He homed in on the distinction between inside the home and on the street in his questioning of another recent appeals court ruling that upheld New York's restrictive law on granting people permits to carry concealed weapons. A unanimous panel of the 2nd U.S. Circuit Court of Appeals said the requirement that people demonstrate a special need to carry a concealed weapon does not violate the Constitution.
"Our principal reservation about the Second Circuit's analysis is its suggestion that the Second Amendment should have much greater scope inside the home than outside simply because other provisions of the Constitution have been held to make that distinction," including the right to privacy that underlies the high court ruling striking down sodomy laws. "Well of course, the interest in having sex inside one's home is much greater than the interest in having sex on the sidewalk in front of one's home. But the interest in self-protection is as great outside as inside the home," Posner said.
In dissent, Judge Ann Williams said governments have a strong interest in regulating guns on the street. "It is common sense, as the majority recognizes, that a gun is dangerous to more people when carried outside the home. When firearms are carried outside the home, the safety of a broader range of citizens is at issue. The risk of being injured or killed now extends to strangers, law enforcement personnel, and other private citizens who happen to be in the area," Williams said.
Gura represents the challengers to the New York law and he said he will ask the high court to review the 2nd Circuit ruling. Illinois Attorney General Lisa Madigan has not yet said whether the state will ask the full 7th Circuit court to reconsider its ruling or appeal to the Supreme Court.
So far, the Supreme Court has turned down appeals asking it to say more about guns. But that reluctance might fade if the court were presented with a split between appeals courts, typically a strong factor in attracting the justices' interest.
The Second Amendment talks about "the right to keep and bear arms and it's as if some courts want to take giant eraser to the words 'and bear' and pretend that they're not there," said David Thompson, managing partner of the Cooper and Kirk law firm in Washington. Thompson represented some plaintiffs in the Illinois case.
Northwestern University law professor Eugene Kontrovich said the difference between the New York and Chicago courts over what it means to bear arms could be enough to persuade the Supreme Court to intervene.
Winkler, the UCLA professor, said he thinks the Illinois statute would fall if it were to put to a test at the Supreme Court, probably by the same 5-4 vote as in Heller. But it is hard to predict how the Supreme Court might rule on restrictions that fall short of an outright ban on the right to carry a loaded weapon in public for self-defense, he said.
"Public possession is a different issue than having a gun in your home," Winkler said.
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