by John H. Kelly (Spring 2017)

On January 18, 2017, the United States Court of Appeals for the Seventh Circuit decided the case of Ezell v. City of Chicago, 845 F.3d 888, (7th Cir. 2017). The Ezell case was the third in a line of federal court cases challenging the City of Chicago’s efforts to control gun violence. In 2016, Chicago experienced 4,638 shootings. In this most recent case, the court again struck down Chicago’s attempt to control gun violence through the use of the City’s police powers.

In 1982, the City of Chicago adopted an ordinance totally banning the possession of handguns in the City. That ordinance was struck down by the United States Supreme Court in McDonald v. City of Chicago, 561 U.S. 742 (2010). In its next effort at limiting the possession or use of handguns, the City adopted an ordinance requiring a permit for gun possession and a requiring one hour of firearm training on a gun range as a condition to obtaining the required permit. At the same time, the City also adopted an ordinance prohibiting gun ranges anywhere in the City.

A group of Chicago residents challenged these ordinances based on their violation of the Second Amendment. In the case of Ezell v. City of Chicago (“Ezell I”), 651 F.3d 684 (7th Cir. 2011), the Seventh Circuit found that the City’s attempt at controlling gun use through this scheme of ordinances constituted an impermissible restriction on the residents’ Second Amendment rights. The City was then enjoined from enforcing these ordinances.

This latest case arises from the City’s third attempt to enact a statutory scheme controlling firearms in the City. (“Ezell II”). The City enacted several ordinances which attempted to control firearm possession and use on a number of different fronts.

In Ezell II, the Seventh Circuit was asked to review three portions of the City’s scheme. One was a zoning restriction that allowed a firearm range to be sited only as a special use in a manufacturing district. The second ordinance employed another zoning restriction that prohibited gun ranges within 100 feet of another range or within 500 feet of a residential district, school, place of worship and multiple other uses. The third facet of the City’s attempt included a provision barring anyone under the age of 18 from entering a shooting range. The same group of residents challenged these ordinances and the zoning restrictions on the basis that they unconstitutionally diminished the residents’ Second Amendment rights.

In its analysis, the Seventh Circuit cited the principle relied on by the United States Supreme Court in the case of District of Columbia v. Heller, 534 U.S. 570 (2008). In reviewing a District of Columbia ordinance banning handguns, the U.S. Supreme Court made it clear that Second Amendment rights are always subject to heightened scrutiny. Thus, any law or ordinance that seeks to restrict or regulate activity protected by the Second Amendment must stand up to a heightened standard of judicial review. In Ezell, the Seventh Circuit voted, “severe burdens on the core right of armed defense require a very strong public-interest justification and a close means-end fit.”

In reviewing the Chicago limitations, the court found that the City had not met the required level of justification. The zoning restriction which limited shooting ranges to the manufacturing district allowed only about 2.2% of the City’s total acreage to be available for the location of a shooting range. The City argued that by limiting gun ranges to these manufacturing districts, important public health and safety concerns would be addressed. Among the City’s concerns were: (1) firing ranges can attract gun thieves; (2) they cause airborne-lead contamination; and (3) the premises present a risk of fire. The court found that while these concerns are valid, the City failed to submit any evidence to support the regulations. In the words of the court, “there must be evidence to support the City’s rationale for the challenged regulations; lawyer talk is insufficient.”

The court read the zoning restrictions on the location of the shooting ranges limiting the zoning district in which they could be located and the distance from other type of uses together. The court reasoned that because the two zoning requirements worked together to limit the location of shooting ranges, they are a single package for purposes of Second Amendment review. The court used the same arguments as detailed above to find that the City’s zoning restrictions, when read together, constituted a burden on Second Amendment protections that was not justified by the circumstances alleged by the City.

The third restriction prohibited persons under the age of 18 from entering a shooting range under any circumstances. The City, as part of its argument in support of this ordinance, contended that minors had no Second Amendment rights at all. The City based this argument on some 19th century state laws which prohibited minors from purchasing or possessing firearms. The court answered the City’s argument by holding that restrictions on minors’ use or possession of firearms were not really the issue. Rather, the City’s ordinance resulted in the deprivation of an opportunity for minors to receive adult-supervised instruction on the proper use and safety of firearms. The court found that the City did not identify — and the court could not find — any prior cases that upheld the ban on firearm instruction. Quoting District of Columbia v. Heller, the Seventh Circuit added “to bear arms implied something more than the mere keeping; it implies the learning to handle and use them ….”

Even the City’s own witness, Commissioner Kimbrel, agreed that “shooting ranges are a ‘good place’ to teach a youngster ‘how to fire a rifle.’” Commissioner Kimbrel also stated that the City lacked any empirical evidence to support its ban on minors entering shooting ranges.

In holding that this effort by the City of Chicago to legislate firearm restrictions was unconstitutional, the court ruled that, while there can be reasonable and constitutional restrictions on the location and operation of shooting ranges available to local government, these efforts by the City did not meet the heightened scrutiny required to limit Second Amendment rights.

Municipal officials considering ordinances to regulate a person’s right to bear arms must keep in mind the strong burden necessary to justify these restrictions. Additionally, as the City of Chicago learned, you must be prepared with facts and data that will support the proposed restrictions. Should you have any questions about Second Amendment issues or other ordinance matters, please contact one of the attorneys at Ottosen Britz Kelly Cooper Gilbert & DiNolfo, Ltd.