Right to Carry Guns Headed to Supreme Court

      Gun rights advocates won their most important court victory in the past two-and-a-half years last week [Dec. 11] when the federal appeals court in Chicago struck down Illinois’ virtually absolute ban on carrying concealed weapons in public. But news of the ruling was quickly eclipsed by two other gun-related stories: a shooting episode in an Oregon shopping mall on the same day that left three persons dead and the horrific massacre in Newtown, Conn., that claimed 28 lives [Dec. 14]. Both shooters killed themselves at the scene.
      The shootings produced predictable anger among gun control supporters, low-lying silence from gun rights advocates, and — after two-day wait — a strong call from President Obama for unspecified action to prevent more such tragedies. “We can’t tolerate this anymore,” Obama said in remarks at an interfaith service in Newtown on Sunday night.
      The debates over gun laws included immediate calls to revive the lapsed ban on assault weapons of the type that Adam Lanza used to gun down 20 first-graders at Sandy Hook Elementary School and six school staff members before using a pistol to kill himself. (Lanza killed his mother before going to the school.) Many commentators saw a likely “tipping point” in the long stalemated debate over regulating guns.
      In the meantime, however, the appeals court ruling on the Illinois concealed weapon ban portends a new issue for the Supreme Court to decide. And if the Roberts Court follows its two previous gun rights rulings, its decision could further restrict lawmakers’ ability to curtail the role of guns in day-to-day life in America.
      The ruling by the Seventh U.S. Circuit Court of Appeals builds on the two Supreme Court decisions of the past four years that held the Second Amendment to protect an individual right to possession of firearms for the purpose of self-defense. The court struck down the District of Columbia’s ban on possession of handguns in the first of the rulings, Heller v. District of Columbia (2008), and extended the right to states and localities in a ruling striking down a similar ban in Chicago, McDonald v. City of Chicago (2010).
      Conservatives generally praised and liberals generally criticized the rulings, both by 5-4 votes divided along the justices’ conservative-liberal fault lines. But one improbable critic was Judge Richard Posner, the idiosyncratically conservative jurist and prolific legal commentator. Writing in The New Republic only six weeks after the ruling, Posner called Heller “questionable in both method and result.” The decision, he said, showed that the court, in constitutional cases, “exercises a freewheeling discretion strongly flavored with ideology.”
      Court watchers can rightfully claim surprise, therefore, in seeing Posner as the author of the farthest extension to date of Heller and McDonald. Writing for the majority in the new case, Moore v. Madigan, Posner said the Supreme Court’s decisions recognizing a right to possess handguns inside the home for self-defense also necessarily imply some right to possess some kinds of weapons in public place for the same purpose: self-defense.
      Posner relied in part on textual analysis. The Second Amendment’s right to “keep and bear arms,” he reasoned, “implies a right to carry a loaded gun outside the home.” Looking to English history, he interpreted the 17th century statutes that barred going armed “with dangerous or unusual weapons” as implying permission for others. And in contemporary America, Posner said, the need for self-defense recognized in Heller and McDonald may be more acute on the streets than in the home. “A Chicagoan is a good deal more likely to be attacked on a sidewalk in a rough neighborhood than his apartment on the 35th floor of the Park Tower,” he wrote.
      From logic, Posner — joined by Judge Joel Flaum, like Posner a Reagan appointee and former chief judge on the Seventh Circuit — moved to empiricism. Summarizing the studies, Posner said the net effect that carriage of guns in public has on crime rates in general and murder rates in particular is “uncertain.” He credited in particular studies that show a low rate of arrests or misuse of weapons by gun permit holders. On that basis, Posner said that the empirical literature “fails to establish a pragmatic defense of the Illinois law.” In any event, he said the Supreme Court “made clear in Heller that it wasn’t going to make the right to bear arms depend on casualty counts.”
      In a dissent, Judge Ann Williams, a Clinton appointee, argued that the issue is “closer than the majority makes it out to be.” Williams found no recognized right to carry arms in public at the time the Second Amendment was written or earlier in England. And she saw a contradiction between recognizing a right of public carriage and upholding laws of the sort that the Supreme Court cited in Heller as permissible, such as bans on guns in government buildings or other “sensitive” places. A “patchwork” of laws governing where loaded guns are or are not permitted would negate meaningful self-defense, Williams reasoned. Her conclusion: “[T]he constitutional right to carry ready-to-use firearms in public for self-defense may well not exist.”
      The Seventh Circuit’s ruling clashed with an earlier decision by the Second Circuit that upheld New York’s restrictive law requiring applicants for gun permits to show a “special need” for self-protection (Kachalsky v. County of Westchester, Nov. 27). The issue is headed, inexorably, toward the Supreme Court, the court where Posner saw ideology more than law as driving its pronouncements on the issue.