IL: Ban on Guns in Forest Preserve District is Unconstitutional

From wikimedia commons CC BY-SA 3.0 Part of Forest Preserve District  of Cook County

On September 13, 2021, Judge Robert M. Dow, Jr. rendered an opinion and order. The ban on possession of firearms by concealed carry license holders in the Forest Preserve District of Cook County (FPDCC) is unconstitutional. The judge issued a temporary stay on the order to give the Illinois legislature six months to address the issue if it so desires. From patch.com:

CHICAGO — A state law that bans the concealed carry of firearms in the Cook County Forest Preserve District is unconstitutionally broad, according to a federal judge.

U.S. District Judge Robert Dow issued a ruling Monday that found a section of the Illinois Firearm Concealed Carry Act violates the Second Amendment by forbidding people with concealed carry licenses, or CCLs, from carrying guns anywhere in the 70,000-acre forest preserve.

Judge Dow holds court in the Northern District of Illinois, the Eastern Division, which includes Chicago. This is a federal court. The case, Solomon v. Cook County, deals specifically with the issue of whether the ban on the possession of firearms by people with concealed weapons licenses violates the Second Amendment of the United States Bill of Rights. The Judge rigorously followed precedent set by the 7th Circuit, which has recognized the Second Amendment extends outside the home. From the decision P. 25 :

 In sum, the Seventh Circuit has recognized a right to carry firearms outside the home for self-defense purposes, and the record contains little evidence about the history of that right on publicly owned land, whether developed into a public recreational space or undeveloped and left as a wilderness. The historical and textual evidence does not persuade the Court that licensed concealed carry of firearms for self-defense in public recreational areas was categorically outside of the scope of the Second Amendment as it was understood in 1791. 

The Defendants, including the State of Illinois, claimed the FPDCC was a “sensitive place” using the terminology in the Supreme Court’s Heller decision dicta. The judge did not accept the argument. To do so would give any government the power to declare any place as “sensitive”, thus gutting the Second Amendment. Judge Dow mentions some places inside the FPDCC may be “sensitive places”, but the entire 70,000 acres may not be simply declared a “sensitive place” to remove it from the protections afforded by the Second Amendment, on page 26 of the decision.

Judge Dow continues with his well reasoned opinion, using intermediate scrutiny. He follows the unnecessarily convoluted process put in place by the Seventh Circuit to determine if a particular law or regulation infringes on Second Amendment rights. Then, if it does, is the infringement deemed reasonable under an interest balancing test? Judge Dow is required to follow this procedure by precedent in the Seventh Circuit.

Judge Dow does this rigorously. He does not allow the government generic claim of “public safety” to collapse intermediate scrutiny to rational basis.

A simple explanation of the terms:

Intermediate scrutiny requires the government to show a compelling government interest for the law or regulation. Then it requires the government to show a reasonable fit between the law and the government interest.

Rational basis merely requires there be some interpretation of the law which could be a rational basis for the law. In practice, virtually no laws are struck down under the rational basis standard.

In his analysis, Judge Dow reaches the following conclusions on the pages listed:

P. 41

 The record, however, shows no relationship between CCL holders  and threats to public safety, and no evidence that the regulations reduce crime or prevent injuries or death.

P. 42

Similarly, Defendants here offered no evidence connecting concealed carry by CCL holders to any threat to public safety, much less a threat withing the regulated area, the FPDCC.

P. 44

Furthermore, the government has shown little threat to public safety in the FPDCC, and even less involving concealed firearms, and none by CCL holders. 

Judge Dow does his job. He requires the government Defendants to show how a ban on possession of firearms by concealed carry permit holders increases public safety, and not with mere opinion. He requires facts. The government cannot provide any, because there are none.

The government is relying on the simplistic formulation of people who fear an armed population. Their simplistic formula is: guns are dangerous; more guns, more danger; fewer guns, less danger. This simplistic formula has never been true. In a great many cases, more guns = less danger.

It is the problem of much of the Progressive approach to government. Take what sounds plausible, and make it governmental policy based on the opinion of a government bureaucrat. When applied with a heavy hand, such an approach creates many of the terrible problems, seen since time immemorial, with central planning. Disaster after disaster after disaster has been documented.

The Bill of Rights (along with other mechanisms) was designed to prevent such disasters by limiting what governments have the authority to do. Some policies have been placed, by the Constitution, outside of legitimate tinkering by government officials.

The problem faced by the framers of the Constitution is: some government is necessary. Too little government creates problems as bad as too much government. The Constitution has done a commendable job in finding the golden mean between too much and too little government.

Multiple problems have been solved by centralized power.  Consider our magnificent transportation system, vigorous economy, and superb defenses.  Those solutions are allowed by the Constitution.

Our ruling class has discovered multiple ways to subvert the checks and balances set up in the Constitution. Multiple problems created by centralized power plague the United States.  Consider the bureaucratic minutia required under the “commerce clause”; infringements on Second Amendment rights; federal control of much of education; federal interference and regulation of local land use; federal collusion with the Tech Oligarchs to subvert the First Amendment.

The Second Amendment is a bright spot where Constitutional prohibitions on government power are being recognized and restored, even if incrementally and hesitantly.

©2021 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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