TeeJaw Blog

Big Win For Chicago Gun Rights In The 7th Circuit

Posted in Gun Rights, Self Defense by TeeJaw on Thursday, July 7, 2011, 4: 59 PM

The case is Ezell v. City of Chicago, on appeal from the United States District Court for the Northern District of Illinois, Eastern Division, Judge Virginia M. Kendall.  Three individual plaintiffs, Rhonda Ezell, William Hespen, and Joseph Brown (all Chicago residents); and three organizations, Action Target, Inc.; the Second Amendment Foundation, Inc.; and the Illinois State Rifle Association, challenge Chicago’s ordinance requiring one-hour of range training to obtain a gun license while at the same time banning all firing ranges in the City of Chicago.  Their claim is  that the ordinance violates their Second Amendment right to firearm training at a range and is unconstitutional on its face.  Plaintiffs ask for a preliminary injunction against the City barring it from enforcing its firing range ban.  Plaintiffs cite irreparable harm, a likelihood of succeeding on the merits, and argue that any alleged harm to the City is speculative and unlikely to occur.  The trial court judge, Virginia Kendall, ruled that Plaintiffs could not show irreparable harm and were not likely to succeed on the merits because, she reasoned, firearms training is not protected by the Second Amendment.

The 7th Circuit United States Court of Appeals reversed Judge Virginia Kendall, and said,

For nearly three decades, the City of Chicago had several ordinances in place “effectively banning handgun possession by almost all private citizens.”  In 2008 the Supreme Court struck down a similar District of Columbia law on an original-meaning interpretation of the Second Amendment.  District of Columbia v. Heller, 554 U.S. 570, 635‐36 (2008). Heller held that the Amendment secures an individual right to keep and bear arms, the core component of which is the right to possess operable firearms— handguns included—for self‐defense, most notably in the home.

Soon after the Court’s decision in Heller, Chicago’s handgun ban was challenged in McDonald v. City of Chicago. The foundational question in that litigation was whether the Second Amendment applies to the States and subsidiary local governments.  The Supreme Court gave an affirmative answer:  The Second Amendment applies to the States through the Due Process Clause of the Fourteenth Amendment.  In the wake of McDonald, the Chicago City Council lifted the City’s laws banning handgun possession and adopted the Responsible Gun Owners Ordinance in their place.

The plaintiffs here challenge the City Council’s treatment of firing ranges. The Ordinance mandates one hour of range training as a prerequisite to lawful gun ownership, see CHI. MUN. CODE § 8‐20‐120, yet at the same time prohibits all firing ranges in the city, see id. § 8‐20‐080. The plaintiffs contend that the Second Amendment protects the right to maintain proficiency in firearm use—including the right to practice marksmanship at a range—and the City’s total ban on firing ranges is unconstitutional.

Circuit Judge Rovner, wrote a concurring opinion in which he said,

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. The effect of the ordinance is another complete ban on gun ownership within City limits. That residents may travel outside the jurisdiction to fulfill the training requirement is irrelevant to the validity of the ordinance inside the City.  In this I agree with the majority: given the framework of District of Columbia v. Heller and McDonald, the City may not condition gun ownership for self‐defense in the home on a prerequisite that the City renders impossible to fulfill within the City limits.

Plaintiffs lost in the trial court but now the 7th Circuit reverses.  The Court of Appeals holding is as follows:

Holding Number One:

On the present record, the plaintiffs are entitled to a preliminary injunction against the firing‐range ban. The harm to their 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.

Holding Number Two:

Article III of the U.S. Constitution restricts the Federal judicial power to actual “Cases” and ” Controversies,” a limitation understood to confine the federal judiciary to “the traditional role of Anglo‐ American courts, which is to redress or prevent actual or imminently threatened injury to persons caused by private or official violation of the law.”  The doctrine of standing enforces this limitation. Standing exists when the plaintiff suffers an actual or impending injury, no matter how small; the injury is caused by the defendant’s acts; and a judicial decision in the plaintiff’s favor would redress the injury.

The individual plaintiffs in this case, all Chicago residents, have standing because the City’s ban on firing ranges inflicts continuous harm to their claimed right to engage in range training and interferes with their right to possess firearms for self‐defense. These injuries easily support Article III standing.

Moreover, the organizational plaintiffs [The Second Amendment Foundation; Action Target, Inc.; and The Illinois Rifle Association] also have standing and the trial court’s contrary holding was in error.  Action Target, as a supplier of firing‐range facilities, is harmed by the firing-range ban and is also permitted to act as an advocate of the rights of third parties who seek access to its services.   The Second Amendment Foundation and the Illinois Rifle Association have many members who reside in Chicago and easily meet the requirements for associational standing: (1) their members would otherwise have standing to sue in their own right; (2) the interests the associations seek to protect are germane to their organizational purposes; and (3) neither the claim asserted nor the relief requested requires the participation of individual association members in the lawsuit.

The 7th Circuit found the district court’s emphasis on the organizational plaintiffs’ standing puzzling. It’s clear the individual plaintiffs have standing. Where at least one plaintiff has standing, jurisdiction is secure and the court will adjudicate the case whether the additional plaintiffs have standing or not.

Holding Number Three:

Irreparable harm is established because the City’s ordinance interferes with the plaintiffs’ right to exercise  their second amendment right to engage in firearm training at a range.  The ordinance is unconstitutional on its face because no matter how applied it violates the second amendment rights of all Chicago residents.  The City Council violated the second amendment when they enacted the ordinance.

Holding Number Four:

The plaintiffs have shown a likelihood of success on the merits.

After deciding the plaintiffs could not show irreparable harm the trial court judge  didn’t pay much attention to whether the plaintiffs had shown a likelihood of prevailing on the merits, a necessary pre-requisite to a preliminary injunction.  She rejected heightened scrutiny outright saying the ban on range training in the City might not violate anyone’s Second Amendment rights.  The 7th Circuit says her reasoning misses the point.

Heller focused almost exclusively on the original public meaning of the Second Amendment, consulting the text and relevant historical materials to determine how the Amendment was understood at the time of ratification. This inquiry led the Court to conclude that the Second Amendment secures a pre‐existing natural right to keep and bear arms; that the right is personal and not limited to militia service; and that the “central component of the right” is the right of armed self‐defense, most notably in the home.

Heller said the total ban on firearms in the District of Columbia was unconstitutional under any standard of scrutiny.  The 7th Circuit now says that what was meant by “any standard of scrutiny” was “any standard of heightened scrutiny.”  Rational basis scrutiny could never be the standard of scrutiny because if a firearms law only had to satisfy a rational basis the Second Amendment would have no meaning at all.  All laws must have a rational basis.

Because the “central component” of the Second Amendment is the right to keep and bear arms for defense of self, family, and home, the right to possess firearms for protection implies a corresponding right to acquire and maintain proficiency in their use; the core right wouldn’t mean much without the training and practice that make it effective.  Therefore, the trial court judge was simply wrong when she said she didn’t think the City’s ban on firing ranges would not violate anyone’s Second Amendment rights.

The 7th Circuit remanded the case to the trial court with instructions to grant the Plaintiff’s request for an injunction against the City of Chicago prohibiting it from enforcing its ban on firing ranges within the City.  If a trial on the merits ensues, that is if Chicago still wants to fight the case, the 7th Circuit opinion sets forth all the arguments and rationale the trial judge will need to reach the proper decision which will be that the City of Chicago will be permanently barred from enforcing its total ban on firing ranges within the City.


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