In the

United States Court of Appeals

For the Seventh Circuit

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.

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.

ARGUED JUNE 8, 2012—DECIDED DECEMBER 11, 2012

Before POSNER, FLAUM, and WILLIAMS, Circuit Judges.

POSNER, Circuit Judge. These two appeals, consolidated

for oral argument, challenge denials of declaratory and

injunctive relief sought in materially identical suits under

the Second Amendment. An Illinois law forbids a person,

with exceptions mainly for police and other security

personnel, hunters, and members of target shooting clubs,
2 Nos. 12-1269, 12-1788

720 ILCS 5/24-2, to carry a gun ready to use (loaded,

immediately accessible—that is, easy to reach—and

uncased). There are exceptions for a person on his

own property (owned or rented), or in his home (but if

it’s an apartment, only there and not in the

apartment building’s common areas), or in his fixed

place of business, or on the property of someone who

has permitted him to be there with a ready-to-use gun.

720 ILCS 5/24-1(a)(4), (10), -1.6(a); see People v.

Diggins, 919 N.E.2d 327, 332 (Ill. 2009); People v. Laubscher,

701 N.E.2d 489, 490–92 (Ill. 1998); People v. Smith,

374 N.E.2d 472, 475 (Ill. 1978); People v. Pulley, 803

N.E.2d 953, 957–58, 961 (Ill. App. 2004). Even

carrying an unloaded gun in public, if it’s uncased

and immediately accessible, is prohibited, other than to

police and other excepted persons, unless carried

openly outside a vehicle in an unincorporated area

and ammunition for the gun is not immediately accessible. 720 ILCS 5/24-1(a)(4)(iii), (10)(iii), -1.6(a)(3)(B).

The appellants contend that the Illinois law violates

the Second Amendment as interpreted in District of Columbia v. Heller, 554 U.S. 570 (2008), and held applicable to

the states in McDonald v. City of Chicago, 130 S. Ct.

3 0 2 0 (2 0 1 0). Heller he ld th a t t he S e c on d

Amendment protects “the right of law-abiding,

responsible citizens to use arms in defense of hearth

and home.” 554 U.S. at 635. But the Supreme Court has

not yet addressed the question whether the

Second Amendment creates a right of self-defense

outside the home. The district courts ruled that it does

not, and so dismissed the two suits for failure to state

a claim.
Nos. 12-1269, 12-1788 3

The parties and the amici curiae have treated us

to hundreds of pages of argument, in nine briefs.

The main focus of these submissions is history. The

supporters of the Illinois law present historical evidence

that there was no generally recognized private right

to carry arms in public in 1791, the year the Second

Amendment was ratified—the critical year for determining

the amendment’s historical meaning, according to McDonald v. City of Chicago, supra, 130 S. Ct. at 3035 and n. 14.

Similar evidence against the existence of an eighteenthcentury right to have weapons in the home for purposes

of self-defense rather than just militia duty had

of course been presented to the Supreme Court in

the Heller case. See, e.g., Saul Cornell, A Well-Regulated

Militia 2–4, 58–65 (2006); Lois G. Schwoerer, “To Hold and

Bear Arms: The English Perspective,” 76 Chi.-Kent L. Rev.

27, 34–38 (2000); Don Higginbotham, “The Second Amendment in Historical Context,” 16 Constitutional Commentary 263, 265 (1999). The District of Columbia had

argued that “the original understanding of

the Second Amendment was neither an individual right

of self-defense nor a collective right of the states, but rather

a civic right that guaranteed that citizens would be able

to keep and bear those arms needed to meet their legal

obligation to participate in a well-regulated militia.”

Cornell, supra, at 2; see also Paul Finkelman, “ ’A Well

Regulated Militia’: The Second Amendment in Historical

Perspective,” 76 Chi.-Kent L. Rev. 195, 213–14 (2000);

Don Higginbotham, “The Federalized Militia Debate:

A Neglected Aspect of Second Amendment Scholarship,”

55 William & Mary Q. 39, 47–50 (1998); Roy G. Weatherup,
4 Nos. 12-1269, 12-1788

“Standing Armies and Armed Citizens: An Historical

Analysis of the Second Amendment,” 2 Hastings Constitutional L.Q. 961, 994–95 (1975).

The Supreme Court rejected the argument. The

appellees ask us to repudiate the Court’s historical analysis. That we can’t do. Nor can we ignore the implication

of the analysis that the constitutional right of armed selfdefense is broader than the right to have a gun

in one’s home. The first sentence of the McDonald

opinion states that “two years ago, in District of

Columbia v. Heller, we held that the Second Amendment

protects the right to keep and bear arms for the purpose

of self-defense,” McDonald v. City of Chicago, supra, 130 S.

Ct. at 3026, and later in the opinion we read

that “Heller explored the right’s origins, noting that the

1689 English Bill of Rights explicitly protected a right

to keep arms for self-defense, 554 U.S. at 593, and that

by 1765, Blackstone was able to assert that the right

to keep and bear arms was ‘one of the fundamental rights

of Englishmen,’ id. at 594.” 130 S. Ct. at 3037. And immediately the Court adds that “Blackstone’s assessment

was shared by the American colonists.” Id.

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
Nos. 12-1269, 12-1788 5

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.

And one doesn’t have to be a historian to realize that

a right to keep and bear arms for personal self-defense

in the eighteenth century could not rationally

have been limited to the home. Suppose one lived in

what was then the wild west—the Ohio Valley for example

(for until the Louisiana Purchase the Mississippi

River was the western boundary of the United States),

where there were hostile Indians. One would

need from time to time to leave one’s home to

obtain supplies from the nearest trading post, and en

route one would be as much (probably more) at risk

if unarmed as one would be in one’s home unarmed.

The situation in England was different—there was

no wilderness and there were no hostile Indians and

t he right to hunt w as la rgely limited to

landowners, Schwoerer, supra, at 34–35, who were

few. Defenders of the Illinois law reach back to the

fourteenth-century Statute of Northampton, which provided that unless on King’s business no man could “go nor
6 Nos. 12-1269, 12-1788

ride armed by night nor by day, in Fairs, markets, nor in

the presence of the Justices or other Ministers, nor in no

part elsewhere.” 2 Edw. III, c. 3 (1328). Chief Justice Coke

interpreted the statute to allow a person to possess weapons inside the home but not to “assemble force, though he

be extremely threatened, to go with him to church,

or market, or any other place.” Edward Coke, Institutes of

the Laws of England 162 (1797). But the statute enumerated

the locations at which going armed was thought

dangerous to public safety (such as in fairs or

in the presence of judges), and Coke’s reference to “assemble force” suggests that the statutory limitation of the

right of self-defense was based on a concern with armed

gangs, thieves, and assassins rather than with indoors

versus outdoors as such.

In similar vein Sir John Knight’s Case, 87 Eng. Rep. 75,

76 (K.B. 1686), interpreted the statute as punishing

“people who go armed to terrify the King’s subjects.” Some weapons do not terrify the public (such

as well-concealed weapons), and so if the statute was (as

it may have been) intended to protect the public

from being frightened or intimidated by the

brandishing of weapons, it could not have applied to

all weapons or all carriage of weapons. Blackstone’s

summary of the statute is similar: “the offence of riding

or going armed, with dangerous or unusual weapons, is

a crime against the public peace, by terrifying the good

people of the land.” 4 Commentaries on the Law of England

148–49 (1769) (emphasis added). Heller treated

Blackstone’s reference to “dangerous or unusual weapons”

as evidence that the ownership of some types of
Nos. 12-1269, 12-1788 7

firearms is not protected by the Second Amendment,

554 U.S. at 627, but the Court cannot have thought all

guns are “dangerous or unusual” and can be banned,

as otherwise there would be no right to keep a handgun

in one’s home for self-defense. And while another

English source, Robert Gardiner, The Compleat Constable

18–19 (3d ed. 1707), says that constables “may seize

and take away” loaded guns worn or carried by persons

not doing the King’s business, it does not specify

the circumstances that would make the exercise of

such authority proper, let alone would warrant a prosecution.

Blackstone described the right of armed self-preservation

as a fundamental natural right of Englishmen, on

a par with seeking redress in the courts or petitioning

the government. 1 Blackstone, supra, at 136,

139–40. The Court in Heller inferred from this that

eighteenth-century English law recognized a right

to possess guns for resistance, self-preservation, selfdefense, and protection against both public and

private violence. 554 U.S. at 594. The Court said that

American law was the same. Id. at 594–95. And in

contrast to the situation in England, in less peaceable

America a distinction between keeping arms for selfdefense in the home and carrying them outside the home

would, as we said, have been irrational. All this is debatable of course, but we are bound by the Supreme

Court’s historical analysis because it was central

to the Court’s holding in Heller.
8 Nos. 12-1269, 12-1788

Twenty-first century Illinois has no hostile Indians. But a Chicagoan is a good deal more likely to be

attacked on a sidewalk in a rough neighborhood than in

his apartment on the 35th floor of the Park Tower.

A woman who is being stalked or has obtained a

protective order against a violent ex-husband is more

vulnerable to being attacked while walking to or from

her home than when inside. She has a stronger self-defense

claim to be allowed to carry a gun in public than

the resident of a fancy apartment building (complete with

doorman) has a claim to sleep with a loaded gun under

her mattress. But Illinois wants to deny the former claim,

while compelled by McDonald to honor the latter. That creates an arbitrary difference. 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. It is not a property right—a right

to kill a houseguest who in a fit of aesthetic fury tries

to slash your copy of Norman Rockwell’s painting

Santa with Elves. That is not self-defense, and this case

like Heller and McDonald is just about self-defense.

A gun is a potential danger to more people if carried

in public than just kept in the home. But the other

side of this coin is that knowing that many law-abiding

citizens are walking the streets armed may make criminals

timid. Given that in Chicago, at least, most murders

occur outside the home, Chicago Police Dep’t, Crime at

a Glance: District 1 13 (Jan.–June 2010), the net effect

on crime rates in general and murder rates in particular

of allowing the carriage of guns in public is

uncertain both as a matter of theory and empirically.
Nos. 12-1269, 12-1788 9

“Based on findings from national law assessments, crossnational comparisons, and index studies, evidence is

insufficient to determine whether the degree or intensity

of firearms regulation is associated with decreased (or

increased) violence.” Robert A. Hahn et al., “Firearms

Laws and the Reduction of Violence: A Systematic Review,” 28 Am. J. Preventive Med. 40, 59 (2005); cf.

John J. Donohue, “The Impact of Concealed-Carry Laws,”

in Evaluating Gun Policy Effects on Crime and Violence

287, 314–21 (2003). “Whether the net effect of relaxing

concealed-carry laws is to increase or reduce the

burden of crime, there is good reason to believe that the

net is not large.... [T]he change in gun carrying appears

to be concentrated in rural and suburban areas

where crime rates are already relatively low, among people

who are at relatively low risk of victimization—white,

middle-aged, middle-class males. The available data

about permit holders also imply that they are at fairly

low risk of misusing guns, consistent with the relatively

low arrest rates observed to date for permit holders.

Based on available empirical data, therefore, we

expect relatively little public safety impact if courts

invalidate laws that prohibit gun carrying outside

the home, assuming that some sort of permit system

for public carry is allowed to stand.” Philip J. Cook,

Jens Ludwig & Adam M. Samaha, “Gun Control After

Heller: Threats and Sideshows from a Social Welfare

Perspective,” 56 UCLA L. Rev. 1041, 1082 (2009); see

also H. Sterling Burnett, “Texas Concealed Handgun

C a rrie r s ; Law -Ab iding Pu b lic B e n efa c t o r s , ”

www.ncpa.org/pdfs/ba324.pdf (visited Oct. 29, 2012).

But we note with disapproval that the opening brief
10 Nos. 12-1269, 12-1788

for the plaintiffs in appeal no. 12-1788, in quoting the

last sentence above from the article by Cook and

his colleagues, deleted without ellipses the last

clause—“assuming that some sort of permit system

for public carry is allowed to stand.”

If guns cannot be carried outside the home, an

officer who has reasonable suspicion to stop and

frisk a person and finds a concealed gun on him can

arrest him, as in United States v. Mayo, 361 F.3d 802, 804-

08 (4th Cir. 2004), and thus take the gun off the

street before a shooting occurs; and this is argued

to support the ban on carrying guns outside the home. But

it is a weak argument. Often the officer will have

no suspicion (the gun is concealed, after all). And a state

may be able to require “open carry”—that is,

require persons who carry a gun in public to carry

it in plain view rather than concealed. See District of

Columbia v. Heller, supra, 554 U.S. at 626; James

Bishop, Note, “Hidden or on the Hip: The Right(s) to

Carry After Heller,” 97 Cornell L. Rev. 907, 920–21

(2012). Many criminals would continue to conceal the

guns they carried, in order to preserve the element

of surprise and avoid the price of a gun permit; so

the police would have the same opportunities (limited

as they are, if the concealment is effective and the

concealer does not behave suspiciously) that they do

today to take concealed guns off the street.

Some studies have found that an increase in gun ownership causes an increase in homicide rates. Mark

Duggan’s study, reported in his article “More Guns, More
Nos. 12-1269, 12-1788 11

Crime,” 109 J. Pol. Econ. 1086, 1112 (2001), is

exemplary; and see also Philip J. Cook & Jens

Ludwig, “The Social Costs of Gun Ownership,” 90 J.

Pub. Econ. 379, 387 (2006). But the issue in this case

isn’t ownership; it’s carrying guns in public.

Duggan’s study finds that even the concealed

carrying of guns, which many states allow, doesn’t lead

to an increase in gun ownership. 109 J. Pol. Econ.

at 1106–07. Moreover, violent crime in the United

States has been falling for many years and so

has gun ownership, Patrick Egan, “The Declining Culture

o f Gu n s a n d V i o l e n c e i n t h e U n i ted

States,” www.themonkeycage.org/blog/2012/07/21/thedeclining-culture-of-guns-and-violence-in-the-unitedstates (visited Oct. 29, 2012); see also Tom W.

Smith, “Public Attitudes Towards the Regulation

of Firearms” 10 (University of Chicago Nat’l

O p inion R e s e a r c h Ce n t er, M ar. 2007 ) ,

http: / / i cpgv. o r g / p d f /NO R C Pol l . p d f ( v i s i ted

Oct. 29, 2012)—in the same period in which gun laws

have become more permissive.

A few studies find that states that allow concealed

carriage of guns outside the home and impose minimal

restrictions on obtaining a gun permit have experienced

increases in assault rates, though not in homicide

rates. See Ian Ayres & John J. Donohue III, “More Guns,

Less Crime Fails Again: The Latest Evidence From

1977–2006,” 6 Econ. J. Watch 218, 224 (2009). But it has

not been shown that those increases persist.

Of another, similar paper by Ayres and Donohue, “Shooting Down the ‘More Guns, Less Crime’ Hypothesis,”
12 Nos. 12-1269, 12-1788

55 Stan. L. Rev. 1193, 1270–85 (2003), it has been said

that if they “had extended their analysis by one more year,

they would have concluded that these laws

[laws allowing concealed handguns to be carried

in public] reduce crime.” Carlisle E. Moody & Thomas B.

Marvell, “The Debate on Shall-Issue Laws,” 5 Econ. J.

Watch 269, 291 (2008). Ayres and Donohue disagree

that such laws reduce crime, but they admit that

data and modeling problems prevent a strong claim

that they increase crime. 55 Stan. L. Rev. at 1281–82, 1286–87;

6 Econ. J. Watch at 230–31.

Concealed carriage of guns might increase the death

rate from assaults rather than increase the number

of assaults. But the studies don’t find that laws

that allow concealed carriage increase the death

rate from shootings, and this in turn casts doubt on

the finding of an increased crime rate when concealed

carriage is allowed; for if there were more confrontations

with an armed criminal, one would expect more shootings.

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

rights.

Charles C. Branas et al., “Investigating the Link

Between Gun Possession and Gun Assault,” 99 Am. J.

of Pub. Health 2034, 2037 (2009), finds that assault

victims are more likely to be armed than the rest
Nos. 12-1269, 12-1788 13

of the population is, which might be thought evidence

that going armed is not effective self-defense. But

that finding does not illuminate the deterrent effect

of knowing that potential victims may be armed.

David Hemenway & Deborah Azrael, “The Relative

Frequency of Offensive and Defensive Gun Uses:

Results from a National Survey,” 15 Violence & Victims

257, 271 (2000), finds that a person carrying a gun

is more likely to use it to commit a crime than

to defend himself from criminals. But that is like saying

that soldiers are more likely to be armed than civilians.

And because fewer than 3 percent of gun-related

deaths are from accidents, Hahn et al., supra, at

40, and because Illinois allows the use of guns in hunting

and target shooting, the law cannot plausibly be defended

on the ground that it reduces the accidental

death rate, unless it could be shown that allowing guns to

be carried in public causes gun ownership to increase,

and we have seen that there is no evidence of that.

In sum, the empirical literature on the effects

of allowing the carriage of guns in public fails to establish

a pragmatic defense of the Illinois law. Bishop,

supra, at 922–23; Mark V. Tushnet, Out of Range: Why the

Constitution Can’t End the Battle over Guns 110–11

(2007). Anyway the Supreme Court made clear

in Heller that it wasn’t going to make the right to bear

arms depend on casualty counts. 554 U.S. at 636.

If the mere possibility that allowing guns to be carried

in public would increase the crime or death rates

sufficed to justify a ban, Heller would have been

decided the other way, for that possibility was as great

in the District of Columbia as it is in Illinois. 
14 Nos. 12-1269, 12-1788

And a ban as broad as Illinois’s can’t be upheld

merely on the ground that it’s not irrational. Ezell

v. City of Chicago, 651 F.3d 684, 701 (7th Cir.

2011); United States v. Yancey, 621 F.3d 681, 683 (7th

Cir. 2010) (per curiam); see also Heller v. District of Columbia, supra, 554 U.S. at 628 n. 27; United States v. Chester,

628 F.3d 673, 679–80 (4th Cir. 2010). Otherwise

this court wouldn’t have needed, in United States v.

Skoien, 614 F.3d 638, 643–44 (7th Cir. 2010) (en banc),

to marshal extensive empirical evidence to justify the

less restrictive federal law that forbids a person “who

has been convicted in any court of a misdemeanor crime

of domestic violence” to possess a firearm in

or affecting interstate commerce. 18 U.S.C. § 922(g)(9).

In Skoien we said that the government had to make a

“strong showing” that a gun ban was vital to

public safety—it was not enough that the ban was “rational.” 614 F.3d at 641. Illinois has not made that

strong showing—and it would have to make a stronger

showing in this case than the government did

in Skoien, because the curtailment of gun rights was

much narrower: there the gun rights of persons convicted

of domestic violence, here the gun rights of the entire lawabiding adult population of Illinois.

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. In contrast,
Nos. 12-1269, 12-1788 15

when a state bans guns merely in particular places, such

as pub li c school s , a per son can prese r ve

an undiminished right of self-defense by not

entering those places; since that’s a lesser burden, the

state doesn’t need to prove so strong a need. Similarly,

the state can prevail with less evidence when, as

in Skoien, guns are forbidden to a class of

persons who present a higher than average risk of misusing a gun. See also Ezell v. City of Chicago, supra, 651 F.3d

at 708. And empirical evidence of a public safety concern

can be dispensed with altogether when the ban is

limited to obviously dangerous persons such as felons

and the mentally ill. Heller v. District of Columbia,

supra, 554 U.S. at 626. Illinois has lots of options for protecting its people from being shot without having to eliminate

all possibility of armed self-defense in public.

Remarkably, Illinois is the only state that maintains

a flat ban on carrying ready-to-use guns outside

the home, though many states used to ban

carrying concealed guns outside the home, Bishop,

supra, at 910; David B. Kopel, “The Second Amendment

in the Nineteenth Century,” 1998 BYU L. Rev. 1359,

1432–33 (1998)—a more limited prohibition than Illinois’s, however. Not even Massachusetts has so flat a ban

as Illinois, though the District of Columbia does, see D.C.

Code §§ 22-4504 to -4504.02, and a few states did

during the nineteenth century, Kachalsky v. County

of Westchester, Nos. 11-3642, -3962, 2012 WL 5907502, at

*6 (2d Cir. Nov. 27, 2012)—but no longer.

It is not that all states but Illinois are indifferent to

the dangers that widespread public carrying of guns
16 Nos. 12-1269, 12-1788

may pose. Some may be. But others have decided

that a proper balance between the interest in self-defense

and the dangers created by carrying guns in public is

to limit the right to carry a gun to responsible persons

rather than to ban public carriage altogether, as Illinois

with its meager exceptions comes close to doing. Even

jurisdictions like New York State, where officials have

broad discretion to deny applications for gun

permits, recognize that the interest in self-defense

extends outside the home. There is no suggestion

that some unique characteristic of criminal activity

in Illinois justifies the state’s taking a different approach

from the other 49 states. If the Illinois approach

were demonstrably superior, one would expect at least

one or two other states to have emulated it.

Apart from the usual prohibitions of gun ownership

by children, felons, illegal aliens, lunatics, and in

sensitive places such as public schools, the propriety

of which was not questioned in Heller (“nothing in

this opinion should be taken to cast doubt on longstanding

prohibitions on the possession of firearms by felons

and the mentally ill, or laws forbidding the carrying

of firearms in sensitive places such as schools and

government buildings,” 554 U.S. at 626), some

states sensibly require that an applicant for a

hand gun perm it e s t a b lish h is c o m p etence

in handling firearms. A person who carries a

gun in public but is not well trained in the use of firearms

is a menace to himself and others. See Massad

Ayoob, “The Subtleties of Safe Firearms Handling,” Backwoods Home Magazine, Jan./Feb. 2007, p.
Nos. 12-1269, 12-1788 17

30; Debra L. Karch, Linda L. Dahlberg & Nimesh

Patel, “Surveillance for Violent Deaths—National

Violent Death Reporting System, 16 States, 2007,” Morbidity

a nd M o r t a l i t y W e e k l y Re port , p. 11 ,

www.cdc.gov/mmwr/pdf/ss/ss5904.pdf (visited Oct.

29, 2012). States also permit private businesses and

other private institutions (such as churches) to ban

guns from their premises. If enough private

institutions decided to do that, the right to carry a

gun in public would have much less value and might

rarely be exercised—in which event the invalidation of

the Illinois law might have little effect, which opponents of

gun rights would welcome.

Recently the Second Circuit upheld a New York state

law that requires an applicant for a permit to carry

a concealed handgun in public to demonstrate

“proper cause” to obtain a license. Kachalsky v. County

of Westchester, supra. This is the inverse of laws

that forbid dangerous persons to have handguns;

New York places the burden on the applicant to show

that he needs a handgun to ward off dangerous persons.

As the court explained, 2012 WL 5907502, at *13, New

York “decided not to ban handgun possession, but to

limit it to those individuals who have an actual

reason (’proper cause’) to carry the weapon. In this

v e in , li c en s in g i s ori e nt ed to the Se con d

A m e n d m e n t’s p r o t e c tio n s ... . [I] nstea d of

forbidding anyone from carrying a handgun in

public, New York took a more moderate approach

to fulfilling its important objective and reasonably concluded that only individuals having a bona fide reason
18 Nos. 12-1269, 12-1788

to possess handguns should be allowed to introduce

them into the public sphere.”

The New York gun law upheld in Kachalsky, although

one of the nation’s most restrictive such laws (under

the law’s “proper cause” standard, an applicant for a

gun permit must demonstrate a need for self-defense

greater than that of the general public, such as being

the target of personal threats, id. at *3, *8), is less restrictive

than Illinois’s law. Our principal reservation about

the Secon d Circuit ’ s an aly sis (a part fr om

disagreement, unnecessary to bore the reader with,

with some of the historical analysis in the opinion—we regard the historical issues as settled by Heller)

is its suggestion that the Second Amendment should

have much greater scope inside the home than

outside simply because other provisions of the Constitution have been held to make that distinction. For example,

the opinion states that “in Lawrence v. Texas, the

[Supreme] Court emphasized that the state’s efforts to

regulate private sexual conduct between consenting adults

is especially suspect when it intrudes into the home.”

2012 WL 5907502, at *9. Well of course—the interest in

having sex inside one’s home is much greater than

the interest in having sex on the sidewalk in front of

one’s home. But the interest in self-protection is as great

outside as inside the home. In any event the court in

Kachalsky used the distinction between self-protection

inside and outside the home mainly to suggest that a

standard less demanding than “strict scrutiny” should

govern the constitutionality of laws limiting the carrying

of guns outside the home; our analysis is not
Nos. 12-1269, 12-1788 19

based on degrees of scrutiny, but on Illinois’s failure to

justify the most restrictive gun law of any of the 50 states.

Judge Wilkinson expressed concern in United States

v. Masciandaro, 638 F.3d 458, 475 (4th Cir. 2011), that

“there may or may not be a Second Amendment right

in some places beyond the home, but we have no

idea what those places are, what the criteria for selecting

them should be, what sliding scales of scrutiny

might apply to them, or any one of a number

of other questions. It is not clear in what

places public authorities may ban firearms altogether

without shouldering the burdens of litigation.

The notion that ‘self-defense has to take place wherever

[a] person happens to be,’ appears to us to portend

all sorts of litigation over schools, airports,

parks, public thoroughfares, and various additional

government facilities.... The whole matter strikes us

as a vast terra incognita that courts should enter only

upon necessity and only then by small degree” (citation

omitted). Fair enough; but that “vast terra incognita”

has been opened to judicial exploration by Heller and

McDonald. There is no turning back by the lower federal

courts, though we need not speculate on the limits

that Illinois may in the interest of public safety constitutionally impose on the carrying of guns in public; it

is enough that the limits it has imposed go too far.

The usual consequence of reversing the dismissal of

a suit (here a pair of suits) is to remand the case for evidentiary proceedings preparatory to the filing of motions

for summary judgment and if those motions fail to an
20 Nos. 12-1269, 12-1788

eventual trial. But there are no evidentiary issues in

these two cases. The constitutionality of the challenged

statutory provisions does not present factual questions

for determination in a trial. The evidence marshaled in

the Skoien case was evidence of “legislative facts,” which

is to say facts that bear on the justification for legislation,

as distinct from facts concerning the conduct of parties

in a particular case (“adjudicative facts”). See Fed. R. Evid.

201(a); Advisory Committee Note to Subdivision (a) of

1972 Proposed Rule [of Evidence] 201. Only adjudicative

facts are determined in trials, and only legislative facts

are relevant to the constitutionality of the Illinois gun law.

The key legislative facts in this case are the effects

of the Illinois law; the state has failed to show

that those effects are positive.

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

o f de c l a r a tions o f unc on s t it ut ion a lit y an d

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.

REVERSED AND REMANDED, WITH DIRECTIONS;

BUT MANDATE STAYED FOR 180 DAYS.

WILLIAMS, Circuit Judge, dissenting. The Supreme

Court’s decisions in Heller and McDonald made clear

that persons in the state of Illinois (unless otherwise

disqualified) must be allowed to have handguns

in their homes for self-defense. But those cases

did not resolve the question in this case—whether the

Second Amendment also requires a state to allow persons

to carry ready-to-use firearms in public for potential selfdefense. The majority opinion presents one reading

of Heller and McDonald in light of the question presented

here, and its reading is not unreasonable. But I

think the issue presented is closer than the majority

makes it out to be. Whether the Second Amendment
22 Nos. 12-1269, 12-1788

protects a right to carry ready-to-use firearms in public

for potential self-defense requires a different analysis from

that conducted by the Court in Heller and McDonald. Ultimately, I would find the result here

different as well and would affirm the judgments of

the district courts.

Heller’s approach suggests that judges are to examine

the historical evidence and then make a determination

as to whether the asserted right, here the right to carry

ready-to-use arms in public (in places other than

those permitted by the Illinois statute) for potential selfdefense, is within the scope of the Second Amendment.

(Heller has been criticized for reasons including that judges

are not historians.) In making this historical inquiry,

and in assessing whether the right was a generally recognized one, I agree with the majority that the relevant

date is 1791, the date of the Second Amendment’s ratification. See Maj. Op. at 3. But I do not agree that the Supreme

Court in Heller rejected the argument that the State

makes here, nor do I think the State’s argument

effectively asks us to repudiate Heller’s historical analysis.

The historical inquiry here is a very different

one. Heller did not assess whether there was a pre-existing

right to carry guns in public for self-defense. By asking

us to make that assessment, the State is not asking

us to reject the Court’s historical analysis in Heller;

rather, it is being true to it. As I see it, the State embraces

Heller’s method of analysis and asks us to conduct it

for the different right that is being asserted. I am not

the only one to think that Heller did not settle the
Nos. 12-1269, 12-1788 23

historical issues. The Second Circuit’s recent

unanimous decision upholding New York’s “proper cause”

prerequisite to obtaining a license to carry a handgun

i n pub l i c r e c o g n i zed and di s c u s s e d t h e

different historical inquiry that occurs when the

asserted right is to possess a handgun in public.

See Kachalsky v. County of Westchester, 2012 WL 5907502,

at *6-7, *10-11 (2d Cir. Nov. 27, 2012). (Under the New York

law that the Second Circuit upheld, “[a] generalized

desire to carry a concealed weapon to protect one’s

person and property does not constitute ‘proper cause,’ ”

and “[g]ood moral character plus a simple desire

to carry a weapon is not enough.” Id. at *3 (internal citations and quotations omitted)).

Heller tells us that “the Second Amendment was

not intended to lay down a novel principle

but rather codified a right inherited from our English

ancestors.” Heller, 554 U.S. at 599 (internal quotations

omitted). For our English ancestors a man’s home

was his castle, and so he had broad powers to

defend himself there. See 4 William Blackstone, Commentaries on the Laws of England 223 (1769). The focus of Heller’s

historical examination was on whether the Second Amendment included an individual right to bear arms

or whether that right was limited to militia service.

Once the Heller majority found that the Second Amendment was personal, the conclusion that one could

possess ready-to-use firearms in the home for selfdefense there makes sense in light of the home-as-castle

history.
24 Nos. 12-1269, 12-1788

It is less clear to me, however, that a widely

understood right to carry ready-to-use arms in

public for potential self-defense existed at the time of

the founding. Cf. Heller, 554 U.S. at 605 (rejecting argument

by dissenters and stating, “That simply does not comport

with our longstanding view that the Bill of Rights

codified venerable, widely understood liberties.”).

In contrast to inside the home, where one could largely

do what he wished, there was a long history of regulating

arms in public. The 1328 Statute of Northampton,

quoted by the majority on page 6, provided in relevant

part that no man could “go nor ride armed by night

nor by day, in Fairs, markets, nor in the presence of

the Justices or other Ministers, nor in no part elsewhere.”

2 Edw. III, c. 3 (1328). If the words of a statute

are supreme, the words of the Statute of Northampton

expressly prohibit going or riding while “armed,” whether

at night or in the day, whether the arms are visible

or hidden. And the statute contains no intent requirement.

So the Statute of Northampton, by its terms, prohibited

going armed in public. 

This matters because the Statute of Northampton and

its principles did not disappear after its enactment in

1328. The leading scholars relied upon at the time

of our country’s founding also turned to the Statute

of Northampton as they discussed criminal offe ns es . Ma s s ac hu s etts, N ort h Carolin a, an d

Virginia incorporated the Statute of Northampton

in the years immediately after the Constitution’s adoption.

See Patrick J. Charles, The Faces of the Second

Amendment Outside the Home: Historical Versus
Nos. 12-1269, 12-1788 25

Ahistorical Standards of Review, 60 Clev. St. L. Rev. 1, 31-

32 (2012). Although the plaintiffs suggest that later generations did not view the Statute of Northampton

to mean what its terms said, whether that is true

is not obvious. William Blackstone, cited frequently

by the Heller majority, for example, summarized the

Statute of Northampton as he explained public

wrongs. He wrote, “[t]he offense of riding or going armed

with dangerous or unusual weapons, is a crime against

the public peace, by terrifying the good people of the

land; and is particularly prohibited by the Statute

of Northampton, upon pain of forfeiture of the

arms, and imprisonment during the king’s pleasure:

in like manner as, by the laws of Solon, every Athenian

was finable who walked about the city in armour.”

4 Blackstone, supra, 148-49 (internal citation omitted);

see also Eugene Volokh, The First and Second Amendments,

109 Colum. L. Rev. Sidebar 97, 101 (2009) (recognizing

that Blackstone summarized the Statute of Northampton

in this passage). 

Some, like the plaintiffs,read Blackstone to mean that the

Statute of Northampton was understood to

cover only those circumstances where the carrying of

arms was unusual and therefore terrifying. But that

seems to be a strained reading of Blackstone’s words.

The more natural reading is that Blackstone states

that riding or going armed with dangerous weapons

is an offense and is a crime against the public peace.

He then explains why the offense of riding or

going armed with dangerous weapons is a crime against

the public peace—because doing so makes people terrified

or nervous. Notably, Blackstone compares going
26 Nos. 12-1269, 12-1788

armed with dangerous weapons to the mere act of

walking around a city in armor, which was prohibited

in ancient Greece. The comparison suggests that just

as seeing a person walking around a city in

armor would cause other citizens to be nervous, regardless

of any affirmative action, so would the reaction be

to seeing another carrying dangerous weapons in a populated area. 

It is true as the majority states that Sir John Knight’s

Case, 87 Eng. Rep. 75 (K.B. 1686), stated that the meaning

of the Statute of Northampton “was to punish people

who go armed to terrify the King’s subjects.” But it immediately followed that statement by saying that

“[i]t is likewise a great offence at the common law, as

if the King were not able or willing to protect

his subjects; and therefore this Act is but an affirmance

of that law.” The case is consistent with the idea that

going armed in the public arena with dangerous

weapons without government permission, by its nature,

terrifies the people, whether the arms can be seen

or not. See Charles, supra, at 28 (examining background

and implications of case and explaining that persons

who were the “King’s Officers and Ministers in doing

their Office” were exempt from punishment under

the Statute, which explains Sir Knight’s acquittal). 

Robert Gardiner’s The Compleat Constable, written

for seventeenth- and eighteenth-century British

constables, comports with the understanding that

the Statute of Northampton’s intent was to prohibit

the carrying of any weapon that might “endanger
Nos. 12-1269, 12-1788 27

society among the concourse of the people,” Charles,

supra, at 23, and that it was an affirmation of governmental

police authority, as well as that “dangerous weapons” included guns, id. at 23-24. The Compleat

Constable stated, with a specific reference to “guns,”

that a British constable could arrest upon seeing

any person ride or go armed offensively, “in Fairs or

Markets or elsewhere, by Day or by Night, in affray of Her

Majesties Subjects, and Breach of the Peace; or wear

or carry any Daggers, Guns, or Pistols Charged.”

Robert Gardiner, The Compleat Constable 18-19 (3d

ed. 1707). The only exceptions were for persons serving

Her Majesty, sheriffs and their officers, and those “pursuing Hue and Cry, in Case of Felony, and other Offences

against the Peace.” Id. at 19.

Sir Edward Coke also discussed the Statute

of Northampton, and he interpreted it to allow

persons to keep weapons inside the home, explaining

that a man’s home was his castle. As the majority

notes, Coke also stated that one could not assemble force to

go out in public. But that does not necessarily mean

that persons were free to carry arms for potential

personal self-defense. Indeed, in Coke’s explanation of

the Statute, he recounted the case of Sir Thomas

Figett, who was arrested after he “went armed under

his garments, as well as in the palace, as before

the justice of the kings bench.” Edward Coke, Institutes of

the Laws of England 161-62 (1797). In his defense, Figett

said there “had been debate” between him and

another earlier in the week, “and therefore for

doubt of danger, and safeguard of his life, he went so
28 Nos. 12-1269, 12-1788

armed.” Id. at 162. Nonetheless, he was ordered to

forfeit his arms and suffer imprisonment at the king’s

pleasure. Id.

I also note that in examining the contours of the proposed right, the majority looks to the perspective of

an Ohio frontiersman. But it seems that when

evaluating the rights originally embodied in the

Second Amendment, looking to the margins should

not be the inquiry. Cf Heller, 554 U.S. at 605. We have

already observed that there were a number of laws

in our country around the time of the founding that

limited the discharge of firearms in public cities.

See Ezell v. City of Chicago, 651 F.3d 684, 705 (7th Cir. 2011)

(“The City points to a number of founding-era, antebellum,

a n d Re c o n s tr u c ti o n s t a t e a n d l o c a l l a w s

that limited discharge of firearms in urban environments.”); id. at 705-06 & nn.13-14; id. at 713-14 (Rovner, J.,

concurring) (observing that “none of the 18th and 19th

century jurisdictions cited by the City . . . were apparently

concerned that banning or limiting the discharge

of firearms within city limits would seriously impinge

the rights of gun owners” and that some of the early

laws’ concern with fire suppression reflected that

“public safety was a paramount value to our ancestors” that sometimes trumped a right to discharge

a firearm in a particular place). So while there are a

variety of other sources and authorities, the ones I

have discussed suggest that there was not a clear

historical consensus that persons could carry guns

in public for self-defense. See also Kachalsky, 2012

WL 5907502, at *6 (stating that unlike the ban
Nos. 12-1269, 12-1788 29

on handguns in the home at issue in Heller, “[h]istory

and tradition do not speak with one voice” regarding

scope of right to bear arms in public and that

“[w]hat history demonstrates is that states often

disagreed as to the scope of the right to bear arms

[in public]”).

I will pause here to state that I am not convinced

that the implication of the Heller and McDonald decisions

is that the Second Amendment right to have ready-to-use

firearms for potential self-defense extends beyond

the home. That the Second Amendment speaks

of the “right of the people to keep and bear arms”

(emphasis added) does not to me imply a right to carry

a loaded gun outside the home. Heller itself

demonstrates this. The Court interpreted “bear” to mean

to “carry” or to “wear, bear, or carry,” upon one’s person,

for the purpose of being armed and ready in

case of conflict. Heller, 554 U.S. at 584. And we know

that Heller contemplated that a gun might only be carried

in the home because it ordered the District of Columbia

to permit Heller to do precisely that: it directed

that unless Heller was otherwise disqualified, the District

must allow him “to register his handgun and

must issue him a license to carry it in the home.” Id. at 635

(emphasis added). Mr. Heller did not want simply

“to keep” a gun in his closet. He wanted to be able

“to bear” it in case of self-defense, and the Supreme

Court said he could.

We have warned against “treat[ing] Heller as containing

broader holdings than the Court set out to establish:
30 Nos. 12-1269, 12-1788

that the Second Amendment creates individual rights,

one of which is keeping operable handguns at home

for self-defense. . . . Judicial opinions must not be

confused with statutes, and general expressions must

be read in light of the subject under consideration.”

See United States v. Skoien, 614 F.3d 638, 640 (7th

Cir. 2010) (en banc). The Supreme Court made clear in

Heller and McDonald that its holdings only applied

to handguns in the home for self-defense. See, e.g.,

id.; Heller, 554 U.S. at 635 (“And whatever else it leaves

to future evaluation, it surely elevates above all

other interests the right of law-abiding, responsible

citizens to use arms in defense of hearth and home.”).

The Court’s language must be read in that light.

The plaintiffs point, for example, to Heller’s statement

t ha t th e ope rative c lause o f th e S e c on d

Amendment guarantees “the individual right to

possess and carry weapons in case of confrontation.”

554 U.S. at 592. But Heller makes this statement in

the portion of its opinion supporting the conclusion

that the Second Amendment included a personal right,

as compared to one solely related to the militia. See id.

at 592-95. The plaintiffs also point out that Heller

stated that the need for self-defense is “most acute”

in the home, which they argue implies that there is

a Second Amendment right to possess ready-to-use

firearms in places outside the home. See id. at 628. But

the Court made this comment in the context of its conclusion that the District of Columbia handgun ban applied

in the home; the fact that the need was acute in the

home emphasized that the fatal flaw in the handgun

ban was that it applied in the home. See id. at 628-30.
Nos. 12-1269, 12-1788 31

By all this I do not mean to suggest that historical

evidence definitively demonstrates there was not a right

to carry arms in public for self-defense at the time

of the founding. The plaintiffs point to other authorities

that they maintain reveal the opposite. At best,

the history might be ambiguous as to whether there is

a right to carry loaded firearms for potential self-defense

outside the home. But if that is the case, then it

does not seem there was “a venerable, widely understood”

right to do so. That may well mean that the right

the plaintiffs seek here is outside the scope of the Second

Amendment. Perhaps under Heller’s rationale

that the Second Amendment codified a preexisting

right, with history not seeming to clearly support a generally recognized right, the analysis ends right here.

II.

We said in Ezell that “if the historical evidence is inconclusive or suggests that the regulated activity is not categorically unprotected—then there must be a second

inquiry into the strength of the government’s

justification for restricting or regulating the exercise

of Second Amendment rights.” 651 F.3d at 703. In

doing so, we stated that “the rigor of this judicial

review will depend on how close the law comes to the

core of the Second Amendment right and the severity

of the law’s burden on the right.” Id. Any right to

carry firearms in public for potential self-defense, if

there is one, is not at the “core” of the Second Amendment. See Kachalsky, 2012 WL 5907502, at *9; United States

v. Marzzarella, 614 F.3d 85, 92 (3d Cir. 2010).
32 Nos. 12-1269, 12-1788

The Supreme Court made clear in Heller that “nothing

in [its] opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by

felons and the mentally ill, or laws forbidding the carrying

of firearms in sensitive places such as schools and government buildings . . . .” 554 U.S. at 626. McDonald

made sure to “repeat those assurances.” McDonald, 130 S.

Ct. at 3047. That a legislature can forbid the carrying

of firearms in schools and government buildings

means that any right to possess a gun for self-defense

outside the home is not absolute, and it is not absolute

by the Supreme Court’s own terms. 

Indeed, the Supreme Court would deem it presumptively

permissible to outright forbid the carrying of firearms

in certain public places, but that does not mean that a selfdefense need never arises in those places. The

teacher being stalked by her ex-husband is susceptible

at work, and in her school parking lot, and on the

school playground, to someone intent on harming her.

So why would the Supreme Court reassure us that

a legislature can ban guns in certain places? It must be

out of a common-sense recognition of the risks that

arise when guns are around. 

Any right to carry loaded firearms outside the home for

self-defense is, under Heller’s own terms, susceptible to a

legislative determination that firearms should not

be allowed in certain public places. The Supreme

Court tells us that a state can forbid guns in schools.

That probably means it can forbid guns not just inside

the school building, but also in the playground and
Nos. 12-1269, 12-1788 33

parking lot and grassy area on its property too. And if

a state can ban guns on school property, perhaps it can

ban them within a certain distance of a school too. Cf.

18 U.S.C. § 922(q)(2)(A). The Supreme Court also

tells us that a state can ban guns in government buildings.

The list of such buildings would seem to include

post offices, courthouses, libraries, Department of Motor

Vehicle facilities, city halls, and more. And the legislature

can ban firearms in other “sensitive places” too.

So maybe in a place of worship. See GeorgiaCarry.Org

v. Georgia, 687 F.3d 1244 (11th Cir. 2012) (upholding

ban on firearms in places of worship). Maybe too on

the grounds of a public university. See DiGiacinto

v. Rector & Visitors of George Mason Univ., 704 S.E.2d

365 (Va. 2011) (upholding regulation prohibiting possession of guns in university facilities and at campus events).

Or in an airport, or near a polling place, or in a bar. And

if the latter is true then perhaps a legislature could

ban loaded firearms any place where alcohol is sold,

so in restaurants and convenience stores as well.

The resulting patchwork of places where loaded guns

could and could not be carried is not only odd but

also could not guarantee meaningful self-defense, which

suggests that the constitutional right to carry ready-to-use

firearms in public for self-defense may well not exist. 

It is difficult to make sense of what Heller means

for carrying guns in public for another notable reason.

Immediately before the sentence giving a presumption of

lawfulness to bans on guns for felons and the like, Heller

states: “Like most rights, the right secured by the Second

Amendment is not unlimited. From Blackstone through
34 Nos. 12-1269, 12-1788

the 19th-century cases, commentators and courts routinely

explained that the right was not a right to keep and carry

any weapon whatsoever in any manner whatsoever and for

whatever purpose. For example, the majority of the 19thcentury courts to consider the question held that prohibitions on

carrying concealed weapons were lawful under the Second

Amendment or state analogues.” 554 U.S. at 626 (emphasis

added and internal citations omitted). The implication of

the Supreme Court’s statement would seem to be that

concealed carry is not within the scope of the Second

Amendment (or at the least that that is the presumption).

See, e.g., Nelson Lund, The Second Amendment, Heller, and

Originalist Jurisprudence, 56 UCLA L. Rev. 1343, 1359

(2009) (“This appears to be an endorsement of yet

another exception to the constitutional right.”);

Hightower v. City of Boston, 693 F.3d 61, 73 (1st Cir.

2012) (interpreting this language to mean that laws prohibiting the carrying of concealed weapons are

an example of presumptively lawful restrictions);

Eugene Volokh, Implementing the Right to Keep and

Bear Arms for Self-Defense: An Analytical Framework and

a Research Agenda, 56 UCLA L. Rev. 1443, 1523-24 (2009).

That would not be the first time the Supreme Court

had made such a statement. See Robertson v. Baldwin,

165 U.S. 275, 281-82 (1897) (stating in dicta that

Second Amendment right “is not infringed by laws prohibiting the carrying of concealed weapons”).

If carrying concealed weapons is outside the scope

of the Second Amendment, the consequence would

be significant. “‘In the nineteenth century, concealed

carry was often considered outside the scope of the
Nos. 12-1269, 12-1788 35

right to bear arms. Today, it is the most common way

in which people exercise their right to bear

arms.’ ” Joseph Blocher, The Right Not to Keep or Bear

Arms, 64 Stan. L. Rev. 1, 45 (2012) (quoting David B. Kopel,

The Right to Arms in the Living Constitution, 2010 Cardozo

L. Rev. 99, 136 (2010)). And, as the Moore plaintiffs acknowledge in their brief, “today, openly carrying handguns may alarm individuals unaccustomed to firearms.” The implication, as explained by Nelson

Lund (author of the Second Amendment Foundation’s

amicus curiae brief in Heller in support of Mr. Heller):

“In some American jurisdictions today, for example,

openly carrying a firearm might plausibly be thought

to violate the ancient common law prohibition

against ‘terrifying the good people of the land’ by

going about with dangerous and unusual weapons.

If courts were to conclude that open carry violates

this common law prohibition (and thus is not within

the preexisting right protected by the Second Amendment),

after Heller has decreed that bans on concealed carry

are per se valid, the constitutional right to bear

arms would effectively cease to exist.” Lund, supra, at 1361-

62. (To be clear, if there is a Second Amendment right

to carry arms outside the home for potential selfdefense in Illinois as my colleagues have found, I

am not suggesting that Illinois should not implement

concealed carry laws.)

If there is any right to carry ready-to-use firearms

among the public for potential self-defense,

the plaintiffs contend the Illinois statutes must be unconstitutional because their ban is far-reaching. But I

see the question as somewhat more nuanced.
36 Nos. 12-1269, 12-1788

Protecting the safety of its citizens is unquestionably a

s ign ifi c an t st ate inter est. U nited Sta tes v.

Salerno, 481 U.S. 739, 748 (1987); Kelley v. Johnson, 425

U.S. 238, 247 (1976). Illinois chose to enact the statutes

here out of concern for the safety of its citizens. See

People v. Marin, 795 N.E.2d 953, 959-62 (Ill. App. Ct. 2003).

Given the State’s obvious interest in regulating the safety

of its citizens, the question is who determines the contours

of any right to carry ready-to-use firearms for self-defense

in public when they are unsettled as a matter

of bot h original h istory an d poli c y. The

Heller majority concluded that “enshrinement of constitutional rights necessarily takes certain policy choices off

the table . . . includ[ing] the absolute prohibition of handguns held and used for self-defense in the home.”

554 U.S. at 636. But “as we move outside the home, firearm

rights have always been more limited, because public

safety interests often outweigh individual interests in selfdefense.” United States v. Masciandro, 638 F.3d 458, 470

(4th Cir. 2011). 

The Supreme Court has told us that we

m u s t “ ac cord subs tantial de fe r e nc e to th e

predictive judgments of [the legislature].” Turner

Broad. Sys., Inc. v. F.C.C., 520 U.S. 180, 195 (1997). “In

the context of firearm regulation, the legislature is

‘far better equipped than the judiciary’ to make

sensitive policy judgments (within constitutional limits) concerning the dangers in carrying firearms

and the manner to combat those risks.” Kachalsky,

2012 WL 5907502, at *12. The legislature knows the statis-
Nos. 12-1269, 12-1788 37

State courts that have addressed a state constitutional right to 1

bear arms have used a “reasonable regulation” standard, a test

that is more deferential than intermediate scrutiny but

that, unlike the interest-balancing test proposed in Justice

Breyer’s Heller dissent, does not permit states to prohibit all

firearm ownership. See, e.g., State v. Hamdan, 665 N.W.2d 785,

798-801 (Wis. 2003); Adam Winkler, Scrutinizing the Second

Amendment, 105 Mich. L. Rev. 683, 686-87 (2007) (discussing

“hundreds” of state court opinions using this test). 

tics and is in a far better position than we are to

weigh their import. Illinois reasonably wants to try

to reduce the incidence of death and injury

by firearms, both those which come from affirmative acts

of violence and also the many deaths and injuries that

occur accidentally, and doing so by taking them off the

streets is a legislative judgment substantially related to

its important governmental objective of reducing injury

and death by firearms.1

It is common sense, as the majority recognizes, that a

gun is dangerous to more people when carried outside

the home. See Maj. Op. at 8. When firearms are

carried outside of the home, the safety of a broader

range of citizens is at issue. The risk of being injured

o r kill ed now exten d s t o str anger s , l a w

enforcement personnel, and other private citizens

who happen to be in the area. Cf. David

Hemenway & Deborah Azrael, The Relative Frequency of

Offensive and Defensive Gun Uses: Results from a National

Survey, 15 Violence & Victims 257, 271 (2000) (finding

that guns are used “far more often to kill and wound
38 Nos. 12-1269, 12-1788

innocent victims than to kill and wound criminals”).

Indeed, the Illinois legislature was not just concerned

with “crime rates” and “murder rates” when it passed

the law. Cf. Maj. Op. at 8. It also sought to “prevent

situations where no criminal intent existed, but criminal

conduct resulted despite the lack of intent, e.g., accidents

with loaded guns on public streets or the escalation

of minor public altercations into gun battles or . . . the

danger of a police officer stopping a car with a loaded

weapon on the passenger seat.” See Marin, 795 N.E.2d at

962. The danger of such situations increases if guns may

be carried outside the home. 

That the percentage of reported accidental gun-related

deaths is lower as compared to suicide (which accounts for

the majority of firearms-related deaths) and murder,

see Robert A. Hahn et al., Firearms Laws and the Reduction

of Violence: A Systematic Review, 28 Am. J. Preventive

Med. 40, 40 (2005), does not make the Illinois law invalid.

First, in those statistics, “[u]nintentional firearm-related

deaths appear to be substantially undercounted

(i.e., misclassified as due to another cause),” id. at 47, and

in any event the State has a significant interest in

reducing the risk of accidental firearms-related deaths

as well as accidental injuries. The majority says the

law cannot be justified on the ground that it reduces

the accidental death rate unless it could be shown

that allowing guns to be carried in public causes

gun ownership to increase. See Maj. Op. at 13. But

whether gun ownership increases is not the question. See

id. at 10-11. It is not the number of guns owned that

matters but where the guns are carried. Illinois already
Nos. 12-1269, 12-1788 39

allows people to own and have guns in their homes;

however, they cannot carry them in public. The Illinois

legislature reasonably concluded that if people are allowed

to carry guns in public, the number of guns carried in

public will increase, and the risk of firearms-related injury

or death in public will increase as well. Cf. Marin, 795

N.E.2d at 959-62. 

And it is also common sense that the danger is a great

one; firearms are lethal. Cf. Skoien, 614 F.3d at 642

(“guns are about five times more deadly than knives,

given that an attack with some kind of weapon has occurred”) (citing Franklin E. Zimring, Firearms, Violence,

and the Potential Impact of Firearms Control, 32 J. L. Med.

& Ethics 34 (2004)). For that reason too the focus simply

on crime rates misses the mark. As Philip J. Cook, a

Duke University professor cited twice by the majority,

put it: “My research over 35 years demonstrates that

the effect of gun availability is not to increase the

crime rate but to intensify the crime that exists and convert

assaults into murders.” Ethan Bronner, Other States,

and Other Times, Would Have Posed Obstacles for

Gunman, N.Y. Times, July 25, 2012, at A12.

The majority’s response to the fact that guns are a

potential lethal danger to more people when carried in

public seems to be to say that knowing potential

victims could be armed may have a deterrent effect

or make criminals timid. See Maj. Op. at 8, 13. Yet even

an article relied upon by the majority cautions that

the effect on criminals may well be more gun use: “Twothirds of prisoners incarcerated for gun offenses reported
40 Nos. 12-1269, 12-1788

that the chance of running into an armed victim was

very or somewhat important in their own choice to use a

gun. Currently, criminals use guns in only about 25

percent of noncommercial robberies and 5 percent of

assaults. If increased gun carrying among potential

victims causes criminals to carry guns more often themselves, or become quicker to use guns to avert armed selfdefense, the end result could be that street crime

becomes more lethal.” Philip J. Cook, Jens Ludwig &

Adam M. Samaha, Gun Control After Heller: Threats

and Sideshows from a Social Welfare Perspective, 56 UCLA

L. Rev. 1041, 1081 (2009). 

On the other side of the lethal danger to the

State’s citizens is the asserted interest in carrying guns

for self-defense, yet even the majority does not

contend that carrying guns in public has been shown to

be an effective form of self-defense. For example, as

the majority acknowledges, University of Pennsylvania

researchers found that assault victims are more likely to

be armed than the rest of the population. See Maj. Op. at

12-13 (citing Charles C. Branas et al., Investigating the

Link Between Gun Possession and Gun Assault, 99 Am. J.

of Pub. Health 2034, 2037 (2009)). The researchers examined shootings in Philadelphia and concluded that

“gun possession by urban adults was associated with a

significantly increased risk of being shot in an assault,”

id., which suggests, if anything, that carrying a gun is

not effective self-defense. The researchers posited

that possible reasons for their findings included that a

gun may falsely empower its possessor to overreact, that

persons with guns may increase the risk of harm by
Nos. 12-1269, 12-1788 41

The majority cites Moody and Marvell’s 2008 paper 2

suggesting that Ayres and Donohue should have extended

their 2003 analysis by one more year. But extending their

data is just what Ayres and Donohue did in their May

2009 piece, More Guns, Less Crime Fails Again: The Latest

Evidence from 1977-2006. And after extending their state panel

data by six additional years, they again concluded that “the

best evidence to date suggests that [right-to-carry] laws

at the very least increase aggravated assault.” Id. at 231.

They also thoroughly responded to Moody and Marvell’s

criticism that their initial 2003 analysis evaluated the trend for

five year s rather than six, explaining in part:

“We would have thought, though, that one would want to

be very cautious in evaluating trends beyond five years

when 14 of the 24 states have no post-passage data

beyond three years.” Id. at 218-19. They also criticized Moody

and Marvell’s conclusions and demonstrated that the two

had incorrectly graphed the estimates from Donohue’s table and

(continued...)

entering dangerous environments that they normally

would have avoided, and that persons bringing guns to an

otherwise gun-free conflict may have those guns wrested

away and turned on them. Id. at 2037-38. 

Other studies have found that in states with broad

concealed-carry laws there is an increased chance that one

will be a victim of violent crime. Yale Law School Professors Ian Ayres and John J. Donohue III concluded that “the

evidence is most supportive of the claim that [right-tocarry] laws increase aggravated assault.” More Guns, Less

Crime Fails Again: The Latest Evidence from 1977-2006, 6

Econ. J. Watch 218, 220 (May 2009). (Donohue is now at 2
42 Nos. 12-1269, 12-1788

(...continued)

misinterpreted the estimates. Id. at 219. 

Stanford.) Similarly, another study showed that “an

increase in gun prevalence causes an intensification

of criminal violence–a shift toward a greater lethality,

and hence greater harm to a community.” Philip J. Cook

& Jens Ludwig, The Social Costs of Gun Ownership, 90 J.

Pub. Econ. 379, 387 (2006). Other researchers have concluded that guns are “used far more often to intimidate

and threaten than they are used to thwart crimes.”

Hemenway & Azrael, supra, at 271.

The ban on firearms in public is also an important

mechanism for law enforcement to protect the public.

With guns banned in public an officer with

reasonable suspicion to stop and frisk a person can,

upon finding a gun, take the gun off the street before

a shooting occurs. The majority says that a state may

be able to require “open carry,” where persons who

carry guns in public must carry them in plain view.

Maj. Op. at 10. Living with the open carrying of loaded

guns on the streets of Chicago and elsewhere

would certainly be a big change to the daily lives of Illinois

citizens. Even the plaintiffs do not seem to want Illinois

to take that drastic a step, recognizing that “openly carrying handguns may alarm individuals unaccustomed

to firearms” and that Heller “does not force states to

allow the carrying of handguns in a manner that may

cause needless public alarm.” Moore Br. at 35. 

The majority also suggests that with open

carry the police could still arrest persons who carry
Nos. 12-1269, 12-1788 43

Chicago Police Dep’t Annual Report 2010, at 34, available at 3

https://portal.chicagopolice.org/portal/page/portal/ClearPath

/News/Statistical%20Reports/Annual%20Reports/10AR.pdf. 

concealed guns. This is true but seems contradictory

to its statement two sentences earlier that in its

view, under the current law police will often lack reasonable suspicion to stop a person with a concealed gun

since it is concealed. See Maj. Op. at 10. To the latter,

guns are not allowed now, so theoretically persons

are attempting to conceal them. Nonetheless, Chicago’s

Police Department made over 4,000 arrests on

weapons violations in 2009, though some of these

arrests could have been made in conjunction with

other crimes as well. More importantly, “concealed” 3

does not mean “invisible.” An officer who

reasonably suspects he sees a gun in a car when he

pulls someone over, or notices what he reasonably

suspects to be a gun bulging out of someone’s

clothes, can under the law as it currently stands arrest that

person and take the gun off the street.

Allowing open (or concealed) carry does not address

the fundamental point about law enforcement’s ability

to protect the public: if guns are not generally legal

to have in public, officers can remove them from

the streets before a shooting occurs whenever they

come across a gun. Under a law like the Illinois law,

an officer with some reasonable belief that a person

is carrying a firearm can stop that person and remove

the gun from the street because the officer has a
44 Nos. 12-1269, 12-1788

reasonable belief that a crime is taking place. The ability

to use stops and arrests upon reasonably suspecting a

gun as a law enforcement tactic to ultimately protect

more citizens does not work if guns can be freely carried.

To the extent the majority opinion’s studies draw

different conclusions, the Supreme Court has made

clear that “the possibility of drawing two inconsistent

conclusions from the evidence” does not prevent

a finding from being supported by substantial evidence.

Turner Broad., 520 U.S. at 211; see also Kachalsky, 2012

WL 5907502, at *13 (recognizing different studies concerning relationship between handgun access and

violent crime, and handgun access and safety and character

of public places, and stating, “It is the legislature’s

job, not ours, to weigh conflicting evidence and

make policy judgments.”). Moreover, it is not necessary

for “the statute’s benefits” to be “first established by

admissible evidence” or by “proof, satisfactory to a court.”

Skoien, 614 F.3d at 641. Nor would the State need to make

a s tr on g e r sh o w in g he r e th an in Skoien .

Skoien concerned the prohibition on firearm possession

by m i sdem eanan t s w ith do m e s tic vio lence

convictions, a ban that also applies to the core Second

Amendment right of gun possession in the home. As

such, the “strong showing” the government acknowledged

it needed to demonstrate there made sense. See id.

I would note too that the 2005 paper “Firearms Laws

and the Reduction of Violence: A Systematic Review,”

quoted by the majority for its statement that based

on its review, evidence was insufficient to determine
Nos. 12-1269, 12-1788 45

whether the degree of firearms regulation is associated

with decreased or increased violence, Maj. Op. at 9,

did not limit that conclusion to the degree of firearms

regulation. The paper found the evidence available

from identified studies “insufficient to determine” the

effectiveness of any of the laws it reviewed, even including

acquisition restrictions (e.g., felony convictions

and personal histories including persons adjudicated

as “mental defective”), and firearms registration

and licensing—propositions that even the plaintiffs seem

to favor. And, the paper cautioned that “[a] finding that

evidence is insufficient to determine effectiveness

means that we do not yet know what effect, if any, the law

has on an outcome—not that the law has no effect on the

outcome.” Hahn et al., supra, at 40.

The Illinois statutes safeguard the core right to

bear arms for self-defense in the home, as well as the carry

of ready-to-use firearms on other private property

when permitted by the owner, along with the corollary

right to transport weapons from place to place. See 720

Ill. Comp. Stat. 5/24-2; 720 Ill. Comp. Stat. 5/24-

1.6(a)(1). Guns in public expose all nearby to risk, and

the risk of accidental discharge or bad aim has

lethal consequences. Allowing public carry of ready-to-use

guns means that risk is borne by all in Illinois, including

the vast majority of its citizens who choose not to

have guns. The State of Illinois has a significant interest

in maintaining the safety of its citizens and police officers.

The legislature acted within its authority when it concluded that its interest in reducing gun-related

deaths and injuries would not be as effectively
46 Nos. 12-1269, 12-1788

served through a licensing system. For one, every criminal

was once a law-abiding citizen, so strategies for

preventing gun violence that bar prior criminals

from having firearms do not do enough. See Philip J. Cook,

et al., Criminal Records of Homicide Offenders, 294 J.

Am. Med. Ass’n 598, 600 (2005) (homicide prevention

strategies targeted toward prior offenders “leave a large

portion of the problem untouched”). Nor could the

State ensure that guns in public are discharged

only, accurately, and reasonably in instances of selfdefense. See People v. Mimes, 953 N.E.2d 55, 77 (Ill. App.

Ct. 2011) (“The extensive training law enforcement officers

undergo concerning the use of firearms attests to

the degree of difficulty and level of skill necessary

to competently assess potential threats in public situations

and moderate the use of force.”). 

The Supreme Court has “long recognized the role

of the States as laboratories for devising solutions

to difficult legal problems,” and courts “should not

diminish that role absent impelling reason to do

so.” Oregon v. Ice, 555 U.S. 160, 171 (2009). Indeed, “[i]t

is one of the happy incidents of the federal system that a

single courageous State may, if its citizens choose,

serve as a laboratory; and try novel social and economic

experiments without risk to the rest of the country.”

New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932)

(Brandeis, J., dissenting). (And to the extent it matters,

Illinois is not the only place that has and enforces strict

gun laws. New York City, for example, has gun laws that

are in effect like those of Illinois; while technically a “may

issue” location where the city may issue permits
Nos. 12-1269, 12-1788 47

for handgun carry outside the home, New York City

rarely does so and so has been characterized as maintaining a virtual ban on handguns. See Lawrence Rosenthal,

Second Amendment Plumbing a fter Heller: Of

Standards of Scrutiny, Incorporation, Well-Regulated Militias,

and Criminal Street Gangs, 41 Urb. Lawyer 1, 39 (2009)).

Reasonable people can differ on how guns should

be regulated. Illinois has chosen to prohibit most forms

of public carry of ready-to-use guns. It reaffirmed that

just last year, when its legislature considered and

rejected a measure to permit persons to carry concealed

weapons in Illinois. See Dave McKinney, Concealed-Carry

Measure: Shot Down in Springfield, Chicago Sun-Times,

2011 WLNR 9215695 (May 6, 2011). In the absence

of clearer indication that the Second Amendment codified

a generally recognized right to carry arms in public for selfdefense, I would leave this judgment in the hands of

the State of Illinois.

12-11-12