Two years ago in New York State Rifle & Pistol Association v. Bruen, the U.S. Supreme Court upheld the constitutional right to carry guns in public for self-defense. But in Illinois, people with concealed-carry permits are committing a misdemeanor if they bring their handguns with them when they use public transportation. Among other locations, that ban covers all Metra commuter trains in the Chicago area, all of the buses and trains operated by the Chicago Transit Authority (CTA), and all facilities, including parking lots, associated with them. Last Friday, a federal judge deemed those restrictions unconstitutional as applied to four permit holders.
Under Bruen, the government has the burden of showing that a law is “consistent with this Nation’s historical tradition of firearm regulation” when it restricts conduct covered by the “plain text” of the Second Amendment. “The Court finds that Defendants have failed to meet their burden,” U.S. District Judge Iain D. Johnston writes in Schoenthal v. Raoul. “That failure is dispositive.”
Maintaining that the challenged provision of the 2013 Illinois Firearm Concealed Carry Act passes the Bruen test, Cook County State’s Attorney Kimberly Foxx cited several historical precedents, none of which Johnston considered adequate. She argued, for example, that the 14th century Statute of Northampton, which forbade “force in affray of the peace” and going or riding “armed” in “fairs” or “markets,” established a tradition of regulating arms in public that was continued in early American gun laws.
In Bruen, Johnston notes, the Supreme Court “found that the Statute of Northampton wasn’t a general ban on bearing weapons; instead, the offense was arming oneself to terrify others.” That motivation, he says, “is also reflected in the corresponding state statutes.” A 1786 Virginia law, for example, made it a crime to “ride armed by night nor by day, in fairs or markets, or in other places, in terror of the county.”
The Illinois plaintiffs, by contrast, “wish to carry concealed arms in self-defense, so the Firearm Concealed Carry Act’s ban burdens Plaintiffs’ Second Amendment right for a wholly different reason than the Statute of Northampton and similar state statutes did,” Johnston writes. “A concealed arm doesn’t terrorize; it’s concealed. Consequently, these historical laws do not serve as an appropriate historical analogue.”
Foxx also cited an 1821 Tennessee law, an 1837 Arkansas law, and an 1871 Texas law, all of which restricted public possession of weapons. The Texas law required that someone who carries a pistol have “reasonable grounds for fearing an unlawful attack on his person.” In Bruen, Johnston notes, the Supreme Court viewed that law and two state court decisions upholding it as “outliers” that “provide little insight into how postbellum courts viewed the right to carry protected arms in public.” Foxx, Johnston says, offers “nothing to the contrary.”
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