By Ashby Jones, WSJ
Gun-ownership advocates are filing lawsuits in courts across the U.S., hoping to get rulings that people have a constitutional right not only to keep firearms in their homes, but to carry them in public.
The suits could affect the direction of gun-control legislation for years to come. Two recently filed suits in Illinois are among a handful that could ultimately provide the U.S. Supreme Court its next opportunity to clarify the rather murky outlines of the Second Amendment, which protects the right to bear arms.
"Whether the right to bear arms extends to outside the home is the next battlefield," said Adam Winkler, a law professor at UCLA and a Second Amendment expert. "And if that right does exist, courts then have to wrestle with a whole host of other issues, like how far it extends and what kinds of permitting regimes are permissible."
The Illinois suits challenge the constitutionality of the state's gun-control laws, which ban nearly everyone from carrying firearms outside their homes and are widely considered the most restrictive in the country.
The recent legal challenges follow two landmark U.S. Supreme Court rulings that nullified gun bans in Washington, D.C., and Chicago. The 2008 and 2010 rulings represented the high court's most significant forays into gun control in nearly seven decades, and squarely established that the Second Amendment's "right to keep and bear arms" applies to people in their homes and not just within state militias.
But the Supreme Court left many questions unanswered, including what types of gun-control regulations outside the home were permissible.
Justice Antonin Scalia's majority opinion in the 2008 case, District of Columbia v. Heller, offered limited guidance on whether and to what degree curtailing one's right to carry guns outside the home violated the Second Amendment.
He said only that 19th century courts had upheld limits on "concealed carry" outside the home and that nothing in the opinion should cast doubt on laws barring the carrying of firearms in "sensitive places such as schools and government buildings." In the 2010 case, McDonald v. City of Chicago, the court essentially reaffirmed its pronouncement in Heller.
Lawyers on both sides of the gun-control debate have focused most closely on Justice Scalia's "sensitive places" statement in the 2008 Heller decision. "It's going to take years of litigation for courts to hammer the meaning out of what Scalia said in that passage," said Dave Workman, an editor at Gun Week magazine, a publication owned by the Second Amendment Foundation, a gun-rights group.
Since the Supreme Court rulings, gun advocates have filed scores of challenges on all sorts of laws at the federal, state and local levels. They have sued over age restrictions on carrying guns outside the home, restrictions to "concealed carry" rules in national parks, and requirements that people show "good cause" and take a firearms course in order to get a permit to carry a concealed weapon out of the home.
So far, the gun lobby's failures have outweighed their successes. "Courts have been very cautious in terms of extending Second Amendment rights beyond what the court explicitly seemed to allow in Heller and McDonald," said Joseph Blocher, a law professor at Duke University and constitutional-law expert.
The gun lobby hopes the Supreme Court will soon clarify its position on gun carrying in public. "That's why we're filing so many cases," said Alan Gottlieb, the founder of the Second Amendment Foundation. "We desperately want another crack at the Supreme Court."
According to Mr. Gottlieb, the Second Amendment Foundation alone has filed 19 pending lawsuits since the Heller decision three years ago. He said the lawsuits filed in Illinois—one by his foundation and the other by the National Rifle Association—could be the most likely to reach the country's highest court, partly because the Illinois ban is so sweeping.
"In Illinois, you simply cannot carry a functional firearm outside your house, no ifs, ands or buts," said Mr. Gottlieb. "It's flatly unconstitutional."
The suits name Illinois Attorney General Lisa Madigan as a defendant. The Second Amendment Foundation, which filed its lawsuit in May, has asked Springfield, Ill., federal judge Sue Myerscough to halt two Illinois laws in advance of the trial. A hearing on the request is scheduled for this week. The NRA's suit, also filed in May, is in earlier stages.
"The Supreme Court has never interpreted the Second Amendment to include an unrestricted right to carry a concealed gun in public," said a spokeswoman for the attorney general's office. "The laws being challenged here are reasonable measures to ensure public safety and do not violate the Constitution."
A ruling that the Illinois laws are unconstitutional could influence courts around the country to view "carry" restrictions more skeptically, especially if such a ruling holds up on appeal.
"They're big cases," said Daniel Vice, a lawyer with the Brady Center to Prevent Gun Violence, which has submitted briefs in both cases in support of Ms. Madigan. "But they have to overcome numerous rulings from around the country, which have consistently refused to strike down sensible limits on guns in public."
Mr. Vice pointed specifically to a March ruling in which a federal appellate court in Virginia let stand a law banning loaded guns in national parks. "This is serious business," wrote the court. "We do not wish to be even minutely responsible for some unspeakable tragic act of mayhem because...we miscalculated as to Second Amendment rights."
UCLA's Mr. Winkler agreed that the gun-lobby's efforts to knock down laws haven't been entirely successful but he said: "It's still early in the game; it's hard to know exactly how this is going to play out."
Write to Ashby Jones at ashby.jones@wsj.com
