Kevin Culp v. Kwame Raoul

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17-2998
KEVIN W. CULP, et al.,
Plaintiffs-Appellants,
v.
KWAME RAOUL, in his official capacity as Attorney General of
the State of Illinois, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 3:14-cv-3320 — Sue E. Myerscough, Judge.
____________________
ARGUED SEPTEMBER 20, 2018 — DECIDED APRIL 12, 2019
____________________
Before MANION, HAMILTON, and SCUDDER, Circuit Judges.
SCUDDER, Circuit Judge. Before us is a challenge to the
scheme Illinois has enacted to license the concealed carry of
firearms. The plaintiffs are out-of-state residents who contend
that Illinois law discriminates against them in a way that fore-
closes their receiving a license in violation of the Second
Amendment and the Privileges and Immunities Clause of the
U.S. Constitution. Two years ago we considered and rejected
2 No. 17-2998
the same challenge from the same parties in an appeal from
the denial of their request for a preliminary injunction. The
case returns on the same evidentiary record following entry
of summary judgment for the State.
Illinois has regulated the public carrying of firearms by en-
acting the Firearm Concealed Carry Act and seeking to ensure
that licenses issue only to individuals—residents and nonres-
idents alike—without substantial criminal and mental health
histories, with the State then undertaking regular and rigor-
ous monitoring to verify ongoing compliance. Illinois moni-
tors the compliance of in-state license holders by accessing the
robust, real-time information available about its residents. But
monitoring compliance of out-of-state residents is limited in
material ways by Illinois’s inability to obtain complete and
timely information about nonresidents—for example, about a
recent arrest for domestic violence or a voluntary commit-
ment for inpatient mental health treatment. Illinois cannot
compel this information from other states, nor at this time do
national databases otherwise contain the information.
The State has sought to overcome this information deficit
not by holding out-of-state residents to different standards
than residents for obtaining a concealed-carry license, but by
issuing licenses only to nonresidents living in states with li-
censing standards substantially similar to those of Illinois. In
this way, Illinois’s “substantially similar” requirement func-
tions as a regulatory proxy, as the State’s indirect means of
obtaining adequate assurances that individuals licensed to
carry a firearm in public remain fit and qualified to do so.
We conclude that Illinois’s substantial-similarity require-
ment—the centerpiece of its approach to nonresident con-
cealed-carry licensing—respects the Second Amendment
No. 17-2998 3
without offending the anti-discrimination principle at the
heart of Article IV’s Privileges and Immunities Clause.
I
A
The path to (and limitations on) the concealed carrying of
firearms in Illinois owes much to the Supreme Court’s deci-
sion in District of Columbia v. Heller, 554 U.S. 570 (2008). There
the Court held that the Second Amendment confers “the right
of law-abiding, responsible citizens to use arms in the defense
of hearth and home.” Id. at 635. Concluding that “the inherent
right of self-defense has been central to the Second Amend-
ment right,” the Court invalidated a District of Columbia law
banning handgun possession in the home, “where the need
for defense of self, family, and property is most acute.” Id. at
628.
In so holding, the Supreme Court underscored that, “[l]ike
most rights, the right secured by the Second Amendment is
not unlimited,” emphasizing that “the right was not a right to
keep and carry any weapon whatsoever in any manner
whatsoever and for whatever purpose.” Id. at 626. The Court
sounded the extra caution that “nothing in [its] opinion
should be taken to cast doubt on longstanding prohibitions
on the possession of firearms by felons and the mentally ill, or
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”—all “presumptively lawful measures.” Id. at 626–27 &
n.26.
Two years later, the Court decided McDonald v. City of
Chicago and held that “the Second Amendment right is fully
4 No. 17-2998
applicable to the States.” 561 U.S. 742, 750 (2010). Echoing
what it underscored in Heller, the Court “repeat[ed] th[e]
assurances” that longstanding “prohibitions on the
possession of firearms by felons and the mentally ill”
remained unquestioned. Id. (quoting Heller, 554 U.S. at 626).
In the wake of Heller and McDonald, we held that the
Second Amendment right to “bear arms” extends beyond the
home. See Moore v. Madigan, 702 F.3d 933, 936 (7th Cir. 2012),
petition for rehearing en banc denied, 708 F.3d 901 (7th Cir. 2013).
This conclusion resulted in our invalidating an Illinois law
that imposed a near-categorical prohibition on the carrying of
guns in public. See id. at 934. This “sweeping ban,” we
reasoned, could not be upheld by the State’s generalized
reliance on “public safety,” as Illinois had ample room to
“limit the right to carry a gun to responsible persons rather
than to ban public carriage altogether”—consistent with
Heller’s recognition of the propriety of restricting gun
possession by children, felons, the mentally ill, and unlawful
aliens. Id. at 940, 942.
We ended our opinion in Moore with an invitation to the
“Illinois legislature to craft a new gun law that will impose
reasonable limitations”—in a manner “consistent with the
public safety and the Second Amendment”—“on the carrying
of guns in public” within the State. Id. at 942. Illinois re-
sponded by enacting the Firearm Concealed Carry Act, 430
ILCS 66/1 to 66/999, authorizing the issuance of concealed-
carry licenses to individuals who meet prescribed eligibility
requirements. This new statute set the stage for this litigation.
No. 17-2998 5
B
Obtaining a license under the Illinois Concealed Carry Act
requires an applicant to show, among other things, that he is
not a clear and present danger to himself or a threat to public
safety and, within the past five years, has not been a patient
in a mental hospital, convicted of a violent misdemeanor or
two or more violations of driving under the influence of drugs
or alcohol, or participated in a residential or court-ordered
drug or alcohol treatment program. See 430 ILCS 66/10(a)(4),
66/25(3), 66/25(5); 430 ILCS 65/4, 65/8.
These standards are identical for residents and
nonresidents alike, and no provision of the Illinois statute
imposes any additional requirement on nonresidents.
Furthermore, no aspect of this case entails a Second
Amendment (or any other) challenge to any substantive-
eligibility requirements in the Illinois statute. To the contrary,
this case is only about how the substantial-similarity
requirement applies to out-of-state residents. Resolving the
question requires an examination of the statutory scheme,
most especially the State’s initial evaluation of applicants and
its ongoing monitoring of a licensee’s continued eligibility.
The issuance of a license requires the State Police to
conduct an extensive background check of each applicant. See
430 ILCS 66/35. This check includes a search of multiple
national databases, including the FBI’s National Instant
Criminal Background Check System and, for Illinois
residents, of “all available state and local criminal history
record information files,” records pertaining to domestic
violence restraining orders, and mental health files of the
Illinois Department of Human Services. Id.
6 No. 17-2998
To enable the prompt identification of any disqualifying
circumstances that may arise during the five-year licensing
period, the Illinois statute requires ongoing monitoring. See
430 ILCS 66/70; 430 ILCS 65/8.1. The monitoring is substantial,
with the State Police Firearms Services Bureau conducting a
daily check of all resident licensees against the Illinois
Criminal History Record Inquiry and Department of Human
Services’s mental health system for any development that
might disqualify a licensee from holding a concealed-carry
license. To ensure that certain intervening and disqualifying
events are reported, Illinois obligates the clerks of its circuit
courts as well as state law enforcement agencies to notify the
State Police of certain criminal arrests, charges, and
disposition information. See 430 ILCS 65/8.1(a); 20 ILCS
2630/2.1 to 2630/2.2. Illinois law also mandates that
physicians, law enforcement officials, and school
administrators report persons suspected of posing a clear and
present danger to themselves or others within 24 hours of that
determination. See 430 ILCS 65/8.1(d)(1)–(2).
This monitoring regime positions Illinois to revoke the li-
cense of an individual who poses a danger of misusing fire-
arms. The State Police learning, for example, that a license
holder had been arrested for domestic violence or committed
involuntarily to inpatient mental health treatment results in a
revocation of the license. See 430 ILCS 66/70(a); 430 ILCS
66/25(2) (incorporating 430 ILCS 65/4(2)(iv)), 66/25(4).
The upshot of all of this is that eligibility for a concealed-
carry license in Illinois turns on the continuing and verifiable
absence of a substantial criminal record and mental health
history for all applicants, regardless of residency. See 430
ILCS 66/25(2) (incorporating 430 ILCS 65/4(2)(ii)–(xvii)),
No. 17-2998 7
66/25(3). While this observation is simple, implementing it is
not. The State’s ability to determine eligibility depends on ac-
cess to information. And it is on this point that Illinois faces a
substantial practical barrier—an information shortfall—when
it comes to the mental health and criminal histories of out-of-
state residents wishing to obtain a license.
Illinois does not have access to other states’ criminal his-
tory databases or mental health repositories. Nor are other
states required to provide this information to Illinois or, more
generally, to include the information in a national database to
which the Illinois State Police have access. This is today’s in-
formation reality, and it is uncontested. At no point in this lit-
igation—not in the district court, during the first appeal, or
now in this second appeal—have the plaintiffs presented evi-
dence refuting Illinois’s showing of this information deficit.
Despite this information gap, the Illinois legislature still
authorized concealed carry by out-of-state residents in cir-
cumstances where the State can obtain enough confidence
about an applicant’s background and continued fitness to
carry a firearm in public. The confidence comes, the legisla-
ture determined, from a regulatory proxy—an indirect indi-
cator that provides adequate assurance that a nonresident is
fit and qualified to engage in concealed carry in Illinois. The
proxy took the form of the legislature authorizing the issu-
ance of concealed-carry licenses to residents of states “with
laws related to firearm ownership, possession, and carrying,
that are substantially similar to the requirements to obtain”
an Illinois concealed-carry license. 430 ILCS 66/40(b).
The law of another state is deemed “substantially similar”
if the state, like Illinois, (1) regulates who may carry firearms
in public; (2) prohibits those with involuntary mental health
8 No. 17-2998
admissions, and those with voluntary admissions within the
past five years, from carrying firearms in public; (3) reports
denied persons to the FBI’s National Instant Criminal Back-
ground System; and (4) participates in reporting persons au-
thorized to carry firearms in public through the National Law
Enforcement Telecommunications System. See 20 Ill. Admin.
Code § 1231.10.
The rationale is plain: because states that meet these crite-
ria monitor the same criminal and mental health qualifica-
tions Illinois requires under its own law and report this infor-
mation to national databases, Illinois can access the infor-
mation to assess whether nonresidents from these states are
qualified to carry a concealed gun in Illinois. And, even more
critically, the criminal history and mental health reporting
practices of these substantially similar states enable Illinois to
learn about any disqualifying event that warrants revoking an
individual’s license.
The State Police implement this monitoring of nonresident
licensees by running a check of national databases every 90-
days. By doing so, Illinois positions itself to learn of new ar-
rests, convictions, and mental health commitments and thus
ongoing fitness for concealed carry within the State.
To determine which states have substantially similar reg-
ulatory schemes, Illinois undertakes a survey process. The
State Police send a survey to all other states seeking infor-
mation regarding their regulation of firearm possession and
related criminal history and mental health reporting. Since
2013, Illinois has conducted two surveys and most recently, in
2015, determined that four states meet the criteria: Arkansas,
Mississippi, Texas, and Virginia. Residents of these states,
therefore, may apply for an Illinois concealed-carry license.
No. 17-2998 9
Illinois has approached the survey process with a measure
of diligence. The surveys sought detailed information from
other states, and Illinois officials took steps to follow up with
states that failed to respond or provided incomplete infor-
mation. Illinois also changed prior substantial-similarity de-
terminations in response to receiving new information.
Individuals living outside a substantially similar state are
not without firearm privileges in Illinois. To the contrary, the
Concealed Carry Act affords all out-of-state residents holding
a concealed-carry permit in their home state the right to travel
with a firearm in their vehicle while driving in Illinois. See 430
ILCS 66/40(e). And the Illinois Firearm Owners Identification
Card Act, 430 ILCS 65/0.01 to 65/16-3, allows out-of-state res-
idents who are authorized to possess a firearm in their home
state to do the same in Illinois while on their own premises or
in the home of an Illinois resident with permission, see 430
ILCS 65/2(b)(10), while hunting, see 430 ILCS 65/2(b)(5), and
while engaging in target practice at a firing or shooting range,
see 430 ILCS 65/2(b)(7). Nonresidents may also possess a fire-
arm that is unloaded and enclosed in a case. See 430 ILCS
65/2(b)(9).
C
In 2014 nine individuals who live outside of Illinois, but
not in one of the four substantially similar states, brought suit
alleging that Illinois’s regulation of out-of-state concealed-
carry licensing violates the Second Amendment, the
Privileges and Immunities Clause of Article IV, and the Equal
Protection Clause and the Due Process Clause of the
Fourteenth Amendment. The individual plaintiffs are
responsible, law-abiding individuals who travel to Illinois for
10 No. 17-2998
business or family reasons and, in the interest of personal
safety, wish to obtain a concealed-carry license.
Beyond broadly asking the district court to declare the
statute’s substantial-similarity requirement unconstitutional,
the plaintiffs sought a preliminary injunction. Illinois op-
posed the motion by submitting an affidavit from the Chief of
the Firearms Services Bureau, Jessica Trame, outlining the
State’s interest in not only carefully vetting applicants for con-
cealed-carry licenses, but also monitoring the ongoing fitness
and qualifications of all licensees. Chief Trame relayed sub-
stantial detail regarding the challenges Illinois faces obtaining
information about out-of-state applicants’ criminal and men-
tal health histories at the application stage, due largely to the
absence of certain information in national databases and the
State’s lack of resources to perform a complete record search
of applicants from other states.
Chief Trame further explained that Illinois faces even
greater difficulties when it comes to obtaining updated infor-
mation pertinent to monitoring the ongoing qualifications of
nonresidents. Illinois, for example, does not have access to
other states’ mental health information and, as a result, relies
on federal databases to obtain as much information as possi-
ble. On this point, Chief Trame was specific: “Out-of-state
mental health facilities are not required by their states to re-
port admissions or persons presenting a clear and present
danger to [the Illinois Department of Human Services] or to
[the Illinois State Police], and do not do so unless [the Illinois
State Police] makes a request for that information.” “Many
out-of-state mental health entities,” she added, “do not pro-
vide this information even after an [Illinois State Police] re-
quest.”
No. 17-2998 11
After considering the State’s showing of these information
deficits—all of which went uncontested by the plaintiffs—the
district court denied the request for a preliminary injunction.
The district judge emphasized that the State has an important
and strong interest in protecting the public by ensuring that
unqualified individuals are not licensed to carry loaded fire-
arms on Illinois streets. Culp v. Madigan, No. 14-CV-3320, 2015
WL 13037427, at *16 (C.D. Ill. Dec. 7, 2015).
We affirmed. Culp v. Madigan, 840 F.3d 400, 403 (7th Cir.
2016). Pointing to our decision in Moore, we reiterated that
Illinois “must permit law-abiding and mentally healthy
persons to carry loaded weapons in public.” Id. at 401. We
then concluded that because Illinois lacks access to
information about the qualifications of out-of-state
residents—in particular, whether nonresidents are law-
abiding and mentally healthy—the State’s substantial-
similarity requirement was consistent with Moore’s mandate
and did not offend the Second Amendment. See id. at 402.
Our prior opinion, to be sure, recognized that the Illinois
statute undeniably precludes some law-abiding
nonresidents—those living outside a state with substantially
similar laws—from receiving a concealed-carry license. See id.
Against the weight of the State’s public-safety interests,
however, we concluded that the Second Amendment
permitted Illinois’s regulatory approach, at least on the record
before the district court at the preliminary injunction stage.
See id. at 402–03.
On remand the parties cross-moved for summary judg-
ment on a nearly identical factual record. (The only change
was that Illinois submitted a revised affidavit from Chief
Trame to list those states presently deemed substantially
12 No. 17-2998
similar.) Adhering closely to our decision in Culp I, the district
court entered summary judgment for the State, emphasizing
that Illinois “has a substantial interest in restricting concealed
carry licenses to those persons whose qualifications can be
verified and monitored” and “[t]he restriction barring nonres-
idents from states without substantially similar laws from ap-
plying for an Illinois concealed carry license is substantially
related to that strong public interest.” Culp v. Madigan, 270 F.
Supp. 3d 1038, 1058 (C.D. Ill. 2017). The court also denied the
plaintiffs’ other constitutional claims. See id. at 1058–59.
II
This second appeal mirrors the first in all respects. The
facts have not changed, and the legal issue is the exact same.
The plaintiffs nonetheless urge us to overturn our decision in
Culp I. While we decline to do so, it is appropriate to expand
upon our reasoning.
A
The plaintiffs remain clear that they are not challenging
any criminal history or mental health limitations Illinois has
imposed on concealed-carry. Indeed, at least for purposes of
this case, the plaintiffs advance no claim that any licensing-
eligibility standard falls outside Heller’s recognition of
“longstanding prohibitions on the possession of firearms by
felons and the mentally ill” that the Supreme Court has iden-
tified as “presumptively lawful.” 554 U.S. at 626–27 & n.26.
What the plaintiffs instead challenge is how the Concealed
Carry Act impacts out-of-state residents. They argue that the
Second Amendment confers a fundamental right to carry a
firearm in public for self-defense and that principles of strict
scrutiny preclude the State from limiting that right to the
No. 17-2998 13
degree Illinois has done here—to foreclose the law-abiding
residents of 45 states from acquiring a license.
This contention is overbroad, for it cannot be squared with
the Supreme Court’s emphasis in Heller that the rights con-
ferred by the Second Amendment are not unlimited. See id. at
595. The right to bear arms, as a historical matter, “was not a
right keep and carry any weapon whatsoever and for what-
ever purpose.” Id. at 626. And most to the point here, the
Court underscored the propriety of the “longstanding prohi-
bitions on the possession of firearms by felons and the men-
tally ill,” while also observing that most courts throughout
the 19th century “held that prohibitions on carrying con-
cealed weapons were lawful under the Second Amendment
or state analogues.” Id.
The plaintiffs accept this historical reality or, at the very
least, fail to offer a competing historical account. And the ab-
sence of historical support for a broad, unfettered right to
carry a gun in public brings with it a legal consequence: the
Second Amendment allows Illinois, in the name of important
and substantial public-safety interests, to restrict the public
carrying of firearms by those most likely to misuse them. See
United States v. Skoien, 614 F.3d 638, 645 (7th Cir. 2010) (en
banc). The State has done so here on two dimensions—crimi-
nal and mental health history—expressly recognized in Heller
and unchallenged (either generally or specifically) by the
plaintiffs. Perhaps as they must, the plaintiffs expressly admit
that they “do not take issue with [firearm] restrictions on in-
dividuals with certain criminal histories or a history of admit-
tance to mental health facilities.”
Nor does the plaintiffs’ position improve if we turn to our
decision in Moore. While the plaintiffs are right to observe that
14 No. 17-2998
we held that an individual’s Second Amendment right to
possess a firearm for self-defense extends outside the home,
our opinion in Moore did not end there. We went the added
step of reiterating the assurances from Heller and McDonald
that the rights conferred by the Second Amendment are not
unlimited and, even more specifically, that a state’s interest in
promoting public safety is strong enough to sustain
prohibitions on the possession of firearms by felons and the
mentally ill. See Moore, 702 F.3d at 940 (“And empirical
evidence of a public safety concern can be dispensed with
altogether when the ban is limited to obviously dangerous
persons such as felons and the mentally ill.”).
Moore, therefore, cannot bear the weight the plaintiffs
place on it. We concluded that the individual right to bear
arms recognized in Heller and McDonald extended, at least to
some degree, to the public carrying of firearms. See id. But
neither Moore nor the Supreme Courtʹs decisions in Heller and
McDonald preclude a state from imposing criminal history
and mental fitness limitations on gun possession. See Heller,
554 U.S. at 626; McDonald, 561 U.S. at 786.
B
This brings us to the plaintiffs’ contention that the State’s
substantial-similarity requirement impermissibly discrimi-
nates against out-of-state residents by denying them the right
to carry a handgun in the same manner available to residents.
This is the essence of the plaintiffs’ challenge to the Illinois
Concealed Carry Act. Put most simply, the plaintiffs frame
this as a discrimination case.
It remains undisputed, however, that Illinois’s licensing
standards are identical for all applicants—residents and
No. 17-2998 15
nonresidents the same. What is more, the plaintiffs do not
challenge Illinois’s showing that the differential licensing
impact is the product of the information deficit the State faces
with vetting and monitoring out-of-state residents. For its
part, moreover, Illinois has demonstrated that the substantial-
similarity requirement relates directly to the State’s important
interest in promoting public safety by ensuring the ongoing
eligibility of who carries a firearm in public. Intermediate
scrutiny requires no more. See Ezell v. City of Chicago, 651 F.3d
684, 708 (7th Cir. 2011) (explaining that the tailoring prong of
intermediate scrutiny requires that any regulation of firearms
must be substantially related to an important government
interest); see also Skoien, 614 F.3d at 642 (articulating the same
standard).
Before us is a State with a weighty interest in preventing
the public carrying of firearms by individuals with mental ill-
ness and felony criminal records. Illinois established a licens-
ing and monitoring scheme to achieve this public-safety ob-
jective, yet the unrefuted evidence shows that information
deficits inhibit the State’s ability to monitor the ongoing qual-
ifications of out-of-state residents outside of the substantially
similar states. Forcing the State to issue concealed-carry li-
censes to nonresidents despite this information shortfall
would thrust upon Illinois a race to the bottom. Licenses
would have to issue along eligibility standards incapable of
being verified or, at the very least, below those established by
the State legislature for its own residents. Once eligible would
risk meaning forever eligible. That outcome is hard to recon-
cile with Heller’s acceptance of the “longstanding prohibitions
on the possession of firearms by felons and the mentally ill.”
554 U.S. at 626–27 & n.26. And the outcome has even less to
say for itself where, as here, the plaintiffs accept the substance
16 No. 17-2998
of the criminal history and mental health limitations Illinois
has imposed on concealed-carry licensing.
The plaintiffs insist that the Second Amendment requires
Illinois to let them apply for a concealed-carry license. While
the observation may be right, it only goes so far. It may be
possible for Illinois to take additional steps in vetting initial
applications. The State could modify its present practices by,
for example, requiring a sworn declaration on a nonresident’s
mental health from a treating physician or shifting more of
the cost of obtaining out-of-state criminal history information
to the nonresident applicant.
But focusing on the initial application responds to only
part of the State’s interest in enforcing the requirements to
carry a concealed firearm in Illinois. The State’s enforcement
authority necessarily must bring with it a practical way of
monitoring the ongoing fitness of individuals licensed to
carry a firearm on a public street. See Berron v. Illinois
Concealed Carry Licensing Review Board, 825 F.3d 843, 847 (7th
Cir. 2016) (“Illinois is entitled to check an applicant’s record
of convictions, and any concerns about his mental health,
close to the date the applicant proposes to go armed on the
streets.”). As we put the point in Culp I, “[t]he critical problem
presented by the plaintiffs’ demand—for which they offer no
solution—is verification.” 840 F.3d at 403.
Monitoring depends on staying informed, on learning of
developments that may affect public safety within the State.
Take, for instance, a nonresident licensee arrested for domes-
tic battery or who suffers from acute mental illness and, after
much persuasion from family and friends, agrees to inpatient
treatment. Either development renders the individual ineligi-
ble to carry a firearm in Illinois. See 430 ILCS 66/70(a); 430
No. 17-2998 17
ILCS 66/25(2) (incorporating 430 ILCS 65/4(2)(iv)), 66/25(4).
The State cannot revoke a license without first learning of the
development, however. And it is this dual reality—the union
of this information deficit and public-safety considerations—
that led the Illinois legislature to condition nonresident con-
cealed-carry licensing on an individual living in a state with
substantially similar laws.
Yes, “the plaintiffs do make some apt criticisms of Illinois
law,” Culp I, 840 F.3d at 403; yes, the statutory scheme oper-
ates to prevent many law-abiding nonresidents from publicly
carrying a firearm within Illinois; and yes, by focusing on an-
other state’s regulatory scheme, it allows nonresident licens-
ing to turn on a factor beyond any individual’s personal con-
trol.
While Illinois does not dispute these elements of
imperfection, the plaintiffs, for their part, do not dispute the
State’s monitoring challenges. To the contrary, the plaintiffs
accept that Illinois cannot adequately monitor their mental
health or potential criminal behavior. And all the plaintiffs
say in response is that it is enough on the monitoring front for
Illinois to ask license holders to self-report any disqualifying
criminal history or mental health developments. The Second
Amendment does not mandate this approach: Illinois is not
forced to accept the public-safety risk of relying on
individuals to self-report a felony conviction, domestic
violence arrest, or mental health crisis. Nor is the State
required to tailor its law so narrowly as to sacrifice its
important monitoring interest.
In the end, the analysis resolves in Illinois’s favor and sus-
tains the State’s substantial-similarity requirement. Any other
conclusion—compelling the State to issue concealed-carry
18 No. 17-2998
licenses without then being able to monitor ongoing eligibil-
ity—would force Illinois to accept an idiom: what the State
does not know cannot hurt it. The State’s interest in maintain-
ing public safety is too substantial to mandate that result. On
the record before us, then, and giving effect to the permissible
criminal history and mental health limitations underscored in
Heller, we hold that the substantial-similarity requirement of
the Illinois Concealed Carry Act respects the Second Amend-
ment.
Our holding responds to the plaintiffs’ request for a decla-
ration that the Illinois statute’s substantial-similarity require-
ment is unconstitutional root and branch—as applied to
themselves and all law-abiding residents living in 45 states.
We have declined the invitation owing in large measure to the
expanse of the information deficit that precludes the State
from monitoring ongoing fitness. To restate the holding,
though, is to recognize a limitation: Illinois’s evidentiary
showing went uncontested at every stage of this case. The
plaintiffs as a group never challenged the State’s showing of
an information deficit, nor did any individual plaintiff seek to
overcome it by showing such a substantial and regular pres-
ence in Illinois to enable the monitoring essential to the State’s
public-safety interest. So we leave for another day what the
Second Amendment may require in a circumstance where the
information deficit is no longer present.
III
The plaintiffs also argue that Illinois’s concealed-carry reg-
ulatory scheme offends the Privileges and Immunities Clause
of Article IV. Here, too, we disagree.
No. 17-2998 19
The Supreme Court has clarified that states must accord
residents and nonresidents equal treatment “[o]nly with re-
spect to those ‘privileges’ and ‘immunities’ bearing on the vi-
tality of the Nation as a single entity.” Supreme Court of New
Hampshire v. Piper, 470 U.S. 274, 279 (1985) (quoting Baldwin v.
Fish and Game Comm’n of Montana, 436 U.S. 371, 383 (1978)). If
a challenged regulation deprives nonresidents of a protected
privilege, the question becomes whether the state has offered
a substantial reason to justify the discriminatory impact and,
relatedly, whether its regulatory approach bears a substantial
relationship to its objective. See Barnard v. Thorstenn, 489 U.S.
546, 552–53 (1989). This inquiry recognizes that “the states
should have considerable leeway in analyzing local evils and
in prescribing appropriate cures,” for only unjustifiable dis-
crimination violates the Privileges and Immunities Clause.
United Bldg. and Constr. Trades Council of Camden County and
Vicinity v. Mayor and Council of the City of Camden, 465 U.S. 208,
222–23 (1984) (quoting Toomer v. Witsell, 334 U.S. 385, 396
(1948)).
The Supreme Court also has recognized that “the
Privileges and Immunities Clause was intended to create a
national economic union.” Piper, 470 U.S. at 279–80. This
principle aligns with the Court’s primary precedents in this
area, which have typically involved economic rights. See, e.g.,
Hicklin v. Orbeck, 437 U.S. 518, 526 (1978) (invalidating
Alaska’s requirement that residents be hired over
nonresidents for particular oil and gas jobs); Toomer, 334 U.S.
at 396 (invalidating a statute that charged nonresident
fishermen a fee one hundred times greater than a similar fee
charged to resident fishermen); Ward v. Maryland, 79 U.S. 418,
432 (1870) (invalidating a statute that imposed licensing and
20 No. 17-2998
fee requirements on nonresident merchants that were not
similarly imposed on resident merchants).
No plaintiffs here contend that carrying a concealed
weapon is essential to their ability to work in Illinois. While
the Court has never held that the Privileges and Immunities
Clause is limited to economic interests, we are equally una-
ware of a decision holding that a privilege of citizenship in-
cludes a right to engage in the public carry of a firearm, or,
even more specifically, the right to carry a concealed firearm
in another state. Under the law as it presently stands, it seems
difficult to conclude that such a right, if it exists, is essential to
the ongoing vitality of the nation. See Piper, 470 U.S. at 279.
But we stop short of taking a position on the fundamental
right question. The plaintiffs’ claim fails for another reason:
the Privileges and Immunities Clause does not compel Illinois
to afford nonresidents firearm privileges on terms more fa-
vorable than afforded to its own citizens. Yet that is the precise
import of the plaintiffs’ challenge to Illinois’s Concealed
Carry Act. They demand the right to carry a concealed firearm
despite the (uncontested) information barrier Illinois faces
when monitoring their continued fitness and eligibility. The
State does not face this monitoring barrier with its own citi-
zens, however.
Illinois’s adoption of a substantial-similarity requirement
to bridge the information deficit places nonresidents on equal
regulatory footing with Illinois residents and does not offend
the Privileges and Immunities Clause. To the extent the
impact of this regulation works to disadvantage nonresidents,
such an effect is not the type of unjustifiable discrimination
prohibited by the Clause. See Bach v. Pataki, 408 F.3d 75, 91, 94
(2d Cir. 2005) (holding that a New York regulation restricting
No. 17-2998 21
applications for handgun licenses to nonresidents with a
primary place of business in the State did not violate the
Privileges and Immunities Clause because the
“discrimination [was] sufficiently justified by New Yorkʹs
public safety interest in monitoring handgun licensees” and
its inability to access sufficient information about the
qualifications of nonresidents), overruled on other grounds
by McDonald v. Chicago, 561 U.S. 742, 791 (2010). Put another
way, the Privileges and Immunities Clause, no more than the
Second Amendment, does not force Illinois into a regulatory
race to the bottom.
IV
What remains are the plaintiffs’ claims that the substan-
tial-similarity requirement violates the guarantees of equal
protection and due process found in the Fourteenth Amend-
ment. The plaintiffs, however, have not identified any prece-
dent (from the Supreme Court or otherwise) recognizing that
either the Equal Protection or Due Process Clause confers a
substantive right to engage in the public carry of a firearm, or
specifically, the concealed carry of a firearm in another state.
Nor have we.
Furthermore, repackaging a claim that is more
appropriately brought under a different constitutional
provision—here the Second Amendment—as an equal
protection claim will not usurp the settled legal framework
that has traditionally applied. See Bogart v. Vermilion County,
Ill., 909 F.3d 210, 214–15 (7th Cir. 2018) (endorsing the same
reasoning in the context of parallel First Amendment and
equal protection claims); see also Muscarello v. Ogle County Bd.
Of Comm’rs, 610 F.3d 416, 422–23 (7th Cir. 2010) (endorsing
the same reasoning in the context of parallel takings and equal
22 No. 17-2998
protection claims). Regardless, even if we were to consider
this claim independent of the plaintiffs’ Second Amendment
claim, the relevant question under the Equal Protection
Clause is whether the Illinois Concealed Carry Act
impermissibly discriminates against a suspect class or
deprives out-of-state residents of a fundamental right. The
answer here is no for all the reasons in our analysis of the
plaintiffs’ Second Amendment challenge to the Illinois
statute.
We conclude with the plaintiffs’ due process claim. There
has been no Second Amendment or Privileges and
Immunities Clause violation, and therefore, without any
authority for their proposition that the Due Process Clause
independently confers a right to carry a concealed firearm in
Illinois, the plaintiffs cannot show that they have been
deprived of a liberty interest without due process. See
Swarthout v. Cooke, 562 U.S. 216, 219 (2011).
* * *
What makes a case like this difficult is that it pits the
Second Amendment against equally important principles of
federalism. The Illinois Concealed Carry Act survives the
present challenge in large measure because of the undisputed
empirical showing that the State today is without a reliable
means of monitoring or otherwise learning of intervening,
material adverse developments with the criminal history and
mental health of nonresidents. The Second Amendment
allows Illinois to account for this limitation in determining the
terms on which to award concealed-carry licenses to out-of-
state residents.
No. 17-2998 23
But time does not stand still. Nor can Illinois as other states
become willing to make more information available. The
information deficit that today allows and sustains Illinois’s
substantial-similarity requirement may close and position the
State to adjust its licensing scheme. In regulating the public
carrying of firearms, Illinois, then, must in good faith continue
to evaluate whether to amend its approach. In these ways, our
federal structure reacts and evolves to respect local interests
and individual rights.
For these reasons, we AFFIRM.
24 No. 17-2998
MANION, Circuit Judge, dissenting. In District of Columbia v.
Heller, 554 U.S. 570, 635 (2010), the Supreme Court held our
Constitution ensures “the right of law-abiding, responsible
citizens to use arms in defense of hearth and home.” Shortly
thereafter, this court logically extended the Supreme Court’s
holding to include “a right to carry a loaded gun outside the
home.” Moore v. Madigan, 702 F.3d 933, 936 (7th Cir. 2012).
Nevertheless, the court today upholds Illinois’s scheme
that categorically prohibits the citizens of 45 states from fully
exercising this right when they find themselves within Illi-
nois’s borders. Because Illinois has failed to adequately justify
this significant curtailment of individual liberty, I dissent.1
I.
In the wake of our decision in Moore, Illinois passed the
Firearm Concealed Carry Act (FCCA), allowing those whom
Illinois licenses to carry concealed firearms in public for self-
defense. As the court notes, Illinois allows nonresidents with-
out an Illinois license to bring firearms into the state in very
limited circumstances. For instance, nonresidents with a con-
cealed-carry license from their own state may “travel with a
firearm in their vehicle,” and anyone entitled to possess a fire-
arm in their own state may “possess a firearm … on their own
premises or in the home of an Illinois resident with permis-
sion, while hunting, and while engaging in target practice at
a firing or shooting range.” Maj. Op. at 9 (citations omitted).
But licensed concealed carry remains the only legal way to
bear a firearm in public in Illinois, see 720 ILCS 5/24-1.6(a)
1
Because I conclude the plaintiffs should succeed on their Second
Amendment claim, I do not address their claims brought under other
provisions of the Constitution.
No. 17-2998 25
(defining the crime of “Aggravated unlawful use of a
weapon” to include the open carry of a firearm), and Illinois
unconditionally denies that ability to the residents of 45
states.
It does so by only accepting applications for concealed-
carry licenses from nonresidents who reside in states it deter-
mines have “laws related to firearm ownership, possession,
and carrying, that are substantially similar to the require-
ments to obtain a license under [the FCCA].” 430 ILCS
66/40(b). The Illinois Department of Police decides which
states are “substantially similar.” See id.; ILL. ADMIN. CODE tit.
20 § 1231.110(c). To determine which states qualified, the De-
partment sent surveys to the states in 2013. Based on the re-
sponses, the Department concluded Hawaii, New Mexico,
South Carolina, and Virginia were “substantially similar.” In
2015, the Department sent another round of surveys. Hawaii,
New Mexico, and South Carolina changed their answers, so
the Department took them off the list. But the Department
added Arkansas, Mississippi, and Texas. That is the last sur-
vey of which we have evidence.2
Therefore, as it stands, only the residents of Arkansas,
Mississippi, Texas, and Virginia may even apply for a nonres-
ident concealed-carry license. This means Illinois categori-
cally denies the residents of the remaining 45 states the ability
to exercise the fundamental right to carry a firearm in public
in Illinois simply because of the “ineligible” state in which
they reside. Such a regime cannot withstand dutiful judicial
scrutiny.
2 Atoral argument, counsel for Illinois said the State was “constantly
sending out surveys,” but there is no evidence of any survey after 2015.
26 No. 17-2998
II.
As I explained in my dissent the last time this case was
before this court, there is no doubt the FCCA must face “ex-
acting (although not quite strict) scrutiny.” Culp v. Madigan,
840 F.3d 400, 407 (7th Cir. 2016) (Manion, J., dissenting). Illi-
nois must show “an extremely strong public-interest justifica-
tion and a close fit between the government’s means and its
end.” Id. at 404 (quoting Ezell v. City of Chicago, 651 F.3d 684,
708 (7th Cir. 2011)). I concluded Illinois did not do so at the
preliminary injunction stage, and nothing has changed since
then.
Illinois’s proffered goal for its law—to keep guns out of
the hands of felons and the mentally ill in public—assumedly
satisfies the “extremely strong public-interest justification”
prong of the test.3 The question is whether Illinois’s licensing
scheme that prevents law-abiding, healthy citizens from even
applying for a concealed license is sufficiently tailored to that
goal. Certainly, if Illinois is going to have a licensing regime,
it has to have some method of ensuring the individuals it li-
censes are eligible and remain so. However, Illinois has ut-
terly failed to show that banning the residents of an
3However, as some recent cases indicate, see generally Kanter v. Barr,
919 F.3d 437 (7th Cir. 2019); Binderup v. Att’y Gen. U.S., 836 F.3d 336 (3d
Cir. 2016) (en banc), questions about whom a state may dispossess of
gun rights are likely to be an issue in the future. Under some interpreta-
tions, Illinois’s regime, which disqualifies based on a conviction for any
felony, 430 ILCS 65/8(c), might go too far, see generally Kanter, 919 F.3d at
469 (Barrett, J., dissenting) (“Absent evidence that Kanter would pose a
risk to the public safety if he possessed a gun, the governments cannot
permanently deprive him of his right to keep and bear arms.”).
No. 17-2998 27
overwhelming majority of the country from even applying for
a license is a “close fit” to its goal.
Most importantly, and as I pointed out before, the system
is grossly underinclusive and overinclusive. An Illinois resi-
dent holding a license could cross the Mississippi River to
Missouri, check himself into a mental-health clinic, and then
return without Illinois ever knowing. Or a person could live
in one or more of the 45 dissimilar states for years and then
move to a similar state, automatically becoming eligible to ap-
ply for a license even though “Illinois (and, presumably, the
substantially similar state as well) [would be] unable to obtain
information about his possible criminal or mental problems
in those states.” Culp, 840 F.3d at 403 (majority opinion). But
a colonel in the United States Air Force licensed as a con-
cealed-carry instructor in Illinois cannot apply for a con-
cealed-carry license of his own because he is a resident of
Pennsylvania. Courts should not allow such slipshod laws to
proscribe the exercise of enumerated rights. See id. at 408
(Manion, J., dissenting) (citing Ark. Writers’ Project, Inc. v.
Ragland, 481 U.S. 221, 232 (1987)).
Illinois asks the court to ignore these problems because of
presumed administrative difficulties. If it is not allowed to re-
strict the application process to residents of certain states, it
contends, it will have no way of concluding the residents of
dissimilar states are eligible for a license and continue to be so
for the term of the license. Illinois’s main objection to allowing
applications from anyone is that if an applicant’s state does
not report certain information to national databases, Illinois
would have to obtain the information some other way, and
that would be too burdensome.
28 No. 17-2998
To start with, “the Constitution recognizes higher values
than speed and efficiency”; simply avoiding cost and admin-
istrative burden does not justify denying constitutional rights.
Stanley v. Illinois, 405 U.S. 645, 656 (1972); see also Watson v.
City of Memphis, 373 U.S. 526, 537 (1963) (“[I]t is obvious that
vindication of conceded constitutional rights cannot be made
dependent upon any theory that it is less expensive to deny
than to afford them.”); Culp, 840 F.3d at 407 (“[T]he tailoring
requirement prevents [the] government from striking the
wrong balance between efficiency and the exercise of an enu-
merated constitutional right.”).
Furthermore, there is no evidence in the record that Illi-
nois could not pursue its goal in a more targeted way that
would respect the fundamental right at stake. Perhaps Illinois
could pass the costs on to the applicant—it already charges
nonresidents twice as much when they apply. See 430 ILCS
66/60 (imposing $150 fee for residents and $300 fee for non-
residents). Or Illinois could place the burden on applicants
themselves to contact appropriate authorities and acquire the
information Illinois demands, and it could require the infor-
mation be transmitted in some form with sufficient indicia of
authenticity.
Similar workarounds could be found for mental-health
records, even though some states do not track mental-health
information. Illinois already requires every applicant for a
concealed-carry license to provide Illinois with the ability to
access the applicant’s private information. See 430 ILCS
66/30(b)(3) (listing among the contents of an application “a
waiver of the applicant’s privacy and confidentiality rights
and privileges under all federal and state laws, including
those limiting access to…psychiatric records or records
No. 17-2998 29
relating to any institutionalization of the applicant”). So, to
the extent any mental-health records are kept by the authori-
ties, Illinois could access them (or, again, put the cost and time
burden on the applicant to access them and provide certified
versions to Illinois). In the case of voluntary mental-health ad-
missions that are particularly likely not to be tracked, Illinois
could have every applicant from a dissimilar state conform to
the certification procedure already found in Illinois law,
which allows those who have been voluntarily treated in the
past to obtain a certification of health from “a physician, clin-
ical psychologist, or qualified examiner.” See 430 ILCS 65/8(u).
Indeed, “such certification would provide Illinois with more
information than it can obtain about its own residents’ out-of-
state sojourns, which they admittedly cannot track.” Culp, 840
F.3d at 409.
To its credit, the court today acknowledges there are rea-
sonable alternatives to an outright ban when it comes to the
initial application. See Maj. Op. at 16. Nonetheless, the court
finds the issue with continued monitoring insurmountable. It
says there is an “information deficit” about the ongoing eligi-
bility of licensees that Illinois cannot overcome for any but
those who reside in similarly situated states. But this deficit is
not as severe as Illinois would have the court believe.
It is true Illinois maintains an extensive monitoring system
to keep tabs on its own residents, including their voluntary
mental-health treatments. Illinois says that because it cannot
keep the same watchful eye on nonresidents, it must depend
on those licensees’ states to keep substantially similar eyes on
them. In practice, this amounts to Illinois relying on national
databases it checks quarterly to make sure its nonresident li-
censees have no disqualifying issues. Several facts
30 No. 17-2998
demonstrate that this system is not a “close fit” to Illinois’s
goal of ensuring an ineligible person is not allowed to keep
his license.
To begin with, Illinois’s failure to send out a new survey
since 2015 significantly undermines its argument that its sys-
tem is tailored to its goal. In 2013, Illinois decided Hawaii,
New Mexico, and South Carolina were “sufficiently similar.”
But between 2013 and 2015, the laws in those states changed
to the point Illinois felt it could no longer trust them. This ev-
idences that laws and practices can materially change in a
short amount of time. Nevertheless, Illinois has been content
to let Arkansas, Mississippi, Texas, and Virginia remain un-
disturbed as “substantially similar” states since 2015, without
even a check-up survey. Illinois’s failure to ensure the states
it trusts are still reliable weakens its assertion that depending
on those states is critical to protecting its citizens.
Furthermore, relying on other states hardly provides the
kind of systematic, up-to-date monitoring Illinois claims it
needs. For one thing, two of the “substantially similar” states
appear to rely on self-reporting of mental-health issues. Vir-
ginia, while it does track voluntary mental-health admissions,
does so only by self-reporting. See Va. Response to Ill. Survey,
App. 293 (“There is no systematic way of checking voluntary
admissions in Virginia other than self reporting.”). Arkansas
indicated it relied on self-reporting as well. See Ark. Response
to Ill. Survey, App. 147.4 Yet these two states have systems
upon which Illinois is willing to rely.
4In Arkansas’s response to Illinois’s survey, it said it requires an ap-
plicant for a license to “provide information concerning their mental
health status at the time of application” but there is no “check or
No. 17-2998 31
More generally, amicus Everytown for Gun Safety warns
the court of the dangers of relying on “national databases to
perform background checks…and to monitor permit holders’
continued law-abiding status.” Br. of Everytown for Gun
Safety at 14. Amicus tells us it can take “over a year” for a
felony conviction in Mississippi, a “substantially similar
state,” to find its way onto a national database. Id. at 17. Con-
cerning mental-health reporting, amicus lists Arkansas
among states that report mental-health records “at a per-cap-
ita rate that is aberrantly low compared to other states.” Id. at
19–20 & n.29. Similar to the failure to send out new surveys,
these reported deficiencies undercut Illinois’s “close fit” argu-
ment.
As a final point, the “information deficit” could be worked
around just like problems with the initial application. Instead
of relying on these (potentially flawed) databases, Illinois
could have nonresident licensees from substantially dissimilar
states submit verified, quarterly updates on their statuses, in-
cluding quarterly mental-health certifications.5 In addition to
allowing “law-abiding, responsible” citizens from every state
in the Union to seek a license, this approach would have the
validation of the information provided by the applicant.” Ark. Response
to Ill. Survey, App. 147.
5 In suggesting Illinois could impose quarterly reporting and mental-
health-certification requirements, I do not mean to suggest those would
independently pass constitutional muster. But it is enough for the pur-
poses of this case to conclude there are significantly less restrictive means
of achieving Illinois’s goal apart from an outright ban. See Moore, 702
F.3d at 942 (“[W]e need not speculate on the limits that Illinois may in
the interest of public safety constitutionally impose on the carrying of
guns in public; it is enough that the limits it has imposed go too far.”).
32 No. 17-2998
added benefit of ensuring timely and accurate information
the national databases cannot guarantee.
III.
Illinois’s scheme categorically prevents the law-abiding
citizens from a vast majority of the country from even apply-
ing for the ability to exercise their constitutional right to bear
arms in public for self-defense in Illinois. That crosses a con-
stitutional line, and Illinois must do more than show its sys-
tem “broadly serves the public good.” See Binderup v. Att’y
Gen. U.S., 836 F.3d 336, 380 (3d Cir. 2016) (en banc) (Har-
diman, J., concurring in part and concurring in the judg-
ments). It has not done so. I respectfully dissent.