Illinois Supreme Court Carry Case Amicus Brief

The law professors who have written the new Second Amendment book have also filed an Amici Curiae with the Supreme Court of Illinois over a carry case that will be heard before the state high court. You can read the amicus here. From the brief:

Over the past two centuries, courts applying the right to bear arms for self-defense under state and federal constitutions have repeatedly affirmed that the right includes the carrying of arms in public. The right can be regulated to an extent, such as required that defensive weapons be carried openly, rather than concealed. However, the right cannot be destroyed by prohibiting public carry.

Our opponents are on incredibly weak legal ground with the argument that the Second Amendment only protects the right to have a gun in the home. Heller pretty clearly recognized the right as being broader than that, and as this amicus points out, state courts have a long history of recognizing that under state right to bear arms analogues. The professors do point out that the character of the state Court decision has allowed substantial leeway for the regulation of the manner in which arms may be borne, but that under virtually all state analogs, a prohibition on the right to bear arms, such as exists in Illinois, has never been held to be constitutional. The professors note:

Post-Heller courts that confine the Second Amendment to the walls of the home have ignored this body of precedent. Astonishingly, the decision below does not cite or examine a single one of the cases discussed above, including the ones explicitly relied upon in Heller. In fact, it does not examine any pre-Heller judicial opinions explicating the right to bear arms — except for the decision in Kalodimus v. Villiage of Mortaon Grive, 470 N.E.2nd 266 (Ill. 1984) (upholding a municipal ban on handguns), which was repudiated by Heller and McDonald.

The same grave omission undermines Dawson, as well as the Maryland decision relied upon by the court below, Williams v. State, 10 A.3d 1167 (Md. 2011). None of these opinions engages with historical evidence or with right to bear arms cases decided prior to 2008. That is an extraordinary way to respond to a pair of landmark decisions as drenched in history and tradition as were Heller and McDonald. This omission is sufficient in itself to raise a presumption that the application of the Second Amendment in these opinions has gone seriously astray.

The Williams case, by the way, has a cert petition before the US Supreme Court. The Maryland Supreme Court, in that case, essentially ruled there was no right to bear arms outside of the home, and that the Heller ruling confined the right to having a handgun in the home. This interpretation is intellectually and historically dishonest. It’ll be interesting to see what the Illinois Supreme Court does in this case.