This column by ACRU Policy Board member Hans von Spakovsky was published October 31, 2016 by Conservative Review.
When it comes to upholding concealed-carry rights, the Seventh Circuit Court of Appeals has been the only federal appellate court to apply the Second Amendment correctly. Until now. In Culp v. Madigan, a case involving the concealed-carry rights of out-of-state citizens in Illinois, a three-judge panel of the court has now gone the wrong way over the vigorous objections of dissenting Judge Daniel Manion.
Many states restrict residents from obtaining concealed-carry permits unless they can demonstrate a “good reason” for needing them. The Second, Third, Fourth, Ninth, and Tenth Circuit Courts of Appeals have all approved such restrictions — the only example I know of federal courts telling citizens they cannot exercise a guaranteed constitutional right, like the ability to speak under the First Amendment, unless they have a valid reason to do so.
But the Seventh Circuit had been a bulwark of freedom. In Moore v. Madigan and, more recently, in Berron v. Illinois Concealed Carry Licensing Review Board, the court held that “the constitutional right to ‘keep and bear’ arms means that states must permit law-abiding and mentally healthy persons to carry loaded weapons in public.”
Illinois rewrote its restrictive concealed-carry law after the Seventh Circuit ruled against it. For state residents, the qualifications for obtaining a permit include showing that they: are not a clear and present danger to themselves or a threat to public safety; have not been a patient in a mental hospital in the last five years; have not been convicted of a misdemeanor involving physical force or violence, and have not been in a drug or alcohol treatment program or convicted of two or more DUI or drug convictions.
The issue in Culp was the requirement imposed on out-of-state applicants for a concealed-carry permit. The plaintiffs were individuals with concealed-carry permits from their home states who travel to Illinois for business or family reasons. Illinois prohibits them from even applying for a concealed-carry permit unless their home state has a concealed-carry law “substantially similar” to that of Illinois. The only exception is that out-of-state residents with a concealed-carry permit can carry a gun in Illinois while hunting or at a firing range and can transport it in a car as long as it isn’t removed from the vehicle.
Illinois recognizes only four states as having a “substantially similar” concealed-carry law: Hawaii, New Mexico, South Carolina and Virginia. The state argued that its requirement should be upheld because it supposedly does not have access to the criminal and mental histories of out-of-state applicants either before they apply or after they obtain a permit — if permits were issued to nonresidents. In any event, Illinois claimed it doesn’t have the funding to research that information in other states. (Another first: I’ve never seen the argument that citizens should be denied constitutional rights because of state budgetary considerations).
Unfortunately, in an opinion written by Judge Richard Posner and joined by Judge William Bauer, the Seventh Circuit panel accepted these arguments, saying they were not “unreasonable,” despite conflicting facts like the existence of the federal database of criminal histories maintained by the FBI. This database allows state law enforcement officials to check criminal convictions in other states.
In a sharply worded dissent, Judge Daniel Manion noted that Illinois is “significantly” restricting the rights of nonresidents since its “substantially similar” requirement bars the residents of 45 states from applying for a concealed-carry permit. These nonresidents, Manion wrote, “have no opportunity to prove that they meet Illinois requirements. Based solely on their states of residence, they are deprived of any opportunity to exercise their Second Amendment rights in Illinois.” Thus, he reasoned rightly, the law “functions as a categorical prohibition” on the “majority of Americans.”
Manion pointed out that Posner and Bauer used the wrong level of scrutiny in reviewing the Illinois law. When a state law infringes on a fundamental constitutional right like the Second Amendment, the law “must satisfy heightened scrutiny.” Finding that a law is “reasonable,” as the majority concluded, constitutes only rational basis review and is, Manion noted, “directly contrary to Supreme Court and Seventh Circuit precedent.” Instead, under heightened scrutiny, the state must present “an extremely strong public-interest justification and a close fit between the government’s means and its end.” The state of “Illinois has not done so here,” he wrote.
Manion found the law both overinclusive and underinclusive. Its irrationality and overinclusiveness is shown by the fact that it prohibits many who would easily qualify to meet Illinois’ concealed carry requirement from even applying for a permit. As Manion pointed out, the plaintiffs in “this case are exemplary.” All of them are “responsible gun owners with significant firearm training, no criminal or mental histories, and valid concealed-carry licenses from other states.” Three of them, even though they are not residents of Illinois, are “Illinois-certified concealed-carry instructors who hold carry licenses in multiple states.” As Judge Manion concluded, “a law that prevents an Illinois-licensed concealed-carry instructor from even applying for a license to carry in that state sweeps up far too many people to be appropriately tailored under any exacting standard of scrutiny.”
The law is significantly underinclusive because the concealed-carry license of an Illinois resident is not revoked or reassessed if he returns from a trip to another state where he may have committed a crime or had a mental breakdown that the state doesn’t know about. Yet, Illinois justified its ban on nonresidents because it claimed it would not know if a nonresident committed a crime or had a mental breakdown in another state. Second, a potential applicant immediately becomes eligible for a permit if he moves to one of the four other states that Illinois recognizes, even if he has lived for years in one of the non-qualifying states where he has a criminal history or a history of mental problems. As Judge Manion said, this “severely undercuts Illinois’ justification.”
Finally, Illinois’ budgetary claim also does not justify its restrictive law. The state made no showing that “it would be impossible, or even impractical, for these out-of-state applicants to provide verified records that satisfy Illinois’ requirements.
There is no rational public safety reason for states to refuse to recognize the concealed-carry licenses issued by other states other than their hostility to the Second Amendment.
“In sum,” according to Judge Manion, “the absolute denial of nonresidents’ right to apply for an Illinois concealed-carry license lacks the required close fit to the state’s asserted interest in properly vetting applicants. It is woefully overinclusive and underinclusive relative to that aim.” Therefore, it “violates the plaintiffs’ Second Amendment rights.”
This decision shows the need for Congress to pass legislation that imposes reciprocity on the states when it comes to concealed-carry permits. A number of such bills have been introduced, all of which are similar and relatively simple: they require states to recognize the concealed-carry permits issued by any other state in the union, as long as the individual permit recipient is not prohibited from possessing a firearm under federal law.
That is as it should be, since the Constitution itself in Article IV requires states to give “Full Faith and Credit” to the “public Acts, Records, and judicial proceedings of every other State.” There is no rational public safety reason for states to refuse to recognize the concealed-carry licenses issued by other states other than their hostility to the Second Amendment.