Illinois Prohibition on Concealed Weapons Struck Down as Unconstitutional
By R Tamara de Silva
December 12, 2012
Yesterday, the United States Court of Appeals for the Seventh Circuit struck down Illinois' ban on carrying concealed weapons. Opinion Illinois was the only remaining state to have had a ban on carrying concealed weapons. The court's ruling is important because it expanded the Supreme Court's landmark Second Amendment case, McDonald v. Chicago to state that the right to bear arms also applies outside one's home.
Judge Richard A. Posner wrote the court's majority opinion, which is also noteworthy because it points to the most interesting of all facts in the gun control debate - that wherever one may stand on the issue, all existing studies that seek to draw a relationship between gun violence and gun regulations are in toto perfectly inconclusive. Illinois is the perfect example of this. Illinois is arguably the most restrictive state for gun ownership and also the 2012 murder capital of the nation.
Summary of Second Amendment Jurisprudence
In 2010, the United States Supreme Court ruled in McDonald v. Chicago, 561 US 3025 that the Second Amendment applies to the individual states. This decision meant that the right of an individual to keep and bear arms guaranteed by the Second Amendment was incorporated by the Fourteenth Amendment's Due Process Clause to apply to the states. Several other amendments have been incorporated by the Due Process Clause of the Fourteenth Amendment to apply an individual's Constitutional rights guaranteed by the First, Fourth, Sixth, Seventh and partially the Fifth and Eighth Amendments.
McDonald applied the Supreme Court's earlier decision in the
District of Columbia v. Heller to the states.
Justice Samuel A. Alito Jr., who wrote the opinion for the Court's majority opinion in McDonald stated that, "It is clear that the Framers . . . counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty."
In the District of Columbia v. Heller, 554 U.S. 570 (2008), the Supreme Court of the United States held that the Second Amendment to the United States Constitution protects an individual's right to possess a firearm for traditionally lawful purposes, such as the right to defend oneself in one's home. It was unclear until
Heller's recognition of a personal right to own a gun (not unlimited according to the Court) applied to the states.
What makes Heller important is that it recognizes the Second Amendment's right to keep and bear arms as a individual right-not merely a residual right carried over from the days of standing militias or as a collective right, "the Second Amendment was not intended to lay down a novel principle but rather codified a right inherited from our English ancestors."
Heller, 554 U.S. at 599.
Heller was the first time that the Supreme Court recognized that the Second Amendment protects an individual's right to keep and bear arms.
The Court's ruling in Heller came by way of an extensive historical analysis of the intent and meaning behind the Second Amendment to the recognition that, "the Second Amendment was not intended to lay down a novel principle but rather codified a right inherited from our English ancestors."
Heller, 554 U.S. at 599 Among the drafters of the Constitution, it was argued that the Second Amendment was not even necessary as it was assumed that a person's right to bear arms was so obvious a right as not to require enumeration.
However, the courts have never recognized the Second Amendment to convey an unlimited right. In Heller, the Court stated that the Second Amendment does not convey an unlimited right to own weapons because arms may not include M-16s or whatever the Court deems as, "dangerous and unusual weapons." In
Heller, the Court stated that state restrictions on gun ownership such as prohibitions against felons and mentally ill persons from owning guns were, "presumptively lawful."
Some of the most surprising gun regulations occur at the federal level. For example, 18 U.S.C. § 922(g)(9), prohibits the possession of firearms by any person, "who has been convicted in any court of a misdemeanor crime of domestic violence," or been the subject after a court hearing and opportunity to be heard of an order of protection.
In several states, the mere charge of a domestic incident, whose meaning is being expanded by otherwise well meaning state lawmakers to include, remarkably, the expression of unfavorable opinions online, is sufficient to allow the prohibition of gun ownership and the removal of guns from one's home. There are many problems with this including the fact that the person calling law enforcement can easily lie. There is no proof that a domestic relationship even has to exist to invoke this law and result in someone losing their otherwise lawfully owned firearms. I once witnessed a stalker try to obtain an order of protection against the victim of his incessant and psychotic stalking by telling the judge his victim was having a relationship with him and stalked him. The domestic courts are not generally places where due process is ever perfected. Moreover, "charges" are in legal terms mere accusations, wholly unproven and antecedent to due process.
But herein lies the problem with the Second Amendment jurisprudence-the contours of the seemingly plain language of the Second Amendment contained within the four corners of the Bill of Rights have never seemed plain to the courts or the government. It is as if the courts and the legislators at the state and federal levels are perpetually at play with each other in an unending game of Battleship where the lawmakers conjure regulations on gun ownership until they are deemed not "reasonable" by the Court and its shifting and indeterminate standards of the what the Second Amendment means. The battle will continue even in this case as Illinois has been given 180 days to draft a new law on carrying weapons in the wake of its former ban.@
R. Tamara de Silva