United States Court of Appeals
                 For the Seventh Circuit
                 Chicago, Illinois 60604

                    February 22, 2013



                         Before

       FRANK H. EASTERBROOK, Chief Judge
       RICHARD A. POSNER, Circuit Judge
       JOEL M. FLAUM, Circuit Judge
       MICHAEL S. KANNE, Circuit Judge
       ILANA DIAMOND ROVNER, Circuit Judge
       DIANE P. WOOD, Circuit Judge
       ANN CLAIRE WILLIAMS, Circuit Judge
       DIANE S. SYKES, Circuit Judge
       JOHN DANIEL TINDER, Circuit Judge
       DAVID F. HAMILTON, Circuit Judge



Nos. 12-1269, 12-1788

M ICHAEL M OORE, et al., and
M ARY E. SHEPARD , et al.,
                                        Plaintiffs-Appellants,
                               v.

L ISA M ADIGAN, A TTORNEY G ENERAL
OF ILLINOIS, et al.,
                                     Defendants-Appellees.
2                                         Nos. 12-1269, 12-1788



           Appeals from the United States District Courts
                for the Central District of Illinois and
                   the Southern District of Illinois.
                  Nos. 3:11-cv-3134-SEM-BGC and
           3:11-cv-405-WDS-PMF—Sue E. Myerscough and
                      William D. Stiehl, Judges.




                          ORDER

   On January 8, 2013, defendants-appellees filed a peti-
tion for rehearing en banc, and on January 23, 2013,
plaintiffs-appellants filed answers to the petition. A vote
of the active members of the court on whether to grant
rehearing en banc was requested and a majority of the
judges have voted to deny the petition. ΠThe petition
is therefore D ENIED.
  Judge David F. Hamilton’s dissent from the denial of
rehearing en banc, joined by Judges Rovner, Wood and
Williams, is appended.




Œ
  Judge Michael S. Kanne did not participate in the consider-
ation of the petition for rehearing en banc.
Nos. 12-1269, 12-1788                                      3

  H AMILTON, Circuit Judge, joined by R OVNER, W OOD , and
W ILLIAMS, Circuit Judges, dissenting. I respectfully dissent
from the denial of rehearing en banc in these cases. The
Supreme Court has not yet decided whether the post-
Heller individual right to keep and bear arms at home
under the Second Amendment extends beyond the
home. The panel’s split decision in these cases goes
farther than the Supreme Court has gone and is the first
decision by a federal court of appeals striking down
legislation restricting the carrying of arms in public. Until
the Supreme Court faces the issue, the state of the law
affecting people in Illinois, Wisconsin, and Indiana is
an important question worthy of en banc consideration
to decide whether to affirm, reverse, or remand for
further factual development. Without undue repetition
of Judge Williams’ persuasive panel dissent, three points
deserve emphasis at this en banc stage of the proceedings.
  First, extending the right to bear arms outside the
home and into the public sphere presents issues very
different from those involved in the home itself, which
is all that the Supreme Court decided in District of
Columbia v. Heller, 

(2008), and McDonald
v. City of Chicago, 

(2010). I will not repeat
the debate in the panel opinions reviewing the his-
torical and empirical evidence, for that debate was, in
the majority’s view, essentially dicta. The core of the
panel majority’s reasoning is that because there is a
need for self-defense outside the home as well as in,
Heller and McDonald should extend to public carrying of
loaded firearms. Moore v. Madigan, 

, 935-38
(7th Cir. 2012). The logic has some appeal, but its
4                                       Nos. 12-1269, 12-1788

simplicity overlooks qualitative differences between a
private home and public streets and buildings that
must be considered as we try to interpret Heller and
McDonald. See Kachalsky v. County of Westchester, 

, 94 (2d Cir. 2012).
  In so many public settings, carrying and using firearms
present lethal risks to innocent bystanders. Yet when
people go about their daily lives in public places, they
have no choice about whether to consent to the dangers
posed by firearms in public. We can all choose whether
to visit homes where firearms are present.
   To illustrate the dangers posed by lawful use of
firearms in public, consider a deadly confrontation on
the streets of New York City in August 2012, when
police confronted an armed man who had just shot and
killed another man. The police officers were well trained
in both how to shoot and when to shoot and not shoot.
The officers fatally shot the gunman, but the officers’
many shots also wounded nine bystanders.1 I intend no
criticism of the officers, who confronted an urgent, dan-


1
  See Michael Wilson, After Bullets Hit Bystanders, Protocol
Questions, N.Y. Times, Aug. 25, 2012, available at http://www.
nytimes.com/2012/08/26/nyregion/bystanders-shooting-wounds-
caused-by-the-police.html? (last visited Feb. 19, 2013);
Chris Francescani, All Nine Bystanders Wounded in Empire
State Shooting Hit by Police, Reuters, Aug. 27, 2012, available
at http ://reuters.com /article/2012/08/27/us-usa-shooting-
empirestate-police-idUSBRE87Q04X20120827 (last visited
Feb. 19, 2013). One could go on indefinitely collecting ex-
amples of lawful firearms in public being used both to cause
harm and to prevent harm.
Nos. 12-1269, 12-1788                                   5

gerous situation that few have experienced first-hand.
We will always need armed police officers, and some
harm will be unavoidable despite their training, skill,
and experience. But consider how much worse the situ-
ation on the crowded streets of New York might have
been if several civilians, without the officers’ training
but carrying firearms lawfully, had tried to help with
their own firearms. Unless the Supreme Court is pre-
pared to embrace the view attributed to it by the panel
majority, that the Second Amendment right to bear
arms does not depend on “casualty 

, we should not assume that the logic of Heller
extends naturally and without qualification to firearms
in public.
   Moreover, the panel majority makes its constitutional
point about self-defense outside the home by relying on
the need for weapons on the early American frontier.
The reliance misses the point. See 

.
It would have been foolish for any frontier government
to prohibit carrying weapons from homestead to trading
post. But we do not usually test constitutional doctrine
by asking whether all foolish laws would be banned.
The real constitutional question is whether there is a
right to bear arms in public so rigid that it must strike
down duly enacted laws that apply in the downtown
streets of modern Chicago, Washington, or New York.
It need not be.
  Second, despite my disagreement with the panel ma-
jority, it’s important to keep in mind what the panel
did not decide. The panel majority opinion is now the
6                                     Nos. 12-1269, 12-1788

law of the circuit, and Illinois has 180 days to decide
how to amend its laws. Those of us in the lower federal
courts are understandably reluctant to commit to a par-
ticular standard of constitutional scrutiny that should
be applied to Second Amendment issues after Heller and
McDonald, or even to the idea that the standard should
be the same for all issues. Nevertheless, it’s reasonably
clear at this point that the standard is more demanding
than rational-basis review and less demanding than
strict scrutiny. The panel majority leaves the State
a good deal of constitutional room for reasonable public
safety measures concerning public carrying of firearms:
   (a) Illinois will still be able to establish reasonable
limits on who may carry a loaded firearm in public. Heller
itself made clear that the right to keep and bear arms
may be denied based on a felony conviction or mental

; see also United States v. Skoien,

(7th Cir. 2010) (en banc) (upholding con-
viction for possession of firearm by person convicted of
domestic violence misdemeanor). Reasonable require-
ments for firearms training and proficiency, including
safe and responsible handling and use, should withstand
constitutional scrutiny. The Second Circuit recently
upheld New York’s state law requiring “proper cause” for
issuance of a permit to carry a gun. Kachalsky, 

.
  (b) Illinois will still be able to set reasonable limits on
where qualified persons may legally carry firearms in
public. Heller itself endorsed restrictions in “sensitive”
places, such as schools and government 

. It should not be difficult to make reasonable
Nos. 12-1269, 12-1788                                       7

arguments to support extending that reasoning to areas
around schools, courthouses, other government buildings,
public universities,2 public libraries, hospitals, medical
offices, public parks and forests, churches and other
places of worship, banks, shopping centers, public trans-
portation facilities and vehicles, and venues for sporting
events, concerts, and other entertainment, among many
possible examples.
  (c) Privately owned bars, nightclubs, and restaurants
also could fit into that reasoning, and surely the federal
Constitution would not prevent a private owner of a
business from imposing a ban on carrying firearms
in or around the business. See GeorgiaCarry.Org, Inc. v.
Georgia, 

, 1264-66 (11th Cir. 2012) (up-
holding state law giving private property owners right
to exclude firearms). Places of employment could pose
similar issues, and again, it’s hard to see how the
federal Constitution would prohibit a private employer
from banning firearms on its premises.
  (d) The panel opinion also does not prevent Illinois from
setting reasonable limits on how qualified persons may
carry firearms in public places where they are not pro-
hibited. Should loaded firearms in public be carried
openly? Should they be concealed? Should the answer
differ depending on place and circumstance? Heller noted
that a majority of nineteenth-century courts upheld


2
  See DiGiacinto v. Rector and Visitors of George Mason Univ.,

(Va. 2011) (upholding regulation prohibiting
possession of firearms on campus of public university).
8                                   Nos. 12-1269, 12-1788

prohibitions on carrying concealed weapons in favor
of carrying weapons 

, but open
carrying of firearms in our modern society can be in-
timidating and even disruptive.
  (e) Finally, the panel opinion, Heller, and McDonald
do not prevent Illinois from imposing reasonable limits
on which arms may be carried in public. See 

. We can be reasonably confident that the
Second Amendment rights are not limited to arms
known to the Framers of the amendment, but also con-
fident that the rights do not extend to all the arms
that a modern militia might need.
   In other words, the panel’s holding that the current
Illinois laws are too restrictive leaves room for many
reasonable steps to protect public safety. That takes me
to my third point, which concerns how future Second
Amendment litigation should proceed. The panel de-
cided to reverse dismissals under Rule 12(b)(6) and to
order entry of permanent injunctions against enforce-
ment of the state laws. That step prevented Illinois and
the plaintiffs from presenting relevant evidence, both
empirical and historical, in a genuinely adversarial
setting subject to cross-examination.
  The panel majority views the current Illinois restric-
tions as simply too broad to survive no matter what the
empirical or historical evidence might show. The panel’s
reasoning on that point does not extend, as I read it, to
future challenges to narrower, better-tailored restric-
tions such as those described above. Under some form
of intermediate constitutional scrutiny, where courts
Nos. 12-1269, 12-1788                                   9

will need to weigh both Second Amendment rights
and state interests justifying some restrictions on those
rights, actual evidence on the burdens, consequences, and
governmental interests will be vital for sound judg-
ment. Courts considering even legislative facts, as
distinct from adjudicative facts, can benefit from truly
adversarial presentation of relevant evidence. See Ezell
v. City of Chicago, 

, 709 (7th Cir. 2011) (em-
phasizing need for evidence in applying intermediate
scrutiny in Second Amendment challenge).
  Where the law is genuinely in doubt, as it is likely
to remain for some time under the Second Amend-
ment, a trial court can do a great service by ensuring the
development of a thorough and complete record that
provides a reliable, accurate factual foundation for con-
stitutional adjudication. The federal courts are likely
to do a better job of constitutional adjudication if our
considerations are based on reliable facts rather than
hypothesized and assumed facts.




                          2-22-13