By Hans von Spakowsky -
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.
Read the rest of Mr. von Spakowksy's op ed in the national Conservative Review