Home Rule and Concealed Carry

Go here to see something you won’t see very often: folks pissed at NRA for not compromising on a bill, namely, NRA wants a full concealed carry bill, with preemption, and state activists are pushing for a weaker bill subject to home rule.  I would encourage each side to understand where the other is coming from.  There’s no evil intent here, it’s an honest disagreement about how to move the ball forward.  That inevitable in any issue.

From NRA’s point of view, I can see why they don’t want a weaker bill.  Not all home rule charters are created equal.  See here for instance.  Illinois has one of the more liberal home rule provisions in the country.  Nebraska’s, by contrast, is considerably more limited.  Someone getting caught carrying violating a local carry ordinance in Omaha, for instance, has more legal options under Nebraska law than someone caught in Peoria does under Illinois law.  Ohio has a fairly strong home rule provision, but Ohio home rule does not permit home rule entities to restrict something which is explicitly authorized by state law.  The preemption law in Ohio was meant to address cities who banned semi-automatic firearms, which because not explicitly allowed under state law, could be restricted by Ohio home rule entities under the law.

Illinois home rule charter essentially allows “exercise any power and perform any function pertaining to its government and affairs.” which is remarkably broad.  There are limits though.  Home rule entities may not define felonies, and may not incur certain debts.  But Illinois home rule entities enjoy considerably more leeway than they do in other states.  That’s one thing for activists there to consider.  Many people are not tuned in to the activist community, and will not plugged in to which communities have which restrictions.  When those people get in trouble, they will look to groups like NRA, SAF, etc to get them out of trouble.  And it should be considered that NRA needs to serve all its members, including the ones who could potentially get in trouble by a hazardous concealed carry law.

But I do understand, from the point of view of people living in Illinois, the desire to get something passed.  It’s unlikely that concealed carry with full preemption is going to get the 3/5th majority needed to override home rule.  It could be possible to get preemption through the courts, but the courts are always a risky venture, and there may be concerns in regards to complicating the court cases that are currently making their way in the 7th Circuit.  We’re still a long way from having bearing of arms having any kind of constitutional protection.

I am sympathetic to the argument that passing something is better than nothing, but I’m also concerned with making sure something is the right thing.  Pennsylvania originally got concealed carry law in 1988 by initially exempting Philadelphia from the requirement to issue licenses.  They still had to recognize licenses from outside the city, but did not have to issue them to residents.  In 1996, the state forced the City of Philadelphia to begin issuing licenses on a shall-issue basis.  Philadelphia, as it always had, claimed home rule, but Pennsylvania’s home rule provision is weak, and it did not prevail with this argument.  A lot of states have passed weaker laws, then strengthened them.  It’s not a bad idea, per se.  But understand that there’s risks associated with doing so.  Just because the legislature makes a mess with a weaker law, doesn’t mean they will have any special interest in cleaning up the mess, especially when it’s gun owners who are the ones who have to live in the filth.

41 thoughts on “Home Rule and Concealed Carry”

  1. There are some benefits to the home rule carry bill currently proposed.

    1. Every resident of the state not prohibited shall be issued a license
    2. The issuing agency is the Department of Natural Resources rather than relying on individual Sheriffs or the anti-gun Illinois State Police (that can’t keep up with FOID cards as it is)
    3. The Illinois Sheriff’s Association has endorsed the bill
    4. Home rule municipalities can prohibit carry, but possession of a firearm by a licensee is a minor offense and the firearm cannot be confiscated (do it now and become a permanent prohibited person and never see your firearm again)
    5. Reciprocity.
    6. Emergency issuance

  2. Setting aside that in the majority of cases carry laws, once enacted, get relaxed, not tightened over time; look at SAF’s current carry suit in California.

    Since they now have incorporation under the 9th’s decision on Nordyke, the “patchwork of policies” on their may-issue permit scheme has been challenged in District Court. It is likely that the “may issue” portion of Cali’s carry program, giving discretion in issuance to county and city LE, will be deemed unConstitutional as it results in capricious and arbitrary disparate impact.

    If Ill. gets a shall-issue with disparate impact and the Supremes (or the 7th) incorporate, that may be an issue that can be used to challenge home rule exclusions as well.

    We didn’t lose our rights in one fell swoop, they were nibbled away at over time. Right now the momentum is on our side to nibble back.

    In this case, I should think NRA (national) should bow to the wishes of the locals.

  3. That kind of preemption will only work if you get a ruling that says concealed carry is a constitutional right. I’m not sure, given the dicta in Heller, you’re going to get that. I think it will probably work out that sub-federal entities have considerably leeway to regulate carry in public, but can’t outright prohibit it. That doesn’t necessarily mean that a local community can’t regulate carry to, say, demand open carry, even if the state allows concealed. Those matters would be considered something for the states to work out, within their constitutional structures, which would include home rule.

  4. I live in Northern Illinois. Have my whole life.

    Home rule is a freakin’ nightmare of abuse.

    I’ll back the NRA with the all or nothing on this one.

  5. I wouldn’t go so far as all or nothing, but I understand why they think preemption, or lack thereof, is a particular hazard in Illinois. Reciprocity, or other matters, are easier to fix after the fact.

  6. Open carry in Chicago? Your kidding, right? I think if it came down to open or concealed, they’d go with concealed.

  7. I wouldn’t be so sure of that. That’s one possible way it could turn out. I don’t think that carry being protected at all is a fore drawn conclusion. Hopefully with the lawsuit proceeding in California, we’ll have an answer to that, at least in the 9th Circuit. The courts are always going to bring an element of risk to the equation that isn’t present in legislation.

  8. I guess what I’m saying here is, I would be reluctant to expect the courts to fix a mess of the legislature’s creation. It could turn out to be the feds give not a whit whether there’s state and local difference in carry, as long as some form of carry is allowed. But what’s constitutional doesn’t always mean what’s sensible. It would suck to pass a law that promotes a patchwork, and then never be able to really fix it through the courts, and find you can’t fix it through the legislature either.

  9. Meanwhile the law abiding in IL either choose to go unarmed in the face of whatever or choose to risk becoming felons?

    How many are going to die because of this? How many will become felons because their fear of being murdered, etc. outweighs their fear of prosecution?

    Pretty cold.

  10. I don’t think there’s a good answer here. How many people are going to die vs. how many people are going to end up getting in trouble because they carried some place they weren’t supposed to, in some town with an obscure ordinance. Even here in Pennsylvania we have tons of local parks, trails, etc, that prohibit firearms, if you read the fine print. Here I can ignore them, because I have a preemption law that’s been tested in court. Not everyone is going to read the fine print.

  11. I am definitely sympathetic to your argument, and if Chris or Scott asked me what I thought, I’d tell them to stay neutral if they thought it was a bad bill. But I understand why they don’t want to get behind it, given Illinois’ very strong home rule laws. I think it’s unfair to say it’s cold. It’s a trade off no matter which way you go.

  12. Well, today persons who carry face a felony with the subsequent permanent ban on firearm ownership.

    With our bill, they’d face a misdemeanor and would not even have their firearm confiscated. In most places, it would be legal.

    I fail to see why there is even a debate here?

    Why make the perfect the enemy of the good?

  13. Based the research I for this post on IL home rule powers, I’m not sure how you can prevent the firearm from being confiscated. IL home rule powers are extremely broad, or so it seems to me. Any intrusion into home rule requires the 3/5ths majority.

    Don’t get me wrong, I could be wrong about this, and there’s some existing law or provision I’m overlooking. And if it this were just about removing the penalty for carry in IL, I think we’d have something. I would support that. But we’re talking about giving a license to people to carry.

    Having been around gun owners and listened to people’s conceptions of what they perceive the law to be, versus what the law actually is, I think issuing state licenses where there’s still a potpourri of local laws and ordinances that need to be considered, is problematic.

  14. I am going to start tracking the following:

    Number of people murdered since NRA killed HB2257
    Number of women raped since NRA killed HB2257
    Number of people charged with felony UUW since NRA killed HB2257.

    It will make a great online death clock. Maybe even a good billboard.

  15. Ok, just read the bill again, I mis-remembered the non-confiscation aspect. It prevents confiscation soley for violation of the Act. It does not prevent a home rule municipality from confiscation.

    However, it does prevent a felony rap, which is huge. You can get a felony rap for transporting a firearm improperly in Illinois as it stands now. Also, we have a “patchwork” of transportation laws throughout the state as well. Illinois residents already navigate these treacherous waters.

  16. We will NEVER pass a preemptive bill in Illinois. I hate to compromise as well, but it just is not realistic to think that Chicago can be either overridden or swayed to support any type of carry. Meanwhile, the NRA sabotages our one hope for ANY ability to defend ourselves and our familes with a firearm, so that they don’t look like they are compromising, which apparently somehow hurts their activities in other states. You know what? Other states enjoy the ability to protect themselves, Illinois doesn’t, and won’t. Sadly, I don’t think we can get anything passed without the NRA backing, which apparently just means we will never pass anything.

  17. I don’t think this bill is your only hope, and I’d be surprised if NRA thinks that either. Let us beat Chicago into capitulating in regards to the Second Amendment first, and then see what the long term political shift is, as a result of that. Let’s see what we can get in the 9th circuit in regards to California’s discretionary laws.

    I don’t think this is the last great hope for carry in Illinois. There is hope. I don’t think anyone would have imagined that Heller would cause several municipal handgun bans to fold with just the whisper of a legal challenge, or that San Francisco would cave under legal threat.

    I think this is one of those issues that demands almost a saintly patience, and believe me, I know that’s a lot easier for me to say in PA where I can carry, than for those of you in IL in can’t, and don’t know when they might be able to. But if the Heller is any indication so far, court wins can cause titanic shifts in the political calculation. A court strategy is risky. I will acknowledge that. But I would caution against taking risky legislative moves when there are court decisions pending within your circuit that could cause titanic shifts in your states political climate.

  18. We’ve been playing this game for over 15 years. Butting heads against the Chicago Machine.

    I’ve been told directly that the issue isn’t CCW, it’s preemption and that the NRA plan is to use the courts, not the legislature, after a Supreme Court win on the Chicago Handgun case.

    So they’re perfectly willing to let it sit for the next 10 to 20 years.

  19. So they’re perfectly willing to let it sit for the next 10 to 20 years.

    A few months ago I would have said that’s true, but SAF, along with Alan Gura, seem to be embarking on a very aggressive court strategy. It might be under a decade for a lot of this. But it’s hard to say. There will undoubetdly be a patchwork of circuit court rulings first, and then the Supreme Court deciding which ones they want to settle. All this hoping that none of the Heller five retire in the mean time. At least not while Obana is President.

    The answer may very well be that you need a very high degree of patience. You’re in a situation not unlike New York. Illinois has, what? 12 million people, and Chicago is 3 million of that. The Chicago metro counties are 8 million of that 12 million. In every case in this country where the major city has managed to ban or severely restrict firearms, they radiate anti-gun sentiment outwards into the entire the metro area.

    That’s what makes New Jersey anti-gun, bordering New York City. It’s what makes Maryland anti-gun bordering DC and Baltimore. Virginia stays pro-gun by virtue of Fairfax and Arlington Counties not completely outnumbering the rest of an otherwise southern state. Would CT have an assault weapons ban if it didn’t border New York City?

    In converse, Philadelphia has never had the votes to dominate Pennsylvania state politics, so have never been able to garner enough political support in Harrisburg for restrictions statewide. As a result, you can still find a lot of pro-gun politicians in Philadelphia’s suburbs, which is why the state hasn’t completely flipped in its gun politics.

    If you were in an area where your major city dominated your state’s politics in the early to mid 20th century, you’re going to have a long way to come back. The New Jersey folks are in the same boat as Illinois, only farther away from shore. I think we can get there, but I also think you need patience in this issue.

  20. Md is a solidly Democratic state. Illinois is not quite as much. Illnois has a lot a electorate that is far way from Chicago. Md has Montgomery Conty. PG county. and baltimore city with the majotity of the electorate that is rabidly anti gun. Please remember the anti gun folk in Brady and Helmke live in Montgomery County.Anti gun feeling and that thought was born there. DC riots of he 1960’s terrified the suburbs and anti gun measures were enacted.

    If it wasn’t for the rural Democrats in Md they would be more anti gun laws passed. Thankfully the rural Democrats stop all that. So we are at a stalemate in Md.

    However in Md state has control of guns and ammo and the local towns do not. The loony Friendship Heights that made themselves nuclear free zone tried to tax ammo and was shut down a decade ago and was told they can’t do that. If we ever get pro gun law through the state house it would be through out the state fast.

    DNR is pro gun and so are a lot of cops. So we have a tension between depts of Md state about guns. Md has a LTC law but the state police that is under the governors control has to approve and that does nothappen often

    Md has a strong hunting tradition and that is what stops the antis most. DNR is pro hunting so we get support there.

    That is why is good to support all hunting sports because their support goes back to pro gun laws.

    Waterfowl is still hunted a lot but blinds that were all over the Potomac and the bay are gone. No lead shot over water any more.

    Muzzle loaders or black powder for deer is the most common restricion. A lot of concern on rifle rounds carry to cause harm.

  21. A little warning about gun laws which can be over-ruled by local powers ……… even pro-gun governments will ban guns. For example, Kennesaw GA requires every household to have a gun. However, Kennesaw GA banned guns in parks and other otherwise legal locations. The city even made the claim that guns are banned on the sidewalk. GeorgiaCarry used GA’s preemption statute to overturn these local laws. Without pre-emption there would be nothing we could do.

    Without pre-emption you’ll end up with an ever expanding list of no-go locations. You’ll never know if you are legal or not. These no-go locations will be a very big deterent to carrying.

    My advise from the trenches, go for pre-emption FIRST, then go for carry expansion.

  22. That’s the thing. Right now we have nothing. No carry. No preemption. W/ Chicago and the collar counties, it will take another 10+ years through the courts and that’s assuming we win.

    We’ve been ‘patient’ for nearly twenty years and we still have nothing.

    It’s time for a new plan.

  23. The NRA will receive no more money from me.

    It’s time to fish or cut bait.

  24. I think that’s remarkably short sighted. Thing in IL are extremely difficult with Chicago, and my understanding is that the votes aren’t even there for the weaker home rule bill.

    Initially when I was approached about this, it was my understanding that what folks wanted was NRA’s neutrality, having gotten that, now it’s not enough?

  25. But you’re willing to take advantage of their free access, huh? That’s such a mature view over a disagreement on tactics.

  26. Most of the people that I talk to in Illinois were pushing for the home rule bill since over 15 years of preemption have failed.

    2257 had not only strong grassroots support but also support from police.

    Initially the NRA actively opposed the bill and only later switched to neutrality after it was going to come out publicly.

  27. Isn’t this the bill here? How does this get around the constitutional super majority requirement?

    except that an ordinance of a unit of local government, including a home rule unit, is invalid if it is inconsistent with the Citizen’s Self-Defense Act. It is declared to be the policy of this State that the regulation of the right to carry defensive firearms is an exclusive power and function of the State. A home rule unit may not regulate the issuance of permits to carry defensive firearms. This Section is a denial and limitation of home rule powers and functions under subsection (h) of Section 6 of Article VII of the Illinois Constitution.

  28. I’m not being snarky there, just to be clear. I’m legitimately a bit confused about what this bill does and doesn’t do in terms of what it doesn’t allow home rule entities to do.

  29. Ah, OK. You display bills differently than we do in PA. But I thought the fact that DNR issued was one of the highlights of this bill? Is the current bill that Sheriffs issue? Seems like it.

  30. Yes, the Amendment changed it from a DNR issued preemption bill w/ universal reciprocity and reasonable requirements to a ‘home rule/may issue’ bill through County that (if I read it correctly) would still allow people to carry statewide.

    DNR issue would be ideal since they are much less politically motivated than the State Police.

  31. Looks like shall issue:

    State of Illinois and the FBI. If applicant is subject to an investigation or pending criminal charges which, if convicted, would cause the applicant to be ineligible for licensing, the Department may delay licensing until such investigation or charges are resolved. Upon confirmation of a clear criminal record, the Department shall produce and issue a wallet-sized LTC to the applicant.

    But here’s a problem:

    (a) An LTC shall authorize the licensee to carry defensive firearms on or about his or her person throughout the State of Illinois. Individuals licensed under the authority of this Act shall not be permitted to carry a firearm into those areas prohibited by federal law.

    Now, to me, that puts you squarely under Article VII Section 6 (g)

    The General Assembly by a law approved by the vote of three-fifths of the members elected to each house may deny or limit the power to tax and any other power or function of a home rule unit not exercised or performed by the State other than a power or function specified in subsection (l) of this section.

    So you’re still stuck with the 71 vote requirement, I would imagine. Unless legal procedure in Illinois is that the bill has to specifically proscribe home rule entities in order for it to do so. If that’s the case, you’re back to not having the votes. If it’s the case that this clause is subject to home rule, than it’s effectively meaningless, since any municipality with a home rule charter, which is a lot of them in IL, can make their own regulations limiting or prohibiting carry with a license.

  32. Most of IL geographic-wise is Pro 2A and a great portion is pro-LTC. We have had private correspondence with several key mayors and they are on board.

    I suspect Chicago, Cook County, and some of the municipalities in the collar counties will ban carry. I also suspect Champaign, Urbana, Normal, and perhaps other College towns will.

    However, well over 90% of the land mass of IL could easily allow carry. This is, of course, much better than the 0% of it that now allows carry. 0%. Also, carry in 100% of IL is a felony now and would be a misdemeanor under HB2257. I don’t see why this seems to not be understood or why it is minimalized. It is huge.

    As to home rule, the bill would have to specifically say it preempts home rule in order to preempt home rule. It does not. Some say Madigan (speaker of house) threatens to invoke the 3/5s majority anyway…fine. Let’s get him on record as doing so. Let’s have a vote…we haven’t had a vote since 1993.

  33. I think preemption is a bedrock principle. I don’t think there can be any negotiation on it, and I can certainly understand why NRA won’t get behind a bill that doesn’t contain it in a state that has one of the most permissive home rule regimes in the country.

    Like I said, based on my experience here in Pennsylvania, even very pro-gun counties and municipalities like to pass their own gun ordinances, even though they are illegal under state law. Here you can just ignore them, because if you took them to court you’d win. We’ve had activists running around the state fighting these ordinances where we find them, but there are a lot of them.

    In IL, you’d be risking a misdemeanor. I will give you that’s better than a felony, but do you think finding a job will be easy with a misdemeanor gun charge, or a few of them on your record? How will a gun owner who carried the wrong place support his family when he spends a few months in jail and loses his job with no prospect for collecting unemployment.

    I know waiting sucks, but Chicago presents a tough problem for IL. I would advise waiting until we have incorporation and Chicago is forced to allow gun ownership. We might be able to build up enough to get the votes needed to get a bill passed with preemption. It will probably take a while, I’ll grant you, and I wouldn’t be opposed passing a bill that’s highly imperfect, but I think you need preemption as a base principle. Without that, what you’re creating is meaningless license that’s going to get someone in trouble.

  34. Brian:

    It depends on the state, but it basically defines what rights local government has under state law to regulate their own affairs. In some states, like Nebraska, that power is pretty limited to almost non-existent. Pennsylvania’s home rule is subject entirely to the whim of the state legislature, and they can’t create crimes with more than, IIRC, a 90 day jail sentence and 1000 dollar fine. Illinois has a very liberal home rule system, where the state legislature is outright forbidden from interfering with certain things, and has to get a super majority (three-fifths) to interfere with others.

    In this particular issue, NRA wants to push a bill with full preemption, which requires the three-fifths supermajority, which they don’t have the votes for. What the other folks on here are proposing is a bill that does not have preemption, and would allow home rule communities (I think in IL, any town over 25k in population is a home rule entity) to ban carrying of firearms despite the state license, which would mean carry is legal in one town, and illegal in the next town, potentially. In IL, home rule jurisdictions can’t create felonies, but like in PA, they can create misdemeanors.

  35. Ahh, I think I see. I’m up in Wisconsin. I believe Tommy Thompson banned local municipalities from overrulling State decisions or passing more restrictions than the State has. (e.g., Milwaukee can’t ban handguns.) That would be a more conservative home rule policy, I’d assume?

    BTW — I found out about this blog due to it’s commentary on the open carry issue recently brought up in Wisconsin. Keep up the good work, guys.

  36. It looks to me like Illinois was at third and short with about 90 yards to the goal and the NRA refused to let them go for an easy first down.
    I can’t believe that the NRA opposed ANY pro gun relief for Illinois.

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