Illinois' law banning people from carrying concealed weapons on public transit is likely unconstitutional, a Rockford federal judge has ruled, setting up another battle before an appeals court over attempts to limit Second Amendment rights in the state in the name of public safety.
And the judge said state lawmakers can't simply declare public transit a "sensitive place" in which the state can prohibit people from carrying concealed weapons.
Attorney David Sigale is representing the challengers to the state transit carry ban law.
| Law Firm of David Sigale
The ruling, however, does not immediately strike down the law. Rather, the judge said the determination, for now, would only directly apply to the four men who filed the lawsuit.
However, the decision could establish a path to secure such a statewide injunction blocking the enforcement of the law more broadly.
The ruling could also yet be blocked or overturned on appeal to the U.S. Seventh Circuit Court of Appeals. An appeal is expected but neither Illinois Attorney General Kwame Raoul nor Cook County State's Attorney Kim Foxx have yet filed an appeal of Judge Johnston's ruling, as of Monday, Sept. 2, according to the online court docket.
The decision marks a potentially significant victory for Second Amendment rights advocates seeking to broaden concealed carry rights in Illinois and to thwart the imposition and enforcement of further restrictions on gun ownership and carry rights by the state's aggressively anti-gun rights governing Democratic supermajority and officials like Raoul and Foxx.
The legal challenge dates to 2022, when attorney David Sigale, of Wheaton, filed suit in Rockford federal court on behalf of plaintiffs Benjamin Schoenthal, Mark Wroblewski, Joseph Vesel and Douglas Winston.
The lawsuit was supported by the non-profit Second Amendment rights advocacy organization, the Firearms Policy Coalition.
All of the plaintiffs are Illinois residents who claim they desire to carry concealed firearms on Metra trains and Chicago Transit Authority trains and buses in and around Chicago for self defense. But they said they fear being arrested and prosecuted by Foxx and other Illinois law enforcement under the Firearm Concealed Carry Act, a state law that generally bans people from carrying guns on trains, buses and other forms of public transit and at transit stations and on property held by transit agencies in Chicago and elsewhere in the state
In defending the 2013 law, Raoul and Foxx argued the law is needed to promote public safety.
However, in recent years, violent crimes on the CTA and in and around transit stops in Chicago has again surged, including armed robberies, shootings and murder. Most recently, on Monday, Sept. 2, four people were shot and killed on a CTA Blue Line train near suburban Forest Park.
Challengers to the Illinois law say they believe the state is violating their constitutional right to self defense by denying them permission to carry firearms they believe could be used to protect themselves while using public transit and to deter violent criminals.
In the ruling, Johnston said the challengers are correct, under recent U.S. Supreme Court rulings generally broadening Americans' Second Amendment rights.
In those decisions, known as District of Columbia v Heller and New York State Rifle and Pistol Association v Bruen, the Supreme Court created tests for states and courts to use when evaluating if such restrictions are constitutional. Those tests require courts and lawmakers to evaluate if the weapons being banned are both dangerous and unusual, and if the restrictions are in keeping with U.S. history and tradition dating back to the ratification of the Second Amendment.
In his ruling, Johnston acknowledged the difficulty of evaluating how the Illinois law can fit under the understanding of the right, as it was interpreted in the late 1700s when trains and buses did not exist.
However, the judge said both fell short in attempting to argue the law can hold up under the Second Amendment.
The judge particularly picked apart arguments advanced by Foxx.
Calling the argument "breathtaking, jawdropping, and eyepopping," Johnston particularly rejected Foxx's attempt to argue that governments have the right to behave as a "proprietor" of private property, and restrict Second Amendment rights on any property owned by government or which receives government funds.
The judge noted such an argument, if it were allowed to stand, would permit the government to restrict constitutional rights on any public property, notably including public protests at places like Chicago's Daley Center Plaza, which the judge noted is "a quintessential public forum."
"Although the right to exclude—including the right to exclude those bearing arms—may be a fundamental aspect of private property ownership, likely undiminished by the Second Amendment it doesn’t necessarily follow that when a government like Illinois (through its transit agencies) act as a proprietor, the ban on arms bearing doesn’t implicate Plaintiffs’ rights under the Second Amendment," Johnston wrote.
"The constitutional protection afforded to other individual rights isn’t nullified on public property..."
The judge further rejected attempts by Foxx and Raoul to argue that the public transit carry ban should be upheld under exemptions under Bruen for gun carry restrictions for so-called "sensitive places."
In court, plaintiffs argued "sensitive places" should be limited to secured places of public business like legislative assemblies and courthouses.
While Johnston cast doubts on those limitations, he also rejected Raoul's and Foxx's argument that public transit fits the bill. Johnston said Raoul and Foxx argue that "modern public transit systems are sensitive places because they are crowded spaces that are publicly accessible and publicly owned or operated."
But the judge said this falls short under reasoning in the Bruen decision which specifically rejected assertions that virtually the entire island of Manhattan in New York City could be considered "sensitive."
"... Crowdedness alone is insufficient to qualify a location as sensitive," Johnston said.
And even with the additional "conditions" concerning public ownership and use attached by Raoul and Foxx, the judge said that definition of "sensitive places would still "in effect exempt cities from the Second Amendment and would eviscerate the general right to publicly carry arms for self-defense,'" quoting from the Bruen decision.
"After all, the streets of Manhattan—or Chicago, to pick an example closer to home—are crowded, publicly accessible, and publicly owned," Johnston said. "... Treating any place where the government would want to protect public order and safety as a sensitive place casts too wide a net—this would seem to justify almost any gun restriction."
The judge upheld the challenge and declared the state law to be a violation of the Second Amendment.
"Plaintiffs’ proposed conduct—carrying concealed handguns on public transit for self-defense—falls within the presumptive ambit of the Second Amendment...," the judge wrote.
The decision comes as the state also continues to defend against other asserted restrictions on Second Amendment rights in Illinois, also in the name of public safety.
The state most notably has so far avoided a decision from the U.S. Supreme Court concerning the constitutionality of a state law banning so-called "assault weapons" in Illinois. However, that law could yet be rendered unconstitutional, should the high court take up a legal challenge to a similar law imposed in Maryland. A petition asking the Supreme Court to review lower court decisions upholding the Maryland law is currently pending.
At the same time, Illinois is seeking to defend other alleged violations of the Second Amendment, including a state law that specifically allows potentially ruinous lawsuits against firearms makers and gun shop owners under the state's consumer fraud law. Plaintiffs assert the law serves as a backdoor method for trial lawyers to enrich themselves while restricting access to firearms in the state, and thus violating the Second Amendment.
Illinois Gov. JB Pritzker and other Illinois Democrats have also publicly and loudly supported restrictions on gun ownership rights in other states and nationwide.
Raoul, for instance, most recently joined with other Democratic attorneys general in other states to support a Florida law that limits the ability of people between the ages of 18-21 years old from owning guns.