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Instant Analysis: Ezell v. City of Chicago (Chicago Gun Range Case)
The 7th Circuit, per Judge Sykes, just handed down the opinion in Ezell v. Chicago, reversing the District Court’s denial of Plaintiffs request for a preliminary injunction (the injunction sough to restrain the City’s ban on shooting ranges). In other words, Chicago lost. Judge Rovner concurred in judgment.
Here is the crux of the case:
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 Amend‐ment 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. They add that the Ordinance severely burdens the core Second Amendment right to possess firearms for self‐defense because it conditions possession on range training but simultaneously forbids range training everywhere in the city. Finally, they mount a First Amendment challenge to the Ordinance on the theory that range training is protected expression. The plaintiffs asked for a preliminary injunction, but the district court denied this request.
We reverse. The court’s decision turned on several legal errors. To be fair, the standards for evaluating Second Amendment claims are just emerging, and this type of litigation is quite new. Still, the judge’s decision reflects misunderstandings about the nature of the plaintiffs’ harm, the structure of this kind of constitutional claim, and the proper decision method for evaluating alleged infringements of Second Amendment rights. 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.
I will add more analysis as I make my way through the case.
Judge Sykes faults the analysis used by the District Court to consider the injunction. This flawed approach is premised, in no small part, on a misguided understanding of the Second Amendment.
The district court got off on the wrong foot by accepting the City’s argument that its ban on firing ranges causes only minimal harm to the plaintiffs—nothing more than the minor expense and inconvenience of traveling to one of 14 firing ranges located within 50 miles of the city limits—and this harm can b e a d equ a t e l y c o m p e n s a t e d b y money damages. This characterization of the plaintiffs’ injury fundamentally misunderstands the form of this claim and rests on the mistaken premise that range training does not implicate the Second Amendment at all, or at most only minimally. 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.
With respect to organizational standing, an important point that was not address in McDonald (because the Court took McDonald, rather than the NRA’s petition), Judge Sykes found that organizations do have standing.
Regarding the organizational plaintiffs, however, the City’s argument led the district court astray. The City emphasized that the Second Amendment protects an individual right, not an organizational one, and this point led the court to conclude that “the organizations do not have the necessary standing to demonstrate their irreparable harm.”7 This was 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.
Specifically, the Second Amendment Foundation has standing:
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 associa‐ tion members in the lawsuit.
With respect to individual harm, Judge Sykes analogizes the First and Second Amendments, to illustrate the point that allowing firing ranges outside the city is not sufficient.
In the First Amendment context, the Supreme Court long ago made it clear that “ ‘one is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place.’ ” Schad v. Borough of Mt. Ephraim, 452 U.S. 61, 76‐77 (1981) (quoting Schneider v. State of New Jersey, 308 U.S. 147, 163 (1939)). The same principle applies here. It’s hard to imagine anyone suggesting that Chicago may prohibit the exercise of a freespeech 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.
The court reads Salerno very broadly to permit this facial challenge, which “stands as a fixed harm to every Chicagoan’s Second Amendment right.”
That is, the City Council violated the Second Amendment when it made this law; its very existence stands as a fixed harm to every Chicagoan’s Second Amendment right to maintain proficiency in firearm use by training at a range. This kind of constitutional harm is not measured by whether a particular person’s gasoline or mass‐transit bill is higher because he must travel to a firing range in the suburbs rather than one in the city, as the district court seemed to think. Whatever else the Salerno principle might mean for this case, it neither requires nor supports the district court’s approach to irreparable harm.
Continuing the comparisons between the First and Second Amendment, Judge Sykes notes that violations of both rights are presumed to “constitute irreparable injuries.”
The loss of a First Amendment right is frequently presumed to cause irreparable harm based on “the intangible nature of the benefits flowing from the exercise of those rights; and the fear that, if those rights are not jealously safeguarded, persons will be deterred, even if imperceptibly, from exercising those rights in the future.” Miles Christi Religious Order v. Twp. of Northville, 629 F.3d 533, 548 (6th Cir. 2010) (internal alteration and quotation marks omitted); see also KH Outdoor, LLC v. City of Trussville, 458 F.3d 1261, 1272 (11th Cir. 2006). The Second Amendment protects similarly intangible and unquantifiable interests. Heller held that the Amendment’s central component is the right to possess firearms for protection. 554 U.S. at 592‐95. Infringements of this right cannot be
compensated by damages.10
In short, for reasons related to the form of the claim and the substance of the Second Amendment right, the plaintiffs’ harm is properly regarded as irreparable and having no adequate remedy at law.
Judge Sykes was critical of the District Court Judge’s refusal to apply intermediate scrutiny “and by implication, rejected any form of heightened review.”
There are several problems with this analysis. First, it is incomplete. The judge identified but did not evaluate the Second Amendment merits question. More importantly, the court framed the inquiry the wrong way. Finally, it was a mistake to reject heightened scrutiny. The judge was evidently concerned about the novelty of Second Amendment litigation and proceeded from a default position in favor of the City. The concern is understandable, but the default position cannot be reconciled with Heller.
Judge Sykes read Heller as creating a “framework” to resolve Second Amendment cases.
It’s true that Second Amendment litigation is new, and Chicago’s ordinance is unlike any firearms law that has received appellate review since Heller. But that doesn’t mean we are without a framework for how to proceed. The Supreme Court’s approach to deciding Heller points in a general direction. Although the critical question in Heller—whether the Amendment secures an individual or collective right—was interpretive rather than doctrinal, the Court’s decision method is instructive.
With little precedent to synthesize, 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.
Sykes find that because Heller excluded rational basis review, it entails heightened scrutiny.
For our purposes, however, we know that Heller’s reference to “any standard of scrutiny” means any heightened standard of scrutiny; the Court specifically excluded rational‐basis review. . . . Beyond that, the Court was not explicit about how Second Amendment challenges should be adjudicated now that the historic debate about the Amendment’s status as an individual‐rights guarantee has been
Drawing from the Heller dicta, Judge Sykes draws several “key insights.” First, relying on Eugene Volokh’s framework, the threshold inquiry is about the scope.
First, the threshold inquiry in some Second Amendment cases will be a “scope” question: Is the restricted activity protected by the Second Amendment in the first place? See Eugene Volokh, Implementing the Right to Keep and Bear Arms for Self‐Defense: An Analytical Framework and a Research Agenda, 56 UCLA L. REV. 1443, 1449. The answer requires a textual and historical inquiry
into original meaning.
Judge Sykes also elaborates on the original understanding of the 14th Amendment, with respect to the 14th Amendment.
Above the line:
Setting aside the ongoing debate about which part of the Fourteenth Amendment does the work of incorporation, and how, see id. at 3030‐31 (plurality opinion of Alito, J.); id. at 3058‐80 (Thomas, J., concurring); id. at 3089‐99 (Stevens, J., dissenting); id. at 3120‐21 (Breyer, J., dissenting), this wider historical lens is required if we are to follow the Court’s lead in resolving questions about the scope of the Second Amendment by consulting its original public meaning as both a starting point and an important constraint on the analysis. See Heller, 554 U.S. at 610‐19; McDonald, 130 S. Ct. at 3038‐ 42.11
Below the line:
11 On this aspect of originalist interpretive method as applied to the Second Amendment, see generally AKHIL REED AMAR, THE BILL OF RIGHTS: CREATION AND RECONSTRUCTION 215‐30, 257‐ 67 (1998); Brannon P. Denning & Glenn H. Reynolds, Five Takes on McDonald v. Chicago, 26 J.L & POL. 273, 285‐87 (2011); Josh Blackmun & Ilya Shapiro, Keeping Pandora’s Box Sealed: Privileges or Immunities, The Constitution in 2020, and Properly Extending the Right to Keep and Bear Arms to the States, 8 GEO. J.L. & PUB. POL’Y 1, 51‐57 (2010); Clayton E. Cramer, Nicholas J. Johnson & George A. Mocsary, “This Right Is Not Allowed by Governments That Are Afraid of the People”: The Public Meaning of the Second Amendment When the Fourteenth Amendment Was Ratified, 17 GEO. MASON L. REV. 823, 824‐25 (2010); Steven G. Calabresi & Sarah E. Agudo, Individual Rights Under State Constitutions When the Fourteenth Amendment Was Ratified in 1868: What Rights Are Deeply Rooted in American History and Tradition?, 87 TEX. L. REV. 7, 11‐17, 50‐54 (2008); Randy E. Barnett, Was the Right to Keep and Bear Arms Conditioned on Service in an Organized Militia?, 83 TEX. L. REV. 237, 266‐70 (2004); David B. Kopel, The Second Amendment in the Nineteenth Century, 1998 BYU L. REV. 1359; Stephen P. Halbrook, Personal Security, Personal Liberty, and “The Constitutional Right to Bear Arms”: Visions of the Framers of the Fourteenth Amendment, 5 SETON HALL CONST. L.J. 341 (1995).
My last name is not spelled “Blackmun” (I get that a lot, not surprisingly, but I’ll take it!). I am still freaking out to be in the same footnote as (gasp) Akhil and Randy! Epic win.
Sykes directly analogizes between the First and Second Amendment with respect to unprotected activities.
The Supreme Court’s free‐speech jurisprudence contains a parallel for this kind of threshold “scope” inquiry. The Court has long recognized that certain “well‐defined and narrowly limited classes of speech”—e.g., obscenity, defamation, fraud, incitement—are categorically “outside the reach” of the First Amendment. When the Court has “identified categories of speech as fully outside the protection of the First Amendment, it has not been on the basis of a simple cost‐benefit analysis.” Stevens, 130 S. Ct. at 1586. Instead, some categories of speech are unprotected as a matter of history and legal tradition. Id. So too with the Second Amendment.
Here is the test, which sounds in an originalist categorical approach:
Accordingly, if the government can establish that a challenged firearms law regulates activity falling outside the scope of the Second Amendment right as it was understood at the relevant historical moment—1791 or 1868—then the analysis can stop there; the regulated activity is categorically unprotected, and the law is not subject to further Second Amendment review.
If this test is not satisfied, next comes the scrutiny:
If the government cannot establish this—if the historical evidence is inconclusive or suggests that the regulated activity is not categorically unprotected—then there must be a second inquiry into the strength of the government’s justification for restricting or regulating the exercise of Second Amendment rights. Deciding whether the government has transgressed the limits imposed by the Second Amendment—that is, whether it has “infringed” the right to keep and bear arms—requires
the court to evaluate the regulatory means the government has chosen and the public‐benefits end it seeks to achieve. Borrowing from the Court’s First Amendment doctrine, the rigor of this judicial review will depend on how close the law comes to the core of the Second Amendment right and the severity of the law’s burden on the right.
Judge Sykes cites to work from Volokh, Lund, Winkler, Solumn, Reynolds, and Denning to explain this scrutiny.
For laws that do not burden the core of the Second Amendment, the Court is to apply some form of heightened scrutiny.
Both Heller and McDonald suggest that broadly prohibitory laws restricting the core Second Amendment right—like the handgun bans at issue in those cases, which prohibited handgun possession even in the home—are categorically unconstitutional. For all other cases, however, we are left to choose an appropriate standard of review from among the heightened standards of scrutiny the Court applies to governmental actions alleged to infringe enumerated constitutional rights; the answer to the Second Amendment “infringement” question depends on the government’s ability to satisfy whatever standard of means‐end scrutiny is held to apply.
Next Judge Sykes reconciled this opinion with the 7th Circuit’s opinion in Skoien (which En Banc reversed here).
The approach outlined here does not undermine Skoien, 614 F.3d at 639‐43, or United States v. Williams, 616 F.3d 685, 691‐93 (7th Cir. 2010), both of which touched on the historical “scope” question before applying a form of intermediate scrutiny.
She also distinguishes it from the framework in Nordyke v. King.
The Ninth Circuit recently adopted a somewhat different framework for Second Amendment claims. In ordyke v. King, a divided panel announced a gatekeeping “substantial burden” test before the court will apply heightened scrutiny. No. 07‐ 15763, 2011 WL 1632063, at *4‐6 (9th Cir. May 2, 2011) (O’Scannlain, J.). Under this approach only laws that substantially burden Second Amendment rights will get some form of heightened judicial review. Id. The Nordyke majority specifically deferred judgment on “what type of heightened scrutiny applies to laws that substantially burden Second Amendment rights.” Id. at *6 n.9. Judge Gould, concurring in Nordyke, would apply heightened scrutiny “only [to] arms regulations falling within the core purposes of the Second Amendment, that is, regulations aimed at restricting defense of the home, resistance of tyrannous government, and protection of country.” Id. at *15. All other firearms laws, he said,
should be reviewed for reasonableness, id., although by this he meant the sort of reasonableness review that applies in the First Amendment context, not the deferential rational basis review that applies to all laws, id. at *16.
Judge Sykes notes the city’s contradictory position—you need firearm training to get a permit, but it won’t let people obtain firearm training in the city.
Indeed, the City considers live firing‐range training so critical to responsible firearm ownership that it mandates this training as a condition of lawful firearm possession. At the same time, however, the City insists in this litigation that range training is categorically outside the scope of the Second Amendment and may be completely prohibited. There is an obvious contradiction here, but we will set it aside for the moment and consider the City’s support for its categorical position.
Judge Sykes even nails originalism at the right time, by looking at the meaning of the right ot keep and bear arms leading up to the ratification of the 14th Amendment.
The City points to a number of founding‐era, antebellum, and Reconstruction state and
local laws that limited the discharge of firearms in urban environments. As we have noted, the most relevant historical period for questions about the scope of the Second Amendment as applied to the States is the period leading up to and surrounding the ratification of the Fourteenth Amendment. That point aside, most of the statutes cited bythe City are not specific to controlled target practice and, in any event, contained significant carveouts and exemptions.
Sykes distinguishes the historical examples of “regulatory measures” from Chicago’s “absolute prohibition.”
In short, these laws were merely regulatory measures, distinguishable from the City’s absolute prohibition on firing ranges. . . . These “time, place, and manner” regulations do not support the City’s position that target practice is categorically unprotected.
Judge Sykes reads Heller as rejecting a “presumption of constitutionality.”
We proceed, then, to the second inquiry, which asks whether the City’s restriction on range training survives Second Amendment scrutiny. As we have explained, this requires us to select an appropriate standard of review. Although the Supreme Court did not do so in either Heller or McDonald, the Court did make it clear that the deferential rational‐basis standard is out, and with it the presumption of constitutionality. Heller, 554 U.S. at 628 n.27 (citing United States v. Carolene Prods., 304 U.S. 144, 152 n.4 (1938)). This necessarily means that the City bears the burden of justifying its action under some heightened standard of judicial review.
The Court looks to the First Amendment for tips on scrutiny.
The City urges us to import the “undue burden” test from the Court’s abortion cases, see, e.g., Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 876‐79 (1992), but we decline the invitation. Both Heller and McDonald suggest that First Amendment analogues are more appropriate, see Heller, 554 U.S. at 582, 595, 635; McDonald, 130 S. Ct. at 3045, and on the strength of that suggestion, we and other circuits have already begun to adapt First Amendment doctrine to the Second Amendment context,
After reciting the standards for free speech scrutiny (with citations to Arizona Free Enterprise and Sorrell, so it’s fresh), Judge Sykes distills “a few general principles.”
Labels aside, we can distill this First Amendment doctrine and extrapolate a few general principles to the Second Amendment context. 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.
Judge Sykes provides for a bifurcation between the “law-abiding responsible citizens” in Heller and the criminals in Skoien. This parallels the exact recommendation I made in the Constitutionality of Social Cost—treat people differently if they have shown a propensity for violence.
In Skoien we required a “form of strong showing”—a/k/a “intermediate scrutiny”—in a Second Amendment challenge to a prosecution under 18 U.S.C. § 922(g)(9), which prohibits the possession of firearms by persons convicted of a domestic‐violence misdemeanor. 614 F.3d at 641. We held
that “logic and data” established a “substantial relation” between dispossessing domestic‐violence misdemeanants and the important governmental goal of “preventing armed mayhem.” Id. at 642. Intermediate scrutiny was appropriate in Skoien because the claim was not made by a “law‐abiding,
responsible citizen” as in Heller, 554 U.S. at 635; nor did the case involve the central self‐defense component of the right, Skoien, 614 F.3d at 645.
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. That the City conditions gun possession on range training
is an additional reason to closely scrutinize the range ban. All this suggests that a more rigorous showing than that applied in Skoien should be required, if not quite “strict scrutiny.”
And here is the burden Chicago needs to establish:
To be appropriately respectful of the individual rights at issue in this case, the City bears the burden of establishing a strong public‐interest justification for its ban on range training: The City must establish a close fit between the range ban and the actual public interests it serves, and also that the public’s interests are strong enough to justify so substantial an encumbrance on individual Second Amendment rights. Stated differently, the City must demonstrate that civilian target practice at a firing range creates such genuine and serious risks to public safety that prohibiting range training throughout the city is justified.
Judge Sykes finds that Chicago did not meet this burden (specifically the concerns are speculative, read, ex ante)
At this stage of the proceedings, the City has not come close to satisfying this standard. In the district
court, the City presented no data or expert opinion to support the range ban, so we have no way to evaluate the seriousness of its claimed public‐safety concerns. Indeed, on this record those concerns are entirely speculative and, in any event, can be addressed through sensible zoning and other appropriately tailored regulations. That much is apparent from the testimony of the City’s own
witnesses, particularly Sergeant Bartoli, who testified to several common‐sense range safety measures that could be adopted short of a complete ban.
Specifically concerns about risk of death or injuries are speculative.
The City maintains that firing ranges create the risk of accidental death or injury and attract thieves wanting to steal firearms. But it produced no evidence to establish that these are realistic concerns, much less that they warrant a total prohibition on firing ranges. In the First Amendment context, the government must supply actual, reliable evidence to justify restricting protected expression based on secondary public‐safety effects. 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.
Judge Sykes poo-poos concerns about bullets flying out of mobile shooting ranges, and concerns about “lead residue left on range users’ hands after firing a gun.” Somewhere Justice Breyer is cowering about Lochner.
Sykes finds that Plaintiffs are likely to succeed on the merits (and indeed, probably will).
Perhaps the City can muster sufficient evidence to justify banning firing ranges everywhere in the city, though that seems quite unlikely. As the record comes to us at this stage of the proceedings, the firing‐range ban is wholly out of proportion to the public interests the City claims it serves. Accordingly, the plaintiffs’ Second Amendment claim has a strong likelihood of success on the merits.
Judge Sykes finds the balance of harms tilts towards the Plaintiff.
The remaining consideration for preliminary injunctive relief is the balance of harms. It should be clear from the foregoing discussion that the harms invoked by the City are entirely speculative and in any event may be addressed by more closely tailored regulatory measures. Properly regulated firing ranges open to the public should not pose significant threats to public health and safety. 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.
Judge Sykes notes that Chicago may still narrowly limit the opening of ranges, with respect to zoning laws.
To the contrary, a preliminary injunction against the range ban does not open the door to a parade of firing‐range horribles. Cf. McDonald, 130 S. Ct. at 3047 (“Despite municipal respondents’ doomsday proclamations, incorporation does not imperil every law regulating firearms.”). The City may promulgate zoning and safety regulations governing the operation of ranges not inconsistent with the Second Amendment rights of its citizens; the plaintiffs may challenge those regulations, but not based on the terms of this injunction. As for the City’s concern about a “regulatory vacuum” between the issuance of the preliminary injunction and the promulgation of firing‐range zoning and safety regulations, we note that it faced a similar dilemma after the Supreme Court decided McDonald. The sky did not fall. The City Council moved with dispatch and enacted the Ordinance just four days later.
Justice Breyer is screaming about Lochner somewhere.
Wow. This is what I expected in McDonald but didn’t get. I hope this survives en banc.
Judge Rovner, in a witty opening, agrees with the Majority that “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.”
Stung by the result of McDonald v. City of Chicago, 130 S. Ct. 3020 (2010), 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.1 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 Dist. of Columbia v. Heller, 554 U.S. 570 (2008), 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.
Judge Rovner addresses the public interests, and finds in favor of Plaintiffs
Public safety interests apply on both sides of the balance: there are obvious safety risks associated with operating live shooting ranges (more on that later), but there are perhaps equally compelling safety interests in ensuring that gun owners possess the skills necessary to handle their weapons safely. On the record as it currently stands, the district court should have enjoined that part of the ordinance banning all live ranges within City limits. For that reason, I concur in the judgment.
Rovner writes separately with respect to the majority’s adopting of strict scrutiny.
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. Although the majority characterizes this aspect of the ordinance as a complete ban on an activity “implicating the core of the Second Amendment right,” a more accurate characterization would be a regulation in training, an area ancillary to a core right. Ante, at 45. A right to maintain proficiency in firearms handling is not the same as the right to practice at a live gun range. As such, I cannot agree that “a more rigorous showing than that applied in Skoien, should be required, if not quite ‘strict scrutiny.’ ” Ante, at 46. Skoien required the government to demonstrate that the statute at issue served an “important government objective,” and that there was a “substantial relationship” between the challenged legislation and that objective
Rovner also looks to “time, place, and manner” as an analogue.
The “time, place and manner” framework of the First Amendment seems well‐suited to the regulation of live‐range training within a densely populated urban area. A complete ban on live‐range training in Chicago, of course, likely would not survive under the intermediate scrutiny applied to restrictions on time, place and manner, especially because the City itself concedes the importance of this training to the safe operation of firearms for self‐defense in the home. Indeed, the City allows ranges to operate in some of the most densely populated parts of the City, albeit strictly for the use of law enforcement and trained security personnel. The majority purports to distinguish time, place and manner restrictions and other regulations on the grounds that the City’s ordinance is a complete ban, but the ban on live ranges affects only one aspect of firearms training. The intermediate scrutiny applied to time, place and manner restrictions is both adequate and appropriate in these circumstances.
Rovner turns the analogy to the First Amendment on its head, by comparing shouting fire in a theater to carrying a tinder box in a crowded city.
Finally, that some of those early laws were concerned with fire suppression does not mean that they are irrelevant to our analysis today. On the contrary, these laws inform us that public safety was a paramount value to our ancestors, a value that, in some circumstances, trumped the Second Amendment right to discharge a firearm in a particular place. Analogizing to the First Amendment context, a categorical limit is sometimes appropriate, as in the case of bans on obscenity, defamation, and incitement to crime. See Skoien, 614 F.3d at 641. In the same way that a person may not with impunity cry out “Fire!” in a crowded theater, a person in 18th century New York, and 19th century Chicago and New Orleans could not fire a gun in the tinder boxes that these cities had become. See Footnote 14 above. If we are to acknowledge the historical context and the values of the period when the Second and Fourteenth Amendments were adopted, then we must accept and apply the full
understanding of the citizenry at that time. In the instance of firearms ordinances which concerned themselves with fire safety, we must acknowledge that public safety was seen to supercede gun rights at times. Although fire is no longer the primary public safety concern when firearms are discharged within City limits, historical context tells us that cities may take public safety into account in setting reasonable time, place and manner restrictions on the discharge of firearms within City limits.
Rovner also questions the City’s dismissal of the City’s concerns for public safety (Justice Breyer is cheering!), calling it naïve.
The majority’s summary dismissal of the City’s concern for public safety related to live gun ranges is to my mind naive. One need only perform a simple internet search on “gun range accidents” to see the myriad ways that gun owners manage to shoot themselves and others while practicing in these supposedly safe environments. From dropping a loaded gun in a parking lot to losing control of
a strong weapon on recoil, gun owners have caused considerable damage to themselves and others at live gun ranges. To say that the City’s concerns for safety are “entirely speculative” is unfounded. Ante, at 46. At this stage of the litigation, the City has not yet had an opportunity to develop a full record on the safety issues raised by placing live gun ranges in an urban environment. Common sense
tells us that guns are inherently dangerous; responsible gun owners treat them with great care. Unfortunately, not all gun owners are responsible. The City has a right to impose reasonable time, place and manner restrictions on the operation of live ranges in the interest of public safety and other legitimate governmental concerns.
Rovner’s conclusion is telling in its truthiness
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 selfdefense and the City must come to terms with that reality.
Any regulation on firearms ownership must respect that right.