Great News: A Federal Appellate Court Struck Down an Illinois State Gun Ban!

On December 11, 2012, the United States Court of Appeals for the Seventh Circuit, in Shepard v. Madigan (i.e. the State of Illinois) struck down an Illinois state law banning persons from carrying a ready-to-use gun outside the home. According to the Seventh Circuit, Illinois was the only state that maintained a flat ban on carrying ready-to-use guns outside the home. This decision is a great victory for those who believe in the Second Amendment, freedom and personal liberty.

The Seventh Circuit decision, which was written by Judge Richard Posner, was based upon two significant Second Amendment cases, District of Columbia v. Heller and McDonald v. City of Chicago. Heller held the Second Amendment protects "the right of law-abiding, responsible citizens to use arms in defense of hearth and home." McDonald incorporated that right against the states. But, the United States Supreme Court has not yet expressly held whether the Second Amendment creates a right of self defense outside the home.

The Attorney General of Illinois argued the right to keep and bear arms should be confined to the home. But Judge Posner countered, "To confine the right to be armed to the home is to divorce the Second Amendment from the right of self-defense described in Heller and McDonald." By way of illustration, Judge Posner explained it is nonsensical to confine the right to the home because the text of the Second Amendment includes the word "bear" and one does not "bear" arms in one's home; one "keep[s]" arms in one's home and "bear[s]" arms outside the home.

The Seventh Circuit also reviewed the extensive historical analysis presented by the litigants in an attempt to understand the intent of those who wrote and ratified the Second Amendment in 1791. To help it understand the history of the matter, the Court went back further than the founding and ratification period and found a fundamental right to keep and bear arms in the English Bill of Rights of 1689 and then in Sir William Blackstone, the great English jurist who wrote the Commentaries on the Laws of England. Blackstone wrote the right to keep and bear arms is, "one of the fundamental rights of Englishmen."

Finding the right to keep and bear arms an old and fundamental right, the Seventh Circuit held that Illinois had to provide the Court with more than a rational basis that its gun ban was necessary to promote public safety or the Court would strike down the ban. The Circuit ruled that despite all the voluminous evidence it had presented Illinois failed to sustain this burden. The Circuit then reversed the lower court's decision dismissing the case that challenged the gun ban, sent the case back down to the lower court and ordered it to declare the Illinois gun ban law unconstitutional and to permanently stop its enforcement.

The decision by the Seventh Circuit Court, in Shepard v. Madigan, is a great victory because it broadens, at least in the jurisdiction covered by the Seventh Circuit, the right to keep and bear arms in one's home identified by Heller to include the right to keep and bear ready-to-use arms outside one's home. Thus, the Shepard case has advanced the cause of freedom and personal liberty and should be applauded by freedom-loving Americans everywhere.


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