On August 30, 2024, Judge Iain D. Johnston of the United States District Court for the Northern District of Illinois issued an order and opinion showing the ban on carrying concealed weapons on public transportation is unconstitutional. The ban is “as applied”. It is only applicable to the individuals before the court in this case. The Chicago Transit Authority is commonly referred to as the CTA.  From the opinion and order:

After an exhaustive review of the parties’ filings and the historical record,as required by Supreme Court precedent, the Court finds that Defendants failed to meet their burden to show an American tradition of firearm regulation at the time of the Founding that would allow Illinois to prohibit Plaintiffs—who hold concealed-carry permits—from carrying concealed handguns for self-defense onto the CTA and Metra.4 For the following reasons, Ms. Foxx’s motion is denied, State Defendants’ motion is denied, and Plaintiffs’ motion is granted in part.

Illinois prohibits people with legal permits from carrying concealed handguns on all public transportation. From the act a:(8):

 (8) Any bus, train, or form of transportation paid for in whole or in part with public funds, and any building, real property, and parking area under the control of a public transportation facility paid for in whole or in part with public funds.

The government defendants put forward some worn and inappropriate arguments. They are trying to keep infringements on the people’s right to be armed in case of confrontation, a right protected by the Second Amendment. The defendants tried to argue the government is the property owner, so they can exclude anyone they want to. The judge did not treat it as a serious argument. From page 15 of the order and opinion:

Ms. Foxx’s position—that government’s powers over public property are equivalent to those of private owners of property—is untenable, and was rejected by the Supreme Court long ago.17 The cited cases don’t treat government ownership of prop-erty as a trump to the protection ordinarily due to an individual right. Although the government sometimes has greater power to regulate public property compared to elsewhere, otherwise protected conduct doesn’t become categorically unprotected.

The government defendants tried to claim the law was not unconstituional under an “intermediate-scrutiny test”.  Bruen categorically banned intermediate scrutiny tests for rights protected by the Second Amendment.  From page 20 of the order and opinion:

But the intermediate scrutiny standard applied to content-neutral “time, place, or manner” restrictions is what Bruen unambiguously rejected See, 597 U.S. at 22-24 (“Not only did Heller decline to engage in means-end scrutiny generally, but it also specifically ruled out the intermediate-scrutiny test that respondents and the United States now urge us to adopt.”) Ms. Foxx’s attempt to apply intermediate scrutiny by treating the Firearm Concealed Carry Act’s ban as a “time, place, or manner” restriction cannot succeed.

Judge Johnston is not impressed with Ms. Foxx’s attempt to use a truncated dictionary definition. Foxx claimed “infringed” only means “to destroy.”  From page 25 of the order and opinion:

State Defendants appear to concede this point, but Ms. Foxx disagrees. She first argues that the Firearm Concealed Carry Act’s ban doesn’t “infringe” on Plaintiffs’ right to keep and bear arms, and so their proposed conduct and its violation of the ban don’t fall under the Second Amendment’s protection. She compares the definitions of “infringe” and “abridge” (from the First Amendment), relying on dictionary definitions from 1755 and 1773 to argue that “infringe” must denote a total destruction of a right—more than a mere “abridgement.” But both of these words have multiple definitions, and Ms. Foxx cherry-picks the definitions to suit her argument. In particular, the second definition for “infringe” reads in full: “To destroy; to hinder.”Infringe, v.a. (1773), Samuel Johnson’s Dictionary Online, https://johnsonsdictionaryonline.com/views/search.php?term=infringe (last visited Aug. 30, 2024). But she omits “to hinder”—which wouldn’t require completely obstructing the right—without any explanation.

Judge Johnston made an obvious but astute observation about the purpose of the Statute of Northampton, an English law from 1328, nearly seven centuries ago. From page 31 of the order and opinion bold added:

Plaintiffs wish to carry concealed arms in self-defense, so the Firearm Concealed Carry Act’s ban burdens Plaintiffs’ Second Amendment right for a wholly different reason than the Statute of Northampton and similar state statutes did. The why is different. A concealed arm doesn’t terrorize; it’s concealed.

This correspondent does not agree with all of Judge Johnston’s reasoning. The following argument is inconsequential because the plaintiffs do not bear the burden of proof.  If modern law addresses a “risk” that was not addressed in the historical record, then no historical analogy exists.  Judge Johnston makes a differentiation based on the government’s motivation, which is mentioned in Bruen. From page 45 of the order and opinion:

The source of danger (i.e., the societal problem) that the modern law addresses is the risk posed by the person with the firearm. By contrast, the lack of firearm restrictions for stage-coaches and ferries (and, indeed, sometimes the explicit permission to carry firearms) was tied to a different societal problem: dangers from the outside, such as wildlife.

It is difficult to see how the risks of riding in public transport are not similar, instead of wildly different. Terrorists are the threat from people outside the polity today; there was potential threat from inside a vehicle then. The difference does not appear to be supported by legislative history.

This order and opinion are likely to be cited in several other cases. The District of Columbia has challenged its ban on carry-on public transport, and an attempt is ongoing to reform the ban in Missouri.

Judge Johnston’s careful opinion and analysis gets almost everything right. While this is an “as applied” case, the arguements and evidence is valid to strike down nearly all of the statute.

About Dean Weingarten:

Dean Weingarten has been a peace officer, a military officer, was on the University of Wisconsin Pistol Team for four years, and was first certified to teach firearms safety in 1973. He taught the Arizona concealed carry course for fifteen years until the goal of Constitutional Carry was attained. He has degrees in meteorology and mining engineering, and retired from the Department of Defense after a 30 year career in Army Research, Development, Testing, and Evaluation.