Today the 7th Circuit denied rehearing en banc in Moore v. Madigan 5-4. Voting against rehearing were Chief Judge Easterbrook, and Judges Posner, Flaum, Sykes, and Tinder. Dissenting from the denial of rehearing were Judges Hamilton, Rovner, Wood, and Williams. Judge Kanne did not participate.
Judge Hamilton issued a dissental begging the Supreme Court to take the case. It focuses quite heavily on the social costs of the Second Amendment:
In so many public settings, carrying and using firearms present lethal risks to innocent bystanders. Yet when people go about their daily lives in public places, they have no choice about whether to consent to the dangers posed by firearms in public. We can all choose whether to visit homes where firearms are present. To illustrate the dangers posed by lawful use of firearms in public, consider a deadly confrontation on the streets of New York City in August 2012, when police confronted an armed man who had just shot and killed another man. The police officers were well trained in both how to shoot and when to shoot and not shoot. The officers fatally shot the gunman, but the officers’ many shots also wounded nine bystanders. I intend no 1 criticism of the officers, who confronted an urgent, dan-gerous situation that few have experienced first-hand. We will always need armed police officers, and some harm will be unavoidable despite their training, skill, and experience. But consider how much worse the situation on the crowded streets of New York might have been if several civilians, without the officers’ training but carrying firearms lawfully, had tried to help with their own firearms.
Isn’t this an argument about why police officers should shoot innocent people less?
Unless the Supreme Court is prepared to embrace the view attributed to it by the panel majority, that the Second Amendment right to bear arms does not depend on “casualty counts,” 702 F.3d at 939, we should not assume that the logic of Heller extends naturally and without qualification to firearms in public.
This tees up the issue for the Court in stark terms.