Seventh Circuit Review


Adam J. Share


While the right to bear arms may be controversial, it is nonetheless provided by the Second Amendment to the United States Constitution. States are lawfully able to limit people’s right to bear arms to an extent but must not go so far where a State’s limits ultimately infringe upon that right. The Seventh Circuit in Culp v. Raoul pushed the limits to which a State may restrict a person’s Second Amendment right. In Culp, the court determined whether the Illinois Firearm Concealed Carry Act was constitutional. The Illinois Firearm Concealed Carry prohibits nonresidents from applying for an Illinois concealed carry license if the nonresidents do not live in a state with substantially similar concealed carry requirements to Illinois. The court applied the standard intermediate scrutiny to analyze the constitutionality of the substantial similarity requirement. As a result, the court found the substantial similarity provision of the Illinois Firearm Concealed Carry Act was constitutional. Courts have found laws which act as a total ban against a person’s rights to bear arms do not warrant a standard of scrutiny and are unconstitutional. However, if a law merely burdens a person’s Second Amendment right, courts traditionally analyze the constitutionality of a law within the scope of the Second Amendment under one of two methods: intermediate scrutiny or strict scrutiny. Intermediate scrutiny is generally appropriate for laws which burden a person’s ability to exercise their Second Amendment right outside of their home. An exception to the substantial similarity requirement permitted nonresidents to bear arms in any homes they owned within Illinois, so intermediate scrutiny was the appropriate tier for review. However, the Seventh Circuit in Ezell v. City of Chicago found intermediate scrutiny is a sliding scale, where a state law can warrant a more rigorous review without changing levels. As a result, the court in Ezell recognized what would later be coined as “elevated intermediate scrutiny,” a standard more rigorous than intermediate scrutiny, but not quite strict scrutiny. This Note argues the substantial similarity requirement of the Illinois Firearm Concealed Carry Act warranted an analysis under elevated intermediate scrutiny. While the substantial similarity requirement only restricts nonresidents’ Second Amendment right outside their home, the requirement comes close to acting as a total ban to nonresidents. Yet, the court in Culp failed to analyze the substantial similarity requirement under elevated intermediate scrutiny. If the Seventh Circuit in Culp applied an analysis of elevated intermediate scrutiny as it should have, the court would have found that the Illinois Firearm Concealed Carry Act is unconstitutional.

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