1 year, 7 months ago
Eugene Volokh has a post up entitled Illinois Supreme Court: Second Amendment Protects Carrying Outside The Home, where he discusses the recent subject ruling.
From today’s unanimous decision in People v. Aguilar (Ill. Sept. 12, 2013):
As the Seventh Circuit correctly noted, neither Heller nor McDonald expressly limits the second amendment’s protections to the home. On the contrary, both decisions contain language strongly suggesting if not outright confirming that the second amendment right to keep and bear arms extends beyond the home. Moreover, if Heller means what it says, and “individual self-defense” is indeed “the central component” of the second amendment right to keep and bear arms, then it would make little sense to restrict that right to the home, as “[c]onfrontations are not limited to the home.” Indeed, Heller itself recognizes as much when it states that “the right to have arms *** was by the time of the founding understood to be an individual right protecting against both public and private violence.”
I think the result is correct, because Heller‘s reasoning does indeed apply to carrying for self-defense in most public places, and not just in the home. Indeed, Heller and McDonald v. City of Chicago had no occasion to squarely confront this question, because they dealt with total handgun bans, including on home possession. Heller does speak of “the right of law-abiding, responsible citizens to use arms in defense of hearth and home,” and stresses that the D.C. handgun ban extends “to the home, where the need for defense of self, family, and property is most acute.” Heller, 554 U.S. at 635, 629. And Heller also holds that bans on concealed carry in public are constitutional, because of the long tradition (dating back to the early 1800s) of such prohibitions.
Eugene goes on to discuss what he sees as a technical error in the ruling, albeit not determinative, i.e., he still believes it’s the correct result.
I have exchanged e-mail with him on Georgia case concerning guns in churches / schools. Eugene is a very smart guy. But on this issue I disagree. No, not that the Illinois Supreme Court ruled rightly, but how they got to it.
Read again. And read Eugene’s analysis again. They both presuppose that to answer the question of whether carrying outside the home should be legal, they must turn to a decision by the U.S. Supreme Court.
We’ve discussed this before. The Bill of Rights doesn’t grant us rights. It circumscribes the power of the federal government so that they cannot infringe in those specific areas. If you want to learn whether carry is protected in Illinois, turn to the Illinois state constitution, article 1 section 22.
It is a late addition to the constitution, but better late than never. Folks, the notion that the founding fathers would have turned to a federal document to understand or delineate their rights is preposterous. We have given the centralized government too much authority, too much legitimacy, and too much power.
We needn’t turn to the federal government, even when we get the answer we like. We have rights because those rights were granted by God and recognized by our local and state covenants, not because the U.S. constitution says so. And it should be embarrassing that the Illinois Supreme Court had to turn to Heller to make their decision. Embarrassing. Do they have a mind of their own, and aren’t they supposed to be deciding cases concerning Illinois?