So is Open Carry legal now?

paul@paul-fisher.com said:

At the moment the case was remanded to the lower court so the law actually hasn't been struck down. If you read the strict interpretation of the court, they only said gun possession in the home was legal. Of course, what is frequently misunderstood is that the SCOTUS can only answer the question that they were asked.

I would believe you will spend some quality time in jail and potentially get shot by the thugs in the Chicago PD if you OC in the city limits.

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Here's the catch 22. You can't challenge the prohibition on open carry without having standing to do so. You don't get standing without having your rights actively infringed when you try to exercise them. So basically, you have to go get yourself arrested for open carry to file a case...

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StogieC said:

See my reply to a similar question here: http://forum.opencarry.org/forums/s...y-in-Florida&p=1298711&viewfull=1#post1298711

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iceman71 said:

The Mayor and Alderman had an emergency session due to Supreme Court ruling. $100 permit fee required, plus training. One gun a month can be purchased and only one working gun in house. "a shotgun is enough for an army" I believe the quote was by one alderperson. Oh ta almost forgot NO CARRYING OUTSIDE OF HOME. Obviously the city didnt understand what the supreme court said.

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• Open carry is not yet legal in Chicago.
• The Supreme Court did not explicitly find the law unconstitutional and technically reversed and REMANDED the case for further proceedings in accordance with the Opinion.
• It is likely that the local law still binds law enforcement and the local residents until further conclusive notice.

Paul Fisher said:

At the moment the case was remanded to the lower court so the law actually hasn't been struck down. If you read the strict interpretation of the court, they only said gun possession in the home was legal. Of course, what is frequently misunderstood is that the SCOTUS can only answer the question that they were asked.

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• Prohibitions on felons and mentally ill individuals;
• Carrying of Firearms in sensitive places like schools and government buildings, and potentially other places; and,
• Regulation of Commercial sale of firearms.

Joseph Mason said:

Original poster:

• Open carry is not yet legal in Chicago.
• The Supreme Court did not explicitly find the law unconstitutional and technically reversed and REMANDED the case for further proceedings in accordance with the Opinion.
• It is likely that the local law still binds law enforcement and the local residents until further conclusive notice.

DISCLAIMER: UNTIL YOU CONSULT WITH AN ATTORNEY, DO NOT RELY ON ANY PURPORTED LEGAL ADVICE HEREIN SUGGESTED OR PROVIDED BY THIS POSTER or ANYONE ON THIS PUBLIC FORUM.



As Paul aptly points out, inferior courts are not bound by dicta propounded by courts that stand in a position of superior authority. Even though the question posed, or the issue presented may seem clear, the path that a court takes in reaching a holding is quite important and arguably constitutes binding law.

In McDonald v. Chicago, the Court discussed Heller and how it recognized the right to possess a firearm in the home for self-defense purposes. However, McDonald goes much further. SCOTUS reaffirms that the Second Amendment encompasses an individual right and that the Second Amendment binds the Federal, State and Local governments.

"We made it clear in Heller that our holding did not cast doubt on such longstanding regulatory measures as 'prohibitions on the possession of firearms by felons and the mentally ill,' 'laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.'” McDonald.
​

I do not consider the except above to be dicta, as it was necessary for the holding of the Court to flesh out this fundamental right. The underlying issue was the constitutional meaning of the Second Amendment and it is wholly within the purview of SCOTUS to define the constitutional limits of the Second Amendment, as it put forth a binding guide for future Second Amendment jurisprudence. Without saying anything more, the Court reversed the inferior court, acting in accordance with the legal analysis it put forth in McDonald.

Finding that the Second Amendment is a fundamental right, SCOTUS has essentially guaranteed that judicial review of statutory law will be undertaken with 'Strict Scrutiny' in accordance with U.S. Supreme Court precedent.

Additionally:
The following types of laws will likely be upheld, so long as they are 'reasonable' and comport with the 'Strict Scrutiny' standard of review for statutory law:

• Prohibitions on felons and mentally ill individuals;
• Carrying of Firearms in sensitive places like schools and government buildings, and potentially other places; and,
• Regulation of Commercial sale of firearms.

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Joseph Mason said:

Original poster:

• Open carry is not yet legal in Chicago.
• The Supreme Court did not explicitly find the law unconstitutional and technically reversed and REMANDED the case for further proceedings in accordance with the Opinion.
• It is likely that the local law still binds law enforcement and the local residents until further conclusive notice.

DISCLAIMER: UNTIL YOU CONSULT WITH AN ATTORNEY, DO NOT RELY ON ANY PURPORTED LEGAL ADVICE HEREIN SUGGESTED OR PROVIDED BY THIS POSTER or ANYONE ON THIS PUBLIC FORUM.



As Paul aptly points out, inferior courts are not bound by dicta propounded by courts that stand in a position of superior authority. Even though the question posed, or the issue presented may seem clear, the path that a court takes in reaching a holding is quite important and arguably constitutes binding law.

In McDonald v. Chicago, the Court discussed Heller and how it recognized the right to possess a firearm in the home for self-defense purposes. However, McDonald goes much further. SCOTUS reaffirms that the Second Amendment encompasses an individual right and that the Second Amendment binds the Federal, State and Local governments.

"We made it clear in Heller that our holding did not cast doubt on such longstanding regulatory measures as 'prohibitions on the possession of firearms by felons and the mentally ill,' 'laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.'” McDonald.
​

I do not consider the except above to be dicta, as it was necessary for the holding of the Court to flesh out this fundamental right. The underlying issue was the constitutional meaning of the Second Amendment and it is wholly within the purview of SCOTUS to define the constitutional limits of the Second Amendment, as it put forth a binding guide for future Second Amendment jurisprudence. Without saying anything more, the Court reversed the inferior court, acting in accordance with the legal analysis it put forth in McDonald.

Finding that the Second Amendment is a fundamental right, SCOTUS has essentially guaranteed that judicial review of statutory law will be undertaken with 'Strict Scrutiny' in accordance with U.S. Supreme Court precedent.

Additionally:
The following types of laws will likely be upheld, so long as they are 'reasonable' and comport with the 'Strict Scrutiny' standard of review for statutory law:

• Prohibitions on felons and mentally ill individuals;
• Carrying of Firearms in sensitive places like schools and government buildings, and potentially other places; and,
• Regulation of Commercial sale of firearms.

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StogieC said:

PS Welcome Aboard!

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Thundar said:

These are three bright lines for laws that can survive strict scrutiny. Anything else, GAME ON!!!

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Joseph Mason said:

Thank you for having me.



As for the guide that I mentioned before, I think the Opinion left open the possibility that the guide can be expanded by other judiciaries. However, I do not believe that there is any room for debate as to whether or not restrictions in firearm statutes are reviewed under strict-scrutiny - which is a pretty substantial burden for the government.

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The Donkey said:

I think that these statutes SHOULD be reviewed under something close to strict scrutiny, but there has been a divide in the courts as to whether they will be. There is some law stating that even though a right in the abstract is fundamental, lower degrees of scrutiny can be applied.

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Cavalryman said:

Although courts are pretty generally populated by socialist douchebags and you can never predict with certainty what they will do...

I think it most likely that Chicago's and Washington, D.C.'s draconian regulations will be struck down. The SCOTUS affirmed that Americans have a "fundamental right" to have handguns in their homes for self defense. If it is a "fundamental right," it can't be regulated to any significant degree. The courts have pretty consistently held that putting restrictions on a fundamental right won't fly. I think it very likely that courts will continue to allow pretty significant restrictions upon the carrying of firearms in public.

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