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.