Chicago Cannot Sustain Ban|on Firing Ranges, 7th Circuit Rules

     CHICAGO (CN) – Gun owners can get an injunction against a ban in Chicago on public firing ranges, the 7th Circuit ruled, finding that the Second Amendment challenge shows a strong likelihood of success on the merits.

     Shortly after the Supreme Court declared Chicago’s handgun ban unconstitutional with the June 2010 decision in McDonald v. Chicago, the City Council adopted the Responsible Gun Owners Ordinance – a set of rules that severely curtailed gun proliferation.
     The law prohibited public firing ranges in Chicago and placed a number other restrictions, including a prohibition on gun possession outside the home or business, a limit of one operable firearm per home, and restrictions on the sale or transfer of guns except through inheritance. It also proscribed private citizens from firing guns within city limits, except in self-defense or defense of others.
     Despite the ban, Chicago requires four hours of classroom instruction and one hour of range training to obtain a permit. Gun owners sought an injunction declaring the ban on ranges unconstitutional. The ordinance’s other restrictions are being challenged separately.
     U.S. District Judge Virginia Kendall rejected a call for a preliminary injunction against the ordinance, finding that plaintiffs’ lacked standing because their Second Amendment rights were not burdened by having to travel to one of 14 firing ranges located within 50 miles of the city limits for training. Any inconvenience or travel expense could be compensated through monetary damages and was thus not a constitutional question, Kendall found.
     In an exhaustive 51-page reversal, a unanimous panel of the 7th Circuit chastised Kendall for her ruling and explained its methodology for assessing Second Amendment claims.
     “The question is not whether or how easily Chicago residents can comply with the range-training requirement by traveling outside the city; the plaintiffs are not seeking an injunction against the range-training requirement,” Judge Diane Sykes wrote for the majority opinion. “The pertinent question is whether the Second Amendment prevents the City Council from banning firing ranges everywhere in the city; that ranges are present in neighboring jurisdictions has no bearing on this question.”
     Sykes rebuked Kendall’s for “a profoundly mistaken assumption” in reasoning that one may measure harm to a constitutional right by the extent to which it can be exercised in another jurisdiction.
     “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,” Sykes wrote. “That sort of argument should be no less unimaginable in the Second Amendment context.”
     “The judge was evidently concerned about the novelty of Second Amendment litigation and proceeded from a default position in favor of the City,” Sykes added.
     Firearm training is protected under the Second Amendment, according to the ruling. “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 makes it effective,” Sykes wrote.
     Rather than applying the undue-burden test from abortion cases, the federal appeals court suggested a standard more akin to First Amendment questions.
     “We can distill this First Amendment doctrine and extrapolate a few general principles to the Second Amendment context,” the opinion states. “First, a severe burden on the core Second Amendment right of armed self-defense will require an extremely strong public-interest justification and a close fit between the government’s means and its end. Second, laws restricting activity lying closer to the margins of the Second Amendment right, laws that merely regulate rather than restrict, and modest burdens on the right may be more easily justified. How much more easily depends on the relative severity of the burden and its proximity to the core of the right.”
     Unlike regulatory restrictions that involve convicted felons or the mentally ill, Chicago’s ban curtailed the rights of responsible, law-abiding citizens, according to the court. Thus, the law is “a serious encroachment” on Second Amendment rights, unjustified by Chicago’s safety concerns.
     “Properly regulated firing ranges open to the public should not pose significant threats to public health and safety,” Sykes wrote. “On the other side of the scale, the plaintiffs have established a strong likelihood that they are suffering violations of their Second Amendment rights every day the range ban is in effect. The balance of harms favors the plaintiffs.”
     An injunction should also halt other portions of the ordinance that indirectly prevent range training, the court added. These include the prohibition of firearms outside of the home and rules preventing the firing of guns within city limits.
     In a concurring opinion, Judge Ilana Rovner took aim at the contradictory firing-range training requirement and ban, which she described as “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.”
     Though a complete ban on firearms training would not likely pass constitutional muster, Chicago has banned only one type of training, Rovner added.
     “I write separately because the majority adopts a standard of review on the range ban that is more stringent than is justified by the text or the history of the Second Amendment,” according to the separate nine-page filing.
     “A right to maintain proficiency in firearms handling is not the same as the right to practice at a live gun range,” Rovner added.
     Classroom and simulation training would also serve as safe alternatives to range concerns, she acknowledged.
     “The majority’s summary dismissal of the City’s concern for public safety related to live gun ranges is to my mind naïve,” Rovner wrote.
     The Chicago City Council legalized firing ranges on Wednesday, slightly in advance of the 7th Circuit’s ruling. The fate of the law’s other provision remains uncertain.
     Plaintiffs included three Chicago residents, a company that operates mobile firing ranges, the Second Amendment Foundation and the Illinois State Rifle Association.

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