I've said it more than once. All of the arguments being made at district level, are not directed at that court. They have been and are directed to the Circuit Courts and the Supreme Court. We have just seen the first of this strategy hitting pay-dirt.
I've spent all morning pouring over this decision. Forthwith, here's my take:
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.
Here is one small nugget that this panel stated, correctly, I might add. In discussing intangible harms, as it relates to 1st amendment challenges, the panel held the same to be true of 2 amendment challenges. The panel also stated this:
Heller held that the Amendment’s central component is the right to possess firearms for protection. [citation omitted] Infringements of this right cannot be compensated by damages.
The panel, after discussing the means of achieving fit between the City's' ordnance and the core of the right decides that training and range time is essential to that right and is implicated as being extremely close to the core.
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.
The panel also goes to a great length in discussing the guides given in
Heller and
McDonald as it respects the form of judicial scrutiny that should be applied to this case. Because of the fit between the challenged activity and the core of the right, the panel recommended
“a more rigorous showing than that applied in Skoien, should be required, if not quite ‘strict scrutiny.’”
The panel then took on the matter of the preliminary injunction itself and cautioned the lower court on how it should be implemented.
With that, the panel reversed the lower decision and remanded with instructions to enter the injunction, consistent with their finding. I should also add that nothing the City can do, short of repealing the various ordnances, will now moot this case.
Kanne, Rovner, and Sykes were the Judges. You might remember Judge Sykes. She was the original writer of the
Skoien decision that was later removed upon
en banc (she does make one brief mention of this in the above decision - yes, that means she wrote this one).
Judge Rovner writes a nine page concurring opinion. While he concurs with the decision, he writes to oppose the method of scrutiny. Although, rather weak in arguments, he does end his opinion on a positive note:
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 self‐defense and the City must come to terms with that reality. Any regulation on firearms ownership must respect that right. For that reason, I respectfully concur in the judgment.
This is not just a win but an important win. There is much within this decision, albeit
dicta, that will prove invaluable in several other cases.
This decision, if Chicago doesn't appeal, is very broad and very wide. Sykes has gone after the flag here.
After serious study on this decision, it does now create a split in the Circuits (9th - the Nordyke opinion).
