Too Little, Too Late

Mayor Rahm Emanuel thought he could beat the 7th Circuit Court of Appeals to the punch by racing through an amendment to Chicago’s gun laws that would allow shooting ranges in the city under certain, onerous conditions. (To see those conditions either read the full bill or go to Sebastian’s summary here.)

He lost.

The 7th Circuit Court of Appeals issued their decision today on the appeal of Judge Kendell’s denial of a preliminary injunction to the plaintiffs in Ezell v. Chicago. It is a 59 page decision written by Judge Sykes with which Judge Rovner concurred in the results. In other words, it was 3-0 against the City of Chicago but for different reasons. The relevant passage in the decision is this:

The plaintiffs have established their entitlement to a preliminary injunction based on their Second Amendment claim, so we need not address the alternative argument that range training is protected expression under the First Amendment. Given the strong likelihood of success on the former claim, the latter claim seems like surplusage.

For the foregoing reasons, we REVERSE the district court’s order denying the plaintiffs’ motion for a preliminary injunction and REMAND with instructions to enter a preliminary injunction consistent with this opinion.

Judge Sykes in her decision said specified certain conditions on the preliminary injunction. They are:

The plaintiffs asked the district court to enjoin the enforcement of Chicago Municipal Code § 8‐20‐280—the prohibition No. 10‐3525 49 on “[s]hooting galleries, firearm ranges, or any other place where firearms are discharged.” They are entitled to a preliminary injunction to that effect. To be effective, however, the injunction must also prevent the City from enforcing other provisions of the Ordinance that operate indirectly to prohibit range training. The plaintiffs have identified several provisions of the Ordinance that implicate activities integral to range training: CHI. MUN. CODE §§ 8‐20‐020 (prohibiting the possession of handguns outside the home), 8‐20‐030 (prohibiting the possession of long guns outside the home or business), 8‐20‐080 (prohibiting the possession of ammunition without a corresponding permit and registration certificate), 8‐20‐100 (prohibiting the transfer of firearms and ammunition except through inheritance), 8‐24‐010 (prohibiting the discharge of firearms except for self‐defense, defense of another, or hunting). To the extent that these provisions prohibit law‐abiding, responsible citizens from using a firing range in the city, the preliminary injunction should include them as well. Similarly, the injunction should prohibit the City from using its zoning code to exclude firing ranges from locating anywhere in the city.

Finally, because range training is required for the issuance of a Chicago Firearm Permit, a registration certificate, and ultimately, for lawful possession of any firearm, see CHI. MUN. CODE §§ 8‐20‐110(a), 8‐20‐140(a)‐(b), the firing‐range ban implicates not only the right to train at a range but also the core Second Amendment right to possess firearms for self‐defense. Accordingly, the preliminary injunction should include sections 8‐20‐110(a) and 8‐20‐140(a) to the extent that those provisions operate to prohibit otherwise eligible persons from “carry[ing] or possess[ing] a firearm” at a range without a Permit or registration certificate while they are trying to complete the range‐training prerequisite for lawful firearm possession.

Despite Rahm’s 11th hour move, today was a good day for the Second Amendment in Chicago.

UPDATE: Josh Blackman has an “instant analysis” of the 7th Circuit’s decision in Ezell here. Dave Hardy calls the decision a major win and points out some of the salient points of the decision.