Kopel Blog Archive November-December 2012

Judge Posner's opinion for a 2-1 panel of the 7th Circuit. Illinois is the only state which forbids gun carrying in public as a matter of law. There is no provision for the issuance of licenses for concealed carry, or for open carry. Both are banned. There are some exceptions for particular activities (e.g., while hunting), and for persons with a special occupational status (e.g., licensed security guard, some government officials).

According to the Supreme Court, 1791 (year of ratification) is the crucial year for the Second Amendment's original meaning. The usual suspects (Saul Cornell, etc.) claim that there was no generally recognized right to carry in 1791. But the "Supreme Court rejected the argument. The appellees ask us to repudiate the Court's historical analysis. That we can't do. Nor can we ignore the implication of the analysis that the constitutional right of armed self defense is broader than the right to have a gun in one's home. . . .A right to bear arms thus implies a right to carry a loaded gun outside the home."

"And one doesn't have to be a historian to realize that a right to keep and bear arms for personal self-defense in the eighteenth century could not rationally have been limited to the home." Besides English precedents about restrictions on carrying in certain places or in certain ways were not general prohibitions. Discussion of frontier conditions, and observation that today,

Twenty-first century Illinois has no hostile Indians. But a Chicagoan is a good deal more likely to be attacked on a sidewalk in a rough neighborhood than in his apartment on the 35th floor of the Park Tower. A woman who is being stalked or has obtained a protective order against a violent ex-husband is more vulnerable to being attacked while walking to or from her home than when inside. She has a stronger self-defense claim to be allowed to carry a gun in public than the resident of a fancy apartment building (complete with doorman) has a claim to sleep with a loaded gun under her mattress.

Judge Posner then surveys the social science evidence about gun carrying, and concludes that it is, on net, indeterminate, and besides that, irrelevant:

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. . . . 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.

The State cannot win the case by showing a mere rational basis for the law. Another 7th Circuit case, Skoien, upheld the federal gun ban for convicted domestic violence misdemeanants, and in doing so used intermediate scrutiny, and required the government to produce lots of empirical evidence. In the instant case, the government "would have to make a stronger showing" than in Skoien, since the Illinois carry ban applies to everyone, whereas Skoien involved "a class of persons who present a higher than average risk of misusing a gun."

"Remarkably, Illinois is the only state that maintains a flat ban on carrying ready-to-use guns outside the home, though many states used to ban carrying concealed guns outside the home, [James] Bishop [Note, "Hidden or on the Hip: The Right(s) to Carry After Heller," 97 Cornell L. Rev. 907 (2012)], supra, at 910; David B. Kopel, "The Second Amendment in the Nineteenth Century," 1998 BYU L. Rev. 1359, 1432–33 (1998)--a more limited prohibition than Illinois's, however." Illinois offers no evidence why it has some unique need to ban gun carrying; if Illinois's carry ban were such a great idea, then at least one or two states would have emulated it.

Reiterates Heller's exceptions: "children, felons, illegal aliens, lunatics, and in sensitive places such as public schools." Notes with approval that some states sensibly require that an applicant for a handgun permit establish his competence in handling firearms.

In Kachalsky v. Westchester County, the 2d Circuit recently upheld NY State licensing law that requires a carry permit applicant to prove that he suffers from some unique or unusual threat.  Posner chides the 2d Circuit for re-opening historical issues that were settled by Heller. But "Our principal reservation about the Second Circuit 's analysis." Posner writes, "is its suggestion that the Second Amendment should have much greater scope inside the home than outside simply because other provisions of the Constitution have been held to make that distinction." In support, the 2d Circuit cited Lawrence v. Texas. Posner replies: "Well of course--the interest in having sex inside one's home is much greater than the interest in having sex on the sidewalk in front of one's home. But the interest in self-protection is as great outside as inside the home."

Moreover, Posner writes, the main purpose of Kachalsky's inside/outside distinction was to justify intermediate scrutiny for restrictions on guns outside the home. In Madigan, "our analysis is not based on degrees of scrutiny, but on Illinois's failure to justify the most restrictive gun law of any of the 50 states." [Study tip for law students: 3-tier scrutiny doesn't explain everything. If a government prohibited everyone from speaking out loud in public places, a court does not need to use strict or intermediate scrutiny to decide if the ban is constitutional. Blanket bans on speaking in public places are per se void, and so are blanket bans on bearing arms in public places.]

Judge Posner addresses the concern of 4th Circuit Judge Harvie Wilkinson [US v. Masciandaro, 638 F.3d 458, 475 (4th Cir. 2011)] that delineating the constitutional boundaries of the right to bear arms takes judges into "a vast terra incognita." Posner agrees, but points out that the new world "has been opened to judicial exploration by Heller and McDonald. There is no turning back by the lower federal courts."

The Illinois carry ban is illegal. The Court's mandate will be 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."

Ernst Freund was one of the Founding Fathers of progressive constitutionalism. His 1904 book The Police Power: Public Policy and Constitutional Rights argued for a vastly expanded understanding of the police power. (The police power, broadly defined, is a government's power to regulate health, safety, welfare and morals. It is distinct from other government powers, such as the tax power, or the military power. In the U.S. system, the federal government does not have a police power, except as to federal territories, but the States do have a police power.)

Freund's expansive view of the police power aimed to overthrow the then-prevailing (at least in theory) view, articulated by Christopher Tiedeman in his 1886  A Treatise on the Limitations of the Police Power in the United States, that the police power could only be used to prevent people from harming others or violating their rights. In the long run, Freund's view became the mainstream.

So what would Freund, that great advocate for loosening the restraints on big government, have to say about laws which prohibit the medical use of marijuana? Here's what he wrote about liquor prohibition:

All prohibitory laws make an exception in favor of sales for medical purposes. This is not a legislative indulgence but a constitutional necessity, since the state could not validly prohibit the use of valuable curative agencies on account of remote possibility of abuse. "[T]he power of the legislature to prohibit the prescription and sale of liquor to be used as medicine does not exist, and its exercise would be as purely arbitrary as the prohibition of its sale for religious purposes...." The right to an adequate supply of medicines cannot be cut off by the legislature, and when legal provisions would have such effect they must that extent be inoperative.

Freund, at 210-11, quoting Sarrls v. Commonwealth, 83 Ky. 327, 332-33 (1885) (interpreting physician exception in statutory ban on liquor transfers).

In The Evolving Police Power: Some Observations for a New Century (27 Hastings Const'l L.Q. 511 (Spring 2000)), Glenn Reynolds and examined the trend in some courts towards judicial recognition of an issue on which Freund and Tiedman agreed: however one defines the boundaries of the police power, it is not infinite, and there are some personal zones into which it cannot reach.

Earlier this week, the Senate rejected the proposed  U.N. Convention on the Rights of Persons with Disabilities. Among the reasons for the rejection was fear that, even if the Convention's language itself was acceptable, the future interpretation of the Convention would be in the hands of a U.N. bureaucracy, which might invent novel or excessive interpretations. Therefore, I respectfully request commenters to describe previous situations in which a UN body has, in the commenter's view, made an inappropriate interpretation or application of a Convention of Treaty.

And since the CRPD was modeled, in part on the U.S. Americans with Disabilities Act, commenters are also welcome to point out some of what they consider to be the most extreme, inappropriate, or unexpected applications and interpretations of the ADA itself.

As reported by the Second Amendment Foundation, this morning the Obama administration joined a U.N. majority which called for convening a new conference to create a global Arms Trade Treaty.

Only reporting results which represent a change.

U.S.  Senate. Gains: Indiana (Donnelly replaces Lugar). NM  (Heinrich replaces Bingaman). ND (Heitkamp replaces Conrad).

Senate losses: Mass., Warren defeats Brown (-.5 with NRA C-rated Senator replaced by an F). Virginia, Kaine replaces Webb.

Senate net: +1.5. Ted Cruz's win in Texas won't change Senate voting patterns, but the former Texas Solicitor General will be an outstanding and very well-informed leader on Second Amendment issues.

House losses: AZ 9. CA 7 (C-rated Lungren ousted), 26, 36 (Mary Bono Mack), 41, 52. FL 18 (Alan West), 22 (Bloomberg-funded extremist wins), 26. Il  8, 18. MD 6. MN 8. NH 1 & 2. NY 18, 24.

House gains: AZ 2. IA 3 (incumbent vs. incumbent). NC 13 (F-rated incumbent retired). OH 16 (incumbent vs. incumbent).

House net: -12.5.

Governor Loss: Montana (although not officially called yet; winner Steve Bullock has a B- rating). Waiting for results in WA, a possible gain.

Ballot issues. Strengthen Louisiana state right to keep and bear arms, to require strict scrutiny. Win, very important reform, that will be a model in other states. Constitutional right to hunt  and fish passes overwhelmingly in Kentucky, Nebraska, and Idaho.

In short, as Barack Hussein Obama, the Juan Domingo Peron of the 21st century, leads America to fiscal collapse, you can at least keep your guns.

As the results come in tonight, I will blog here about the results as they affect the Second Amendment. In an article last week for National Review Online, I previewed all the Senate and Governor races, and all the competitive House races. Election night starts with a net +3 for the Second Amendment in the Senate, regardless of which party wins the Senate races in New Mexico, North Dakota, and Indiana. In all these states, both major party candidates are strong on Second Amendment issues, so the winner will replace retiring anti-gun Senators (Bingaman in N.M., Conrad in N.D.) or an anti-gun Senator who lost in the primary (Lugar in Ind.).  To summarize the rest:

The three gubernatorial races that are close and that feature major differences between the candidates on Second Amendment issues are Washington, Montana, and New Hampshire.

. . . In four states -- Arizona, Massachusetts, Nevada, and Virginia -- there are serious risks that Senate seats could be taken by new senators hostile to gun rights. Plausible opportunities to gain seats for the Second Amendment exist in Maine, Missouri, Ohio, and Wisconsin. In these eight swing Senate states considered together, the possibility of a net loss probably exceeds the possibility of a net gain.

As for the U.S. House, a rough estimate would be that if the net gain for Democrats is x, then the net loss for gun owners will be about one-half or two-thirds of x. In swing districts, most candidates are unwilling to forgo the 5 percent of the vote that can be lost by opposing Second Amendment rights. So, in these districts, candidates of both parties tend to support the Second Amendment. Thus, the net change in House composition on the gun issue tends to be smaller than the net party change in any given year.

In addition, Louisiana has a ballot referendum to strengthen the state constitution's right to arms. Idaho, Kentucky, and Nebraska will vote on adding the right to hunt and fish to the state constitution.