Noah Feldman: Chicago gun ruling is yet another absurd decision

Illinois can’t ban the concealed carry of licensed handguns on Chicago’s famous L — short for “elevated trains” — according to a new ruling by a Donald Trump-appointed federal district judge.

The decision joins a growing number of absurd rulings following the Supreme Court’s notorious 2022 holding in Bruen, which overturned decades of precedent on gun law. What makes the decision about Chicago’s trains especially wrong — but also especially interesting — is that the court refused to take seriously the state’s argument that the government, which owns the public transit system, can set its rules.

But the “right to bear arms” under the Second Amendment doesn’t guarantee a right to carry a gun on a train any more than it guarantees the right to bring a firearm onto an airplane or into a government building. That logic should guide higher courts to overturn this ruling on appeal.

Those courts should also pay attention to the context: the serious, ongoing problem of gun violence in Chicago. In a chilling juxtaposition, the district judge’s opinion came down on Friday, Aug. 30; and on Monday, Sept. 2, four people were shot and killed on a Chicago Transit Authority Blue Line train in Forest Park, just outside the city.

To supporters of gun rights, the risk of getting shot on a train is probably more reason to bring your own firearm. But an exchange of bullets on a crowded train isn’t in the public interest, and the government has a basic interest in making transportation safe.

Put another way, public transportation is a space controlled by the government. And that control comes with rules, like bans on sleeping, eating, drinking or manspreading over multiple seats. Most transit systems also require riders to pay a fare; turnstile-jumping is a misdemeanor.

Illinois, defending its no-guns-on-the-train law in federal court, tried to make the case that Bruen, which struck down a 1911 New York City law restricting concealed weapons on city streets, doesn’t apply to Chicago’s trains. Although the state could have made the argument more crisply, the best way to put it is that in a space where the government charges for entry and controls many details of conduct, it should have the inherent authority to set safety rules necessary for the operation of that space.

The judge flatly rejected the state’s version of this argument. He acknowledged the long-settled legal principles that the government isn’t obligated to grant complete free speech when it is acting as either as an employer or as the manager of a non-public space. But he then asserted, incorrectly, that these principles amount to “interest-balancing” — weighing the liberty of individuals against the interests of the government. That matters because in Bruen, the Supreme Court rejected that type of “interest-balancing” when it comes to guns, in favor of its new “history and tradition” test.

The judge’s analysis was wrong in at least two ways. First, the doctrine of government-as-employer isn’t the kind of interest-balancing precluded by the Bruen case. It is, rather, a recognition that when the government acts as an employer, it must necessarily have the power to define the conditions of employment and make sure its employees carry them out. That’s why the government can make it a condition of employment that postal workers not carry guns — because the government-as-employer can define the nature of the job.

Second, when the government controls property and decides what kinds of speech can occur there, it isn’t engaging in interest-balancing. In a public forum like a park, the government must allow all speech subject to time, place and manner limits. In a government building, the government can exclude the public altogether or, yes, prohibit the public from speaking. That’s why I can’t just walk into the White House and start speaking to the president in the Oval Office. In between, there are the spaces known as limited or designated public forums. In those spaces, there is no interest-balancing, just a rule that the government can’t pick and choose what speech it allows based on viewpoint.

So when the government decides what you can and can’t do on public transportation, it isn’t infringing on your fundamental rights. It’s setting rules in space that it controls. It’s the height of absurdity to say that the government may stop you from occupying two seats on the train but can’t stop you from carrying a concealed Glock.

The upshot is that the district court’s reasoning isn’t just legally weak. It’s also genuinely absurd. Here’s hoping the higher courts get it right.

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This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Noah Feldman is a Bloomberg Opinion columnist. A professor of law at Harvard University, he is author, most recently, of “To Be a Jew Today: A New Guide to God, Israel, and the Jewish People."

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