Foster Parent Second Amendment Case Sent Back to District Court in Light of Bruen

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From yesterday’s Seventh Circuit decision in Miller v. Smith, by Judges Joel Flaum, Ilana Rovner, and Michael Brennan:

Appellants Darin and Jennifer Miller are both licensed foster home caretakers, and Jennifer Miller is licensed to operate a home day care. Illinois statutes and regulations restrict how the Millers may possess and store firearms and ammunition in their home. The Millers challenge the constitutionality of those statutes and regulations. The district court granted summary judgment for the State of Illinois, and the Millers appealed.

After the Millers filed their opening brief, the Supreme Court decided New York State Rifle & Pistol Association, Inc. v. Bruen (2022), in which the Court ruled that means-end scrutiny does not apply in the Second Amendment context. The Court made more explicit the constitutional standard endorsed in District of Columbia v. Heller (2008), requiring courts to assess whether modern firearms regulations are consistent with the Second Amendment’s text and historical understanding. After Bruen was published, briefing continued in this case, and we heard oral argument.

We now remand for additional proceedings to receive the full benefit of the district court’s decision applying the “text, history, and tradition” test of Bruen. On remand, the district court should allow the parties to engage in further discovery, including seeking additional expert reports. The district court should then evaluate any subsequent motions under Bruen‘s text, history, and tradition framework. In doing so, the court should permit briefing on and consider the interaction of Bruen and the unconstitutional conditions doctrine, including but not limited to the employment context. See, e.g., NASA v. Nelson (2011); Engquist v. Oregon Dept. of Agri. (2008). The court should also allow discovery and briefing on the sensitive places doctrine, and on any other matter that the court and the parties find relevant in light of Bruen.

UPDATE: Here are the plaintiffs’ allegations about the scope of the restrictions that they are challenging:

Defendant Department of Children and Family Services’ (“DCFS”) regulations flatly ban law-abiding citizens who serve as foster caregivers from having firearms immediately operable for self-defense in their own homes at any time. 89 ILL. ADMIN. CODE § 402.8(o) provides:

Any and all firearms and ammunition shall be stored and locked up separately at all times and kept in places inaccessible to children…. Loaded guns shall not be kept in a foster home unless required by law enforcement officers and in accordance with their law enforcement agency’s safety procedures.

Apart from the carve-out for law-enforcement officers, there are no exceptions to this ban—not for licensed foster caregivers who do not currently have a foster child placed with them, not for homeowners who possess an Illinois Concealed Carry License, not for homeowners who employ storage mechanisms inaccessible to children (such as biometric gun safes), and not even for loaded firearms kept in the homeowner’s immediate possession….

Defendant DCFS has promulgated regulations (1) flatly banning the possession of handguns in any day care home (except for law-enforcement officers or others required to possess a handgun as a condition of employment), (2) requiring all other firearms (i.e., long guns) to be “kept in a disassembled state, without ammunition, in locked storage in a closet, cabinet, or other locked storage facility inaccessible to children” (except, again, in the case of law-enforcement officers); (3) requiring that all “[a]mmunition for such firearms shall be kept in locked storage separate from that of the disassembled firearms, inaccessible to children”; and (4) requiring the homeowner operating the day care to “post a ‘no firearms’ sign” and “notify the parents or guardian of any child accepted for care that firearms and ammunition are stored on the premises,” “locked in storage inaccessible to children.”

On their face, these restrictions admit of no exceptions. Defendants have asserted, and the district court held, that these restrictions on day care homes have effect only during business hours, when the day care is operating. No such limitation appears in the text of the statutory or regulatory provisions at issue, however—and on their face, those provisions apply absolutely, at all times. Like the foster care ban, the day care home ban likewise includes no other exceptions, apart from the carve-out for law-enforcement officers—no matter how carefully the homeowners have been vetted or how securely they store their firearms.

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