United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

February 22, 2013

Before

 FRANK H. EASTERBROOK, Chief Judge

 RICHARD A. POSNER, Circuit Judge

 JOEL M. FLAUM, Circuit Judge

 MICHAEL S. KANNE, Circuit Judge

 ILANA DIAMOND ROVNER, Circuit Judge

 DIANE P. WOOD, Circuit Judge

 ANN CLAIRE WILLIAMS, Circuit Judge

 DIANE S. SYKES, Circuit Judge

 JOHN DANIEL TINDER, Circuit Judge

 DAVID F. HAMILTON, Circuit Judge

Nos. 12-1269, 12-1788

MICHAEL MOORE, et al., and

MARY E. SHEPARD, et al.,

 Plaintiffs-Appellants,

v.

LISA MADIGAN, ATTORNEY GENERAL

OF ILLINOIS, et al.,

Defendants-Appellees.
2 Nos. 12-1269, 12-1788

Judge Michael S. Kanne did not participate in the consider- 

ation of the petition for rehearing en banc.

Appeals from the United States District Courts

for the Central District of Illinois and

the Southern District of Illinois.

Nos. 3:11-cv-3134-SEM-BGC and

 3:11-cv-405-WDS-PMF—Sue E. Myerscough and 

William D. Stiehl, Judges.

O R D E R

On January 8, 2013, defendants-appellees filed a petition for rehearing en banc, and on January 23, 2013,

plaintiffs-appellants filed answers to the petition. A vote

of the active members of the court on whether to grant

rehearing en banc was requested and a majority of the

judges have voted to deny the petition. The petition 

is therefore DENIED.

Judge David F. Hamilton’s dissent from the denial of

rehearing en banc, joined by Judges Rovner, Wood and

Williams, is appended. 
Nos. 12-1269, 12-1788 3

HAMILTON, Circuit Judge, joined by ROVNER, WOOD, and

WILLIAMS, Circuit Judges, dissenting. I respectfully dissent

from the denial of rehearing en banc in these cases. The

Supreme Court has not yet decided whether the postHeller individual right to keep and bear arms at home

under the Second Amendment extends beyond the

home. The panel’s split decision in these cases goes

farther than the Supreme Court has gone and is the first

decision by a federal court of appeals striking down

legislation restricting the carrying of arms in public. Until

the Supreme Court faces the issue, the state of the law

affecting people in Illinois, Wisconsin, and Indiana is

an important question worthy of en banc consideration

to decide whether to affirm, reverse, or remand for

further factual development. Without undue repetition

of Judge Williams’ persuasive panel dissent, three points

deserve emphasis at this en banc stage of the proceedings.

First, extending the right to bear arms outside the

home and into the public sphere presents issues very

different from those involved in the home itself, which

is all that the Supreme Court decided in District of

Columbia v. Heller, 554 U.S. 570 (2008), and McDonald

v. City of Chicago, 130 S. Ct. 3020 (2010). I will not repeat

the debate in the panel opinions reviewing the historical and empirical evidence, for that debate was, in

the majority’s view, essentially dicta. The core of the

panel majority’s reasoning is that because there is a

need for self-defense outside the home as well as in,

Heller and McDonald should extend to public carrying of

loaded firearms. Moore v. Madigan, 702 F.3d 933, 935-38

(7th Cir. 2012). The logic has some appeal, but its
4 Nos. 12-1269, 12-1788

See Michael Wilson, After Bullets Hit Bystanders, Protocol

1

Questions, N.Y. Times, Aug. 25, 2012, available at http://www.

nytimes.com/2012/08/26/nyregion/bystanders-shooting-woundscaused-by-the-police.html? (last visited Feb. 19, 2013);

Chris Francescani, All Nine Bystanders Wounded in Empire

State Shooting Hit by Police, Reuters, Aug. 27, 2012, available

at http://reuters.com/article/2012/08/27/us-usa-shootingempirestate-police-idUSBRE87Q04X20120827 (last visited

Feb. 19, 2013). One could go on indefinitely collecting examples of lawful firearms in public being used both to cause

harm and to prevent harm. 

simplicity overlooks qualitative differences between a

private home and public streets and buildings that

must be considered as we try to interpret Heller and

McDonald. See Kachalsky v. County of Westchester, 701

F.3d 81, 94 (2d Cir. 2012).

In so many public settings, carrying and using firearms

present lethal risks to innocent bystanders. Yet when

people go about their daily lives in public places, they

have no choice about whether to consent to the dangers

posed by firearms in public. We can all choose whether

to visit homes where firearms are present.

To illustrate the dangers posed by lawful use of

firearms in public, consider a deadly confrontation on

the streets of New York City in August 2012, when

police confronted an armed man who had just shot and

killed another man. The police officers were well trained

in both how to shoot and when to shoot and not shoot.

The officers fatally shot the gunman, but the officers’

many shots also wounded nine bystanders. I intend no 1

criticism of the officers, who confronted an urgent, dan-
Nos. 12-1269, 12-1788 5

gerous situation that few have experienced first-hand.

We will always need armed police officers, and some

harm will be unavoidable despite their training, skill,

and experience. But consider how much worse the situation on the crowded streets of New York might have

been if several civilians, without the officers’ training

but carrying firearms lawfully, had tried to help with

their own firearms. Unless the Supreme Court is prepared to embrace the view attributed to it by the panel

majority, that the Second Amendment right to bear

arms does not depend on “casualty counts,” 702 F.3d

at 939, we should not assume that the logic of Heller

extends naturally and without qualification to firearms

in public.

Moreover, the panel majority makes its constitutional

point about self-defense outside the home by relying on

the need for weapons on the early American frontier.

The reliance misses the point. See Moore, 702 F.3d at 936.

It would have been foolish for any frontier government

to prohibit carrying weapons from homestead to trading

post. But we do not usually test constitutional doctrine

by asking whether all foolish laws would be banned.

The real constitutional question is whether there is a

right to bear arms in public so rigid that it must strike

down duly enacted laws that apply in the downtown

streets of modern Chicago, Washington, or New York.

It need not be.

Second, despite my disagreement with the panel majority, it’s important to keep in mind what the panel

did not decide. The panel majority opinion is now the
6 Nos. 12-1269, 12-1788

law of the circuit, and Illinois has 180 days to decide

how to amend its laws. Those of us in the lower federal

courts are understandably reluctant to commit to a particular standard of constitutional scrutiny that should

be applied to Second Amendment issues after Heller and

McDonald, or even to the idea that the standard should

be the same for all issues. Nevertheless, it’s reasonably

clear at this point that the standard is more demanding

than rational-basis review and less demanding than

strict scrutiny. The panel majority leaves the State

a good deal of constitutional room for reasonable public

safety measures concerning public carrying of firearms:

(a) Illinois will still be able to establish reasonable

limits on who may carry a loaded firearm in public. Heller

itself made clear that the right to keep and bear arms

may be denied based on a felony conviction or mental

illness. 554 U.S. at 626; see also United States v. Skoien,

614 F.3d 638 (7th Cir. 2010) (en banc) (upholding conviction for possession of firearm by person convicted of

domestic violence misdemeanor). Reasonable requirements for firearms training and proficiency, including

safe and responsible handling and use, should withstand

constitutional scrutiny. The Second Circuit recently

upheld New York’s state law requiring “proper cause” for

issuance of a permit to carry a gun. Kachalsky, 701 F.3d 81.

(b) Illinois will still be able to set reasonable limits on

where qualified persons may legally carry firearms in

public. Heller itself endorsed restrictions in “sensitive”

places, such as schools and government buildings. 554

U.S. at 626. It should not be difficult to make reasonable
Nos. 12-1269, 12-1788 7

See DiGiacinto v. Rector and Visitors of George Mason Univ.,

2

704 S.E.2d 365 (Va. 2011) (upholding regulation prohibiting

possession of firearms on campus of public university).

arguments to support extending that reasoning to areas

around schools, courthouses, other government buildings,

public universities, public libraries, hospitals, medical 2

offices, public parks and forests, churches and other

places of worship, banks, shopping centers, public transportation facilities and vehicles, and venues for sporting

events, concerts, and other entertainment, among many

possible examples.

(c) Privately owned bars, nightclubs, and restaurants

also could fit into that reasoning, and surely the federal

Constitution would not prevent a private owner of a

business from imposing a ban on carrying firearms

in or around the business. See GeorgiaCarry.Org, Inc. v.

Georgia, 687 F.3d 1244, 1264-66 (11th Cir. 2012) (upholding state law giving private property owners right

to exclude firearms). Places of employment could pose

similar issues, and again, it’s hard to see how the

federal Constitution would prohibit a private employer

from banning firearms on its premises.

(d) The panel opinion also does not prevent Illinois from

setting reasonable limits on how qualified persons may

carry firearms in public places where they are not prohibited. Should loaded firearms in public be carried

openly? Should they be concealed? Should the answer

differ depending on place and circumstance? Heller noted

that a majority of nineteenth-century courts upheld
8 Nos. 12-1269, 12-1788

prohibitions on carrying concealed weapons in favor

of carrying weapons openly, 554 U.S. at 626, but open

carrying of firearms in our modern society can be intimidating and even disruptive.

(e) Finally, the panel opinion, Heller, and McDonald

do not prevent Illinois from imposing reasonable limits

on which arms may be carried in public. See Heller,

554 U.S. at 627. We can be reasonably confident that the

Second Amendment rights are not limited to arms

known to the Framers of the amendment, but also confident that the rights do not extend to all the arms

that a modern militia might need.

In other words, the panel’s holding that the current

Illinois laws are too restrictive leaves room for many

reasonable steps to protect public safety. That takes me

to my third point, which concerns how future Second

Amendment litigation should proceed. The panel decided to reverse dismissals under Rule 12(b)(6) and to

order entry of permanent injunctions against enforcement of the state laws. That step prevented Illinois and

the plaintiffs from presenting relevant evidence, both

empirical and historical, in a genuinely adversarial

setting subject to cross-examination.

The panel majority views the current Illinois restrictions as simply too broad to survive no matter what the

empirical or historical evidence might show. The panel’s

reasoning on that point does not extend, as I read it, to

future challenges to narrower, better-tailored restrictions such as those described above. Under some form

of intermediate constitutional scrutiny, where courts
Nos. 12-1269, 12-1788 9

will need to weigh both Second Amendment rights

and state interests justifying some restrictions on those

rights, actual evidence on the burdens, consequences, and

governmental interests will be vital for sound judgment. Courts considering even legislative facts, as

distinct from adjudicative facts, can benefit from truly

adversarial presentation of relevant evidence. See Ezell

v. City of Chicago, 651 F.3d 684, 709 (7th Cir. 2011) (emphasizing need for evidence in applying intermediate

scrutiny in Second Amendment challenge).

Where the law is genuinely in doubt, as it is likely

to remain for some time under the Second Amendment, a trial court can do a great service by ensuring the

development of a thorough and complete record that

provides a reliable, accurate factual foundation for constitutional adjudication. The federal courts are likely

to do a better job of constitutional adjudication if our

considerations are based on reliable facts rather than

hypothesized and assumed facts.

2-22-13