Wednesday, December 12, 2012
After Ruling, Illinois Gun Control Advocates Face A No-Win Choice
Yesterday, as I noted in a post, the 7th Circuit Court of Appeals has ruled that the state of Illinois', total ban on the carrying of firearms for self-defense violates the 2nd Amendment. The court stayed it's ruling for 180 days to give the state an opportunity to pass a new law containing only "reasonable restrictions" upon the issuance of permits to carry. This ruling compels the state of Illinois to face two questions:
1) Appeal the ruling, or accept it. Several years ago, in the Heller case, DC decided to appeal - against the advice of many gun control advocates. As a result we got a decision that, for the first time, established that the 2nd Amendment protects a personal right to own a handgun. Illinois should think long and hard before appealing. The Supreme Court has given every indication that it wants to consider this issue - and that is a very strong indication that a majority is inclined to establish that it protects an equally broad right to carry a gun outside the home.
2) If Illinois chooses not to appeal (or if they appeal and loose), the next question is: What kind of permitting system will they set up? I am sure that since a majority in the legislature refused to pass any carry bill, that they would prefer as restrictive a bill as possible. This would be what is known as a "may issue" law. This allows the government to deny a permit to anyone they decide does not have "good cause". The problem with this is that if there is a right to carry a handgun for personal protection, it certainly cannot be denied just because, in the opinion of government, they don't deserve one.
It is much more likely that the courts will require a "shall issue" law. This simply means that anyone meeting the requirements set forth in the bill - such as training, background checks, and range qualification - must be issued a permit. In this system, the devil is in the details. Training and other qualifications can be made so difficult and expensive so as to effectively restrict the exercise of the right to the rich and powerful. These issues will undoubtedly be closely scrutinized by the court, as it seeks to enforce its' ruling. It will require the standards to be reasonable and not terribly expensive.
This case is going to affect many states other than Illinois. Although Illinois is the only state with a total ban on carrying firearms, eight states (California and most of the Northeast) are "may issue". If this ruling is upheld on appeal, than these states will be forced to change their laws to "shall issue" - effectively allowing anyone, in any state, to obtain a permit - if they meet the requirements.
In addition, this case is likely to establish the maximum requirements that states may enforce for the issuance of permits. This will also have nationwide implications - especially since gun rights advocates are seeking to establish universal recognition of permits in all states. As with drivers licenses, this will tend to raise standards and make them more uniform - which they definitely are not at this time.
So, the most ironic aspect of this story may be the fact that gun rights advocates are hoping Illinois will appeal, while thinking gun control advocates are probably urging the state to accept the ruling and craft the most restrictive law that the court will allow.