By Eugene Volokh
USA –-(Ammoland.com)-Illinois basically bans private citizens from carrying guns outside the home in any way that’s useful for immediate self-defense.
Shepard v. Madigan (S.D. Ill. Mar. 30, 2012), has just upheld this ban; other courts, in California, Illinois, Maryland, and Massachusetts have done the same, though the federal district courts in Maryland and North Carolina, as well as an appellate court in Puerto Rico have held the opposite.
The district court reasoned that even a total ban on carrying guns for self-defense outside the home should be judged under “intermediate scrutiny,” and the ban passes because “[t]he State of Illinois has determined that, for purposes of protection of its residents, a citizen’s interest in carrying a firearm in public should be subject to the governmental interest in safeguarding the welfare of the public at large from the inherent dangers in a loaded firearm.”
Two thoughts about the decision:
1. The court doesn’t discuss whether — as the Maryland federal district court recently suggested — intermediate scrutiny can only be satisfied by regulations of the carrying of guns outside the home, rather than by total prohibitions. To quote, the Maryland district court,
A law that burdens the exercise of an enumerated constitutional right by simply making that right more difficult to exercise cannot be considered “reasonably adapted” to a government interest, no matter how substantial that interest may be. Maryland’s goal of “minimizing the proliferation of handguns among those who do not have a demonstrated need for them” is not a permissible method of preventing crime or ensuring public safety; it burdens the right too broadly. Those who drafted and ratified the Second Amendment surely knew that the right they were enshrining carried a risk of misuse, and states have considerable latitude to channel the exercise of the right in ways that will minimize that risk. States may not, however, seek to reduce the danger by means of widespread curtailment of the right itself.
2. The court also says that, as to “laws that impact the right to bear arms outside the home,” “the Seventh Circuit has determined that intermediate scrutiny would apply. See, Ezell, 651 F.3d at 703-04 (collecting cases applying the intermediate standard in the Third, Fourth, and Tenth Circuits).” But I don’t see how that is a correct reading of Ezell v. City of Chicago (7th Cir. 2011). The cited passage from Ezell does say,
For all other cases, however, we are left to choose an appropriate standard of review from among the heightened standards of scrutiny the Court applies to governmental actions alleged to infringe enumerated constitutional rights; the answer to the Second Amendment “infringement” question depends on the government’s ability to satisfy whatever standard of means-end scrutiny is held to apply.
The approach outlined here does not undermine Skoien, 614 F.3d at 639-43, or United States v. Williams, 616 F.3d 685, 691-93 (7th Cir.2010), both of which touched on the historical “scope” question before applying a form of intermediate scrutiny. And this general framework has been followed by the Third, Fourth, and Tenth Circuits in other Second Amendment cases.
But, as the Ezell court noted, “Intermediate scrutiny was appropriate in Skoien because the claim was not made by a ‘law-abiding, responsible citizen’ as in Heller, 554 U.S. at 635, 128 S.Ct. 2783; nor did the case involve the central self-defense component of the right, Skoien, 614 F.3d at 645.
And Williams similar involved a challenge brought by someone who wasn’t a “law-abiding, responsible citizen” (indeed, Williams was a convicted felon). So in context, the Ezell passage quoting above is simply (1) noting that Skoien and Williams are consistent with the notion that some “standard of means-end scrutiny” must be chosen in each kind of case, and (2) mentioning that this doesn’t undermine the decision in Skoien and Williams to choose intermediate scrutiny. The court is not, I think, silently concluding that “intermediate scrutiny” is the proper test even as to claims that are “made by a ‘law-abiding, responsible citizen.’”
Indeed, Ezell concluded that,
Here, in contrast, the plaintiffs are the “law-abiding, responsible citizens” whose Second Amendment rights are entitled to full solicitude under Heller, and their claim comes much closer to implicating the core of the Second Amendment right. The City’s firing-range ban is not merely regulatory; it prohibits the “law-abiding, responsible citizens” of Chicago from engaging in target practice in the controlled environment of a firing range. This is a serious encroachment on the right to maintain proficiency in firearm use, an important corollary to the meaningful exercise of the core right to possess firearms for self-defense. That the City conditions gun possession on range training is an additional reason to closely scrutinize the range ban. All this suggests that a more rigorous showing than that applied in Skoien should be required, if not quite “strict scrutiny.” To be appropriately respectful of the individual rights at issue in this case, the City bears the burden of establishing a strong public-interest justification for its ban on range training: The City must establish a close fit between the range ban and the actual public interests it serves, and also that the public’s interests are strong enough to justify so substantial an encumbrance on individual Second Amendment rights.
I’m not claiming that Ezell clearly selected “a more rigorous” standard than intermediate scrutiny for law-abiding-citizen Second Amendment claims — it may be that its selection of that standard is limited to restrictions that interfere with gun possession in the home. (The Ezell plaintiffs “claim[ed] that the range ban impermissibly burdens the core Second Amendment right to possess firearms at home for protection because the Ordinance conditions lawful possession on range training but makes it impossible to satisfy this condition anywhere in the city.”) But I am saying that Ezell did not select “intermediate scrutiny” as the general standard for law-abiding citizen Second Amendment claims outside the home, and the district court was mistaken in concluding that Ezell did so. Rather, the district court should have recognized that the issue had not been decided by the Seventh Circuit, and the court should have accepted the responsibility for itself making the choice, rather than asserting that the choice was made for it.
About Eugene Volokh
Eugene Volokh is a law professor at UCLA, who specializes in free speech, religious freedom, church-state relations, and gun rights; he is the author of two textbooks, over 70 academic articles, and over 80 op-eds, and is the founder of The Volokh Conspiracy blog.