Chicago’s ban on gun ranges challenged in court

Amanda Carey Contributor
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When the Supreme Court ruled in McDonald v. Chicago over the summer that the right to bear arms does apply to the states, the victory’s sweetness for conservatives was short-lived. Almost immediately, gun-rights advocates braced themselves for more battles against the city’s many regulatory hurdles and licensing schemes.

And there were plenty. Just days after Chicago’s gun ban was ruled unconstitutional, the city council unanimously approved the Responsible Gun Ownership Ordinance. One of its provisions is that all Chicago residents must present a signed affidavit from a firearms instructor, saying the prospective gun owner completed a training and safety course that includes at least one hour of range time.

There’s just one problem. The city of Chicago bans gun ranges. The only ranges in the city are available to federal employees and police.

Now — in what looks to be shaping into one of the more important post-McDonald lawsuits — Ezell v. Chicago has already reached the appeals court level. In the case, Alan Gura is challenging the city’s gun range ban. Gura is the same attorney who successfully argued before the Supreme Court the McDonald case and 2008’s DC v. Heller, which decided that an individual right to bear arms exists in federal enclaves like Washington, D.C.

In the lawsuit filed this past August, Gura sought a complete injunction of the ban, arguing it was too severe of a burden against a right the Supreme Court had deemed constitutional. His suit sought to immediately halt the ban’s enforcement until its constitutionality can be reviewed.

In October, however, Judge Virginia Kendall denied Gura’s request on the grounds that the plaintiffs could not prove they were unable to go outside the city to access a gun range. So, last week he responded by filing an appeal with the federal 7th Circuit Court of Appeals.

In his appeal, Gura challenges the city’s argument that the ban is warranted because gun ranges “pose considerable public safety, health, and environmental concerns,” reduces the risk of illegal transfers of firearms, and prevents difficult regulatory challenges.

As another defense, Chicago claimed that even without the ban, zoning regulations would make range construction impossible. This is despite the fact that Chicago Zoning Administrator Patricia Scudiero – who would be tasked with reviewing the zoning rules – testified in court that she “has never been to a gun range, has never read or studied any literature about gun ranges, has no experience or education with either the structure or operation of gun ranges, and has never investigated gun ranges for zoning purposes.”

“The Second Amendment guarantees a right to use and operate gun ranges…shooting at a range is also in and of itself a traditional lawful use of firearms secured by that amendment,” wrote Gura in his appeal. “Thus, while Defendant [Chicago] may regulate ranges in the interest of public health and safety, it cannot completely ban them, whatever its purported reasons.”

He went on to say that, “In electing to make regular range training a prerequisite for home gun possession, the City deprives itself of any theoretical ability to ban ranges needed for that training. Chicago cannot ban something it mandates as a condition of exercising a fundamental right.”

The city’s defense, however, that gun enthusiasts should be content with going outside the city to shoot for sport is nothing new. Recently, in fact, Justice Stephen Breyer appeared on Fox News and asked host Chris Wallace, “Are you a sportsman? Do you like to shoot pistols at targets? Well, get on the subway and go to Maryland. There is no problem, I don’t think, for anyone who really wants to have a gun.”

Breyer also made that argument during the Heller hearings, when he actually cited a copy of the Washington Metropolitan Area Transit Authority Metrorail System Map. Writing in his dissent, the Supreme Court justice said, “And while the District law prevents citizens from training with handguns within the District, the District consists of only 61.4 square miles of urban area. The adjacent States do permit the use of handguns for target practice, and those States are only a brief subway ride away.”

But gun advocates argue that the ban on ranges is more like a de facto ban on guns altogether since it is a strong disincentive for residents to pursue legal gun ownership.

When contacted by The Daily Caller, a spokesperson for IllinoisCarry – an organization dedicated to securing the right to conceal carry – said, “The fact that training is required but ranges where that training can take place are banned in the city is an outright ploy to deny folks the right to protect themselves.”

The spokesperson went on to point out that the state of Illinois is the only state in the nation that has no provision on the books for lawfully carrying a handgun. “One only has to look at the rest of the nation and see that Chicago is out of step,” she added.

“This case really hinges on the issue of what kind of limitations the state can impose on gun rights,” Josh Blackman, teaching fellow at the Pennsylvania State University School of Law, told TheDC. “There is this notion that this right to keep and bear arms isn’t so important, so you can burden people to have to travel outside city limits.”

And although Blackman acknowledged the DC v. Heller case recognized a city’s authority to impose “competency requirements,” the question now is determining what falls in that category. The city of Chicago, says Blackman, went too far and ended up treating the right to bear arms more like a privilege.

“How should this constitutional right be treated as compared to other constitutional rights?” said Blackman. “No other right is treated this way.”

“The Second Amendment is kind of turned on its head,” Blackman added. “It’s like ‘okay you have this right, but how do you make sure other people don’t get hurt?’ The only focus is on minimizing potential damage, and with others the focus is on maximizing liberty.”

When contacted by theDC, Gura said “We have a strong case. Chicago’s range ban is plainly unconstitutional, and I look forward to the final outcome.”

As it stands, Ezell could end up being the most significant of the post-McDonald cases because it focuses exclusively on the extent cities can go to regulate gun ownership, and what rights are corollaries of the Second Amendment right to bear arms and to self defense. As Blackman put it, this case will “flesh out the contours of what Second Amendment protects.”

And because the Supreme Court has ruled the right to own a gun is guaranteed by the Constitution, it may (depending on the course Ezell takes) have to next decide what state- or city-imposed limitations to that right are acceptable.