In District of Columbia v. Heller, (1) the Supreme Court decided that "the Second Amendment confer[s] an individual right to keep and bear arms," (2) in particular for the purpose of self-defense inside one's own home. (3) Two years later in McDonald v. City of Chicago, (4) the Court held that its interpretation of the Second Amendment in Heller was "fully applicable to the States" under the Fourteenth Amendment. (5) However, the scope of this right outside the home was left undefined. (6) Even after these holdings, Illinois maintained its restrictive gun control statutes, which criminalized carrying a readily accessible firearm outside one's home, place of business, or another's home where the gun carrier was an invitee. (7) Recently, in Moore v. Madigan, (8) the Seventh Circuit held the Illinois laws unconstitutional in light of Heller and McDonald, extending the individual right to keep and bear a firearm for self-defense beyond the home and into the public sphere. (9) While Supreme Court precedent requires courts to conduct historical inquiries in Second Amendment cases, the Moore opinion failed to consider either the Amendment in its full constitutional context or what the Framers' conception of judicial review counsels for judges engaged in originalist interpretation. A more comprehensive originalist approach reveals that shielding the home from governmental regulation was a foundational value in the Bill of Rights and that the Founders placed a premium on judicial restraint, calling into question the Moore decision.
The modern version of the Illinois gun control law, the Unlawful Use of Weapons (10) (UUW) statute, was enacted in 1961. (11) In 2000, the state legislature added an additional offense -- Aggravated Unlawful Use of a Weapon (12) (AUUW). Together, these laws represented one of the most stringent gun control regimes in the United States: Illinois was the only state to have a flat ban on carrying ready-to-use guns in public without an exception allowing private citizens to obtain concealed-carry permits for self-defense. (13)
In 2011, Michael Moore and others filed a complaint in the United States District Court for the Central District of Illinois, alleging that the UUW and AUUW statutes violated the Second Amendment right to carry firearms in public and seeking to enjoin their enforcement. (14) Judge Myerscough rejected the plaintiffs' claims, holding that the Second Amendment's individual right does not extend beyond the home and that even if it did, Illinois's statutes would survive intermediate scrutiny. (15) First, she found that "[n]either Heller nor McDonald recognizes a Second Amendment right to bear arms outside of the home," (16) an interpretation popular across many other courts. (17) Since "UUW and AUUW statutes do not limit possession of weapons for the purpose of self-defense in the home," the court held that the laws did not infringe on the plaintiffs' Second Amendment rights. (18)
Second, Judge Myerscough found that even if the Second Amendment granted some right to bear arms in public, the statutes would still survive constitutional scrutiny. (19) Employing intermediate scrutiny, (20) she asked "(1) whether the contested law[s] serve[d] an important gov-ernmental objective; and (2) whether the statute[s were] substantially related to that governmental objective." (21) The court found that public safety was a sufficient state concern to satisfy the first prong (22) and that the second element was satisfied as well, deferring to the legislature's judgment that the Illinois laws were a reasonable way to protect the public from gun violence. (23)
The Seventh Circuit reversed and remanded. (24) Writing for a divided panel, Judge Posner (25) first noted his unwillingness to revisit the binding historical analyses in Heller and McDonald, which he interpreted as describing a longstanding right to bear arms for self-defense. (26) Looking to those cases' implications, Judge Posner reasoned that the Supreme Court's language about a right to "carry weapons in case of confrontation" (27) pointed to the right's existence in public since "[c]onfrontations are not limited to the home. …