As-Applied Challenge to Illinois Ban on Licensees’ Carrying on Public Transit Succeeds; Court Rejects “Breathtaking, Jawdropping, and Eyepopping” Arguments

Long before the United States Supreme Court ruling in New York State Rifle & Pistol Ass’n, Inc. v. Bruen (2022), a federal appellate court relied on the right to bear arms for self-defense to invalidate an Illinois law that generally prohibited the carrying of guns in public. As justification, the court observed that “in Chicago, at least, most murders occur outside the home,” and that “a Chicagoan is a good deal more likely to be attacked on a sidewalk in a rough neighborhood than in his apartment on the 35th floor of the Park Tower.”

Self-defense has to take place wherever a person happens to be, and Chicago’s public transit is far from a gun-free or crime-free zone. CWB Chicago, a local crime reporting outlet, provides some idea of the hazards public transit users face. Recent incidents include an “elderly victim” being mugged on the Red Line on August 26; on August 28, a man armed with a handgun allegedly punched and robbed another man at the Sox-35th station; on September 1, a “man was stabbed and critically injured while riding a Red Line train in Uptown,” with the assailant remaining at large; and on September 3, outside a transit station, a transit employee “was shot and seriously injured by a drive-by gunman.” In the worst incident by far, on Labor Day four passengers were shot dead on a transit train, apparently while they were sleeping, in what is described as a “completely random” attack.

Illinois law, 430 ILCS 66/65-(a)(8), prohibits knowingly carrying a firearm on public transportation or in public transportation facilities, even for those with a concealed carry permit. A first violation is a Class B misdemeanor punishable by a fine of $1,500.00 and confinement in jail for 180 days; a second or subsequent offense is a more serious misdemeanor, punishable by a fine of $2,500.00, confinement in jail for 364 days, and potential suspension or revocation of the offender’s carry license.

Four Illinois residents – all of whom had valid Firearm Owners Identification (FOID) cards and state concealed carry licenses, and who rely on public transportation to travel to places essential to their daily lives – sued Illinois Attorney General Kwame Raoul, Cook County State’s Attorney Kim Foxx, and other officials, claiming that they wished to carry for self-defense while using public transit and that the ban was unconstitutional. Citing Bruen, they argued that there was no “historical evidence that carrying firearms was restricted on public transportation conveyances” or other relevantly similar analogues, with “no direct corollary or even analogue between the Public Transportation Carry Ban and historical sensitive places restrictions.”

U.S. District Judge Iain Johnston, ruling on competing summary judgment motions, agreed. “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 [Chicago Transit Authority] and Metra” commuter rail agency lines.

The plaintiffs’ proposed conduct (carrying a concealed firearm for self-defense while on public transit) fell under the plain text of the Second Amendment, meaning the conduct was presumptively protected.

Turning to Bruen’s second inquiry, the court was clear that “whether there’s anything from 1791 that might appropriately be labeled ‘public transportation’ isn’t a silver bullet that shortcuts Bruen’s framework.” Instead, Judge Johnston analyzed historic regulations that purportedly had the same “how and why” as the transit carry ban. Old English law on going armed in public to terrify others (the Statute of Northampton) and similar state statutes were inadequate analogues, as the “why” of these laws was different. “A concealed arm doesn’t terrorize; it’s concealed. Consequently, these historical laws do not serve as an appropriate historical analogue.”

Other would-be analogues presented by the defendants failed as well, being too recent or insufficiently widespread to serve as a “national” tradition. Restrictions by railroad companies (that passengers keep firearms unloaded in their bags, or that barred firearms completely) were discounted because the companies concerned were private, not government, entities. The last and most sweeping argument (“sensitive places”) was so undefined and broad (“any place where the government would want to protect public order and safety”) as to be unsupportable. 

Conversely, the court also rejected the plaintiffs’ argument that a lack of early weapon restrictions on stagecoaches and ferries translated to a historical tradition regarding guns on public transit. Many of these transportation facilities were, like the railroads, not government-run, and the “why” was likely different, too (rather than guarding against the danger posed by the person carrying, the focus of these old restrictions was “dangers from the outside, such as wildlife”).   

Along the way, the court disposed of Cook County State’s Attorney Kim Foxx’s egregiously misguided attempt to assert a proprietary (and in the alternative, a “market participant”) exception to Bruen, and indeed, the Constitution as a whole. Her argument, which the court described, politely, as “breathtaking, jawdropping, and eyepopping – is this: the ban applies only to property ‘funded in whole or in part’ by Illinois, so Illinois has a proprietary interest in what it regulates… On her view, when the government regulates its own property, that regulation is exempt from the coverage of the Second Amendment, or any other constitutional guarantee of individual rights.” In fact, the “constitutional protection afforded to other individual rights isn’t nullified on public property; Ms. Foxx’s proffered authority says nothing to the contrary.”

Ms. Foxx also argued that the ban didn’t “infringe” on the plaintiffs’ right to keep and bear arms, because “infringe” required the “total destruction of a right;” further, the Second Amendment didn’t cover the plaintiffs’ proposed conduct “because using a firearm on a crowded and confined public transit vehicle would result in more force than necessary for lawful self-defense.” Both of these arguments were as successful as her “proprietary” exception claim.

Ultimately, the judge dismissed the defendants’ motion for summary judgment, granted the plaintiffs’ motion for summary judgment, in part, and granted declaratory relief – that the ban on concealed carry on public transportation violated the Second Amendment, as applied to the four plaintiffs when travelling on the CTA and Metra. (The as-applied finding was based on the court determining that the plaintiffs framed their challenge only in terms of how the carry ban applied to them, and the court proceeded accordingly.) 

Anticipating how the ruling might be portrayed in the mainstream media, Judge Johnston advised, in a footnote, that the ruling was specific to the facts presented, adding “‘Trump-appointed judge allows firearms on Illinois public transit’ is a likely chyron for this decision. That’s unfortunate. Federal judges –including those who will review this decision – engage in exacting, thoughtful, and careful analyses that are not results oriented or reducible to headlines and chyrons. We’re doing the best we can.”

A source quoted Illinois Governor’s J.B. Pritzker’s response to the ruling: “So it’s clear that there are some misguided decisions that get made at the circuit court level, the federal court level, and I’m hoping that it will be overturned along the way, if it has to all the way the Supreme Court. It will be disappointing if they uphold this. But I’m hopeful that the law that was passed in Illinois a number of years ago, that’s frankly done a lot to keep people safe, will be upheld.”

Law-abiding Chicagoans might take exception to just how “safe” the law and law enforcement have kept their public transportation, as evidenced by another scroll through recent entries at the CWB Chicago website. An “eight-time convicted felon,” already on parole for robbing someone at a CTA station when he was caught displaying a gun on Chicago’s Red Line, was reportedly given a seven-year sentence but was released the next day. A man who was allegedly part of a gang that placed a CTA passenger in chokehold and robbed him was released on electronic monitoring, despite prosecutors asking that the man be kept in custody as “a safety risk.” The 30-year-old suspect in the Labor Day quadruple murder had allegedly been charged with illegal firearm possession in 2021, but prosecutors dropped that case, along with others. On being apprehended at a CTA Pink Line station some two hours after the shootings, the man was reportedly still in possession of a handgun.

The decision is Schoenthal et al. v. Raoul et al., No. 3:22-cv-50326, 2024 WL 4007792 (N.D. Ill., Aug. 30, 2024).