Trump Judge Very Sad About Being Called 'Trump Judge' When He Does Stuff Only Trump Judges Do
Judge strikes down Illinois law banning concealed weapons from public transit as unconstitutional... but he would prefer you not mention how he got that job.
Yesterday, Judge Iain Johnston of the Northern District of Illinois struck down a law banning guns from Chicago’s trains. State law included a provision that a concealed carry license did not cover bringing a weapon onto public transit. If you thought fireworks on a train platform were dangerous, imagine an errant gunshot. Alas, Judge Johnston isn’t worried about these safety concerns. Sorry, future Ms. Palsgraf.
What Judge Johnston is worried about is the possibility that people might connect his conversion of NRA talking points into a published opinion to him being a Federalist Society-vetted (member 1995-1998!) Trump appointee. And rather than just suck that up, he decided to lampshade it off the top with a footnote, I guess to guilt some reporter into not hurting the judge’s fee-fees with an accurate headline.
“Trump-appointed judge allows firearms on Illinois public transit” is a likely chyron for this decision. That’s unfortunate. Federal judges—including those who will review this decision—engage in exacting, thoughtful, and careful analyses that are not results oriented or reducible to headlines and chyrons. We’re doing the best we can.
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Counter: You’re not.
One’s heart goes out to the real victim in a case about gun violence: The judge. No one wants to be saddled with the same title as Aileen Cannon. But if the robe fits, you know?
However, let us heed Judge Johnston’s call and not render this opinion “reducible to headlines and chyrons.” How does the opinion stand on its own intellectual merits?
To describe this decision as “exacting, thoughtful, and careful” does grave violence to the English language. It is an amateurish trainwreck… pun obviously intended. Just a collection of clumsy examples, contradictory arguments, and “historical” chestnuts gathered by FedSoc academics and published in student journals dumped beneath a caption.
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The inquiry begins, as Bruen dictated before the Supreme Court (sans Thomas) started running from that framework like they woke up under a pile of rabid raccoons, by asking if there’s some reason why the Second Amendment wouldn’t apply to a law barring concealed handguns from public trains. The judge does not embrace the argument posed by defense attorney Foxx:
Her argument—which is breathtaking, jawdropping, and eyepopping—is this: the ban applies only to property “funded in whole or in part” by Illinois, so Illinois has a proprietary interest in what it regulates. Because governments, like private property owners, enjoy “an absolute right to exclude others” from their property, Illinois may exclude whomever it wishes.
Judge Johnston finds this argument so “breathtaking, jawdropping, and eyepopping” because he “under Ms. Foxx’s argument, demonstrators could be barred from the Daley Center Plaza, despite it being a quintessential public forum” as though the Amendment aimed at protecting a citizen’s right to engage with the government doesn’t present unique issues that might temper a government’s power to silence political speech. The opinion blames the state for this, noting that the brief cited a bunch of First Amendment cases for this proposition, and that’s fair. Except those cases involved an airport terminal and a public library, which as sites of public forum participation are a far cry from Daley Center Plaza.
But when the caselaw isn’t strong enough, just make up an example!
For what it’s worth, while the posture in this case is a little different since it’s not a prosecution, this point remains:
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Even if the defense screwed up in initiating this limited First Amendment comparison, it takes some mighty intellectual blinders for a judge to run with it and uncritically bundle up all gun regulation with free speech, if for no other reason than the analogy to private property makes no fricking sense in the First Amendment context. A private citizen can exclude someone from ranting about taxes in their living room — we had occasion to discuss this recently — without impairing the right to participate in the public discourse. The Second Amendment is not so much dependent on the ability to shoot someone in City Hall.
Impending irony alert… while he sees no problem lumping totally distinct constitutional concepts together at this stage, Judge Johnston is about to start caring A WHOLE LOT about distinguishing exactly on point examples based on the “why” behind those laws.
Since Judge Johnston is so convinced that governments cannot exclude guns from their property, folks you might think people could try to bring shotguns into his courtroom sometime and see how that goes for them. The answer would be NOT WELL! That’s because, having decided that the Second Amendment would cover regulating government property generally, the burden shifts to whether the government can categorize the location as a “sensitive place.” And for any would-be courtroom cowboys, Justice Thomas explained in Bruen that while other people can and should dodge bullets on their way home from work, he and his fellow judges personally exist in a sensitive place. Specifically, Thomas reasoned that because no one historically challenged courthouse gun bans it means everyone must agree that it’s a sensitive place. No one ever argued that you could bring concealed weapons on Chicago trains before now but that doesn’t matter because… shut up, stop asking questions!
2. Text of the Second Amendment
The Second Amendment guarantees the “right to possess and carry weapons in case of confrontation.” Heller, 554 U.S. at 592. Naturally, Plaintiffs contend that their proposed conduct is covered by the Second Amendment’s text.
This is neither here nor there, but there’s something unintentionally hilarious about kicking off a section about the “Text of the Second Amendment” and then citing Heller and not, you know, THE TEXT OF THE SECOND AMENDMENT. It’s just the ultimate in telling on yourself.
Anyway, back to the sensitive place analysis. This is, as the Bruen framework lays out, all about history, so the defendants cite numerous statutes covering the historical and traditional authority of governments to regulate weapons in crowded spaces. Judge Johnston dismisses these statutory examples, in part, as too old and too new — seriously — while clarifying that even the existence of an on point historical analogue wouldn’t matter because it’s now time to pay off that irony alert foreshadowing:
Even if there were something that could rightly be described as a form of transportation funded by the public at the time of the Second Amendment’s ratification, how firearms were regulated there (if at all) wouldn’t necessarily determine whether or how they can be regulated somewhere fitting that same description today. Regulation of today’s public transportation may implicate different justifications or impose different burdens on the Second Amendment right based on public transportation’s role in society. In other words, the how and why of such a regulation might be very different.
Calvinball. All day long.
For example, the Virginia statute states that nobody shall “ride armed by night nor by day, in fairs or markets, or in other places, in terror of the county.” …. Plaintiffs wish to carry concealed arms in self-defense, so the Firearm Concealed Carry Act’s ban burdens Plaintiffs’ Second Amendment right for a wholly different reason than the Statute of Northampton and similar state statutes did. The why is different. A concealed arm doesn’t terrorize; it’s concealed. Consequently, these historical laws do not serve as an appropriate historical analogue.
If only the Second Amendment included some sort of explanatory clause to similarly clarify its “why.” Maybe, just spitballing here, “A well regulated Militia, being necessary to the security of a free State” or something like that?
But I guess we’ve already seen the super serious weight he gives to the “text of the Second Amendment.”
If you want to read more about this decision, you can certainly Google it. You might need to be a bit specific though, because if you simply search for “guns” and “Chicago trains” you’ll have to wade through reports about the four people who were shot and killed on a Chicago transit train on Monday. Judge Johnston issued this opinion on Tuesday. Because a keen sense of timing is everything when it comes to performative trolling.
Look, would this law have prevented that gunman from boarding the train? No. Would his victims being able to carry guns have saved them? Also no, since they were reportedly asleep at the time. But does a law limiting the presence of guns on trains protect the public both by minimizing the general risk of escalation and the risk of death to innocent bystanders? Yes. It also has the benefit of suppressing the supply of guns floating around while giving police a stronger reason to preemptively stop people from turning your morning commute into a Spaghetti Western.
Actually maybe it’s unfair to compare this to the Old West. They had laws requiring guns to be checked within city limits.
Though that’s just what those historians say about the history and tradition of gun regulation. As Justice Thomas put it in defending the work of lawyers writing in third-tier law journals, “We categorize these historical sources because, when it comes to interpreting the Constitution, not all history is created equal” — a fitting callback to “all animals are equal, but some are more equal than others” from a different work about rewriting history.
And while we’re on the subject of rewriting history, it’s why someone might want to purge the journalistic record of words like “Trump judge” just because the article talks about a Trump judge doing Trump judge things. Don’t want some future armchair historian scanning the internet from their brain implant to have to rummage through newspaper clippings with words like that!
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter or Bluesky if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.
