Sep 28, 2010

Posted in Web 2.0

Professor’s Tweet Cited In Brief


Alan Gura (with whom I co-authored this article on McDonald) sent me a copy of a brief from an Eastern District of Illinois case dealing with Chicago’s post-McDonald law that bans gun ranges within the city limits. It is notable for its citation of a tweet from Professor Adam Winkler of UCLA (or @adamwinkler for those in the Twittersphere):

Nonetheless, the City invokes the work of noted UCLA Law Professor Adam Winkler relating to standards of review. This reliance is badly misplaced. Regardless of whether the cited article truly reflects the City’s position, it predates Heller’s rejection of rational basis, and McDonald’s finding that the Second Amendment secures a fundamental right, as well as the Seventh Circuit’s opinions applying intermediate review.1 But notably, Prof. Winkler agrees that Chicago’s range ban is unconstitutional: “Reasonable gun control is one thing, this another. Chicago requires 1 hour on range for handgun permit but bars ranges.” www.twitter.com/adamwinkler, Aug. 16, 2010, 3:18 p.m. (citation omitted) (last visited Sept. 26, 2010).

Gura uses Winkler’s tweet to refute an interpretation of Winkler’s law review article. Cool 2.0
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  • http://Website steve rappoport

    I know that you posted what you because of the tweet factor, but I wish to comment on the merits:

    I do not see why a city has a constitutional obligation to allow gun ranges within the city’s limits if there are ranges reasonably close by in the suburbs.

    • Josh Blackman

      What makes this case interesting is that the City requires spending time at a shooting range in order to obtain a permit to own a gun. Yet, the City provides no location for a person to even take such training within the city.

      Imagine if in order to obtain some kind of discretionary license (a drivers license, moving permit, business license, etc.), the relevant center was outside city limits. Assume the person has no vehicle and it would be quite burdensome to travel there.

      Now assume that an important constitutional liberty was at stake here. The city was not merely creating a burden for some discretionary permit, but something that we have as of right (assume McDonald is correct).

      That should bring this issue into focus (I think that is what commenter anon was trying to get at below).

      • http://Website steve rappoport

        Is the cae a facial challenge to the ordinance? If so, I don’t think that your hypothetical matters.

  • http://Website steve rappoport

    Please insert “did” between “what you” and “because.” (It would be nice if we had an ability to correct our booboos.)

  • http://Website anon

    for the same reason they have to allow synagogues and abortion clinics inside city limits, even if they have them somewhere else.

    and what if everywhere else banned them?

  • http://Website steve rappoport

    I’m sorry, but I don’t see gun ranges like synagogues and abortion clinics at all, as the later do not implicate public-safety issues in the way that the ranges could.

    • Josh Blackman

      I know you don’t. See my posts on equality of rights for why I disagree with you.

      • http://Website steve rappoport

        I don’t think that a city can ban First Amendment activities, but I think that it can regulate Second Amendment activities. As you note, I do not see all of the bill of rights as entitled to equal treatment.

        Do you also contend that because you have the right to bear arms within a city, the city has to permit a store to be located within its limits for you to buy ammunition? If you argue that this burdens people without a car, can I ask whether they have access to relevant public transportation?

        • Josh Blackman

          The permits being sought are to simply keep guns in a home, not to carry them outside the home. Really, the danger is being kept in the home (yes I know people break laws and carry guns outside the home without the permits, but those type of people wouldn’t bother getting a permit in the first place, so this law creates, if you will an “undue burden,” on law abiding citizens who want to keep a gun at home for self defense)

          Funny you mention public transport. In breyer’s opinion in heller, he actually cited the washington metro map to show that dc residents could metro to MD or VA to hunt. I chuckled.

        • http://Website Corey Carpenter

          Let’s say that a city, feeling that level of discourse in a city has reached new lows and is especially prone to outbreaks of violence and riots. Because the First Amendment does not allow them to ban gatherings and speech, they instead decide to regulate these situations. The particularity of the regulation requires that anyone wishing to gather and speak must acquire 6 credit hours of public speaking from an accredited university of 40,000 plus students. Due to zoning, no single academic institution above 10,000 students is allowed to be within the city limits, and getting outside of city limits to the closest university takes a minimum of an hour drive, given good traffic.

          Still good to go?

          • http://Website steve rappoport

            Your argument involves First Amendment issues, not Second Amendment ones. I take it that you agree with Josh that all rights involved in the Bill of Rights are entitled to equal treatment. But the Supremes already have suggested–have they not?–that individual gun rights can be subjected to reasonable regulation, and my impression is that the level of reasonableness involved would allow for much more restrictive regulation than could ever be applied to speech activities.

  • http://Website H Jernigan

    If Winkler was wrong about “reasonable regulation,” then isn’t it possible that his Tweet is wrong too?

    I think Chicago’s position is compromised a bit with the requirement for range training in order to get a permit, which you need to possess a handgun in the city. If this were just a functional range ban, resulting from a zoning ordinance for instance but not tied to a handgun permit ordinance, I’m not sure there would be as much of a case that the second amendment is being violated.

    • Josh Blackman

      To your point about Winkler being wrong, see http://volokh.com/2010/08/04/brilliant-people-agree-with-me/

      • http://Website H Jernigan

        Do you think Gura would agree that “[the] history of deferential review under the reasonable regulation standard is as good an indication as any that, even if the Second Amendment is reinterpreted to protect an individual right, almost all gun control laws are likely to remain constitutional”?

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  • http://www.ingramblawg.com Jonathan

    There is no Eastern District of Illinois… I think you meant Northern.