U.S. District Judge Ian Johnston, who was appointed by then-President Donald Trump in 2020, ruled on Friday that Illinois violates the Second Amendment when it bans citizens from carrying concealed guns for personal defense on two Chicago mass transit systems. Unfortunately, the ruling only applies to the four plaintiffs who filed their lawsuit two years ago.
The ban, passed in 2014, was subject to challenge following the Supreme Court's June 2022 ruling in Bruen v. Arms Control, and the four filed their complaint 90 days later. They specifically cited the Supreme Court's decisions in Heller (the right to carry is an individual right), McDonald (the Second Amendment applies to the states under the Fourteenth Amendment), and Bruen v. Arms Control (“the government must affirmatively demonstrate that its firearms regulations are part of a historical tradition that limits the outer limits of the right to keep and bear arms”), among others.
There is no “tradition”
“At the time of the nation's founding, there was no tradition restricting the possession of firearms while traveling,” the lawsuit states. In contrast, there were state laws requiring people to carry firearms “while away from their home.”
It succinctly stated:
The no-carry laws prohibit carrying firearms while using public transportation, severely restricting the plaintiffs’ ability to exercise their right to self-defense outside their homes.
This is in direct violation of the Second and Fourteenth Amendments to the U.S. Constitution, as the U.S. Supreme Court ruled in Heller, McDonald, and Brune.
Fox's claim
With no legitimate means to defend the ban, Kim Foxx, the pro-Soros state's attorney for Cook County, Illinois, one of four people named as defendants in the lawsuit, has had to get creative.
She tried to convince the judge that a 1328 law, a statute from Northampton, England, had provided the basis for laws enacted centuries later and somehow established the “historical tradition” now required in Bruen. The judge did not buy it.
Fox then tried him on the basis of the Black Act of 1723, which prohibited the possession of weapons in forests or on roads if the bearer's face was disguised. (This is no myth; see page 32 of the judgment.) Again, Johnston found Fox's arguments unconvincing.
But Fox's only effort (in writing) to elicit a contemptuous chuckle from the justices was his attempt to argue that the state government is somehow exempt from the Second Amendment because it is the “owner” of the transportation system.
Her argument is breathtaking, astonishing and eye-opening: because the ban applies only to property “funded in whole or in part” by the state of Illinois, the state of Illinois has a monopoly interest in what it regulates.
She said Illinois can exclude anyone it wants because the government, like private property owners, enjoys “the absolute right to exclude others” from their property.
In her view, when the government regulates its own property, that regulation is outside the scope of the Second Amendment and other constitutional guarantees of individual rights.
Fox argues that protesters could be barred from the Daley Center Plaza, even though it is a quintessential public forum.
Judge Johnston's ruling wasn't over yet.
While the right to exclude (including the right to exclude those who carry weapons) is a fundamental aspect of private property ownership and arguably cannot be impaired by the Second Amendment, when a government, such as in Illinois, acts as owner (through its transportation agencies), it does not necessarily follow that a prohibition on bearing weapons does not implicate plaintiffs' Second Amendment rights.
The constitutional protections afforded to other individual rights are not nullified with respect to public property.
The second protects the first
Justice Johnston drew an apt analogy with the First Amendment.
Governments may have greater power to regulate on public property than they do elsewhere, but protected activities are not entirely unprotected.
If, as Fox suggests, all speech on government property were exempt from First Amendment protection, then the First Amendment's elaborate principles regarding public forums and government motives would be entirely unnecessary.
The judge ruled that “all of Mr. Fox's other citations are similarly invalid,” concluding that “Defendants have not met their burden of presenting the Court with relevant examples of 'historical tradition' to support the ban.”
The ruling frees these four citizens to carry concealed guns while traveling on CTA and Metra trains (subject to other gun restrictions enacted by the transit authorities themselves).
The defendants are now considering their options, including an appeal to the state Supreme Court.
