In layman’s terms: the U.S. Court of Appeals for the Seventh Circuit sided with Illinois, upholding its ban on concealed carry permit holders carrying a firearm on public transportation.
On Tuesday, September 2, the Seventh Circuit Court of Appeals reversed a lower court’s decision striking down an Illinois ban on concealed carry on public transportation.
The case was brought with support from Second Amendment Foundation (SAF), Firearms Policy Coalition (FPC), and the Illinois State Rifle Association (ISRA).
As we reported last year, a district court found that the Illinois ban – aimed at already-vetted and statistically law-abiding concealed carry holders – was unconstitutional given that there was no analogous law at the time of our founding.
In reversing that decision, the Seventh Circuit panel that includes Circuit Judges Ripple, St. Eve, and Kolar, concluded:
We draw from the lessons of our nation’s historical regulatory traditions and find no Second Amendment violation in such a regulation.
As with many appeals court decisions, they claim to invoke the two-step Bruen test, as they must, but then tease out and misappropriate laws that are often irrelevant to the question at hand: Does our nation have a tradition of banning the carry of firearms on public transportation?
The pernicious application of Bruen by this panel turns on this bit of wordplay, focusing on places rather than specific regulations:
To show that a place-based regulation fits within that tradition, the government may compare it to the regulations on schools, legislative assemblies, polling places, and courthouses blessed in Heller and Bruen. Comparison to regulations at those four sensitive places benefits from an already-completed historical analysis. All we must do is make the analogy.
And so, the court sets about inventing an analogy for how to categorize public transportation as a “sensitive place.”
The court seems to share the same stance as much of the anti-gun public and lawmakers in the wake of a recent, high-profile mass casualty shooting, where they blame the inanimate object, and not the actions of the criminal, when it asserts, “Put another way, firearms are potentially disruptive and deadly everywhere.”
Trying to chip away at the idea that public transportation is somehow a new concept without a direct historical analogue, and to give it more leeway in its reasoning, the panel writes, “… some places did not exist until more recent periods of history.”
And the newly invented analogue is born:
“…the government fits the public transit restriction within the sensitive places doctrine by supplying evidence that a consistent historical thread prohibits firearms in analogously crowded and confined locations.”
In support of this thesis, it then tries to employ the 1328 Statute of Northampton “in the terror of the people” prohibition, which focused on actions, not locations. The court then cites an outlier, 19th-century “New Orleans ordinance prohibit[ing] firearms in public ballrooms” – hardly a founding era analogue.
Yet, the court doesn’t believe this is at all problematic, writing:
Plaintiffs argue that much of the government’s other evidence is not probative because it is after the Founding era. We are unconvinced.
The court also reached for another highly contextual example that is clearly a different and unique set of circumstances:
Congress first criminalized carrying weapons aboard aircraft in 1961, as commercial air travel began to play a greater role in our national life.
The reasoning gymnastics of the court fully ignore that concealed carry holders are already vetted and unlikely to use their firearms except in pure cases of self-defense. Instead, its focus on outcomes directly ignores the possibility of victimhood, which is what these gun-free environments ultimately create:
“Also relevant: a brandished weapon or gunfire could distract, injure, or kill a train or bus driver, endangering the lives of everyone on the vehicle as well as anyone in its path.” The statement is nothing short of interest balancing, which we also find further in the opinion when the court declares that some locations have, “…a pre-existing vulnerability or societal tension that would be exacerbated by the presence of firearms.”
And in one of its greatest stretches for how your rights are NOT being violated, the court cites a Ninth Circuit decision in Wolford (a case consolidated with May v. Bonta), which concluded that “[a] ban on the carry of firearms on public transit almost certainly would be constitutionally permissible if the law allowed the carry of unloaded and secured firearms.”
Finally, the court creates an entirely new standard not found in any previous jurisprudence, based again on interest balancing, and completely undermining the concept of “shall not be infringed”:
…today’s decision is that a regulation does not offend the Second Amendment because it is consistent with our historical tradition when it: 1) temporarily regulates the manner of carrying firearms; 2) in a crowded and confined space; 3) where that space is defined by a natural tendency to congregate people in greater density than the immediately adjacent areas; 4) that space furthers important societal interests; and 5) the presence of firearms in that space creates a heightened risk to maintaining public safety.
The decision is likely to be appealed.
