Ezell v. Chicago: Full of Win

Does the right to keep and bear arms include the right to fire them?  According to today’s 7th Circuit opinion [pdf], it does.

In order to keep a functional firearm in the home, Chicago residents must acquire a permit.  Part of getting the permit involves proving proficiency through a live-fire course at a range.  However, the city has an ordinance that prohibits anyone from opening a range in which the average person can do so.  Read that again.  Yep.

The 2nd Amendment Foundation sought an injunction against enforcement of the ordinance last year, but Judge Kendall upheld its constitutionality in District Court.  The case moved to the 7th Circuit in April, and they were not pleased with the city.

Stung by the result of McDonald v. City of Chicago, the City quickly enacted an ordinance that was too clever by half. Recognizing that a complete gun ban would no longer survive Supreme Court review, the City required all gun owners to obtain training that included one hour of live‐range instruction, and then banned all live ranges within City limits. This was not so much a nod to the importance of live range training as it was a thumbing of the municipal nose at the Supreme Court. [Judge Rovner’s concurrence, p. 51]

Nor did they appreciate Kendall’s somewhat apathetic treatment of the constitutional issues.

To be fair, the standards for evaluating Second Amendment claims are just emerging, and this type of litigation is quite new. (…) [but] The harm to [plaintiffs’] Second Amendment rights cannot be remedied by damages, their challenge has a strong likelihood of success on the merits, and the City’s claimed harm to the public interest is based entirely on speculation. [p. 3]

Arguments were heard by Judges Rovner, Kanne, and Sykes.  You may recall that the latter judge was the author of the Skoien opinion, which figures strongly in this case. All three agreed that the Chicago ordinance fails to pass any sane standard of constitutional scrutiny.

At the end of the day, the issue of building shooting ranges is peripheral: the real question is whether infringements on the 2nd Amendment must pass the same level of scrutiny as infringements on other enumerated rights.

In Skoien, Judge Sykes argued for strict scrutiny of laws affecting the “core” right guaranteed by the 2nd Amendment, namely self defense.  For ancillary rights, such as recreation, she proposed a doctrine of intermediate scrutiny, under which the government would still have a heavy burden of proof in justifying regulations.

In Skoien we required a “form of strong showing”–a/k/a “intermediate scrutiny”–in a Second Amendment challenge to a prosecution under 18 U.S.C. § 922(g)(9), which prohibits the possession of firearms by persons convicted of a domestic‐violence misdemeanor.  We held that “logic and data” established a “substantial relation” between dispossessing domestic‐violence misdemeanants and the important governmental goal of “preventing armed mayhem.”  Intermediate scrutiny was appropriate in Skoien because the claim was not made by a “law‐abiding, responsible citizen” as in Heller, nor did the case involve the central self‐defense component of the right.

Here, in contrast, the plaintiffs are the “law‐abiding, responsible citizens” whose Second Amendment rights are entitled to full solicitude under Heller, and their claim comes much closer to implicating the core of the Second Amendment right. The City’s firing‐range ban is not merely regulatory; it prohibits the “law‐abiding, responsible citizens” of Chicago from engaging in target practice in the controlled environment of a firing range. This is a serious encroachment on the right to maintain proficiency in firearm use, an important corollary to the meaningful exercise of the core right to possess firearms for self‐defense. That the City conditions gun possession on range training is an additional reason to closely scrutinize the range ban. All this suggests that a more rigorous showing than that applied in Skoien should be required, if not quite “strict scrutiny.” To be appropriately respectful of the individual rights at issue in this case, the City bears the burden of establishing a strong public‐interest justification for its ban on range training: The City must establish a close fit between the range ban and the actual public interests it serves, and also that the public’s interests are strong enough to justify so substantial an encumbrance on individual Second Amendment rights. Stated differently, the City must demonstrate that civilian target practice at a firing range creates such genuine and serious risks to public safety that prohibiting range training throughout the city is justified.

At this stage of the proceedings, the City has not come close to satisfying this standard. [pp. 44-45]

In short, “we just bet that blood will flow in the streets” doesn’t cut it.  Further in, she clarifies the parameters a bit.

Heller suggests that some federal gun laws will survive Second Amendment challenge because they regulate activity falling outside the terms of the right as publicly understood when the Bill of Rights was ratified; McDonald confirms that if the claim concerns a state or local law, the “scope” question asks how the right was publicly understood when the Fourteenth Amendment was proposed and ratified. Accordingly, if the government can establish that a challenged firearms law regulates activity falling outside the scope of the Second Amendment right as it was understood at the relevant historical moment–1791 or 1868–then the analysis can stop there; the regulated activity is categorically unprotected, and the law is not subject to further Second Amendment review.

If the government cannot establish this–if the historical evidence is inconclusive or suggests that the regulated activity is not categorically unprotected–then there must be a second inquiry into the strength of the government’s justification for restricting or regulating the exercise of Second Amendment rights. (…) Borrowing from the Court’s First Amendment doctrine, the rigor of this judicial review will depend on how close the law comes to the core of the Second Amendment right and the severity of the law’s burden on the right. [pp. 33-34]

If we look to the writings of the Founders, there were many “publicly understood” reasons for keeping and bearing arms.  In addition to defense of self and community, the pursuits of hunting and recreation would likely enjoy heightened protection as well.

The Supreme Court has not articulated a standard for scrutiny when it comes to the 2nd Amendment.  Heller took rational basis (the weakest path of review) off the table, but they offered no further clarification.  They have already chosen to hear one important 2nd Amendment case this term, but sooner or later, question of scrutiny must end up before them.  If things go south for the Nordyke case in the 9th Circuit, we’ll have a split, and the Supreme Court will be obligated to rule on the matter.

While Judge Rovner agreed with his colleagues on the main issue of the case, he mildly dissents on the idea of applying strict scrutiny.

In other news, Chicago’s newly minted Mayor Rahm Emmanuel made a wizened attempt to head off action from the Court by passing a revised (but still quite restrictive) ordinance, but it does not appear to have worked.