Appeals panel: IL can deny concealed-carry permits to citizens of states with less stringent monitoring

By Dan Churney | Apr 16, 2019

By NIOSH (NIOSH) [Public domain], via Wikimedia Commons

In a 2-1 decision, a Chicago federal appeals court has upheld a lower court's ruling that said Illinois is within its rights to bar residents of most other states from seeking concealed gun permits in Illinois, on grounds those states do not make their gun-carrying citizens provide criminal and mental health information to databases Illinois can access and monitor.

The April 12 ruling was penned by Circuit Judge Michael Scudder, with agreement from Circuit Judge David Hamilton, of the U.S. Court of Appeals for the Seventh Circuit. Scudder said Illinois policy balances gun rights with state prerogatives.

Circuit Judge Daniel Manion dissented, however, saying the majority opinion constitutes a "significant curtailment of individual liberty."

The majority ruling opposed arguments advanced by the Illinois chapter of the National Rifle Association, the Illinois Carry organization and the Second Amendment Foundation in a suit filed in 2014 in U.S. District Court for Central Illinois.

Also in the action are 10 non-Illinois residents, who are licensed to carry concealed guns in their home states and who either work in or regularly travel to Illinois. One of these plaintiffs is an Air Force colonel from Pennsylvania stationed at a base near Belleville. The others are from Wisconsin, Indiana, Iowa, Missouri and Colorado.

The suit alleged Illinois breaches the right to bear arms and to due process, as well as the Constitution's privileges and immunities clause that restrains states from discriminating against out-of-state citizens.

Plaintiffs claimed Illinois commits these violations by prohibiting residents of states other than Arkansas, Virginia, Texas and Mississippi, from applying for a concealed-carry license in Illinois. 

Illinois said these states require applicants and licensees to report any potentially disqualifying criminal or mental health information to national databases, the same as Illinois. As a result, Illinois can keep tabs on applicants and licensees from these four states, which it cannot readily do with other states.

District Court Judge Sue Myerscough shot down plaintiffs' case, granting the state's motion for summary judgment. Plaintiffs appealed.

"What makes a case like this difficult is that it pits the Second Amendment against equally important principles of federalism," Judge Scudder wrote.

Scudder said Illinois has an interest in public safety, specifically whether armed citizens of any state are law abiding and mentally stable. To achieve this end, Illinois must have reasonable access to background information on such citizens, but faces a "substantial shortfall," in Scudder's view.

"Forcing the State to issue concealed-carry licenses to nonresidents despite this information shortfall would thrust upon Illinois a race to the bottom. Licenses would have to issue along eligibility standards incapable of being verified or, at the very least, below those established by the State legislature for its own residents." 

This, Scudder said, "would force Illinois to accept an idiom: what the State does not know cannot hurt it."

Scudder added: "And all the plaintiffs say in response is that it is enough on the monitoring front for Illinois to ask license holders to self-report any disqualifying criminal history or mental health developments."

Scudder pointed out Illinois' standards are the same for residents and nonresidents. Further, out-of-state citizens, who are authorized to have guns in their states, still enjoy a number of rights in Illinois, including permission to travel with a gun in their vehicle in Illinois, to hunt or target shoot and to have a gun in a residence.

In Scudder's eyes, plaintiffs would have Illinois afford greater privileges to nonresidents by allowing nonresidents to pack a concealed gun, but without Illinois able to ascertain and monitor their eligibility and mental fitness.

In dissent, Manion said Illinois claims it would be too impractical to check on applicants and licensees in the 45 states.

"'The Constitution recognizes higher values than speed and efficiency'; simply avoiding cost and administrative burden does not justify denying constitutional rights," Manion said in citing the 1972 U.S. Supreme Court ruling in Stanley v. Illinois.

Manion continued: "Illinois’ scheme categorically prevents the law-abiding citizens from a vast majority of the country from even applying for the ability to exercise their constitutional right to bear arms in public for self-defense in Illinois. That crosses a constitutional line."

Manion questioned the depth of Illinois' claim to be concerned about public safety, as Illinois hasn't checked since 2015 to see if Arkansas, Mississippi, Texas or Virginia have revamped their gun laws, and no longer mirror Illinois requirements. Such laws can often change, Manion said, noting in 2013, three of these four states did not qualify, while three other states did. Those three later modified their laws and were dropped by Illinois, according to Manion.

Plaintiffs have been represented by attorney David G. Sigale, of suburban Glen Elyn.

The state has been represented by the Illinois Attorney General's Office.

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Illinois Attorney General State of Illinois U.S. Court of Appeals for the Seventh Circuit U.S. District Court for the Central District of Illinois

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