossible to purchase in the city proper) yet the national media and local politicians, who consistently lament the situation in Chicago, are obsessed with banning assault rifles. Will there come a tipping point for Americans and a time where we admit we have a serious problem?@
R. Tamara de Silva
1. Page 13 of the opinion which can be read here: