Join Date: Feb 2010
Location: Third Rock From the Sun
Highlights I grabbed from reading....
Both Heller and McDonald do say that “the need
for defense of self, family, and property is most acute”
in the home, id. at 3036 (emphasis added); 554 U.S. at
628, but that doesn’t mean it is not acute outside the home.
Heller repeatedly invokes a broader Second
Amendment right than the right to have a gun in
one’s home, as when it says that the amendment
“guarantee[s] the individual right to possess and carry weapons in case of confrontation.” 554 U.S. at 592.
Confrontations are not limited to the home.
The Second Amendment states in its entirety that “a
well regulated Militia, being necessary to the security
of a free State, the right of the people to keep and
bear Arms, shall not be infringed” (emphasis added).
The right to “bear” as distinct from the right to “keep”
arms is unlikely to refer to the home. To speak of “bearing”
arms within one’s home would at all times have been
an awkward usage. A right to bear arms thus implies
a right to carry a loaded gun outside the home.
Moreover, there is no reason to expect Illinois
to impose minimal permit restrictions on carriage
of guns outside the home, for obviously this is not a state
that has a strong pro-gun culture, unlike the
states that began allowing concealed carriage before Heller
and MacDonald enlarged the scope of Second Amendment
A blanket prohibition on carrying gun in public
prevents a person from defending himself anywhere
except inside his home; and so substantial a curtailment
of the right of armed self-defense requires a
greater showing of justification than merely that the
public might benefit on balance from such a curtailment,
though there is no proof it would.
We are disinclined to engage in another round of historical
analysis to determine whether eighteenth-century
America understood the Second Amendment to include
a right to bear guns outside the home. The Supreme
Court has decided that the amendment confers
a right to bear arms for self-defense, which is as
important outside the home as inside. The theoretical
and empirical evidence (which overall is inconclusive)
is consistent with concluding that a right to
carry firearms in public may promote self-defense. Illinois
had to provide us with more than merely a rational basis
for believing that its uniquely sweeping ban is justified
by an increase in public safety. It has failed to meet
this burden. The Supreme Court’s interpretation of
the Second Amendment therefore compels us to reverse
the decisions in the two cases before us and remand
Nos. 12-1269, 12-1788 21
them to their respective district courts for the entry
of dec la ra tions of unconst itut ional it y and
permanent injunctions. Nevertheless we order our mandate
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.