On December 17, 2025, the Supreme Court did something small on paper and meaningful in practice. In Schoenthal v. Raoul, No. 25-541, the Court issued a Call for a Response — a CFR — directing the State of Illinois to file a brief explaining why certiorari should not be granted. The petition challenges 430 ILCS 66/65(a)(8), the provision of the Illinois Firearm Concealed Carry Act that forbids licensed carry on public transit and inside transit facilities. The respondents — Illinois Attorney General Kwame Raoul, DuPage County State’s Attorney Robert Berlin, and Cook County State’s Attorney Eileen O’Neill Burke — had filed waivers of their right to respond on December 1. The Court was not satisfied with silence. Illinois’s response is due January 16, 2026, and the petition is set for the January 9 conference.
I want to be careful about what this is and what it isn’t. A CFR is not an order to defend the law on the merits, and it is not a grant of certiorari. Procedurally, it is the Clerk telling the respondent: we would like a brief in opposition before we decide whether to take this case. But context matters. When a state files a waiver and the Court immediately reaches back out, my read is that at least one Justice — and quite possibly more — flagged the petition and asked to see Illinois’s best argument in writing.
The Statute and the Seventh Circuit’s “Crowded Spaces” Theory
The underlying law is straightforward. Illinois licenses concealed carry, then strips that license at the turnstile. A permit holder who boards the CTA, Metra, or Pace bus carrying a firearm — even one she is otherwise legally entitled to carry on the sidewalk fifteen feet away — is committing a crime under 430 ILCS 66/65(a)(8).
The plaintiffs — Benjamin Schoenthal, Mark Wroblewski, Joseph Vesel, and Douglas Winston, all four of them Illinois concealed-carry licensees, backed by the Second Amendment Foundation, the Firearms Policy Coalition, and the Illinois State Rifle Association — won in the district court. Then the Seventh Circuit reversed on September 2, 2025, and upheld the ban. The panel’s theory, in essence, is that “crowded spaces” can qualify as “sensitive places” under Bruen even where no historical analogue squarely fits. That is the part of the opinion that ought to alarm any honest reader of New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1 (2022).
Why a CFR After a Waiver Actually Matters
Most cert petitions die in silence. Of the roughly 7,000 paid and IFP petitions filed each Term, only a small fraction even draw a request for a response, and most of those still get denied. So when respondents waive — saying, in effect, this petition is not worth our time — and the Court overrules that judgment and asks for a brief anyway, the signal is qualitative, not quantitative. Someone inside the building wants Illinois on the record.
I am not predicting a grant. I have been doing this long enough to know that calls for a response routinely produce denials. But the asymmetry is worth naming. A CFR after a waiver tells me the Court is at least curious whether the Seventh Circuit’s “crowded spaces” framework can survive Bruen’s text-and-history methodology.
Sensitive Places After Bruen
The sensitive-places doctrine is one of the most abused passages in modern Second Amendment law. Bruen recognized that some “sensitive places” — legislative chambers, polling places, courthouses — were historically off-limits for carry, and that “modern regulations” prohibiting carry in “new and analogous” sensitive places can be permissible. Justice Thomas, writing for the majority, also warned against the obvious abuse: states cannot simply declare “the island of Manhattan” a sensitive place and call it a day.
That is exactly the move the Seventh Circuit blessed here. The court reasoned that buses and trains are “crowded,” and that crowding alone justifies the analogue to schools, courthouses, and legislative buildings. The historical record for that proposition is — to put it generously — thin. There were stagecoaches, railroads, and steamboats at the founding and during Reconstruction. Where is the tradition of forbidding peaceable, licensed carriers from boarding them armed? It does not exist. The Seventh Circuit’s framework collapses Bruen’s historical inquiry into a vibes test.
What to Watch at the January 9 Conference
Three things worth tracking. First, whether the case is relisted after the January 9 conference. Relists are not automatic grants, but they are a meaningful tell — the Justices are circulating memos and writing. Second, whether any Justice writes a statement respecting denial if cert is ultimately denied. Justice Kavanaugh’s statement in Snope v. Brown — telling the legal world the AR-15 question needs to be resolved “in the next Term or two” — is the model for how this Court signals through denials. Third, whether Schoenthal gets bundled with a future, cleaner sensitive-places vehicle. The Court may decide that public-transit carry is the wrong first cut at the doctrine and prefer a case involving parks, parking lots, or post offices.
Closing: The Doctrine Has to Mean Something
If “sensitive places” can be stretched to cover any space where strangers stand near each other, then Bruen’s sensitive-places carve-out swallows the right it was carved from. That is the doctrinal stakes of this petition. Even if Schoenthal itself does not become the vehicle that fixes the lower courts’ creative cartography, the CFR is a useful reminder that the Justices are watching what the Seventh Circuit and others are doing with their methodology. Illinois now has to put its theory in writing. I will be reading that brief closely on January 16.
This article is based on analysis by Professor Mark W. Smith, constitutional attorney and Host of the Four Boxes Diner 2nd Amendment channel. Watch the original video here. This does not constitute legal advice.