BY BRIAN DOHERTY – Second Amendment lawyer Alan Gura filed an appeal this week in the case of Ezell v. Chicago, challenging the city’s ban on gun ranges. It’s likely to be one of the first important appeals court decisions to define the new shape of Second Amendment jurisprudence.
Gura is already the most important lawyer in that field, with his one-two punch of Supreme Court victories in 2008’s D.C. v. Heller (which established that the amendment protects an individual right to own weapons, at least for self-defense in the home) and 2010’s McDonald v. Chicago (which established that that right applies to states and localities as well as the federal government).
After June’s McDonald decision declaring that Chicago’s ban on handgun possession violated the Second Amendment, the city continues to impose picayune and detailed demands and restrictions on its citizens’ ability to possess and use weapons. One lawsuit, Benson v. Chicago, supported by the National Rifle Association, was filed in July challenging the new regulations on many grounds, including the ban on gun ownership by adults under 21, the ban on sale or transfer of weapons (except via inheritance), and the discretionary power of the superintendent of police to ban any particular type of weapon he decides is unsafe.
Gura, with the institutional support of the Second Amendment Foundation and the Illinois State Rifle Association, sued in August challenging one specific element of Chicago’s new gun laws, a suit that could expand where and how we have a constitutionally protected right to use guns.
Chicago insists a legal weapon permit holder must have a signed affidavit from a firearms instructor affirming that he or she completed a training course, including at least one hour of gun range training. Chicago simultaneously prevents its residents from meeting that criterion in the city they live in. Yes, that’s right: The city demands gun range training to own a gun yet bans gun ranges at the same time. Well, not all gun ranges. The already existing ranges for government employees at the local Postal Service, Federal Reserve (!), and border authority offices are still in business.
No problem, the city insisted. Chicagoans could go outside Chicago to get the required training. The lead plaintiff in Gura’s case, Rhonda Ezell, ill and awaiting a kidney transplant, did exactly that. (There are 14 ranges within 50 miles of Chicago’s border.)
Gura argued that the range ban was such a severe burden to the practice of a core constitutional right that the city should be immediately enjoined from enforcing it, pending the resolution of the case. In October Judge Virginia Kendall denied the injunction request because (among other reasons) the plaintiffs were unable to prove they could not go outside the city for their training—and indeed the ill Ezell had done so.
Kendall also averred that since Action Target, the plaintiff that wants to build a range, or move in a mobile range, within city limits, is not actively planning to break the law, it isn’t being harmed by the ban either.
In hearings over the injunction request, Chicago zoning commissioner Pattie Scudiero, while admitting she’s never even seen a gun range, opined on exactly where and how she thought they would need to be zoned: in manufacturing districts, with a special use permit. (She also admitted that, as far as she knew, no one had ever complained about the existing government ranges, but somehow she knew public ones would be a huge problem.) The city claims that lifting the range ban without any detailed regulations in place would represent an untenable hardship and public danger.
Judge Kendall wrote that Scudiero’s admittedly ignorant assertions rose to the level of “evidence that firing ranges would fall within the intensive use category and be zoned for manufacturing districts. This level of zoning is required for types of businesses which have high levels of risk to the public whether through environmental, social, or chemical harms.” Scudiero’s mere assertion was enough for Kendall to claim the city had “presented sufficient evidence to meet its burden under this standard that its objective is an important one and that its objective is advanced by means substantially related to that objective.” Gura points out in his appeal that existing governmental ranges in Chicago “are located in residential and commercial neighborhoods, among homes, schools, churches, parks, government buildings, and businesses of every description” with no apparent problems.
Kendall’s October decision was not on the merits of the lawsuit as a whole; it merely shot down Gura’s request for an immediate injunction stopping the city from enforcing its range ban pending the case’s eventual resolution.
So this week Gura took Kendall’s injunction denial to the federal 7th Circuit Court of Appeals. In his appeal Gura mocks the city’s assertion that fears of criminals victimizing range patrons, or fears of gunfights galore in range parking lots, establish a real public danger. (No other city is known to have similar bans.) He insists that “Chicago cannot ban something it mandates as a condition of exercising a fundamental right” and that the city “has utterly failed to identify any legitimate governmental interests for the regulation, let alone a relationship between those interests and the law.”
Gura also argues, with ample precedent cited, that restricting the educational and training aspects of going to a gun range violates the First Amendment as well, since “training and education and learning and familiarization are all recognized forms of protected speech.”
Gura’s appeal also contains what seems a slam-dunk indication about the extent to which Heller affects Ezell. In Heller, Justice Antonin Scalia quoted with approval an 1880 source that said “The Constitution secures the right of the people to keep and bear arms. No doubt, a citizen who keeps a gun or pistol under judicious precautions, practices in safe places the use of it, and in due time teaches his sons to do the same, exercises his individual right.”
It has become fashionable to declare Heller and McDonald feckless, already revealed to be weakly limited to self-defense in the home. Indeed, few post-Heller cases have strongly vindicated gun rights beyond that.
Gura, who is doing the most to extend the range of what the Second Amendment means in court, thinks it is far too early to say what Heller and McDonald will mean for other restrictions on Second Amendment liberties. “Heller is only two years old and only applied to federal law, and there are not that many gun laws at the federal level,” Gura says. “Most intensely bad gun laws are enacted in places like New York or California or Illinois, and we’ve only had the ability to sue them for a few months [since McDonald]. The idea that it’s time to throw up our hands and declare it’s over because the ink is barely dry [on McDonald] and nothing has happened except for crazy people in criminal cases [losing Second Amendment claims] is a little premature.”
We have yet to see the full resolution, Gura says, of any “strategic civil rights litigation, just [cases such as] some bank robber popped with a gun with obliterated serial numbers, and that’s not the same kind of lawsuit we are filing here against the gun range ban. This is an early test. It’s a signpost, there are more coming, and there’s work to be done. We haven’t had too many meaningfully relevant cases [post-Heller and McDonald] yet, just a lot of felons with a gun. Those are not really the cases that are gonna change the world.” But Ezell certainly could, especially if it succeeds in establishing necessary corollaries to the Second Amendment right to self-defense involving the use of guns outside the home, and in establishing that local restrictions that impede the exercise of this right are not permitted.
Reason Senior Editor Brian Doherty is author of This is Burning Man (BenBella), Radicals for Capitalism (PublicAffairs) and Gun Control on Trial (Cato Institute).