Concealed-Carry Gun Rights Near Schools Get Attention

By Mark Walsh — December 17, 2012 3 min read
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The shootings in Newtown, Conn., last week have prompted renewed attention to school safety and gun laws. Two news developments that occurred just before the violence are worth noting for the debate.

In one, a federal appeals court struck down an Illinois law barring the concealed carrying of weapons outside the home, holding that the Second Amendment as interpreted by the U.S. Supreme Court includes a right to bear arms outside the home for self-defense. However, the appeals court interpreted the Supreme Court’s recent gun rulings as not barring the states from prohibiting guns at “sensitive places” that include schools.

In the second development, Michigan lawmakers passed a bill that would remove restrictions on concealed weapons license-holders from carrying guns in schools, daycare centers, and stadiums as long as they received additional training. The bill passed last Thursday night, one day before the shootings at Sandy Hook Elementary School that killed 20 children and six adults.

Gov. Rick Snyder, a Republican, has said he is studying the bill. On Sunday’s “Meet the Press” on NBC, American Federation of Teachers President Randi Weingarten said, “I would actually ask Gov. Snyder to actually veto the bill that’s on his desk right now that says concealed weapons in schools would be okay.” (This was during a discussion on gun control during the program that included, as my colleague Nirvi Shah details here, a suggestion from former U.S. Secretary of Education William J. Bennett that perhaps it would be a good idea to have at least one “person in a school armed,” presumably to take on a school shooter.)

Meanwhile, the Dec. 11 decision by a panel of the U.S. Court of Appeals for the 7th Circuit, in Chicago, also seems likely to inflame the debate over guns in U.S. society.

In Moore v. Madigan, Judge Richard A. Posner wrote for a majority on a three-judge panel that Illinois’ restrictions on the licensing of weapons outside the home violated the Second Amendment.

“The theoretical and empirical evidence (which overall is inconclusive) is consistent with concluding that a right to carry firearms in public may promote self-defense,” Judge Posner said. He cited two recent Supreme Court decisions: District of Columbia v. Heller, in 2008, which held that the Second Amendment protects “the right of law-abiding, responsible citizens to use arms in defense of hearth and home;" and McDonald v. City of Chicago, in 2010, which applied the Heller decision to the states.

But Posner noted that Heller and McDonald recognized that the states could maintain certain gun restrictions, such as possession by felons or near schools.

As Justice Antonin Scalia put it in his majority opinion in Heller, “Nothing in this opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings.”

Posner said, “We need not speculate on the limits that Illinois may in the interest of public safety constitutionally impose on the carrying of guns in public; it is enough that the limits it has imposed go too far.”

The 7th Circuit majority delayed the effect of its decision by 180 days to give Illinois lawmakers time to craft a new gun law with “reasonable limitations,” the court said.

Judge Ann Claire Williams dissented from the decision, saying that the limits endorsed by the Supreme Court with respect to places such as schools “means that any right to possess a gun for self-defense outside the home is not absolute, and it is not absolute by the Supreme Court’s own terms.”

Still, she said, just because a state may prohibit guns in places such as schools doesn’t mean the need for self-defense would not arise in such places.

“The teacher being stalked by her ex-husband is susceptible at work, and in her school parking lot, and on the school playground, to someone intent on harming her,” Williams said. “So why would the Supreme Court reassure us that a legislature can ban guns in certain places? It must be out of a common-sense recognition of the risks that arise when guns are around.”

A version of this news article first appeared in The School Law Blog.

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