On Tuesday, across town, a panel of alderman approved a new ordinance that permits the construction of firing ranges in city limits, but with serious restrictions. See details here and here. The ordinance will likely be enacted soon (though not soon enough to preempt the 7th Circuit’s opinion).
So is Ezell v. Chicago moot? I don’t think so.
First, passing a new ordinance does not automatically moot the issue, especially if there is an opportunity for the City to continue to violate the Constitution. See, e.g. American Legion Post 7 v. City of Durham, 239 F.3d 601, 605 (4th Cir. 2001) (“The mere amendment or repeal of a challenged ordinance does not automatically moot a challenge to that ordinance.”). In light of Chicago’s refusal to protect Second Amendment rights post-McDonald, this new step doesn’t give me much confidence that the City will take care that constitutional rights are faithfully protected.
Second–and herein lies the rub–we will have to look at the ordinance in question. How restrictive is it? In light of Judge Sykes’ repeated analogies between the First and Second Amendments, any zoning ordinance would likely have to survive the same heightened scrutiny discussed in Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986) and its progeny. Additionally, Chicago will have to make sure that the law, by itself does not infringe on the core Second Amendment rights. If it makes training so difficult and onerous, these provisions may not be constitutional without even touching the First Amendment.
Third, and perhaps most importantly, all three Judges on the panel were quite critical of Chicago’s actions. In the words of Judge Rovner, who concurred in judgment, the initial statute in question exemplified Chicago’s “thumbing of the municipal nose at the Supreme Court.” Attempts to play fast and loose with constitutional rights won’t fly with this Court. The City would be warranted in taking this opinion seriously.
Cross-Posted at ConcurringOpinions.com.
Update: Thursday’s Chicago Tribune reports that the City approve the ordinance.
Jennifer Hoyle, a city Law Department spokeswoman, said the new ordinance could make the lawsuit moot, but an attorney for those suing the city disagreed.