In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-‐‑2404
JOHN BERRON,
Plaintiff-‐‑Appellant,
v.
ILLINOIS CONCEALED CARRY LICENSING REVIEW BOARD, et al.,
Defendants-‐‑Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 14 C 2839 — Charles R. Norgle, Judge.
____________________
No. 15-‐‑2405
RONALD DESERVI,
Plaintiff-‐‑Appellant,
v.
JEREMY MARGOLIS, Chair of the Illinois Concealed Carry Li-‐‑
censing Review Board, et al.,
Defendants-‐‑Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 14 C 3881 — Harry D. Leinenweber, Judge.
2 Nos. 15-‐‑2404 et al.
____________________
No. 15-‐‑2931
SETH GHANTOUS,
Plaintiff-‐‑Appellant,
v.
ILLINOIS CONCEALED CARRY LICENSING REVIEW BOARD, et al.,
Defendants-‐‑Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 14 C 3544 — Harry D. Leinenweber, Judge.
____________________
No. 16-‐‑1170
FOTIOS MOUSTAKAS,
Plaintiff-‐‑Appellant,
v.
EDWARD A. BOBRICK, et al.,
Defendants-‐‑Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 14 C 9294 — James B. Zagel, Judge.
____________________
ARGUED MAY 31, 2016 — DECIDED JUNE 17, 2016
____________________
Nos. 15-‐‑2404 et al. 3
Before EASTERBROOK and WILLIAMS, Circuit Judges, and
YANDLE, District Judge.*
EASTERBROOK, Circuit Judge. In the wake of McDonald v.
Chicago, 561 U.S. 742 (2010), which held that the Second
Amendment applies to the states, we concluded that the
constitutional right to “keep and bear” arms means that
states must permit law-‐‑abiding and mentally healthy per-‐‑
sons to carry loaded weapons in public. Moore v. Madigan,
702 F.3d 933 (7th Cir. 2012). Illinois then enacted a system for
issuing and enforcing permits to carry concealed firearms.
430 ILCS 66/1 to 66/95. We have consolidated four appeals
filed by persons who asked for concealed-‐‑carry permits and
were turned down. Three district judges, presiding in these
four suits, all ruled against the applicants.
Illinois issues a concealed-‐‑carry license to anyone who
satisfies the statutory qualifications (see 430 ILCS 66/25), files
the necessary paperwork, and pays the fees, unless the ap-‐‑
plicant would “pose a danger to himself, herself, or others,
or a threat to public safety as determined by the Concealed
Carry Licensing Review Board”. 430 ILCS 66/10(a)(4). Law-‐‑
enforcement agencies are entitled to present public-‐‑safety
arguments against granting an application. See also 430 ILCS
66/15 (details about objections by law-‐‑enforcement agencies),
66/20 (details about the Board’s composition and opera-‐‑
tions).
When these suits began, plaintiffs had a compelling posi-‐‑
tion. They say that they met all statutory requirements but
did not receive licenses because one or more law-‐‑
enforcement agencies objected. The state police told them
* Of the Southern District of Illinois, sitting by designation.
4 Nos. 15-‐‑2404 et al.
that objections had been lodged, but not by whom or why.
This left them unable to reply. More than 60 years ago the
Supreme Court established that, when an agency is asked to
reject an application, the agency must reveal at least a fair
summary of the objection; otherwise a hearing is pointless.
See Simmons v. United States, 348 U.S. 397 (1955); Gonzales v.
United States, 348 U.S. 407 (1955). Legitimately confidential
details, such as an informant’s identity, may be withheld,
but the applicant is entitled to know the basics. Yet under
the agency’s initial regulations no disclosure at all was re-‐‑
quired, and nothing is exactly what these plaintiffs received.
Illinois soon realized that the initial regulations, which
had been drafted and issued in haste, were deficient in this
respect and others. It adopted a new set of regulations that
took effect on January 6, 2015. See 39 Ill. Register 1518–27
(Jan. 23, 2015). Under the revised regulations, the Board first
considers whether the objection appears “on its face” to be
an adequate reason to deny an application. 20 Ill. Admin.
Code §2900.140(e). If so, the Board “shall send the applicant
notice of the objection, including the basis of the objection
and the agency submitting the objection.” Ibid. The applicant
has 15 days after receipt of this notice “to submit any addi-‐‑
tional material in response to the objection”. Id. at
§2900.140(e)(1). If the facts or their significance are disputed,
the Board may hold a hearing to receive testimony from both
the applicant and a representative of the objecting law-‐‑
enforcement agency. Id. at §2900.140(c).
These changes in the Board’s procedures led the district
judges to think that plaintiffs’ problems have been solved.
The judges concluded that an injunction against a supersed-‐‑
ed regulation would be inappropriate, and that a judgment
Nos. 15-‐‑2404 et al. 5
entitling the plaintiffs to concealed-‐‑carry licenses would be
equally inappropriate, because the validity of the objections
to their applications remains undetermined. All three judges
wrote that plaintiffs’ proper recourse is to apply for licenses
under the new rules.
None of the four plaintiffs has filed a fresh application
with the Board. Plaintiff Seth Ghantous instead filed suit in
state court. The court directed the Board to issue a con-‐‑
cealed-‐‑carry license. That has been done; the license was
mailed to him on May 23, 2016. His claim is moot, and we
remand his suit with instructions to dismiss. See United
States v. Munsingwear, Inc., 340 U.S. 36 (1950). A second
plaintiff, John Berron, also sued in state court and obtained a
remand. But he lost again before the Board, so his suit is not
moot.
The three unlicensed plaintiffs predict that, if they do
apply under the new regulations, the Board will not reveal
enough to permit them to respond with material evidence or
relevant arguments. This amounts to a contention that
§2900.140(e) is so blatantly unconstitutional that it can be
swept away by a federal injunction no matter how it
works—that it is unconstitutional “on its face,” in the argot
of adjudication. Yet the Supreme Court insists that, with few
exceptions, statutes and regulations be evaluated in opera-‐‑
tion (“as applied”) rather than peremptorily. See, e.g., Wash-‐‑
ington State Grange v. Washington State Republican Party, 552
U.S. 442, 449–51 (2008); Ayotte v. Planned Parenthood of North-‐‑
ern New England, 546 U.S. 320, 328–30 (2006).
Section 2900.140(e) calls for disclosure of “the basis of the
objection”. We can imagine the Board being stingy with in-‐‑
formation—for example, saying only “agency X objects be-‐‑
6 Nos. 15-‐‑2404 et al.
cause the applicant is routinely in trouble with the law” or
perhaps just repeating the language of 430 ILCS 66/10(a)(4).
That sort of disclosure would be useless. But it is easy to im-‐‑
agine the Board being forthcoming—revealing why the ob-‐‑
jecting agency thinks the applicant dangerous and listing the
history of arrests, domestic disturbances, threats of violence,
or other reasons why a law-‐‑enforcement agency may think
that this person’s being armed in public poses risks to oth-‐‑
ers. Which course the Board chooses affects whether the
regulation as administered comports with the Constitution.
A federal court should not assume that the state will
choose the unconstitutional path when a valid one is open to
it. State and federal agencies may flesh out a vague scheme
in the course of administrative adjudication. See, e.g., Civil
Service Commission v. Letter Carriers, 413 U.S. 548 (1973);
Broadrick v. Oklahoma, 413 U.S. 601 (1973). Letter Carriers and
Broadrick deal with claims under the First Amendment; their
holdings are no less applicable to claims under the Second
Amendment. We therefore agree with the district judges that
it would be premature to consider plaintiffs’ objections to
§2900.140(e). Likewise plaintiffs’ prediction that the Board
will write unilluminating decisions in proceedings under the
new regulations, depriving them of their right to effective
administrative or judicial review, is unripe.
Plaintiffs advance three broader objections to both the
statute and the amended regulations. They start with a con-‐‑
tention that requiring them to obtain a concealed-‐‑carry li-‐‑
cense is itself unconstitutional under the Second Amend-‐‑
ment, just as prior restraint of speech is unconstitutional un-‐‑
der the First Amendment. The problem with this argument
Nos. 15-‐‑2404 et al. 7
is that everyone is entitled to speak and write, but not eve-‐‑
ryone is entitled to carry a concealed firearm in public.
When holding in District of Columbia v. Heller, 554 U.S.
570 (2008), that the Second Amendment establishes personal
rights, the Court observed that only law-‐‑abiding persons en-‐‑
joy these rights, even at home. 554 U.S. at 626–28, 635. We
concluded in United States v. Skoien, 614 F.3d 638 (7th Cir.
2010) (en banc), that under Heller a person convicted of do-‐‑
mestic violence may be barred from firearm ownership, and
in United States v. Meza-‐‑Rodriguez, 798 F.3d 664 (7th Cir.
2015), that an alien not authorized to be in the United States
similarly is not entitled to own a gun. Other decisions have
approved additional substantive limits. Licensure is how
states determine whether the requirements have been met.
If the state may set substantive requirements for owner-‐‑
ship, which Heller says it may, then it may use a licensing
system to enforce them. In Heller itself the plaintiff conceded
that licensure is constitutional, 554 U.S. at 631, and the Court
did not question that concession. Courts of appeals uniform-‐‑
ly hold that some kind of license may be required. See, e.g.,
Drake v. Filko, 724 F.3d 426, 435 (3d Cir. 2013); Kwong v.
Bloomberg, 723 F.3d 160 (2d Cir. 2013); Woollard v. Gallagher,
712 F.3d 865, 883 n.11 (4th Cir. 2013). (In citing these deci-‐‑
sions we do not express any opinion on the validity of those
licensing systems; we cite them only for the proposition that
the Second Amendment does not prohibit all licensing.)
Although plaintiffs call the concealed-‐‑carry license re-‐‑
dundant with the basic firearms-‐‑ownership licenses that
they already possess, the different degrees of danger posed
by possessing a weapon at home (the basic license) and car-‐‑
rying a loaded weapon in public (the concealed-‐‑carry li-‐‑
8 Nos. 15-‐‑2404 et al.
cense) justify different systems. See Moore, 702 F.3d at 937.
Illinois requires all applicants for a concealed-‐‑carry license to
complete a firearms-‐‑training course tailored to situations
that those who carry guns in public may encounter. See 430
ILCS 66/25(6) (requiring the course), 66/75 (specifying what
the course entails). That’s just one of the differences between
possessing guns at home and carrying guns in public. See
Shepard v. Madigan, 734 F.3d 748, 751 (7th Cir. 2013). What’s
more, circumstances may change between the time someone
receives a keep-‐‑at-‐‑home license (which is valid for ten years,
see 430 ILCS 65/7) and the time he seeks a concealed-‐‑carry
license. 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.
Plaintiffs next maintain that, even if licenses may be re-‐‑
quired, they must be issued unless the state proves a dis-‐‑
qualifying condition by clear and convincing evidence. Nei-‐‑
ther Heller nor McDonald is concerned with licensing, so this
contention lacks support in the Supreme Court’s most-‐‑
applicable decisions. As a matter of administrative law, the
proponent of a position bears the burden of showing enti-‐‑
tlement by a preponderance of the evidence. See Director,
OWCP v. Greenwich Collieries, 512 U.S. 267 (1994). Plaintiffs
are the applicants for licenses, so they bear the burden of
showing entitlement. To be more precise, a state may assign
applicants that burden without transgressing the Constitu-‐‑
tion. Illinois is a little more generous, placing the burden on
the state to show why an application should be denied. 430
ILCS 66/20(g).
Section 66/20(g) uses a preponderance standard, which is
the norm in civil litigation. See, e.g., Herman & MacLean v.
Nos. 15-‐‑2404 et al. 9
Huddleston, 459 U.S. 375, 387–90 (1983); Grogan v. Garner, 498
U.S. 279, 286 (1991); Octane Fitness, LLC v. ICON Health &
Fitness, Inc., 134 S. Ct. 1749, 1758 (2014); Halo Electronics, Inc.
v. Pulse Electronics, Inc., No. 14–1513 (U.S. June 13, 2016), slip
op. 12. We do not see why the Second Amendment would
alter that standard, which applies to disputes about other
kinds of property such as zoning and home ownership, oc-‐‑
cupational licenses such as law licenses, and other valuable
licenses of all kinds, such as driver’s licenses.
Finally, plaintiffs contend that the Board is biased be-‐‑
cause five of its seven members must have work experience
with law-‐‑enforcement agencies:
The Board shall consist of:
(1) one commissioner with at least 5 years of service as a federal
judge;
(2) 2 commissioners with at least 5 years of experience serving as
an attorney with the United States Department of Justice;
(3) 3 commissioners with at least 5 years of experience as a fed-‐‑
eral agent or employee with investigative experience or duties
related to criminal justice under the United States Department of
Justice, Drug Enforcement Administration, Department of
Homeland Security, or Federal Bureau of Investigation; and
(4) one member with at least 5 years of experience as a licensed
physician or clinical psychologist with expertise in the diagnosis
and treatment of mental illness.
430 ILCS 66/20(a). The Constitution requires administrative
panels to be impartial. See, e.g., Morrissey v. Brewer, 408 U.S.
471 (1972); Goldberg v. Kelly, 397 U.S. 254, 271 (1970). As far
as we can tell, however, the Supreme Court has never sug-‐‑
gested that one’s work experience compromises partiality.
Due process requires disinterested adjudicators but not in-‐‑
experienced or naïve ones. A rule forbids the participation of
10 Nos. 15-‐‑2404 et al.
any member of the Board whose current activities present a
conflict of interest. 20 Ill. Admin. Code §2900.120. Past activi-‐‑
ties, by contrast, do not create disqualifying conditions un-‐‑
less they concern the applicant in question. Cf. Williams v.
Pennsylvania, No. 15–5040 (U.S. June 9, 2016).
One of the district judges who heard plaintiffs’ cases is a
former Director of the Illinois State Police, yet plaintiffs have
not argued that this disqualifies him under 28 U.S.C. §455.
Other district judges were criminal prosecutors or represent-‐‑
ed criminal defendants; they, too, routinely draw on their
experience as a source of knowledge and wisdom without
compromising impartiality in their judicial positions. Six of
the Seventh Circuit’s nine active judges (including two
members of this panel) worked as lawyers in the United
States Department of Justice; that does not perpetually dis-‐‑
qualify them in all cases involving the interests of the United
States or calling for an assessment of law-‐‑enforcement prac-‐‑
tices. Members of the Securities and Exchange Commission
almost always have experience in the securities industry;
this provides a basis for knowledgeable decision rather than
a ground of disqualification. Illinois believes that a Con-‐‑
cealed Carry Board staffed by people with experience in law
enforcement (including the experience of being a federal
judge) will do a better job predicting which applicants
would threaten public safety if armed in public; the Consti-‐‑
tution permits it to follow that path.
In appeal No. 15-‐‑2931, filed by Seth Ghantous, the judg-‐‑
ment is vacated, and the case is remanded with instructions
to dismiss as moot. In the other appeals, the judgments are
affirmed.