Kevin Culp v. Lisa Madigan , 840 F.3d 400 ( 2016 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-3738
KEVIN W. CULP, et al.,
Plaintiffs-Appellants,
v.
LISA MADIGAN, in her official capacity as Attorney General of
Illinois, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 3:14-CV-03320 — Sue E. Myerscough, Judge.
____________________
ARGUED SEPTEMBER 22, 2016 — DECIDED OCTOBER 20, 2016
____________________
Before BAUER, POSNER, and MANION, Circuit Judges.
POSNER, Circuit Judge. Illinois’ Concealed Carry Act, 430
ILCS 66/1 et seq., authorizes an Illinois resident to carry, on
his person or next to him in a car, a loaded or unloaded fire-
arm as long as it is fully or partially concealed and he (or
she) meets the qualifications set forth in the Act. We held in
Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012), that the Sec-
ond Amendment entitles qualified persons to carry guns
2 No. 15-3738
outside the home; just a few months ago we said that “the
constitutional right to ‘keep and bear’ arms means that states
must permit law-abiding and mentally healthy persons to
carry loaded weapons in public.” Berron v. Illinois Concealed
Carry Licensing Review Bd., 825 F.3d 843, 845 (2016). But
“qualified,” “law-abiding,” and “mentally healthy” are sig-
nificant limitations on the right of concealed carry.
The qualifications in the Act are numerous but to decide
this case we need consider only a few of them: that the ap-
plicant for a concealed-carry license not present a clear and
present danger to himself or others or a threat to public safe-
ty and not in the last five years have been a patient in a men-
tal hospital, or been convicted of a misdemeanor involving
the use or threat of physical force or violence, or been in a
residential or court-ordered drug or alcohol treatment pro-
gram, or have committed two or more violations involving
driving under the influence of drugs or alcohol, or be subject
to a legal proceeding that could lead to being disqualified to
possess a gun. 430 ILCS 66/25, 65/4(a)(2)(iv).
In compliance with Moore v. Madigan, supra, Illinois has
authorized residents of Illinois who meet the criteria listed
above to obtain concealed-carry licenses. But what about a
nonresident of Illinois? Can he or she obtain a right to carry
a concealed firearm in Illinois? Yes, but only if he resides in a
state or territory that has “laws related to firearm ownership,
possession, and carrying, that are substantially similar to the
requirements to obtain” an Illinois concealed-carry license,
and submits a notarized statement confirming that he is eli-
gible under both federal law and the laws of his home state
to own a gun and licensed by that state to carry a gun. 430
ILCS 66/40(b), 66/40(c)(2). A state’s gun laws are deemed
No. 15-3738 3
“substantially similar” to Illinois’ if the state does the follow-
ing four things:
1. “regulates who may carry firearms, concealed or oth-
erwise, in public;”
2. “prohibits all who have involuntary mental health
admissions, and those with voluntary admissions
within the past 5 years, from carrying firearms, con-
cealed or otherwise, in public;”
3. “reports denied persons to NICS [National Instant
Criminal Background Check System];” and
4. “participates in reporting persons authorized to carry
firearms, concealed or otherwise, in public through
NLETs [National Law Enforcement Telecommunica-
tions System].”
20 Ill. Admin. Code 1231.10. As we’ll see, these four re-
quirements are not imposed in order to punish nonresidents
because of where they live or because Illinois disapproves of
other states’ gun regimes. The sole purpose is to protect Illi-
nois residents. The Illinois State Police determines which
states make the cut by conducting a fifty-state survey and
posting the results on its website. 20 Ill. Admin. Code
1231.110(b), (c). Currently only Hawaii, New Mexico, South
Carolina, and Virginia qualify as “substantially similar” in
the relevant respects to Illinois. Illinois State Police Firearm
Services Bureau, “Frequently Asked Questions: How can I
find out if my state’s laws are considered ‘substantially simi-
lar?,’” www.ispfsb.com/Public/Faq.aspx (visited Oct. 19,
2016).
Illinois recognizes certain exceptions for citizens of not
“substantially similar” states. A person who has a firearm
4 No. 15-3738
license from his own state is allowed to carry a firearm in
Illinois while hunting or at a firing range or on property
whose owner permits him to carry a gun, 430 ILCS 65/2(a),
(b), and if he has a concealed-carry license from his state he
can transport a firearm in his car or other vehicle in Illinois
as long as he doesn’t remove it from the vehicle. 430 ILCS
66/40(e).
The plaintiffs in this case, nonresidents of Illinois each of
whom has a concealed-carry license from his home state,
travel to Illinois whether on business or for family or other
reasons and want, while they are in Illinois, to be allowed to
carry a firearm even if they are not within the exceptions to
the restrictions on nonresident gun carrying just listed, but
are not allowed to do so because they aren’t residents of
states that have firearm laws substantially similar to Illinois’.
They argue that Illinois’ refusal to issue concealed-carry li-
censes to them violates Article IV of, and the Second and
Fourteenth Amendments to, the Constitution. The district
judge declined to issue a preliminary injunction, precipitat-
ing this appeal.
The plaintiffs’ claim to be allowed to carry concealed
firearms when they are visiting Illinois would be compelling
if the Illinois authorities could reliably determine whether in
fact a nonresident applicant for an Illinois concealed-carry
license had all the qualifications that Illinois, or states that
have concealed-carry laws substantially similar to Illinois,
require be met. But while the Illinois state police have ready
access to information about Illinois residents (mainly about
whether the applicant for a concealed-carry license has a
criminal history or a history of mental illness) that is neces-
sary to determine whether an applicant is eligible to obtain
No. 15-3738 5
such a license, they lack reliable access to the information
they need about the qualifications of nonresident applicants
other than residents of the four “substantially similar” states.
An uncontradicted affidavit from Jessica Trame, the
chief of the Illinois Firearms Services Bureau, lists infor-
mation sources that the Bureau relies on in determining
whether an applicant for a concealed-carry license is eligible.
They include records of drivers’ licenses and a computerized
criminal history records system. There is also the federal da-
tabase of criminal histories mentioned earlier (NLETS) that
the police can access, but it is incomplete because many
states submit incomplete information on their arrest and
prosecution records to the database. And while the Illinois
Bureau can request information from local jurisdictions (cit-
ies, counties, etc.) in other states, those jurisdictions charge
for the information; and the Bureau claims without contra-
diction that it lacks the funds required to pay the charges (Il-
linois state agencies are notoriously underfunded). The Bu-
reau has for example encountered significant difficulties in
its efforts to obtain mental health information about resi-
dents of other states; many of those states don’t track such
information.
But it’s not just the initial application process that has Il-
linois concerned. Illinois needs reliable information in order
to be able to monitor the holders of gun permits, which are
good for five years. 430 ILCS 66/50, 66/35. So after issuing a
concealed carry license Illinois checks its own databases dai-
ly and national ones quarterly for updates that might require
a license to be revoked. But it is unable to obtain updates
from states that don’t track or report the information. This
6 No. 15-3738
practical need explains all four of the requirements for “sub-
stantially similar” gun laws listed above.
All this said, the plaintiffs do make some apt criticisms
of the Illinois law. They point out for example that the con-
cealed-carry license of an Illinois resident is not revoked or
reassessed if he returns from a trip to, or a sojourn in, anoth-
er state, even though the Illinois authorities will not know
what he did in that state—whether for example he commit-
ted a crime or had a mental breakdown. And anyone who
lives in Illinois or one of the four substantially similar states
is eligible to obtain an Illinois concealed-carry license even if
he had become a resident of such a state recently, having
spent many years living in dissimilar and therefore non-
approved states, with Illinois (and, presumably, the substan-
tially similar state as well) unable to obtain information
about his possible criminal or mental problems in those
states.
So the Illinois law regulating the concealed-carry rights
of nonresidents is imperfect. But we cannot say that it is un-
reasonable, so imperfect as to justify the issuance of a pre-
liminary injunction. Cf. Moore v. Madigan, supra, at 940. The
critical problem presented by the plaintiffs’ demand—for
which they offer no solution—is verification. A nonresi-
dent’s application for an Illinois concealed-carry license can-
not be taken at face value. The assertions in it must be veri-
fied. And Illinois needs to receive reliable updates in order
to confirm that license-holders remain qualified during the
five-year term of the license. Yet its ability to verify is ex-
tremely limited unless the nonresident lives in one of the
four states that have concealed-carry laws similar to Illinois’
law. A trial in this case may cast the facts in a different light,
No. 15-3738 7
but the plaintiffs have not made a case for a preliminary in-
junction.
AFFIRMED
8 No. 15-3738
MANION, Circuit Judge, dissenting. Just four years ago, this
court invalidated Illinois’ decades-old blanket ban on the car-
rying of firearms in public. Moore v. Madigan, 702 F.3d 933 (7th
Cir. 2012). We recognized that the Second Amendment re-
quires states to “permit law-abiding and mentally healthy
persons to carry loaded weapons in public.” Berron v. Ill. Con-
cealed Carry Licensing Review Bd., 825 F.3d 843, 845 (7th Cir.
2016). It was only in response to our decision in Moore that
Illinois finally became the last state in the nation to enact a
concealed-carry law.
Although Illinois now reluctantly allows its residents to
carry concealed weapons with a license, it still significantly
restricts the rights of nonresidents to do so. State law prevents
the residents of 45 states from even applying for an Illinois
concealed-carry license because the Department of State Po-
lice has not classified their states’ public-carry qualifications
as “substantially similar” to those Illinois imposes. These
nonresidents, including the plaintiffs in this case, have no op-
portunity to prove that they meet Illinois’ requirements.
Based solely on their states of residence, they are deprived of
any opportunity to exercise their Second Amendment rights
in Illinois.
When a state law infringes on the fundamental Second
Amendment right to keep and bear arms for self-defense, it
must satisfy heightened scrutiny. Our precedents instruct that
to sustain such a law, a state must present “an extremely
strong public-interest justification and a close fit between the
government’s means and its end.” Ezell v. City of Chicago, 651
F.3d 684, 708 (7th Cir. 2011). Illinois has not done so here. As
explained below, the state’s chosen method to regulate non-
No. 15-3738 9
resident concealed-carry license applications is not suffi-
ciently tailored to its goal of properly vetting out-of-state ap-
plicants’ criminal and mental histories. Therefore, the ban vi-
olates the Second Amendment.
Nevertheless, the court holds that the plaintiffs are not en-
titled to preliminary relief because the application ban is not
“unreasonable.” The court’s application of rational-basis re-
view to the nonresident application ban is directly contrary to
Supreme Court and Seventh Circuit precedent. Under the
proper standard of review, the plaintiffs are certain to succeed
on the merits of their Second Amendment claim. 1 I would re-
verse the district court’s judgment and remand with instruc-
tions to issue a preliminary injunction. I respectfully dissent.
I. Background
Illinois law requires the Department of State Police to issue
a concealed-carry license to each Illinois resident who applies
and meets certain qualifications. 430 ILCS 66/25. The Depart-
ment must also issue a license to some nonresidents who meet
all of these qualifications other than Illinois residency. 430
ILCS 66/40(b). Under the statute, the Department may only
process applications from residents of states “with laws re-
lated to firearm ownership, possession, and carrying, that are
substantially similar to the requirements to obtain a license
1 The parties indicated at oral argument that the record before us now
is the same one that is before the district court for the pending summary
judgment motion. Therefore, there is no need to hedge on the plaintiffs’
likelihood of success at this stage. The result will not change should this
case return on appeal from the grant of the state’s motion for summary
judgment. That is why I would hold that the plaintiffs are certain to suc-
ceed on the merits.
10 No. 15-3738
under [Illinois law].” Id. The definition of “substantially sim-
ilar” is left to the Department’s discretion.
Department regulations define “substantially similar”
states as those that do all of the following: (1) regulate who
may carry firearms in public; (2) prohibit all who have had
involuntary mental health admissions, and those who have
had voluntary admissions in the past five years, from carrying
firearms; (3) report denied persons to the National Instant
Criminal Background Check System; and (4) participate in re-
porting those authorized to carry through the National Law
Enforcement Telecommunications System. Ill. Admin. Code
1231.10. The Department periodically sends a survey to each
state to determine whether it meets these criteria. At present,
the Department has identified only Hawaii, New Mexico, Vir-
ginia, and South Carolina as “substantially similar” states. 2
The law therefore operates as a total ban on concealed-carry
license applications from residents of the other 45 states.
The individual plaintiffs are law-abiding nonresidents
who hold concealed-carry licenses in their resident states.
Some are even certified Illinois concealed-carry instructors.
They wish to apply to carry firearms in Illinois. The plaintiffs
contend that the ban on applications from their states violates
the Second Amendment, the Equal Protection Clause, the Due
Process Clause, and the Privileges and Immunities Clause of
2 The Department sent the surveys that identified the four currently
approved states in 2013. At that time, seven states did not respond at all
to Illinois’ survey. Illinois indicated at oral argument that it recently sent
another survey and that the Department is currently analyzing the results.
The list of approved states is subject to change based upon the results of
this most recent survey.
No. 15-3738 11
Article IV. The district court denied their motion for a prelim-
inary injunction, and the plaintiffs timely appealed.
II. Discussion
A. Preliminary Injunction Standard
To determine whether the plaintiffs are entitled to prelim-
inary relief, this court applies a two-part “sliding scale” test.
As a threshold matter, the movants must establish (1) some
probability of success on the merits; (2) lack of an adequate
remedy at law; and (3) irreparable harm in the absence of an
injunction. Stuller, Inc. v. Steak N Shake Enters., Inc., 695 F.3d
676, 678 (7th Cir. 2012). If they clear that hurdle, the district
court then must balance the harms that both parties would
suffer in the event of an adverse decision. In this analysis, it
must consider the public interest in granting or denying an
injunction and weigh the threshold factors against each other,
depending on how strongly each factor points in favor of each
party. See id. We generally review the district court’s legal
analysis de novo and its balancing of the factors for abuse of
discretion. Id. However, “a decision to deny a preliminary in-
junction that is premised on an error of law is entitled to no
deference and must be reversed.” United Air Lines, Inc. v. Int’l
Ass’n of Machinist & Aerospace Workers, AFL-CIO, 243 F.3d 349,
361 (7th Cir. 2001).
12 No. 15-3738
B. Likelihood of Success on the Merits
At this stage, the principal issue is whether the plaintiffs
are likely to succeed on the merits of their Second Amend-
ment claim. 3 The “sliding-scale” nature of the preliminary in-
junction inquiry means that the plaintiffs’ precise chances of
success are highly relevant to whether an injunction should
issue. A movant with just a slight chance of success must
make a much greater showing of harm than one who is certain
to prevail. See Storck USA, L.P. v. Farley Candy Co., 14 F.3d 311,
314 (7th Cir. 1994).
As with any constitutional case, the strength of the plain-
tiffs’ Second Amendment claim depends upon two things: (1)
which standard of means-ends scrutiny applies to the claim;
and (2) whether the evidence is sufficient to sustain the chal-
lenged law under the chosen scrutiny. I will address these in
turn.
1. Proper Standard of Review
The Supreme Court has recognized that “the Second
Amendment secures a pre-existing natural right to keep and
bear arms.” Ezell, 651 F.3d at 700 (citing District of Columbia v.
Heller, 554 U.S. 570, 595, 599–600 (2008)). “[I]ndividual self-
defense is ‘the central component’ of the Second Amendment
right,” which is fundamental and therefore enforceable
against the states. McDonald v. City of Chicago, 561 U.S. 742,
767–68 (2010) (quoting Heller, 554 U.S. at 599). We have held
that the right to bear arms for self-defense “is as important
outside the home as inside.” Moore, 702 F.3d at 942. Illinois
3Because I conclude that the plaintiffs’ Second Amendment claim is
certain to succeed on the merits, I do not address their remaining consti-
tutional challenges to the Illinois statute.
No. 15-3738 13
recognizes that holding and correctly concedes that the non-
resident application ban implicates the Second Amendment.
The dispute centers on the proper standard of review.
In Heller, the Supreme Court did not resolve this question
for all future Second Amendment claims. However, it made it
abundantly clear that rational-basis review is inappropriate
where a law affects Second Amendment rights. Heller, 554
U.S. at 628–29 & n.27 (“If all that was required to overcome
the right to keep and bear arms was a rational basis, the Sec-
ond Amendment would be redundant with the separate con-
stitutional prohibitions on irrational laws, and would have no
effect.”). Because of Heller and McDonald, this court is by de-
fault “left to choose an appropriate standard of review from
among the heightened standards of scrutiny the [Supreme]
Court applies to governmental actions alleged to infringe
enumerated constitutional rights.” Ezell, 651 F.3d at 703.
Our precedents instruct that this critical choice should de-
pend on two factors: “how close the law comes to the core of
the Second Amendment right and the severity of the law’s
burden on that right.” Id. Since Heller rules out rational-basis
review, we must apply either intermediate scrutiny, strict
scrutiny, or another form of heightened scrutiny in between
those standards. Intermediate scrutiny generally requires the
government to show that the challenged law is “substantially
related to an important government objective” United States v.
Skoien, 614 F.3d 638, 641 (7th Cir. 2010) (en banc), while under
strict scrutiny the government must prove that the law is
“necessary to serve a compelling state interest” and “nar-
rowly tailored to achieve that interest.” Milwaukee Deputy
Sheriffs’ Ass’n v. Clarke, 588 F.3d 523, 530 (7th Cir. 2009).
14 No. 15-3738
Three recent Second Amendment cases are particularly
relevant to the standard of review question. First, in Skoien,
we considered the constitutionality of the federal ban on the
possession of firearms by those convicted of misdemeanor
domestic violence. There, rather than enter “deeply into the
‘levels of scrutiny’ quagmire,” the en banc court simply ac-
cepted the government’s concession that intermediate scru-
tiny applied to the ban. Id. at 641–42. It held that “logic and
data establish a substantial relationship” between the statute
and the goal of “preventing armed mayhem.” Id. at 642.
In Ezell, the plaintiffs sought a preliminary injunction
against Chicago’s ban on firing ranges. We described the fir-
ing-range ban as “a serious encroachment on the right to
maintain proficiency in firearm use, an important corollary to
the meaningful exercise of the core right to possess firearms
for self-defense.” Ezell, 651 F.3d at 708. Critically, unlike the
criminal defendant in Skoien, the Ezell plaintiffs were “the
‘law-abiding, responsible citizens’ whose Second Amend-
ment rights are entitled to full solicitude under Heller.” Id. Be-
cause Chicago’s law reached close to the core of the Second
Amendment and curtailed the rights of law-abiding citizens,
we required “a more rigorous showing than that applied in
Skoien … if not quite ‘strict scrutiny.’” Id. Under this standard,
the city had to demonstrate “a strong public interest justifica-
tion for its ban” and “a close fit between the range ban and
the actual public interest it serves.” Id. at 708–09. Chicago
failed to carry that burden, significantly because it could not
show that its public safety interest could not be “addressed
through sensible zoning and other appropriately tailored reg-
ulations.” Id. at 709.
No. 15-3738 15
Finally, we have Moore. In that case, we applied Ezell-like
scrutiny to invalidate Illinois’ blanket ban on the public carry-
ing of firearms. Moore, 702 F.3d at 940 (categorizing the level
of scrutiny as “a stronger showing” than required in Skoien).
We explained that, because the ban on concealed-carry cur-
tailed “the gun rights of the entire law-abiding population of
Illinois,” as opposed to a small group of people convicted of
domestic violence, intermediate scrutiny was insufficient. Id.
As we put it then, “so substantial a curtailment of the right of
armed self-defense requires a greater showing of justification
than merely that the public might benefit on balance from such
a curtailment, though there is no proof it would.” Id. Like Chi-
cago’s firing range ban, Illinois’ total prohibition on con-
cealed-carry could not withstand such scrutiny. See id. at 939
(“If the mere possibility that allowing guns to be carried in
public would increase the crime or death rates sufficed to jus-
tify a ban, Heller would have been decided the other way, for
that possibility was as great in the District of Columbia as it is
in Illinois.”).
These cases establish the basic principles that govern the
present dispute. Whenever a law infringes on the right to bear
arms for self-defense, that law must be at least substantially
related to an important government interest. And a law that
curtails the fundamental right of law-abiding citizens to carry
a weapon for self-defense must pass even more exacting (alt-
hough not quite strict) scrutiny. Defenders of such a law must
show a “close fit” between the law and a strong public inter-
est. Ezell, 651 F.3d 708–09. That “close fit” is functionally
equivalent to the “narrow tailoring” requirement for content-
neutral speech restrictions to which strict scrutiny is inappli-
cable. See, e.g., McCullen v. Coakley, 134 S. Ct. 2518, 2534 (2014);
see also Ezell, 651 F.3d at 706–08 (discussing the adaptation of
16 No. 15-3738
First Amendment precedent to Second Amendment cases).
As in First Amendment cases, the tailoring requirement pre-
vents government from striking the wrong balance between
efficiency and the exercise of an enumerated constitutional
right. McCullen, 134 S. Ct. at 2534.
Just as in Ezell and Moore, the plaintiffs in this case are pre-
cisely the type of law-abiding citizens “whose Second
Amendment rights are entitled to full solicitude under Hel-
ler.” Ezell, 651 F.3d at 708. What is more, the nonresident ap-
plication ban functions as a categorical prohibition of applica-
tions from the majority of Americans. It is therefore a severe
burden on the recognized Second Amendment right. Indeed,
Illinois’ application ban has the potential to affect even more
people than did the sweeping restrictions we invalidated in
Moore and Ezell. Therefore, it must satisfy the same exacting
scrutiny that we applied in those cases.
In sum, “a ban as broad as Illinois’ can’t be upheld merely
on the ground that it’s not irrational.” Moore, 702 F.3d at 939.
The court’s cursory application of rational-basis review is di-
rectly contrary to Supreme Court and Seventh Circuit prece-
dent. As a result, the court adds confusion to our case law and
allows the states impermissible latitude to violate the Second
Amendment rights of law-abiding Americans.
2. Application of Ezell Scrutiny
Having established the appropriate standard of review, I
now turn to its application in this case. Illinois submits that
the prohibition of so many nonresident applications is neces-
sary because the state can properly vet only applicants from
Illinois and the four Department-approved states. Illinois says
No. 15-3738 17
that it cannot afford to pay to access information, such as ap-
plicants’ criminal records, from jurisdictions that do not re-
port to the national databases Illinois uses to look up those
records. Moreover, some states do not track mental health in-
formation at all. According to Illinois, it cannot obtain mental
health records for potential applicants from many states and
thus cannot evaluate whether applicants from these states are
qualified under Illinois law to carry a firearm.
The plaintiffs do not challenge Illinois’ power to maintain
a licensing scheme with some conditions on the right to carry
a firearm in public. See Berron, 825 F.3d at 847. Nor do they
challenge the conditions themselves. On the contrary, they
want the opportunity to comply with those conditions. They seek
the opportunity to be treated the same way Illinois treats its
own residents and those of the four Department-approved
states. The current statutory scheme deprives them of that op-
portunity.
Since the court erroneously subjects the application ban
only to rationality review, it fails to answer the dispositive
question. Namely, is the ban is sufficiently tailored to Illinois’
interest in vetting applicants to pass Ezell scrutiny? I would
hold that it is not. The court seemingly admits that the law is
significantly underinclusive (because it regulates too few peo-
ple to be effective in addressing the stated goal) and overin-
clusive (because it regulates too many people that do not fall
under its public interest justification). These features, which
the court concedes make the law “imperfect,” suffice to
demonstrate that the required close fit between means and
ends is lacking. Cf. Ark. Writers’ Project, Inc. v. Ragland, 481 U.S.
221, 232 (1987) (holding that regulations fail narrow-tailoring
18 No. 15-3738
analysis when they are both overinclusive and underinclu-
sive).
The nonresident application ban is significantly underin-
clusive in two principal ways. First, as the court correctly
notes, “the concealed-carry license of an Illinois resident is not
revoked or reassessed if he returns from a trip to … another
state, even though the Illinois authorities will not know what
he did in that state—whether for example he committed a
crime or had a mental breakdown.” Maj. Op. at 6. Second, a
potential applicant who moves to one of the four approved
states becomes immediately eligible to apply for an Illinois
concealed-carry license. This is true “even if he had become a
resident of such a state recently, having spent many years liv-
ing in dissimilar and therefore non-approved states, with Illi-
nois (and, presumably, the substantially similar state as well)
unable to obtain information about his possible criminal or
mental problems in those states.” Id. As broad as the applica-
tion ban is, it does not allow Illinois to vet potential license-
holders or future applicants in two quite plausible situations.
This severely undercuts Illinois’ justification for maintaining
it. 4 See City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410,
417–18 (1993) (ban on news racks containing “commercial
handbills” lacked the required “reasonable fit” between the
government’s asserted end and the means chosen because it
was woefully underinclusive).
4Moreover, Illinois law already permits nonresidents who hold fire-
arm licenses from their resident states to possess a gun in various other
ways in Illinois. See Maj. Op. at 3–4. The fact that Illinois trusts nonresi-
dents to bring guns into the state to use on firing ranges or simply to carry
in a vehicle undermines its policy rationale for restricting these same peo-
ple from applying to carry a concealed weapon.
No. 15-3738 19
The ban is also overinclusive. While a categorical applica-
tion ban no doubt prevents many disqualified people from
obtaining an Illinois concealed-carry license, 5 it also prohibits
many who would meet Illinois’ qualifications from applying
for a license. The plaintiffs in this case are exemplary. All are
responsible gun owners with significant firearm training, no
criminal or mental histories, and valid concealed-carry li-
censes from other states. Plaintiffs Kevin Culp, Douglas Zyl-
stra, and Paul Heslin are Illinois-certified concealed-carry in-
structors who hold carry licenses in multiple states. A law that
prevents an Illinois-licensed concealed-carry instructor from
even applying for a license to carry in that state sweeps up far
too many people to be appropriately tailored under any ex-
acting standard of scrutiny.
Once more, it is important to emphasize that the plaintiffs
seek only the right to apply for a concealed-carry license.
Should they prevail, they would gain only the ability to seek
a license on the same basis as residents of Illinois and the four
Department-approved states. While such a process may im-
pose an additional burden, Illinois has not shown that it
5 While I do not doubt the statute’s effectiveness at preventing these
people from obtaining a license, whether it actually prevents gun violence
is another matter altogether. In Moore, we properly recognized that “[t]he
available data about permit holders … imply that they are at fairly low
risk of misusing guns, consistent with the relatively low arrest rates ob-
served to date for permit holders.” Moore, 702 F.3d at 937–38 (quoting
Philip J. Cook, et al., Gun Control After Heller: Threats and Sideshows from a
Social Welfare Perspective, 56 UCLA L. Rev. 1041, 1082 (2009)). There is no
indication that this is any less true for concealed-carry license holders in
one state who wish to apply for a license in another state. To put it plainly,
it is unlikely that someone wanting to commit a gun crime in Illinois will
first avail himself of the licensing process for out-of-state residents.
20 No. 15-3738
would be impossible, or even impractical, for these out-of-
state applicants to provide verified records that satisfy Illi-
nois’ requirements. For instance, nonresidents could attempt
to shoulder the burden of paying for criminal record searches
in their resident state and providing the relevant records to
Illinois. Prospective applicants could also seek certification
that they satisfy Illinois’ mental health requirement. In many
cases, such certification would provide Illinois with more in-
formation than it can obtain about its own residents’ out-of-
state sojourns, which they admittedly cannot track.6 Potential
applicants should at least be given that chance.
In sum, the absolute denial of nonresidents’ right to apply
for an Illinois concealed-carry license lacks the required close
fit to the state’s asserted interest in properly vetting appli-
cants. It is woefully overinclusive and underinclusive relative
to that aim. Therefore, 430 ILCS 66/40(b) violates the plaintiffs’
Second Amendment rights. I would hold that the plaintiffs
are certain to succeed on the merits.
C. Remaining Preliminary Injunction Factors
Because I would hold that the plaintiffs are certain to suc-
ceed, I must proceed to the remaining preliminary injunction
factors. In addition to demonstrating some probability of suc-
cess on the merits, the plaintiffs must establish that they
6 For example, there is no reason that Illinois cannot require nonresi-
dent applicants to submit their health records as proof that they have not
been treated for a mental illness. The state could also require an affidavit
from a treating physician certifying an applicant’s lack of mental admis-
sions. This information would be far more valuable to Illinois than the
simple fact that an applicant has a Hawaii concealed-carry license. After
all, there is no guarantee that Hawaii was aware of its applicants’ mental
health admissions in other states before granting licenses.
No. 15-3738 21
would be “irreparably harmed if [they do] not receive prelim-
inary relief, and that money damages and/or an injunction or-
dered at final judgment would not rectify that harm.” Abbott
Labs. v. Mead Johnson & Co., 971 F.2d 6, 16 (7th Cir. 1992). The
district court properly found that the plaintiffs satisfy all of
the threshold requirements here. See Ezell, 651 F.3d at 697–99
(holding that irreparable harm is presumed in Second
Amendment cases and that damages could not compensate
for a violation). I need not belabor these points.
More critical is the district court’s balancing of the harms.
Although the district court correctly concluded that the plain-
tiffs met all the threshold requirements for an injunction, it
still denied their motion based on its conclusion that issuance
of an injunction would harm the state more than a failure to
issue one would harm the plaintiffs. The district court rea-
soned that the state would be harmed by its inability to con-
duct background checks on newly eligible applicants, while
the plaintiffs could carry guns into Illinois for various other
purposes and retained the right to concealed-carry in their
resident states even in the absence of an injunction.
Because it was premised on an error of law, the district
court’s balancing of the factors is due no deference. United Air
Lines, 243 F.3d at 361. Since the district court erred by applying
only intermediate scrutiny to the plaintiffs’ Second Amend-
ment claim, it erroneously concluded that the plaintiffs’ claim
was “neither strong nor weak.” Had it applied the proper
standard of review and held that the plaintiffs are certain to
succeed, the district court would have required a much
weaker showing of harm before it issued the injunction. Storck
22 No. 15-3738
USA, 14 F.3d at 314 (“[T]he greater the movant’s chance of suc-
cess on the merits, the less strong a showing must it make that
the balance of harms is in its favor.”).
Given the plaintiffs’ certainty of success, I would hold that
the balance of harms tips in their favor. Simply permitting
law-abiding citizens who have concealed-carry licenses in
other states to apply for an Illinois license will not irreparably
harm the state. Illinois may still deny those who do not meet
its stringent criteria, so an injunction will not result in a flood
of new concealed-carry license-holders. Meanwhile, the
plaintiffs suffer irreparable harm each day they cannot avail
themselves of Illinois’ concealed-carry licensing scheme. See
Ezell, 651 F.3d at 699 (“If they’re right [on the merits], then the
range ban was unconstitutional when enacted and violates
their Second Amendment rights every day it remains on the
books.”). The fact that they can still possess firearms in other
limited ways in Illinois and exercise the right to carry a fire-
arm in their home states is irrelevant. Id. at 697-98. The appli-
cation ban prevents them from taking the first step towards
exercising their fundamental constitutional rights in Illinois.
III. Conclusion
Today’s decision will have a profound and unfortunate
impact on the scope of Second Amendment rights in our cir-
cuit. The court’s decision has unnecessarily muddied the wa-
ters and cast significant doubt upon our holdings in Ezell and
Moore. Rather than create confusion, we should reaffirm that
state laws affecting the fundamental right to carry a firearm
for self-defense are subject to exacting scrutiny. Under this
standard, the plaintiffs are entitled to a preliminary injunc-
tion. I respectfully dissent.