Procrastinating this rainy morning, and this issue fascinates me, so after reading the opinion a couple times, here's a few thoughts on what I think its real effect may be -- intended only to lay out an educated guess on where this issue may be headed next (for Illinois and other states with CCW restriction issues). Nothing political intended and I won't argue about preferred results. I just think that there's more to this case than first meets the eye re: the line of Second Amendment cases following
Heller. This one is going to be worth watching to see the eventual result, and the effect it has on other pending Second Amendment litigation. (There are a couple such California cases I'm following.)
Justice Posner, who wrote this opinion, has previously published his philosophical disagreements with the U.S. Supreme Court's
Heller decision, so his having taken this position has puzzled some commentators a bit. OTOH, he's apparently a good judge -- bound by the controlling Supreme Court precedent, he decided the issue according to his reading of that precedent, regardless of his personal differences on how that precedential case should have been decided by the Supreme Court.
Let me digress a minute for a critical bit of jurisprudential procedure. Normally, an appellate court writing an opinion that will serve as precedent strives NOT to decide any more than it need decide to resolve the case before it on the facts of that case alone. The primary reason for this restraint is the very real fear of doing more harm than good, via unintended consequences, in the cases that will follow the precedent they are laying down (very typically with some unforeseen twist that might not have been apparent from the facts of the case they are deciding). That is especially so in the case of deciding constitutional questions, as opposed to lesser legal issues. That's why the
Heller case didn't tell us what restrictions on Second Amendment rights would be constitutionally permissible.
As another aside, it's interesting that the Court here (
Moore and
Shepard) decided that the Illinois blanket prohibition was facially unconstitutional (i.e., in all cases) rather than only as applied (i.e., on the specific facts applicable to the plaintiffs in this case). That's at least party due to the fact that the appeals of these 2 joined cases were from dismissals, but it is a little unusual -- again, due to the concern about unintended consequences in saying that in every case, the blanket prohibition would be an unconstitutional abridgment of a constitutional right. Yet the opinion does exactly that and then gets into whether countervailing interests (the reasonableness or unreasonableness of legislated restrictions designed to safeguard the public's interest in health, safety and welfare) are sufficient to warrant legislated restriction of the constitutional right to armed self defense outside the home under the Second Amendment. Except that Illinois has NO restrictions to evaluate, because their tactic was a blanket prohibition (the only state to do so). THAT is what Posner finds unconstitutional -- the blanket approach in lieu of reasonably restricted access.
In his opinion, Justice Posner specifically mentions that courts that have addressed the
Heller precedent have declined to get into how broadly it is to be applied -- e.g., what are reasonable restrictions on its exercise? He understands the reasons for that reticence, then says that however uncomfortable it may be, the
Heller and
McDonald opinions have invited that inquiry as necessary for the guidance of society. He all but expressly invites the U.S. Supreme Court to take this case to decide that issue. And this after going on for pages about Illinois' non-existent scheme of restriction (blanket prohibition) and his ultimate direction (and 180 day stay) that the legislature enact a law with "reasonable restrictions". Hmmmm.
IMHO, he's moved this beyond the issue of whether there is a constitutionally protected right to armed self defense outside the home (yes, there is, he says), and straight to the issue of what are "reasonable restrictions" on that right. And for constitutional lawyers, the other issue he thus raises (very likely the determining factor) is "what standard of review will be applied in assessing the constitutionality of such restrictions?" Is it to be the strict or intermediate scrutiny normally applied to the abridgment of constitutionally protected rights, or maybe the lower rational basis standard more often used to test the validity of legislation aimed at protecting the health, safety and welfare of the public (e.g., traffic laws or the prohibition of IED building as a hobby)? Note that he approvingly cites the NY CCW law's requirement of an affirmative showing by the applicant of "good cause" (similar to California, BTW) as an avenue to explore in crafting the reasonable restrictions he gave the Illinois legislature 180 days to come up with. He's basically told them how to build their statute for the purpose of surviving the next challenge (and avoiding the USSC using the appeal of this case to affirm outside the home armed self defense while again dodging the issue of what restrictions are permissible).
While Justice Posner has moved the Second Amendment right to armed self defense forward to recognize the right outside the home, I think he's given a little to both sides and pushed the Supreme Court a step closer to giving constitutional guidance about what kinds of restrictions on CCW are constitutionally permissible and which are not.
Gonna a be interesting to see what what comes out of Springfield after this.
No ****, Karl!!!
