Ezell v. Chicago (SAF/Gura)

[Al Norris]

Today was the day for the injunction hearing. While we don't yet know how this turned out, another development occurred.

The NRA filed an amicus brief (unusual in district court proceedings but not unheard of) for the plaintiffs. The brief is available on the docket as filing #60.1.

The NRA brief goes to the heart of the scrutiny matter. They argue that the court has only two options: A historical review, similar to that used by Heller or strict scrutiny.

The NRA makes the valid argument that under Heller and McDonald, those are the only options available when deciding a 2A case within the scope of the right.

 

[publius42]

That docket link did not work for me this morning, Al.

 

[Al Norris]

Just checked it - works fine at my end....

The amicus brief is here. Just remember, that all these briefs are in PDF format.

Another note: I went back and reread the amicus brief of the SAF for Nordyke (orals on 10-19-2010). Gura made the same argument there. So it looks like the NRA is starting to play ball with the rest of the 2A lawyers.

 

[maestro pistolero]

So it looks like the NRA is starting to play ball with the rest of the 2A lawyers.

They better. The word's out about some of their shenanigans.

I love 'em. We'd be screwed without 'em. But the SAF, and Calguns foundation, and one or two others are getting the bulk of my 2A money for the next year, or until the NRA appears to have righted it's course.

I have delayed the start of my easy-pay-life until they start playing nice with the rest of the kids in the sandbox. I do have confidence that they will.

 

[Al Norris]

A tad late in updating, the hearing was held over to Monday, 10-04-2010. At the close of the hearing, the Judge took it under consideration and reported that she would render her decision by mail.

 

[Al Norris]

While we are waiting for Judge Virginia M. Kendall on the Motion for Preliminary Injunction, Chicago has filed a Motion to Dismiss. You're going to get a kick out of this (this is item #67 on the docket)! I originally was only going to include of couple of the most hilarious statements by Chicago, until I found myself laughing all the way through it. It's very short as these things usually go, so enjoy... The laugh is on me tonight!!

Plaintiffs’ Claims Fail As A Matter of Law​

A. Plaintiffs Have Failed to State a First Amendment Claim.

5. Plaintiffs allege that, “by banning gun ranges open to the public, and by effectively banning the loan, rental, and borrowing of functional firearms at ranges open to the public,” the City is violating their First Amendment rights to free speech. Compl., ¶ 49.

6. The only activities prohibited by the range ban is the operation of or shooting of guns at a gun range. Those activities are not encompassed by the First Amendment.

7. No court has ever held that firing a gun or using a shooting range is conduct protected by the First Amendment. And, in Northern Indiana Gun & Outdoor Shows, Inc., 104 F. Supp.2d 1009, 1013-14 (N.D. Ind. 2000), the court held that bringing guns to a gun show to show them off, have them repaired, or sell them did not convey a particular message or contain an expressive component, and thus fell outside the scope of the First Amendment. Therefore, the First Amendment claim should be dismissed as a matter of law as against all Plaintiffs.​

B. The Organizational Plaintiffs Cannot State Any Second Amendment Violation.

8. Plaintiffs Action Target, SAF, and ISRA do not possess any right protected by the Second Amendment, and thus cannot state any cognizable Second Amendment claim.

9. The only right under the Second Amendment recognized by the Supreme Court is an individual right to keep and bear arms for purposes of self-defense. See District of Columbia v. Heller, 128 S. Ct. 2783, 2799 (2008); McDonald v. City of Chicago, 130 S. Ct. 3020, 3050 (2010) (plurality opinion). Organizations do not possess the rights of individuals.

10. Accordingly, the Second Amendment claims brought by Action Target, SAF, and ISRA should be dismissed as a matter of law.​

C. Plaintiffs’ Claim that the Second Amendment Protects the Right to Shoot Guns at a Range Fails as a Matter of Law.

11. Plaintiffs allege that the Ordinance violates their Second Amendment rights because the Second Amendment “secures the right to operate firearms at a range, for purposes of learning about firearms, gaining proficiency with firearms, obtaining any training required as a condition of firearms ownership, recreation, and competition; and the right to own an operate a range for these purposes.” Compl., ¶ 45.

12. Plaintiffs have failed to state a claim that the Ordinance’s prohibition on shooting ranges violates their Second Amendment rights because there is no Second Amendment right to operate or shoot at a gun range.

13. The only right recognized under the Second Amendment is the right to possess handguns in the home for purposes of self-defense. Heller, 128 S. Ct. at 2799; McDonald, 130 S. Ct. at 3050 (2010) (plurality opinion). See also United States v. Skoien, --- F.3d --- , 2010 WL 2735747, at *1 (7th Cir. July 13, 2010) (en banc) (Heller recognized right to “keep[] operable handguns at home for self-defense”).

14. Heller warned readers “not to treat [it] as containing broader holdings than the Court set out to establish.” Skoien, 2010 WL 2735747, at *1 (quoting Heller, 128 S. Ct. at 2816-17 & n.26 (cautioning that opinion should not be read to “cast doubt” on various “presumptively lawful” restrictions on arms use)).

15. Nothing in the analysis of the Heller Court, whose task it was to discern the “original understanding” of the Second Amendment at the time of its ratification in 1791, Heller, 128 S. Ct. at 2816, suggests or indicates that the Second Amendment encompasses operating or shooting at gun ranges.

16. Moreover, although the Ordinance requires training as a condition to gun ownership, that requirement does not bring the operation of or shooting at gun ranges within the scope of the Second Amendment. Municipal ordinances cannot alter the meaning and scope of the United States Constitution.

17. Accordingly, there is no cognizable right under the Second Amendment to operate or shoot at a gun range, and Plaintiffs’ claim based on this theory should be dismissed.

18. The City intends to file a memorandum in support of this motion, which it is in the process of preparing. Therefore, the City requests that the Court enter a briefing schedule on this motion.​

WHEREFORE, for the above reasons, Defendant City of Chicago respectfully requests that the Court dismiss Plaintiffs’ Complaint on the grounds set forth above and enter a briefing schedule.

Now I realize that I am not an attorney in any shape or form, but if this is the best Chicago can do... I find it the weakest thing I've ever seen filed in a case like this.

Alan Gura should have a virtual field day with his response.

 

[Al Norris]

Today, Judge Kendall has denied the preliminary injunction. Method of scrutiny was rational basis on a "sliding scale." Disappointing, but not unexpected.

Remembering that in Heller, reiterated in McDonald, that the Court held that rational basis analysis was "off the table," it seems logic also flew out the window when Judge Kendall made an analysis of both the witnesses and the likelihood of success on the merits of the suit.

The Judge, it is plain to see, is afraid of treating the 2A as the fundamental right the Supreme Court has declared it to be.

Should you decide to read the Judges denial, as referenced above, please reread Chicago's MTD. You might see the Judge has just set up the reasons for her to grant the MTD.

 

[maestro pistolero]

I do have to wonder what happened to this judge in the weeks that passed since the first motion for preliminary injunction. It's as if it's not even the same judge.

She went from cautioning the defendants that in the "very very near future" that injury could occur, etc.. . . to this.

I smell a rat. Either someone's had a talk with her, or she is setting up the case to fail in a higher court. As of now, my money's on the former.

Perhaps I should have expected this, but I am disappointed. When does the amendment finally mean what the frig it says?

Rant over.

 

[gc70]

District judges do not become appellate judges without political support. District judges who make the "right" rulings and are reversed can still become appellate judges.

Before we engage in too much hand-wringing over this ruling, we should remember that the only way to establish binding precedent is for cases to go to the appellate courts.

 

[DogoDon]

TROs are always hard to get. The standard of showing irreparable harm is hard to meet in any case, so this result is frankly what I had expected. In a nutshell, the judge found that the City's interest in regulating firing ranges, balanced against the "inconvenience" of having to go outside the City for training, tipped in favor of the City.

I think the fact that the record showed people were still able to get their training (abeit outside the City) made it virtually impossible to show irreparable harm.

Furthermore, I think this judge did not feel able (or willing) to create a new precedent in terms of extending the bare holding of Heller to this new situation, particularly in the TRO context.

DD

 

[publius42]

16. Moreover, although the Ordinance requires training as a condition to gun ownership, that requirement does not bring the operation of or shooting at gun ranges within the scope of the Second Amendment. Municipal ordinances cannot alter the meaning and scope of the United States Constitution.

No, they can't, but the US Constitution can be used to invalidate municipal ordinances.

Making this a big zoning fight concedes the real argument: should training be required before exercising your right to keep arms? The answer we're hoping for is, "yes, as long as it's not too inconvenient."

Like millions of Floridians, I have unregistered guns, and the only government-required training I have ever had was for my concealed weapons permit years ago, and could hardly be called training. (We were asked to fire one round from a loaded revolver and then set it down.) If this has resulted in some problem relative to places that do require training, I have not seen it.

Requiring training infringes on the 2A right, so the question is, can that infringement meet court scrutiny? To me, millions of untrained gun owners here and across the country causing few problems indicates it should not.

 

[Al Norris]

Publius, what the City is arguing (and the Judge is agreeing) is that just because they require training before issuing their permit, they don't have to provide any place or even allow the means to train.

Notwithstanding its mandate that prospective gun owners obtain, and maintain, training at a gun range, the City bans the operation of gun ranges.

The gun range ban is flatly unconstitutional. The Second Amendment guarantees the right to train with firearms so that individuals can be safe and proficient in their use, in addition to securing the right to engage in recreational shooting. If there is a right to keep and bear arms – and there most certainly is such a fundamental, individual right secured in our Constitution – there is inherent within that right, a right to actually use arms for traditional lawful purposes. There is absolutely nothing more basic, more plain, more obviously inherent in the possession of guns than the use of those guns at a gun range. Gun ranges may be regulated in the interest of public health and safety, but a complete ban on gun ranges is unconstitutional.

That's the case in a nutshell.

Alan Guras brief in Opposition to the Motion to Dismiss, contains point by point, attacks on both the Cities position and that of the Judge (in her ruling in denying the TRO). The City has until Thursday, the 4th to reply to this brief.

This is not breaking new ground. It is cementing what flows naturally from Heller.

Alan Gura is not making the argument that the training requirement itself is unconstitutional (that argument is being made by the NRA in its suit - Benson v. Chicago - Alan is wisely staying away from those issues, so as not to have his case consolidated).

 

[publius42]

Got it, Al, thanks. Go the NRA!

 

[Spats McGee]

Some thoughts on the issue of training

A couple of things occurred to me on the issue of training. Let's see if I can lay this out with some clarity in what little time I have this morning. As I understand the matter (I admit that I haven't read the briefs and someone please correct me if I'm wrong), the City of Chicago requires range training as a prerequisite to a handgun permit, but bans the operation of ranges inside its corporate boundaries. The Plaintiffs are arguing that the the right to train at a range is guaranteed by the 2A.

Hmmmm. . . Let's look at the text:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

I don't see the word "training" anywhere in there. Perhaps an argument could be made that "training" is a necessary component of a "well regulated militia," but I don't think it's an argument that we really want made. It could open the door for every state to require training of everyone who wants to carry a handgun, with the end result being a reduction of 2A rights.

I think the more effective argument, and one closer to what Gura is saying (from what I've read here) is that the ban on ranges, coupled with a range training requirement, works an effective denial of the RKBA. When you require a license to do something, but set the standards so high that nobody can reach them, you've effectively banned it.

On another note, I wonder what the regulations are for range operations in the suburbs are like, things like possible hours of operation (if they're permitted at all), business licenses, fees, etc. The reason that I wonder about these things is that there may be an Equal Protection claim buried in all of this. If the suburbs ban ranges, or have really high fees and limited hours of operation, and if Gura can find the right Potential Plaintiff, there may be a way to bring a claim that all of those factors, taken in conjunction, work an effective denial of the 2A right to the lower economic classes. I know that's a lot of ifs, but surely there's one indigent, upstanding citizen in the greater Chicago metro area who wants to carry a gun for self-protection, but can't afford the range time or the time off from work to go train . . .

 

[wally626]

The second amendment rational for ranges is the parallel to the 1st. If books are protected then book stores are as well. There was a lot of cases, I think in the 70s where cities were banning adult bookstores and movie houses. In the end the courts said they could zone where in the city the bookstores/movies could be located but could not ban them. So a city can zone where gun ranges and stores are allowed and regulated them with safety regulations and the like, but can not ban them, or make regulations so difficult to fulfill as to effectively ban them.

 

[CapeCodShooter]

Spats, I do not believe that an Equal Protection claim can succeed. Those with money will always be able to purchase things that those without money cannot. Courts usually accept that as a truism. The part that the City controls -- the license fee -- is the same for all. Making an argument that a facially neutral law adversely affects minorities because they cannot afford training costs is likely to fail.

Wally's argument bears close scrutiny. I haven't reviewed those "indecency" cases for many years, but I think they focused on the denial of the store owners' 1st Amendment right of self-expression, not the right of the purchasers to buy pornography. In the present case, the range owner cannot claim that his 2nd Amendment rights to keep and bear arms have been tampered with. So, I don't think the argument is effective, but I'd like to research it a bit.

I'm a retired lawyer. I still love an intellectual challenge and I have the time to poke around in the dark corners of American jurisprudence.

 

[Aguila Blanca]

The second amendment rational for ranges is the parallel to the 1st. If books are protected then book stores are as well. There was a lot of cases, I think in the 70s where cities were banning adult bookstores and movie houses. In the end the courts said they could zone where in the city the bookstores/movies could be located but could not ban them. So a city can zone where gun ranges and stores are allowed and regulated them with safety regulations and the like, but can not ban them, or make regulations so difficult to fulfill as to effectively ban them.

The 1st Amendment says nothing about books or bookstores. It specifically guarantees freedom of "speech." Speech is vocal, not writing or printing. That said, the underlying intent of the 1st Amendment was that a citizen should not be punished for expressing an idea contrary to a position espoused by the government.

And that's ALL it was about. There has been so much judicial activism surrounding the 1st Amendment that most people have no idea what it really stood for. Personally, I think the Founders would be aghast that the 1st Amendment has been used to protect the distribution of pornography.

 

[Al Norris]

The First amendment secures several different, but related, rights:

Congress shall make no law...

1) respecting an establishment of religion, or prohibiting the free exercise thereof;
2) or abridging the freedom of speech,
3) or of the press;
4) or the right of the people peaceably to assemble,
5) and to petition the Government for a redress of grievances.​

What I underlined, above, is the right to read and publish.

 

[Aguila Blanca]

I stand corrected. The 1st does, indeed, mention the press.

It does not, however, mention bookstores, or pornography. I remain of the opinion that the original intent of the 1st Amendment was to prevent the government from restricting criticism of the government.

 

[Spats McGee]

CapeCodShooter, you may well be right about the EP claim. It was just a thought that I'd had on the training issue. I guess I had disparate impact in mind, but I haven't researched the issue.