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The transcript is here. I don’t have much time but I will focus on some exchanges of interest.

RBG isn’t pleased with the discretion of the FCC determining what is kosher and what is unkosher.

JUSTICE GINSBURG: General Verrilli, I took 24 it from the briefs and what the FCC has been doing that 25 the major objection is that one cannot tell what’s1 indecent and what isn’t; that it’s FCC, the censor, 2 that’s saying “Private Ryan” is okay, “Schindler’s List” 3 is okay, but “NYPD Blue” is not. And I do think that 4 that is the major objection, that we have a — a 5 government agency that is going to make decisions about 6 when nudity is okay and when it isn’t. You can’t do it 7 in terms of time because the “NYPD” was 7 seconds and 8 another broadcast, “Catch-22,” was 40 seconds. 9 So it’s — it’s the appearance of 10 arbitrariness about how the FCC is defining indecency in 11 concrete situations. That I think is the nature of 12 the -­

Kagan talks about tushies:

JUSTICE KAGAN: — because it turns out that 12 nudity — that there really — sometimes it’s allowed as 13 to some body parts and sometimes it’s not allowed, and 14 the commission hadn’t really said anything about it for 15 50 years, and the length of time doesn’t seem to be 16 what’s indicative of anything, the kind of body part 17 doesn’t seem to be, with some limits, what is indicative 18 of anything, so that ABC just didn’t really know.

RBG also asks about Hair and Metropolis, the opera!

4 JUSTICE GINSBURG: If they did an excerpt 5 from “Hair,” could they televise that? 6 GENERAL VERRILLI: I think it would raise 7 serious questions. I think nudity is going to raise 8 very serious questions, and I think-­ 9 JUSTICE GINSBURG: In the opera in the 10 “Metropolis” case there’s a scene where a woman is seen 11 nude entering a bathtub. Suppose that were shown, that 12 scene from the opera.

AMK asked about the V-Chip.

JUSTICE KENNEDY: And then there’s — and 2 then there’s the chip that’s available. And of course, 3 you ask your 15-year-old, or your 10-year-old, how to 4 turn off of the chip. They’re the only ones that know 5 how to do it. 6 (Laughter. ) 7 That does point out the problem with the 8 V-Chip, Of course, the V-Chip is not new. It’s been 9 around for more than a decade, and the — the broadcasters 10 have tried to encourage uptake. The government has 11 tried to encourage uptake. But — but is your point 12 is that the chip technology works better if you have 13 this differentiation between broadcast and cable media?

Kennedy also asked about the v-chip during oral argument in Schwarzenegger v. EMA:

JUSTICE KENNEDY: V-Chips don’t work?
MR. MORAZZINI: I believe the V-Chip is limited to television, Justice Kennedy.

Justice Alito portends the death of broadcast TV in his desire not to reach the issue.

JUSTICE ALITO: What will happen when -­1 when we get to the point where — when there are only a 2 handful of people in the entire country who are still 3 receiving television programs via the airwaves?

…

JUSTICE ALITO: Well, broadcast TV is living on borrowed time. It is not going to be long before it goes the way of vinyl records and 8 track tapes.

MR. PHILLIPS: I hope that — I’m sure my client is not thrilled to have you say that.

JUSTICE ALITO: Well, I’m sure -­ (Laughter.)

JUSTICE ALITO: I’m sure your clients will

continue to make billions of dollars on their programs which are transmitted by cable and by satellite and by internet. But to the extent they are making money from people who are using Rabbit ears, that is disappearing. Do you disagree with that?

MR. PHILLIPS: No, I — it would be — you know, obviously not, because that’s why we are not uniquely accessible or uniquely pervasive.

JUSTICE ALITO: Yeah. So why not let this die a natural death? Or why do you want us to

intervene -­

Official – Subject to Final Review

(Laughter.)

This is an anti-Burkean (with respect to technology) Burkean (with respect to law) approach. He really does not want to decide this case on First Amendment grounds (kinda like his opinion in Brown v. EMA). The most anti-free speech Justice strikes again! He does not want to touch Pacifica.

NIno talks about decorum at the Court!

JUSTICE SCALIA: Sign — sign me up as 20 supporting Justice Kennedy’s notion that this has a 21 symbolic value, just as we require a certain modicum of 22 dress for the people that attend this Court and the 23 people that attend other Federal courts. It’s a 24 symbolic matter.

And what church is Nino going to where he hears cursing?

GENERAL VERRILLI: And we certainly agree, 5 Justice Scalia, with the point that was made in the 6 Court’s previous decision in this case, that — for 7 example, the words that are in the Fox broadcast, 8 teachers don’t use those words with students. You don’t 9 hear those words in churches or synagogues. You -­ 10 there are many, many contexts -­ JUSTICE SCALIA: Well, you do more and more. You do more and more, since there’s -­ (Laughter.)JUSTICE SCALIA: — since there’s so much of iton-­

Justice Ginsburg notes that people today just won’t be as shocked by bad language:

JUSTICE GINSBURG: You are saying that the 18 standard can still be symbolic, as Justice Scalia said. 19 We want the King’s English — for the very children 20 we’re talking about when they go on the street, when 21 they — their big brother says something to them, it 22 is — the words that were, the expletives, are in common 23 parlance today. I mean, it is — I think that 24 children — the children are not going to be shocked by 25 them the way they might have been a generation ago.

Carter Phillips wants the Court to overrule Pacifica!

JUSTICE ALITO: Well, you want us to 13 overrule a decision of this Court, Pacifica? 14 MR. PHILLIPS: Yes, Justice.

I think the Chief tips his hand a bit–both as a father, and as someone in favor of the government (substituting the pronoun “we” in place of the government):

CHIEF JUSTICE ROBERTS: But that cuts both 6 ways. People who want to watch broadcasts where these 7 words or expose their children to broadcasts where these 8 words are used, where there is nudity, there are 800 9 channels where they can go for that. All we are asking 10 for, what the government is asking for, is a few 11 channels where you can say I’m not going to — they are 12 not going to hear the S word, the F word. They are not 13 going to see nudity. So the proliferation of other 14 media it seems to me cuts against you.

…

CHIEF JUSTICE ROBERTS: It depends on what 5 audience you’re — you’re trying to get, and the 6 demographic. If you are trying to get an audience that 7 is older, maybe you will decide this is what is going to 8 attract them. They don’t want sanitized language. They 9 want to hear the — the — all those other words. If 10 your target is a much younger audience, maybe that will 11 happen. But the idea that you’re — the problem is 12 going to go away because you are going to be good as you 13 can be, that seems an odd way to analyze First Amendment 14 problems.

…

CHIEF JUSTICE ROBERTS: People understand -­ what you have demonstrated I think is that the context matters. People understand that, including children. When they hear a bad word when someone hits their thumb with a hammer, they understand that’s different than 2 having an adult stand in normal conversations and use 3 the words. And it seems to me that your position is 4 saying that the government cannot regulate with an 5 understanding of what takes place in the real world. 6 The government’s effort is to try to 7 understand the context. That’s why you get a different 8 rule in “Saving Private Ryan” than you get with Paris 9 Hilton and Nicole Richie. And what your argument seems 10 to be is they can’t take context into account.

This is akin to Alito’s opinion in Brown v. EMA the Chief joined.

I hope this quote makes its way into an episode of The Simpsons or Family Guy:

JUSTICE ALITO: But if we rule in your favor 18 on First Amendment grounds, what will — people who 19 watch Fox be seeing between 6:00 a.m. and 10:00 p.m.? 20 Are they going to be seeing a lot of people parading 21 around in the nude and a stream of expletives?

Breyer refers to Paris HIlton and Nicole Ritchie as “two women.” That is charitable.

We don’t have to overrule Pacifica. What 25 Fox was penalized for was two women on television who basically used a fleeting expletive which seems to be naturally part of their vocabulary. (Laughter.)

This passage from Scalia made me think of Lawrence v. Texas.

8 9 clear. JUSTICE SCALIA: Well, that’s not really I mean, if you want us to be really clear you ask the FCC to simply outlaw any fleeting use of 10 should 11 the F word or the S word, any shots of any nudity in any 12 movie, 13 notice 14 that’s 15 buttocks included; that would give you all of the that you need. Why don’t you propose that? Boy, certain as can be.

And the poor mountain time zone–their TV schedule is all wrong:

JUSTICE BREYER: But this wasn’t — I mean, 21 I — don’t know about this instance. It’s called “Nude 22 Awakening,” it’s about the sexual awakening of a child. 23 You ran it, your client, after 10:00 on both coasts and 24 they choose to run it at 9:00 for some unknown reason in 25 the Midwest. Maybe they thought — I don’t know, whatever. 2 (Laughter.)

And Seth Waxman that the frieze of the Court has images of butts!

Right now, as — as Mr. Phillips suggested, the commission has pending before it, which it has not denied for years, complaints about the opening episode of the last Olympics, which included a statue very much like some of the statues that are here in this courtroom, that had bare breasts and buttocks. It — it has refused to say that “Catch-22” — it’s “Catch-22” — right over here, Justice Scalia. (Laughter.) MR. WAXMAN: Well, there’s a bare buttock there, and there’s a bare buttock here. And there may be more that I hadn’t seen. But frankly, I had never focused on it before. But the point -­ JUSTICE SCALIA: Me neither. (Laughter.)

Justice Kennedy gets the badge for stating the obvious:

JUSTICE KENNEDY: Well, we — well, we have to anticipate what the natural results or consequences of our decision will be.

And Kagan for the win:

JUSTICE KAGAN: General, I think that the, 19 the networks really are saying: Well, even if some 20 regulation is permissible, the kind of regulation that 21 the FCC has done here is regulation that gives it 22 complete discretion as to what kind of speech to go 23 after and what not to go after; that it has not tied 24 itself in any way to any kinds of standards. And, it’s, 25 you know, evident in the notion that this — the way hat this policy seems to work, it’s like nobody can use 2 dirty words or nudity except for Steven Spielberg and 3 that there’s a lot of room here for FCC enforcement on 4 the basis of what speech they think is kind of nice and 5 proper and good. And so that’s a serious First 6 Amendment issue.

Justice Scalia would just as well not have Ritchie or Hilton on any award shows! That solves that!

JUSTICE SCALIA: Maybe the third is you 10 shouldn’t interview these people.

In Minneci v. Pollard, Justice Breyer for eight Justices declines to find a Bivens remedy for violation of Eighth Amendment by privately managed prison personnel.  Lousy pro-corporation Roberts Court, not finding for liability for corporations!

The question is whether we can imply the existence of an Eighth Amendment-based damages action (a Bivens action) against employees of a privately operated federal prison. See generally Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388, 389 (1971) (“[V]iolation of [theFourth Amendment] by a federal agent . . . gives rise to acause of action for damages” against a Federal Government employee). Because we believe that in the circumstances present here state tort law authorizes adequate alternative damages actions—actions that provide both significant deterrence and compensation—we cannot do so. See Wilkie v. Robbins, 551 U. S. 537, 550 (2007) (no Bivens action where “alternative, existing” processesprovide adequate protection).

I think the Chief kept it 8-1 by letting Breyer write on very narrow grounds, focusing on the availability of state remedies, not limiting Bivens.

Regardless, we concede that we cannot prove a negativeor be totally certain that the features of state tort law relevant here will universally prove to be, or remain, as wehave described them. Nonetheless, we are certain enough about the shape of present law as applied to the kind of case before us to leave different cases and different state laws to another day. That is to say, we can decide whether to imply a Bivens action in a case where an EighthAmendment claim or state law differs significantly fromthose at issue here when and if such a case arises. The possibility of such a different future case does not providesufficient grounds for reaching a different conclusion here.

For these reasons, where, as here, a federal prisonerseeks damages from privately employed personnel working at a privately operated federal prison, where the conduct allegedly amounts to a violation of the EighthAmendment, and where that conduct is of a kind that typically falls within the scope of traditional state tort law (such as the conduct involving improper medical care atissue here), the prisoner must seek a remedy under state tort law. We cannot imply a Bivens remedy in such a case.

This in no way limits the ability of the Court to expand Bivens.

Justice Ginsburg dissents alone.

Were Pollard incarcerated in a federal- or state-operatedfacility, he would have a federal remedy for the Eighth Amendment violations he alleges. See Carlson v. Green, 446 U. S. 14 (1980) (Bivens action); Estelle v. Gamble, 429
U. S. 97 (1976) (42 U. S. C. §1983 action). For the reasons stated in the dissenting opinion I joined in Correctional Services Corp. v. Malesko, 534 U. S. 61, 75–83 (2001) (opinion of Stevens, J.), I would not deny the same character of relief to Pollard, a prisoner placed by federal contract in a privately operated prison. Pollard may havesuffered “aggravated instances” of conduct state tort law forbids, ante, at 9 (opinion of the Court), but that sameaggravated conduct, when it is engaged in by official actors,* also offends the Federal Constitution, see Estelle, 429 U. S., at 105–106. Rather than remitting Pollard to the “vagaries” of state tort law, Carlson, 446 U. S., at 23, I would hold his injuries, sustained while serving a federal sentence, “compensable according to uniform rules of federal law,” Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388, 409 (1971) (Harlan, J., concurring in judgment).

The opinion is 8-1. Sotomayor for the majority, would affirm the 5th Circuit’s dismissal of the writ.

In this case, the Court of Appeals judge granted a COA that identified a debatable procedural ruling, but did not “indicate” the issue on which Gonzalez had made a substantial showing of the denial of a constitutional right, as required by §2253(c)(3). The question before us is whether that defect deprived the Court of Appeals of the power toadjudicate Gonzalez’s appeal. We hold that it did not. This Court has endeavored in recent years to “bringsome discipline” to the use of the term “jurisdictional.” Henderson v. Shinseki, 562 U. S. ___, ___ (2011) (slip op., at 5). Recognizing our “less than meticulous” use of theterm in the past, we have pressed a stricter distinction between truly jurisdictional rules, which govern “a court’sadjudicatory authority,” and nonjurisdictional “claimprocessing rules,” which do not.

Scalia dissents, and would reverse, finding that the 3-judge panel lacked jurisdiction, which would have the effect of dismissing the writ (so it’s not really a dissent).

The obvious, undeniable, purpose of 28 U. S. C. §2253(c) is to spare three-judge courts of appeals the trouble of entertaining (and the prosecution the trouble of defendingagainst) appeals from the denials of relief in habeas and §2255 proceedings, unless a district or circuit judge hasidentified an issue on which the applicant has made asubstantial showing of a constitutional violation. Where no such constitutional issue has been identified, an appealon other, nonconstitutional, issues (such as the statute of limitations issue that the Court decides today) will not lie.
Today’s opinion transforms this into a provision that allows appeal so long as a district or circuit judge, for whatever reason or for no reason at all, approves it. This makes a hash of the statute. The opinion thinks thisalchemy required by the Court’s previously expresseddesire to “‘bring some discipline’ to the use of the term‘jurisdictional,’” ante, at 5 (quoting Henderson v. Shinseki, 562 U. S. ___, ___ (2011) (slip op., at 5)). If that is true, discipline has become a code word for eliminating inconvenient statutory limits on our jurisdiction. I would reverse the judgment below for want of jurisdiction.

It seems Justice Scalia adopted the argument of his former clerk–and my former Prof–Jonathan Mitchell, SG of Texas.

And this:

Its basis for proceeding in this fashion is the remarkablestatement that “[a] defective COA is not equivalent to thelack of any COA.” Ante, at 8. That is simply not true withrespect to a significant defect in a legal document. Would one say that a deed which lacks the words of conveyance is not equivalent to the lack of a deed? Or that a passportwhich lacks the Secretary of State’s affirmance of the bearer’s citizenship is not equivalent to the lack of a passport? Minor technical defects are one thing, but a defectthat goes to the whole purpose of the instrument is something else. And the whole purpose of the certificate-ofappealability procedure is to make sure that, before a casecan proceed to the court of appeals, a judge has made the determination that it presents a substantial showing of the denial of a constitutional right. To call something avalid certificate of appealability which does not contain the central finding that is the whole purpose of a certificate of appealability is quite absurd. . . .

What began as an effort to “‘bring some discipline’ to theuse of the term ‘jurisdictional,’” ante, at 5 (quoting Henderson, 562 U. S., at ___ (slip op., at 5)), shows signs of becoming a libertine, liberating romp through our established jurisprudence.

Soto and Nino spar a bit.

Sotomayor jabbed:

7The dissent’s insistence that there is “no practical, real-world effect” to treating this rule as mandatory, post, at 4, ignores the real world.Courts of appeals regularly amend COAs or remand for specification ofissues, notwithstanding the supposed potential to “embarras[s] a colleague.” . . .

Nino says no-no:

6The Court’s claim that “Torres involved . . . a different textual, contextual, and historical backdrop,” ante, at 13, n. 8, does not withstand scrutiny. First, consider the “textual backdrop.” The Court cannot really believe that Rule 3(c)(1)’s statement that a notice of appeal “must. . . specify” the appealing party is “ ‘clear’ jurisdictional language,” ante, at 7, while §2253(c)(3)’s “shall indicate” the issue or issues is not. If it did, it would say as much, since that would readily distinguish Torres. And then consider the “contextual” (whatever that means) and “historical backdrop.” Each provision, in mandatory-but-not-jurisdictionallanguage, specifies what another document, itself jurisdictional in lightof statutory text and history, must contain. The two cases are, of course, literally “different,” ante, at 13, n. 8, but not in any legally relevant way.

And Sotomayor punches back twice as hard.

8The dissent claims that we fail to give stare decisis effect to Torres. Post, at 10. Setting aside the fact that Torres involved an unrelated Federal Rule featuring a different textual, contextual, and historicalbackdrop, the dissent notably fails to grapple with—indeed, its opinionis bereft of quotation to—any supporting reasoning in that opinion. That reasoning is simply not applicable here.

Scalia is not amused.

1The Court suggests that I “ignor[e] the real world,” ante, at 11, n. 7, in which litigants and courts have taken steps to correct a defective COA. But these actions are unsurprising in a world in which there wasthe possibility that this Court would treat §2253(c)(3) as a jurisdictionalrequirement and a court of appeals had already done so. The New World of the Court’s making, in which it is certain that an issuingjudge’s failure to identify any issue justifying a COA will not have jurisdictional consequences, is yet unexplored.

This conclusion is tight:

Terminology is destiny. Today’s holding, and the erosion of our prior jurisprudence that will perhaps follow upon it, is foreshadowed and facilitated by the unfortunateterminology with which we have chosen to accompany ourcampaign to “bring some discipline” to determinations ofjurisdiction. We have said that the universe of rules placing limitations upon the courts is divided into (1) “claims processing rules,” and (2) jurisdiction-removingrules. Unless our prior jurisprudence is to be repudiated,that is a false dichotomy. The requirement that the unsuccessful litigant file a timely notice of appeal, for example, is (if the term is to have any meaning) a claimsprocessing rule, ordering the process by which claims areadjudicated. Yet as discussed above, that, and all procedures that must be followed to proceed from one court to another, have always been deemed jurisdictional. The proper dichotomy is between claims processing rules that are jurisdictional, and those that are not. To put it otherwise suggests a test for jurisdiction that is not to be found in our cases.9

And Scalia admits error!

9It may well be that what I have called a false dichotomy was indeedmeant to revise our jurisprudence. In Kontrick v. Ryan, 540 U. S. 443, 455 (2004), we said by way of dictum the following: “Clarity would befacilitated if courts and litigants used the label ‘jurisdictional’ not for claim-processing rules, but only for prescriptions delineating the classes of cases (subject-matter jurisdiction) and the persons (personaljurisdiction) falling within a court’s adjudicatory authority.” Unless an appeal lacking a timely filing of a notice of appeal can be considered one that falls outside the appellate court’s “subject-matter jurisdiction”(which would be an odd usage), Kontrick’s dictum effectively announced  today’s decision, the overruling of Torres and Browder v. Director, Dept. of Corrections of Ill., 434 U. S. 257 (1978), and the elimination of jurisdictional treatment for all procedural requirements for appeal. That the announcement has not been heeded is demonstrated byBowles v. Russell, 551 U. S. 205 (2007) (decided after Kontrick), which (over the dissent of the author of Kontrick) reaffirmed Browder. I confess error in joining the quoted portion of Kontrick.

For purposes of FantasySCOTUS, I am scoring Scalia as an affirm. He dissented, but for all-intents-and-purposes he agreed that the writ should be dismissed, albeit on different grounds (a lack of jurisdiction).

Dick’s back! But this time he lost at the D.C. Circuit, and I don’t suspect he’ll far much better at the Supreme Court, even if they take the case. Writing for Judge Henderson, (recently announced Senior) Judge Ginsburg found that DC’s new firearm law requiring registration of all firearms was permissible, as was the ban on so-called “assault weapons.”

In June 2008 the Supreme Court held the District of Columbia laws restricting the possession of firearms in one’s home violated the Second Amendment right of individuals to keep and bear arms.   See District of Columbia v. Heller, 554 U.S. 570. In the wake of that decision, the District adopted the Firearms Registration Amendment Act of 2008 (FRA), D.C. Law 17-372, which amended the Firearms Control Regulations Act of 1975, D.C. Law 1-85.  The plaintiffs in the present case challenge, both facially and as applied to them, the provisions of the District’s gun laws, new and old, requiring the registration of firearms and prohibiting both the registration of “assault weapons” and the possession of magazines with a capacity of more than ten rounds of ammunition. The plaintiffs argue those provisions (1) are not within the District’s congressionally delegated legislative authority or, if they are, then they (2) violate the Second Amendment.

The district court granted summary judgment for the District and the plaintiffs appealed. We hold the District had the authority under D.C. law to promulgate the challenged gun laws, and we uphold as constitutional the prohibitions of assault weapons and of large-capacity magazines and some of the registration requirements.   We remand the other registration requirements to the district court for further proceedings because the record is insufficient to inform our resolution of the important constitutional issues presented.

Judge Kavanaugh issued a long dissent that began thusly:

In this case, we are called upon to assess those provisions of D.C.’s law under Heller.  In so doing, we are of course aware of the longstanding problem of gun violence in the District of Columbia.  In part for that reason, Heller has engendered substantial controversy.  See, e.g., J. Harvie Wilkinson III, Of Guns, Abortions, and the Unraveling Rule of Law, 95 VA. L. REV. 253 (2009); Richard A. Posner, In Defense of Looseness, THE NEW REPUBLIC, Aug. 27, 2008, at 32.  As a lower court, however, it is not our role to re-litigate Heller or to bend it in any particular direction.  Our sole job is to faithfully apply Heller and the approach it set forth for analyzing gun bans and regulations.

In my judgment, both D.C.’s ban on semi-automatic rifles and its gun registration requirement are unconstitutional under Heller.

 

Ginsburg Majority

The majority adopted the same approach used in Ezell, Chester, Marzzarella, and others, to arrive at intermediate scrutiny.

Under Heller, therefore, there are certain types of firearms regulations that do not govern conduct within the scope of the Amendment. We accordingly adopt, as have other circuits, a two-step approach to determining the constitutionality of the District’s gun laws. We ask first whether a particular provision impinges upon a right protected by the Second Amendment; if it does, then we go on to determine whether the provision passes muster under the appropriate level of constitutional scrutiny.

As explained below, and again in keeping with other circuits, we think that insofar as the laws at issue here do impinge upon a Second Amendment right, they warrant intermediate rather than strict scrutiny.

The court elucidates the longstanding prohibition jig, reasoning that if it’s been around for a while, it is likely constitutional (weak reasoning in light of the fact that the federal constitution only realistically protected the Second Amendment since 2008)

This is a reasonable presumption because a regulation that is “longstanding,” which necessarily means it has long been accepted by the public, is not likely to burden a constitutional right; concomitantly the activities covered by a longstanding regulation are presumptively not protected from regulation by the Second Amendment. A plaintiff may rebut this presumption by showing the regulation does have more than a de minimis effect upon his right. A requirement of newer vintage is not, however, presumed to be valid.

Based on this history, handgun registration is kosher:, but not for long gun

In sum, the basic requirement to register a handgun is longstanding in American law, accepted for a century in diverse states and cities and now applicable to more than one fourth of the Nation by population.* Therefore, we presume the District’s basic registration requirement, D.C. Code § 7-2502.01(a), including the submission of certain information, § 7-2502.03(b), does not impinge upon the right protected by the Second Amendment. Further, we find no basis in either the historical record or the record of this case to rebut that presumption. . . .

These early registration requirements, however, applied with only a few exceptions solely to handguns — that is, pistols and revolvers — and not to long guns. Consequently, we hold the basic registration requirements are constitutional only as applied to handguns. With respect to long guns they are novel, not historic.

The Court settles on intermediate scrutiny, reasoning that less exacting scrutiny is required where the regulation imposes a less substantial burden (there really should be a Blocher cite here).

That is, a regulation that imposes a substantial burden upon the core right of self-defense protected by the Second Amendment must have a strong justification, whereas a regulation that imposes a less substantial burden should be proportionately easier to justify. . . .As between strict and intermediate scrutiny, we conclude the latter is the more appropriate standard for review of gun registration laws.

With respect to the “novel requirements” (such as the ban on long guns), the court does not defer to the predictive judgments of the legislature.

Therefore, the District needs to present some meaningful evidence, not mere assertions, to justify its predictive judgments. On the present record, we conclude the District has not supplied evidence adequate to show a substantial relationship between any of the novel registration requirements and an important governmental interest.

But the court remands on these grounds for further factual development (and to give DC time to make up some reasons why their citizens should be disarmed).

We follow suit by remanding the novel registration requirements, and all registration requirements as applied to long guns, to the district court for further evidentiary proceedings.

With respect to “assault” weapons and magazines larger than 10 rounds, the court finds the restrictions survive scrutiny.

Nevertheless, based upon the record as it stands, we cannot be certain whether these weapons are commonly used or are useful specifically for self-defense or hunting and therefore whether the prohibitions of certain semi-automatic rifles and magazines holding more than ten rounds meaningfully affect the right to keep and bear arms. We need not resolve that question, however, because even assuming they do impinge upon the right protected by the Second Amendment, we think intermediate scrutiny is the appropriate standard of review and the prohibitions survive that standard. . . . Recall that when subject to intermediate scrutiny the Government has the burden of showing there is a substantial relationship or reasonable “fit” between, on the one hand, the prohibition on assault weapons and magazines holding more than ten rounds and, on the other, its important interests in protecting police officers and controlling crime. The record evidence substantiates that the District’s prohibition is substantially related to those ends.

…

We conclude the District has carried its burden of showing a substantial relationship between the prohibition of both semi-automatic rifles and magazines holding more than ten rounds and the objectives of protecting police officers and controlling crime. Accordingly, the bans do not violate the plaintiffs’ constitutional right to keep and bear arms.

 

Interestingly, the court attaches an “Appendix: Regarding the Dissent” to reply to Kavanaughs’ 60 page dissent (analyzed here).

Kavanaugh Dissent

Here is how Kavanaugh tees up the issue:

Put in simple terms, the issue with respect to what test to apply to gun bans and regulations is this: Are gun bans and regulations to be analyzed based on the Second Amendment’s text, history, and tradition (as well as by appropriate analogues thereto when dealing with modern weapons and new circumstances, see infra Part I.B)? Or may judges re- calibrate the scope of the Second Amendment right based on judicial assessment of whether the law advances a sufficiently compelling or important government interest to override the individual right? And if the latter, is the proper test strict scrutiny or intermediate scrutiny?

As I read Heller, the Supreme Court was not silent about the answers to those questions. Rather, the Court set forth fairly precise guidance to govern those issues going forward.

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

Key sentence:

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
Settled.

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.

Keeping Pandora’s Box Sealed, which I co-authored with Ilya Shapiro, was cited by Judge Sykes in Ezell v. Chicago (analysis here) in Footnote 11 on Page 30.

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.