Wednesday, December 12, 2012

Seventh Cicuit applies right to bear arms outside the home

In Moore v. Madigan, No. 12-1269 (7th Cir. Dec. 11, 2012), the Seventh Circuit ruled yesterday that the individual right to bear arms extends beyond the home.  In doing so, the court struck down Illinois' outright ban on the concealed carry of firearms.  This is an issue that has not been directly decided by the U.S. Supreme Court, but which might be next up this developing area of the law.  Here is an article on the case by the Chicago Sun-Times. 

The Kansas Court of Appeals similarly addressed an outright ban on concealed carry of firearms in State v. Knight, 44 Kan. App. 2d 666 (2010).  In that case, I argued that the pre-2007 ban on concealed handguns (before the Kansas Legislature passed its concealed carry law) violated the Second Amendment based on District of Columbia v. Heller, 554 U.S. 570 (2008) (holding that the Second Amendment creates an individual right to possess firearms for self-defense).  I also made a similar argument under the former and current language in Section 4 of the Kansas Constitution Bill of Rights, which was amended in 2010.  The court ultimately ruled that Heller did not confer an individual right to carry a concealed firearm outside the home. 

In  Moore, the Seventh Circuit held just the opposite, stating "The Supreme Court has decided that the amendment confers a right to bear arms for self-defense, which is as important outside the home as inside."  Thus, there is now a split of authority between Kansas and the Seventh Circuit on the important issue of whether the individual right to bear arms extends beyond the home.

On a first glance, it might not seem like this case has much importance in Kansas.  After all, Kansas has a concealed carry law for handguns, and Illinois is the only state that does not.  But K.S.A. 21-6302 still makes it unlawful to carry other concealed weapons outside the home, even when they are for self-defense.  And there is no exception in the statute for any concealed carry license of a knife or other similar weapon.  A ruling by the U.S. Supreme Court that the right to bear arms extends beyond the home would make K.S.A. 21-6302 mostly unconstitutional (because "arms" does not just mean "guns").  In addition, Kansans are regularly stopped by the police because there was a report of a gun or weapon being sighted.  If the right to bear arms is applied outside the home, there will be an even stronger argument that an investigatory detention based on a report of a weapon being sighted is not based on reasonable suspicion that a crime has been committed.

Its also important to remember that the Second Amendment issue does not even take into account the new language of Section 4 of the Kansas Constitution Bill of Rights, which was amended in 2010.  The section now states in part, "A person has the right to keep and bear arms for the defense of self, family, home and state, for lawful hunting and recreational use, and for any other lawful purpose. . . ."  The Kansas Supreme Court denied the final petition for review in Knight, which asked for this new amendment to apply to the prior ban on concealed carry of firearms.  But the Kansas Constitution could ultimately trump any ruling by the U.S. Supreme Court on the matter.  Even if the U.S. Supreme Court says that the right to bear arms for self-defense does not apply beyond the home (an extremely unlikely ruling in my opinion, based on what they have already said), the Kansas Constitution uses different language than the Second Amendment, and there should be some meaning given to this difference.    

No comments: