In a way, this case is a rematch. In one corner, we have Alan Gura, who represented us admirably in McDonald v. Chicago. In the other corner, we have Chicago counsel James Feldman, who utterly crashed and burned in his attempts to argue the city’s claims in that case. Apparently, Feldman isn’t willing to settle for one failure in front of the nation’s highest court, so he’s repeating it here.
The case at hand is Ezell v. Chicago, a challenge to Chicago’s ban on the construction of indoor shooting ranges within the city limits. The ban presents something of a Catch-22, due to the Responsible Gun Ownership Ordinance (also known as the “We’re Cooperating As Little As Humanly Possible With The Damn Court” ordinance). The Ordinance requires that registration of a handgun include
an affidavit signed by a firearm instructor certified by the State of Illinois to provide firearm training courses attesting that the applicant has completed a firearm safety and training course, which, at a minimum, provides one hour of range training
That’s a hard thing to do when there are no firing ranges around. Judge Diane Sykes summed it up best:
We’re not talking about regulation. This is a ban. The city has simultaneously mandated live-fire training as a condition of licensure and prohibited it. How can that be permissible, and not a burden of a very significant sort on the 2nd Amendment right? [19:19]
Audio of the arguments is available here [mp3].
Judge Sykes is the younger-sounding of the two female judges. You might remember her as the author of the Skoien opinion in 2009, in which she found that strict scrutiny applied to regulation of the “core” rights of the 2nd Amendment. Also on the panel were Michael Kanne and Ilana Rovner.
Kanne and Sykes were rough on Gura, but he handled himself well. Gura made it clear from the beginning that, while the construction and administration of firing ranges might be regulated by municipalities, outright bans on their existence violate the 2nd Amendment by forcing those who might exercise it to travel a great distance to do so. There have been cases involving similar violations of the 1st Amendment in regards to bookstores, a parallel that Gura aptly demonstrated in his arguments.
When Feldman took the stand, he opened by pointing out that there were fifteen firing ranges within fifty miles of Chicago. Judge Sykes pointed out that the travel involved was not the nature of the injury; the injury was the “encumbrance of the right to keep and bear arms. [19:35]”
This would be the theme for Feldman’s arguments: throwing potential regulatory concerns out as excuses for present infringement on constitutional liberties.
One such concern was the potential for collateral injury from “stray bullets.” At this point, Judge Kanne jumped in, asking what evidence the city had found that such things happen. Feldman could provide none, but promised to provide research in the future.
Judge Sykes observed that “those are regulatory concerns. This is a prohibition. This is an absolute ban. (…) This ordinance is prohibitory, it’s not regulatory. That’s a huge difference for 2nd Amendment purposes. [23:15]”
Feldman then tried to dredge up ordinances from the Founding era that outlawed the discharge of weapons in populated areas. As the court noted, those ordinances had nothing to do with controlled ranges; they were meant to keep people from shooting in the streets. Feldman tried to equate “open discharge” of firearms with their discharge on a controlled range, but the court wasn’t hearing it.
At that point, Judge Rovner observed, “you will probably have some real problems when this reaches the merits. [25:35]”
When Judge Kanne asked what kinds of hazards a controlled, properly staffed range might cause, Feldman returned to his “stray bullet” argument. For what was the fourth or fifth time, the court reminded Feldman that such a concern was a regulatory one, and thus irrelevant to the current issue.
Kanne asked Feldman if he had any other arguments, and things got surreal. Feldman started with, “if people gather, with guns, as they’re likely to do around firing ranges…”
“Have you been to an indoor firing range?”
“I haven’t personally, no.”
“My guess is, from the reading of these briefs, a lot of people that prepared this have never been to a firing range.”
“(…) When people congregate with guns, things that might be…just…um…casual disagreement, or fights, can end up causing injury or harm.”
“There are police ranges with casual disagreements and fights?” [28:30-28:58]
Kanne also pointed out that Federal courthouses had indoor shooting ranges in them, and from the tone of the conversation, it sounded like he (and possibly Judge Sykes) were well familiar with them.
Towards the end, Judge Sykes mentioned two factors that I consider important. The first echoes her argument in the Skoien case that restrictions on the 2nd Amendment trigger strict scrutiny. This met with no disagreement from the other two. The second was that she considered the right to keep and bear arms to enjoy the same level of protection as 1st Amendment rights.
So far, we’re still in the preliminary injunction phase, but this looks like it could have widespread ramifications.