This column by ACRU Policy Board member Hans von Spakovsky was published January 23, 2017 by National Review.
The city of Chicago has lost another Second Amendment case, this time over its attempt to make it virtually impossible for private gun ranges to operate in the city. This is just the latest lawsuit stemming from Chicago’s recalcitrance in complying with the U.S. Supreme Court’s 2010 decision in McDonald v. City of Chicago.
The McDonald decision threw out the city’s virtual ban on firearms. Chicago responded with a series of city ordinances so restrictive, it was clear they were intended to make it as difficult as possible to purchase, own, or carry a gun. Virtually all of those ordinances have been challenged in court.
The city’s latest loss came in Ezell v. City of Chicago a case that has come before the Seventh Circuit Court of Appeals twice. Chicago lost the first round in 2011, when the court found that the city’s complete ban on shooting ranges violated the Second Amendment.
Why did the city want to shut down shooting ranges? In response to the McDonald case, the council had passed an ordinance requiring gun owners to have at least one hour of range training. The range ordinance was an effort to make sure no one could get the required training.
In response to that loss, the city passed a new ordinance. Described by the Seventh Circuit as “an elaborate scheme of regulations,” the range ordinance was so restrictive that only 2.2 percent of the city’s entire acreage was “even theoretically available” for a gun range. Moreover, the court noted, “the commercial viability of any of these parcels” was so questionable “that no shooting range yet exists in the city of Chicago.”
So Rhonda Ezell, the plaintiff in the first case along with several other Chicago residents, the Second Amendment Foundation, and the Illinois Rifle Association, went back to court and won again.
At issue were three zoning provisions that: (1) allowed gun ranges only as special uses in manufacturing districts; (2) prohibited gun ranges within 100 feet of another range or within 500 feet of a residential district, school, place of worship, or multiple other places; and (3) barred anyone under the age of 18 from even entering a shooting range.
The only facilities exempted from these provisions were gun ranges operated by law-enforcement agencies and private security firms, of which there are 11 in Chicago.
There was no valid reason to restrict gun ranges to manufacturing areas as opposed to commercial areas, which is where other cities zone gun ranges.
The majority opinion was written by Judge Diane Sykes, one of the judges listed as a possible Supreme Court pick by Donald Trump; Judge Ilana Rovner wrote a partial dissent. The majority concluded that the zoning provisions on manufacturing districts and the distance rule are so restrictive that they “severely limit Chicagoans’ Second Amendment right to maintain proficiency in firearm use via target practice at a range.”
In trying to defend these restrictions, the city “raised only speculative claims of harm to public health and safety,” Sykes wrote. There was no valid reason to restrict gun ranges to manufacturing areas as opposed to commercial areas, which is where other cities zone gun ranges. The city also had to admit that many of the existing gun ranges operated by law enforcement and private security firms do so safely near schools, churches, parks, and stores.
The city tried to argue that gun ranges cause secondary harmful effects such as gun theft, fire hazards, and airborne lead contamination. But, Sykes noted, Chicago “produced no evidentiary support for these claims beyond the speculative testimony of three city officials.” Moreover, she wrote, the city “failed to establish that target practice is wholly unprotected as a matter of history and legal tradition in the founding era or when the Fourteenth Amendment was ratified.”
Also rejected: the city’s claim that no one under 18 has a Second Amendment right. Again, Sykes wrote, it was “an extraordinarily broad claim” and the city “failed to back it up.” In fact, the city’s own witness “agreed that the age restriction is overbroad because teenagers can safely be taught to shoot, and youth firearm instruction is both prudent and can be conducted in a safe manner.”
The key to this decision was the court’s conclusion that “the core individual right of armed defense” that the Supreme Court recognized in the McDonald and Heller decisions “includes a corresponding right to acquire and maintain proficiency in firearm use through target practice at a range.” Thus, contrary to the city’s arguments, the Second Amendment does protect the citizen’s right to practice at a gun range.
The court affirmed that the city of Chicago has a right to “regulate the construction and operation of firing ranges to address genuine risks to public health and safety.” But the city failed to justify any of the “risks” it claimed to be addressing with the gun-range ordinance.
Hopefully, this latest loss will cause Chicago to stop trying to restrict the Second Amendment rights of its residents. But given its defiant behavior since the original McDonald case was decided, that may be a forlorn hope.