I just listened to the oral arguments in Ezell v. City of Chicago, which considers whether the City of Chicago can ban the construction of any firing ranges in city limits.
One point stuck out, in light of my theory in The Constitutionality of Social Cost. Alan Gura, arguing for the appellant, made an analogy between Chicago’s ban on firing ranges with a hypothetical ban on book stores in city limits. In other words, could Chicago ban the opening of book stores in the City? Judge Rovner rejects the comparison between a First Amendment right to read books and a Second Amendment right to practice shooting at a range. They aren’t “apples and oranges,” she claims, but rather are more like “cantaloupes and rutabagas.”
Likewise, counsel for Chicago rejected the analogy between the First, Second, Fourth, or any other Amendment.
Unsurprisingly, I disagree with this characterization, as I argue at length in The Constitutionality of Social Cost. Enumerated rights should not be treated disparately.
Judge Sykes citing Heller and McDonald, notes the Supreme Court suggested that lower courts should look to the First Amendment to construe the Second Amendment. She makes an analogy where the City of Chicago imposes a license requirement on all journalists, and as a condition of the license, the city imposes a training requirement to learn responsible journalism. At the same time the ordinance prohibits any such training inside the city. She asks the City if they could argue that a journalist could go to Evanston to visit Northwestern Unviersity’s Journalism School? The attorney said no, but rejected the analogy.
Further Judge Sykes reaffirmed a difference between a regulation, and an out-right ban on something. “The ordinance is prohibitory and not regulatory.”
Finally, Judge Rovner focused heavily on firing ranges in “Crime-ridden neighborhoods,” evoking Justice Breyer’s geography clause rendition of the Second Amendment where the right can be dissipated in high-crime, urban areas.
Judge Sykes and Judge Kanne seemed pretty tough on the City of Chicago. They may reverse, and let the lower court consider this on the merits (this was an appeal from a denial of the preliminary injunction).