Does the right to bear arms apply on the mean streets of Chicago?

January 25, 2013

ChicagoEditor’s note: Over the next few weeks we will be featuring posts from our Westlaw Editorial team. This is the team that creates editorial enhancements for caselaw, including headnotes and Key Numbers. Enjoy the series: Westlaw Editorial’s Top Cases of 2012.

The most recent entry in this blog series suggested that judicial decisions in 2012 could lead the Supreme Court to revisit, on new grounds, constitutional challenges to the Affordable Care Act (ACA), popularly known as Obamacare. Another issue that could return to the Supreme Court is the Second Amendment right to bear arms, after a divided three-judge panel of the Seventh Circuit expanded upon the Supreme Court’s recent decisions on the Second Amendment.

In District of Columbia v. Heller, the Supreme Court held that the Second Amendment protects the right to possess and use a gun for self-defense in the home. Technically, that decision applied only in the District of Columbia. The Supreme Court later extended this principle to the states, in McDonald v. City of Chicago.

But does this right to carry and use a gun for self-defense apply outside of the home?

Yes, concluded Judge Richard Posner, writing for the majority in the Seventh Circuit’s panel opinion in Moore v. Madigan.

Headnote 3 for the case presents the Court’s holding, with search terms for the Illinois statutes at issue:

Headnote 3

The West Codenotes, following the headnotes, show that the court found the two statutes unconstitutional — an event that generated red flags in KeyCite For Statutes.

Keycite redflag

While the Key Number for Headnote 3 will lead a researcher to the case, the headnote could not capture Judge Posner’s explanation of why the right to bear arms for self-defense must apply outside the home, both historically and today, on the mean streets of Chicago.

“[O]ne doesn’t have to be a historian,” Judge Posner wrote, “to realize that a right to keep and bear arms for personal self-defense in the eighteenth century could not rationally have been limited to the home. Suppose one lived in what was then the wild west — the Ohio Valley for example (for until the Louisiana Purchase the Mississippi River was the western boundary of the United States), where there were hostile Indians. One would need from time to time to leave one’s home to obtain supplies from the nearest trading post, and en route one would be as much (probably more) at risk if unarmed as one would be in one’s home unarmed.”

“Twenty-first century Illinois has no hostile Indians,” Judge Posner noted. “But a Chicagoan is a good deal more likely to be attacked on a sidewalk in a rough neighborhood than in his apartment on the 35th floor of the Park Tower. A woman who is being stalked or has obtained a protective order against a violent ex-husband is more vulnerable to being attacked while walking to or from her home than when inside. She has a stronger self-defense claim to be allowed to carry a gun in public than the resident of a fancy apartment building (complete with doorman) has a claim to sleep with a loaded gun under her mattress.”