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Will guns land back before the Supreme Court?

Posted By Sharon McCloskey On December 12, 2012 @ 3:02 pm In Uncategorized | Comments Disabled

In a ruling that may push the U.S. Supreme Court to reconsider earlier gun rights decisions, the 7th U.S. Circuit Court of Appeals in Chicago held yesterday that the Second Amendment right “to keep and bear arms” includes a right to carry a fully-loaded and ready-to-use gun in public. [1]

Writing for the 2-1 majority in Moore v. Madigan, Judge Richard Posner acknowledged that the Supreme Court had not yet extended the right to carry beyond the home but said that the Illinois law in question – which strictly limited that right – was inconsistent with the history of the amendment and did not reflect the reality that people were more likely to need a gun for self-defense when in public.

The court gave the Illinois legislature 180 days to come up with a licensing scheme that would impose “reasonable limitations” on publicly carrying a gun consistent with the Second Amendment.

The Seventh Circuit’s decision may conflict with a Second Circuit decision just weeks earlier which recognized a strictly-limited public right to carry. In Kachalsky v. County of Westchester, the court upheld New York’s requirement that anyone seeking a license without restrictions – a full carry permit – must show “a special need for self-protection distinguishable from that of the general community or of persons engaged in the same profession.”

Unlike a license for target shooting or hunting, [a] generalized desire to carry a concealed weapon to protect one’s person and property does not constitute `proper cause,’” the court said there.

The Supreme Court has ventured into this area only twice. In 2008, the Supreme Court recognized an individual right to possess a gun, ruling in District of Columbia v. Heller that a ban on handguns in the home violated the Second Amendment. And in 2010 the court held that Second Amendment protections extended to the states.

It has not since addressed the scope of that right beyond the home and has provided little guidance on when and how the right can be regulated by the government.

And it has repeatedly declined to consider those questions on appeal, denying petitions for certiorari at least six times, including in a 2011 Fourth Circuit case, United States v. Masciandaro, which involved a Virginia man who was convicted and fined $150 for having a loaded gun in his car while parked in near Washington’s National Airport.

Despite Masciandaro’s plea for the recognition of a right to carry beyond the home, the Fourth Circuit panel upheld his conviction, noting that the state of Second Amendment law beyond permitted possession in the home was “terra incognito,” or unfamiliar territory, given lower court reluctance to rule without further Supreme Court guidance.

Guidance may finally come, though, to the extent the Second and Seventh Circuits are now in conflict.

Officials in Illinois have not yet announced whether they will seek that Supreme Court review.


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