Zoning laws are a peculiarly American way of legally barring people we don’t like from doing things we find aesthetically unappealing with their own property. Occasionally, though, one of these laws runs up against someone who wants to use their own property to exercise a core civil right who has the wherewithal and endurance challenge it. And sometimes justice prevails.
That was the case in the matter of Ezell v. Chicago before the 7th Circuit Court of Appeals, where yesterday – in a win for Second Amendment advocates – the city of Chicago was stopped from enforcing zoning ordinances that have kept any gun ranges from opening in the Windy City.
This saga began back in 2010, when the Supreme Court’s McDonald v. Chicago decision struck down Chicago’s onerous gun control regime. The decision forced city elders to re-write their laws. This they did, very carefully and with an eye toward throwing up as many obstacles as they could to hinder residents’ attempts to exercise their civil rights, while still staying within the letter of the Supreme Court’s decision.
Their first attempt fell apart in 2011, when the 7th Circuit took the entirely reasonable position that if Chicago was going to mandate one-hour of live fire range time as a prerequisite to merely owning a firearm, the city couldn’t actually enact a ban on gun ranges within city limits. (The 2011 case was styled Ezell v. Chicago.)
Bowed but unbroken, hoplophobic city elders tried a different tack: they’d technically allow gun ranges to open, but would apply so many restrictions on their location and use as to make any gun ranges as inaccessible and unprofitable as possible.
The same people who challenged Chicago the first time–Rhonda Ezell, Joseph Brown, and William Hespen, joined by Action Target, Inc., the Illinois State Rifle Association, and the Second Amendment Foundation–came back for seconds, along with their eminently capable attorneys, Alan Gura and David Sigale. By the time the case found its way back to the Court of Appeals, there were three specific regulations being challenged:
(1) Restricting shooting ranges only to land zoned for manufacturing purposes.
(2) Barring shooting ranges from existing within 100 feet of another shooting range, or within 500 feet of a residential district, school, place of worship, “and multiple other uses”.
(3) Banning persons under the age of 18 years of age from entering a shooting range for any reason.
In a cogent, well-written 19-page decision written by Judge Diane S. Sykes, the Court held that all three of these regulations had to fall in deference to the Second Amendment right to keep and bear arms.
Judge Sykes addressed the location issue first. The cumulative restrictions barred any gun range from opening on 97.8% of the land area of the city. Chicago had claimed that the existence of a gun range might “attract gun thieves, cause airborne lead contamination, and carry a risk of fire.” Judge Sykes dismissed the city’s claims, as the city hadn’t given any actual evidence to support them.
She called their offerings little more than “speculative claims of harm to public health and safety,” which didn’t pass the intermediate-level scrutiny that courts are using for Second Amendment issues. As Judge Sykes wryly noted, “[t]he City’s own witnesses testified to the lack of evidentiary support for these assertions. They repeatedly admitted that they knew of no data or empirical evidence to support any of these claims.” (Emphasis in original.)
The city had imposed a carve-out for ranges operated by civilian law enforcement, which Judge Sykes said, belied their apparent concern about safety and environmental issues.
[T]he City concedes (as it must) that law-enforcement and private-security ranges operate in commercial districts throughout Chicago near schools, churches, parks, and stores; the City acknowledges that they operate quite safely in those locations. Common sense suggests that law-enforcement ranges probably do not attract many thieves, but the City’s theft-protection rationale for these zoning rules is so woefully unsupported that the distinction between law-enforcement and commercial ranges doesn’t carry much weight. The City doesn’t even try to argue that commercial ranges crate greater fire or environmental risks than law-enforcement ranges.
The city fared even worse when it came to the 18-year-old age restriction. Chicago argued that minors had no Second Amendment rights which the state was obligated to respect. Judge Sykes found “zero historical evidence that firearm training for this age group is categorically unprotected. At least the City hasn’t identified any, and we’ve found none ourselves.”
She then cited this little gem cited in the footnotes in Heller:
“No doubt, a citizen who keeps a gun or pistol under judicious precautions, practices in safe places the use of it, and in due time teaches his sons to do the same, exercises his individual right.” Benjamin Vaughan Abbott, Judge and Jury: A Popular Explanation of the Leading Topics in the Law of the Land at 333 (1880), cited in Heller v. District of Columbia, 554 U.S. at 617-18.
Maybe the most amazing part of the ruling, however, was when Judge Sykes looked at the testimony Chicago had offered to the lower court. Their own witness, Rosemary Krimbel, the Commissioner of Business Affairs and Consumer Protection, “actually agreed with the plaintiff’s attorney that banning anyone under 18 from entering a shooting range goes too far and extends beyond legitimate safety concerns.” (Emphasis added.)
“I will give you this: I believe [the age restriction] is inartfully drafted because it seem[s] clear to me that the purpose of it is not to have kids running around unsupervised…. [Y]ou might want to draft that a little bit differently” because shooting ranges are a “good place” to teach a youngster “how to fire a rifle….”
“In fact, my own son took a shooting class when he was 12, so I’m well aware of the fact it’s okay to teach a young person how to shoot a gun properly.”
Commissioner Krimbel also conceded that the City lacked any data or empirical evidence to justify its blanket no-one-under-18 rule.
Overall, this was a solid win, and another feather in the cap of attorney Gura. Two things to note, though:
First, the decision was made all the easier for the judge by the fact that the city had so little evidence to support its contentions about environmental or safety issues related to gun ranges. I guaran-damn-tee you that a bunch of tenure-seeking assistant professors in the social sciences just found their next research topic. This is one of the areas where billionaire plutocrat Mike Bloomberg and others of his ilk are throwing money at academic ideologues to publish stuff, even if it’s crap. How is a lawyer or a judge supposed to know the difference? How is anyone supposed to know the difference, unless they’re a statistician who’s done their own analysis of the findings?
I confess that I’m a little concerned that. With the exception of John Lott, there hasn’t been much work done in the social sciences from the pro-gun perspective. At some point, we may be in a position where the only social science work done has been from studies done solely to score an ideological point against our movement.
This is also why I might think about compromise on something as odious as background checks long before I’d ever compromise on a repeal of the Dickey Amendment. Background checks would be a straightforward loss, but the damage might be contained, maybe even rolled back in time. Junk science promoted by our tax dollars being used to undermine our own rights is a poison gas that you can’t un-breathe.
Second, the judge who authored the opinion, Diane Sykes, writes in a clear manner that’s understandable (I’d wager) to the average layperson. She’s also on President-Elect Donald Trump’s short list for consideration to the Supreme Court. I was impressed by her writing. Jake Curtis wrote an article about her in the National Review last year talking up her judicial philosophy as a textual originalist. According to Curtis, Judge Sykes explained her approach to the law as follows:
Judicial deference to the policy choices enacted into law by the legislature requires that statutory interpretation focus primarily on the language of the statute. We assume that the legislature’s intent is expressed in the statutory language. Extrinsic evidence of legislative intent may become relevant to statutory interpretation in some circumstances, but is not the primary focus of inquiry. It is the enacted law, not the unenacted intent, that is binding on the public. Therefore, the purpose of statutory interpretation is to determine what the statute means so that it may be given its full, proper, and intended effect.
She doesn’t sound like a “living constitution” kind of woman, does she?