SAF SUES CHICAGO OVER GUN RANGE PROHIBITION ON 1A, 2A GROUNDS

Inigoes said:

Pg 45



This will be a major hurdle for any .gov defending anti-2A laws.

Click to expand...

Oh no, whatever will they do when they can't say "Guns are bad mmkay?"

Oh wait, I'm sure you can pay off someone to make a dubious study.

gprimr1 said:

Oh wait, I'm sure you can pay off someone to make a dubious study.

Click to expand...

The bar has definitely been raised

By analogy here, the City produced no empirical evidence
whatsoever and rested its entire defense of the range ban on
speculation about accidents and theft. Much of the focus in
the district court was on the possible hazards of mobile
firing ranges.

Click to expand...

same flawed logic the Brady's used. Conjecture and guesswork masquerading as fact.

How unique

I am not at all surprised to see these First Amendment analogues being applied to a Second Amendment case. We all knew it was coming.

What does surprise me though is that it appeared at a Circuit Court level, and so plainly too, before coming up at SCOTUS. This is huge and may well impact the other outstanding cases much sooner than we had anticipated.

OK, I reserved comment until I read all 50+ pages, a number of them twice.

First: this is a first-class judicial smackdown.

I won't go through the details right now, but they are extensive and more importantly, instructive. The court here was clearly targeting the bigger picture.


The Moneyshot:

The range ban is dead, but so are a whole slew of regulations that are tangentially related:

They are entitled to a preliminary injunction to that effect. To be effective, how‐ ever, the injunction must also prevent the City from enforc‐ ing other provisions of the Ordinance that operate indirectly to prohibit range training. The plaintiffs have identified several provisions of the Ordinance that implicate activities integral to range training: CHI. MUN. CODE §§ 8‐20‐020 (prohibiting the possession of handguns outside the home), 8‐20‐030 (prohibiting the possession of long guns outside the home or business), 8‐20‐080 (prohibiting the possession of ammunition without a corresponding permit and registration certificate), 8‐20‐100 (prohibiting the transfer of firearms and ammunition except through inheritance), 8‐24‐010 (prohibiting the discharge of firearms except for self‐defense, defense of another, or hunting). To the extent that these provisions prohibit law‐abiding, responsible citizens from using a firing range in the city, the preliminary injunction should include them as well. Similarly, the injunction should prohibit the City from using its zoning code to exclude firing ranges from locating anywhere in the city.

Finally, because range training is required for the issuance of a Chicago Firearm Permit, a registration certificate, and ultimately, for lawful possession of any firearm, see CHI. MUN. CODE §§ 8‐20‐110(a), 8‐20‐140(a)‐(b), the firing‐range ban implicates not only the right to train at a range but also the core Second Amendment right to possess firearms for self‐defense. Accordingly, the preliminary injunction should include sections 8‐20‐110(a) and 8‐20‐140(a) to the extent that those provisions operate to prohibit otherwise eligible persons from “carry[ing] or possess[ing] a firearm” at a range without a Permit or registration certificate while they are trying to complete the range‐training prerequisite for lawful firearm possession.

Click to expand...

Sorry for the long quote, but the context matters.

Did you catch that highlighted part? Read it again:


It's a small effect today but a big one in the future. The circuit just shut down the permit requirement for possession for those the city have not yet permitted to own a gun, as long as the persons are training to attain the permit. If you think that is a BS position, you are correct. And the court knows it.

Remember, the court is not going to rule on non-contested provisions. But they did extend a pretty wide sweep in their tangential holdings. So wide that the NRA case against the permit requirements in general just got a big boost.

Add to that a smackdown of restrictions on carry outside the home for training purposes. These are small issues today (and obvious), but they create a template for all future challenges. This is a big deal.

The Seventh looked well beyond range bans and learned something from the Fourth: don't be circumspect in your framework (ala Chester) and leave the door open for a Masciandaro. Be broad and go for the flag. They did that here. But then again, so did the Ninth in Nordyke.

FWIW, they came real close to requiring strict scrutiny for gun ranges for regular training purposes. I think that was intentional - strict would be a bit too much. But they did require the city provide "empirical proof" that a range is harmful to the public when the city restricts a gun range somewhere. That means that creative zoning gets kicked to the curb. They just created a very high standard to meet. I doubt the city will make it.

Ranges Are Protected

The next big holding: ranges are protected. Not strictly, but damn close enough to require a serious showing of harm before they can be shut down. If extended nationwide, that portends good things for the range on my property.

Results for the Rest of the Nation

I'll say that this comes real close to creating a circuit split with the Ninth. I'd have to dig a bit more, but the originalist approach here does not comport one bit with Nordyke. Hell, the Seventh actually call that out themselves. I suspect that results in some serious framework analysis issues in the evaluation of a fundamental right. That means likely cert. The question is whether Chicago will take the appeal route. My guess is the answer will be "no".

But...the Nordykes just got a shot of adreneline on their en banc and likely appeal. Even if Chicago avoids the fight, the decision here diverges far enough from the Nordyke framework to probably result in cert in Nordyke. If nothing, it will force the Ninth to read carefully in their upcoming en banc (assuming they agree to it).


You can thank Chicago for a great ruling. Their city council - like DC's - is the gift that keeps on giving. Also, it's pretty clear Rahm caught wind of this and tried to foreclose it. Fail.

Keep in mind that at this point, no city law change will moot the case. And it looks like the circuit opened the door to gun ranges in a far wider breadth of neighborhoods than the city would prefer:

The City hypothesized that one cause of range‐related injury could be stray bullets, but this seems highly implausible insofar as a properly equipped indoor firing range is concerned. The district court credited the plaintiffs’ evidence that “mobile ranges are next to Sam’s Clubs and residences and shopping malls and in parking lots, and there’s not been any difficulties with them in those places.” Commissioner Scudiero acknowledged that the law‐enforcement and private‐security firing ranges in Chicago are located near schools, churches, parks, and stores, and they operate safely in those locations.

Click to expand...

Oops.

Hopalong said:

I am not at all surprised to see these First Amendment analogues being applied to a Second Amendment case. We all knew it was coming.

What does surprise me though is that it appeared at a Circuit Court level, and so plainly too, before coming up at SCOTUS. This is huge and may well impact the other outstanding cases much sooner than we had anticipated.

Click to expand...

Yes. This is going to be quite helpful in the near and long term. You can do no better than hitching your civil rights wagon to the First Amendment.

Just finished the read...absolutely fantastic ruling. It will be interesting to see how the new Mayor reacts...Daley was soooo predictable.

4 cases; Benson, Second Amendment Arms, Shepard and Moore just got a major boost today. Nordyke in the 9th just got a wakeup call. Rumor has it that SAF will have more entertainment for us in the near future.

Patrick has made an excellent analysis and here are some further highlights (before I go over to TFL and post about this) and my interpretations.

The City’s confused approach to this case led the district court to make legal errors on several fronts: (1) the organizational plaintiffs’ standing; (2) the nature of the plaintiffs’ harm; (3) the scope of the Second Amendment right as recognized in Heller and applied to the States in McDonald; and (4) the structure and standards for judicial review of laws alleged to infringe Second Amendment rights.

Click to expand...

Here is one small nugget that this panel stated, correctly, I might add. In discussing intangible harms, as it relates to 1st amendment challenges, the panel held the same to be true of 2 amendment challenges. The panel also stated this:

Heller held that the Amendment’s central component is the right to possess firearms for protection. [citation omitted] Infringements of this right cannot be compensated by damages.

Click to expand...

The panel, after discussing the means of achieving fit between the City's' ordnance and the core of the right decides that training and range time is essential to that right and is implicated as being extremely close to the core.

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.

Click to expand...

The panel also goes to a great length in discussing the guides given in Heller and McDonald as it respects the form of judicial scrutiny that should be applied to this case. Because of the fit between the challenged activity and the core of the right, the panel recommended “a more rigorous showing than that applied in Skoien, should be required, if not quite ‘strict scrutiny.’”

The panel then took on the matter of the preliminary injunction itself and cautioned the lower court on how it should be implemented.

With that, the panel reversed the lower decision and remanded with instructions to enter the injunction, consistent with their finding.

Kanne, Rovner, and Sykes were the Judges. You might remember Judge Sykes. She was the original writer of the Skoien decision that was later removed upon en banc (she does make one brief mention of this in the above decision - yes, that means she wrote this one).

Judge Rovner writes a nine page concurring opinion. While he concurs with the decision, he writes to oppose the method of scrutiny. Although, rather weak in arguments, he does end his opinion on a positive note:

The ordinance admittedly was designed to make gun ownership as difficult as possible. The City has legitimate, indeed overwhelming, concerns about the prevalence of gun violence within City limits. But the Supreme Court has now spoken in Heller and McDonald on the Second Amendment right to possess a gun in the home for self‐defense and the City must come to terms with that reality. Any regulation on firearms ownership must respect that right. For that reason, I respectfully concur in the judgment.

Click to expand...

This is not just a win but an important win. There is much within this decision, albeit dicta, that will prove invaluable in several other cases.

After serious study on this decision, it does now create a split in the Circuits (9th - the Nordyke opinion).

SAF Press release

SAF WINS INJUNCTION V. CHICAGO GUN RANGE BAN​

BELLEVUE, WA - In a 3-0 ruling issued this morning, the U.S. Court of Appeals for the Seventh Circuit has reversed a lower court ruling and ordered that court to issue a preliminary injunction against the City of Chicago on behalf of the Second Amendment Foundation that prevents the city from banning gun ranges inside city limits.

Joining SAF in the original lawsuit were Action Target, Inc., the Illinois State Rifle Association and three Chicago residents, Rhonda Ezell, William Hespen and Joseph Brown. Their attempts to obtain a temporary restraining order against the gun range ban were twice rejected by the district court. The Appeals Court ruling is severely critical of the lower court's ruling.

"This is a significant victory that could have strong implications well beyond the Chicago city limits," said SAF Executive Vice President Alan M. Gottlieb. "The court is making it clear that cities cannot adopt firearms ordinances that are so deliberately restrictive that they make it impossible for citizens to exercise their rights under the Second Amendment."

Immediately after last year's landmark SAF victory in McDonald v. City of Chicago, the city adopted a handgun ordinance that required special permits and mandated range training, but banned gun ranges inside city limits. The city argued that citizens could fulfill their training requirement by visiting a suburban range. In today's ruling, written by Judge Diane S. Sykes, the Appeals Court observed, "It's hard to imagine anyone suggesting that Chicago may prohibit the exercise of a free-speech or religious-liberty right within its borders on the rationale that those rights may be freely enjoyed in the suburbs. That sort of argument should be no less unimaginable in the Second Amendment context." In a concurring opinion, Judge Ilana Diamond Rovner noted, "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."

"What the city tried to do, as the court ruling noted, was thumb its municipal nose at the Supreme Court'," Gottlieb stated. "City governments, no matter how much they abhor the fundamental right of citizens to keep and bear arms, cannot use clever legal devices to prevent the exercise of that right. As Judge Rovner noted, the city must come to terms with that reality'."




The Second Amendment Foundation (www.saf.org) is the nation's oldest and largest tax-exempt education, research, publishing and legal action group focusing on the Constitutional right and heritage to privately own and possess firearms. Founded in 1974, The Foundation has grown to more than 650,000 members and supporters and conducts many programs designed to better inform the public about the consequences of gun control. SAF has previously funded successful firearms-related suits against the cities of Los Angeles; New Haven, CT; and San Francisco on behalf of American gun owners, a lawsuit against the cities suing gun makers and an amicus brief and fund for the Emerson case holding the Second Amendment as an individual right.



< Please e-mail, distribute, and circulate to friends and family > Copyright © 2011 Second Amendment Foundation, All Rights Reserved.
Second Amendment Foundation
James Madison Building
12500 N.E. Tenth Place
Bellevue, WA 98005 Voice: 425-454-7012
Toll Free: 800-426-4302
FAX: 425-451-3959
email: InformationRequest@saf.org

Click to expand...

3-0, pretty impressive.

I doubt Chicago will win a petition to go en banc if they ask for it.

Josh Blackman writes about Ezell.

He includes a reference in the decision to himself, where his last name is misspelled "Blackmun"...not really a bad thing given there was a former Justice named Harry Blackmun...noted as the author of Roe v Wade...oh, the link....

http://joshblackman.com/blog/?p=7500

Now that there's a conflict in the circuits, did Williams and/or Masciandaro's chances for certiorari just go up?

press1280 said:

Now that there's a conflict in the circuits, did Williams and/or Masciandaro's chances for certiorari just go up?

Click to expand...

Stayed the same...Ezell has to do with issues outside of those 2 cases, which are pretty much "Bear, outside the Home" in nature.

Any Circuit decision that goes our way is going to pay big dividends at the Circuit and District levels...

So...Chicago City Counsil voted in revised regulations for Gun Ranges in the City shortly BEFORE the 7th Circuit handed down their ruling.

Story and video of the City Counsil:
http://www.huffingtonpost.com/2011/07/06/shooting-ranges-get-chica_n_891681.html

Is there anything to be concerned with here? In my opinion, it doesn't matter if they voted the revised rules allowing ranges the day before or the day after the release of the opinion. You abide by what the Opinion says, period.

Will an Injunction be put in place? Has it already effectively been put in place with the ruling?

The next few weeks will be very entertaining as these mobile ranges try to set up "shop" in Chicago.

krucam said:

So...Chicago City Counsil voted in revised regulations for Gun Ranges in the City shortly BEFORE the 7th Circuit handed down their ruling.

Story and video of the City Counsil:
http://www.huffingtonpost.com/2011/07/06/shooting-ranges-get-chica_n_891681.html

Is there anything to be concerned with here? In my opinion, it doesn't matter if they voted the revised rules allowing ranges the day before or the day after the release of the opinion. You abide by what the Opinion says, period.

Will an Injunction be put in place? Has it already effectively been put in place with the ruling?

The next few weeks will be very entertaining as these mobile ranges try to set up "shop" in Chicago.

Click to expand...

The ordinance may have been passed, but it is not effective for 10 days. The ordinance also reads like a nightmare of zoning red tape and restrictions to ensure the only (non government/private security)ranges allowed in Chicago are at the bottom of the lake. I think the City Council will be revising their new ordinance, otherwise...

press1280 said:

Now that there's a conflict in the circuits, did Williams and/or Masciandaro's chances for certiorari just go up?

Click to expand...

I think it does. We now have three Circuits that have put forth frameworks to evaluate the Second Amendment using differing standards. The Ninth and Seventh have been the most willing to take on the larger issues, while the Fourth kinda held back a bit, then wavered on that.

Both Nordyke and Ezell put forth frameworks to evaluate claims, in general. They outlined the path to make a decision on any 2A topic, not just those before the court. This results in confusion on all topics, not the least of which being public carry.

The Ninth laid out a path that makes clear they will probably view RKBA though the lens of a "burden" imposed by the government. Sounds nice until you realize their view of burden is not ours. They gave exceptional latitude to elected bodies to decide just what that burden entails, and also said that public safety arguments are too complex for the courts to analyze - so they just defer to the reasonable legislature instead.

The Seventh used an originalist approach to say that the first step in evaluating any proposed right would be to evaluate whether the exercise of that activity was understood to be core to the second amendment back when the 14th Amendment was passed. If the answer to that questions is affirmative, then you move on to the claims the government has in regulating that activity. The government must prove those claims valid, and not just for theoretical pubic safety reasons. There has to be damn good reasons to restrict the right.


Each of those frameworks were designed to apply to more than the instant cases. Each issues instructions for all courts in their circuit to follow when evaluating any 2A claim. Each of those frameworks is incompatible with the other, and that means the people of the Ninth will get a different version of the right than the people of the Seventh. That calls for Supreme Court intervention.

So extend this to the Fourth. We have two cases before the SCOTUS from our circuit asking for cert - one each originating in the state and federal systems. It is pretty easy to point to Ezell and Nordyke and say "WTF?"

That is why we have the SCOTUS - to answer "WTF?"

Win! Feels good!

Where in the world is MD Shooters? One ugly score...

OK, so help me understand where the Ezell case now stands...

Ezell isn't over; they (Ezell) simply got their injunction they had been denide, so that between now and the time the case is eventually argued and decided, the law(s) are unenforceable. So now they go back to the original court (District Court) and pick up where they left off before the injuction was denied and sent to 7th Circuit Court.

What should we expect now, specific to this case back in District Court? Time table?

Thanks.

Two more weeks.