Academic journal article Harvard Law Review

Constitutional Law - Second Amendment - Seventh Circuit Holds Ban on Firing Ranges Unconstitutional

Academic journal article Harvard Law Review

Constitutional Law - Second Amendment - Seventh Circuit Holds Ban on Firing Ranges Unconstitutional

Article excerpt


The Supreme Court held in District of Columbia v. Heller (1) that the Second Amendment protects an individual right, unconnected with service in a militia, "to possess and carry weapons in case of confrontation." (2) In McDonald v. City of Chicago, (3) the Court held that this guarantee binds the states as well as the federal government. (4) The Court's decisions, however, left many applications of the Second Amendment in doubt. (5) Recently, in Ezell v. City of Chicago, (6) the Seventh Circuit granted a preliminary injunction against the enforcement of a Chicago prohibition on firing ranges, reasoning that the ban violated the Second Amendment right to keep and bear arms. (7) Working by analogy to First Amendment doctrine, the court held that a law that burdens the Second Amendment right is subject to heightened scrutiny unless the activity it regulates is beyond the right's "scope." (8) That scope, the court held, turns on how the right to keep and bear arms was understood in 1791 (when the Bill of Rights was ratified) or 1868 (when the Fourteenth Amendment was ratified). (9) A more complete analogy to the First Amendment, however, would have supported a different test: that a weapons regulation is exempt from Second Amendment scrutiny only if the activity it regulates has been subject to a long-standing and widespread "tradition of proscription." (10)

After the Supreme Court held Chicago's prohibition on handgun possession unconstitutional in McDonald, the Chicago City Council adopted the Responsible Gun Owners Ordinance. (11) The ordinance prohibited "[s]hooting galleries, firearm ranges, or any other place where firearms are discharged." (12) A group of Chicago residents, two gun rights advocacy organizations, and a firing-range company sued the city in federal court. (13) They sought a preliminary injunction against enforcement of the ban, which they claimed infringed the right to keep and bear arms. (14)

In an opinion by Judge Kendall, the district court denied the request for a preliminary injunction, holding that the plaintiffs had not met their burden of showing that denying the injunction would cause them irreparable harm and that they had some likelihood of success on the merits. (15) The court reasoned that the plaintiffs' harm - which it characterized as their being required to travel outside Chicago in order to train at a firing range - was not irreparable because it could be redressed by damages for travel expenses. (16) And it rejected the plaintiffs' contention that they were likely to succeed on the merits: First, it believed that the firing-range ban was not subject to heightened scrutiny. (17) And second, it concluded that even if heightened scrutiny did apply, Chicago could meet that standard. (18)

The Seventh Circuit reversed and remanded. (19) Writing for the panel, Judge Sykes (20) questioned the district court's focus on the availability of firing ranges outside Chicago, noting that harm to a constitutional right is not measured "by the extent to which it can be exercised in another jurisdiction." (21) Applying a presumption that deprivations of Second Amendment rights are irreparable, the court held that the plaintiffs had satisfied the first threshold requirement for a preliminary injunction. (22) Turning to the likelihood of success on the merits, the court articulated a two-step "framework for Second Amendment litigation." (23) First, a court assessing the constitutionality of a weapons regulation must determine whether the regulated activity is within the scope of the right to keep and bear arms. (24) If so, there follows "a second inquiry into the strength of the government's justification for restricting or regulating the exercise of Second Amendment rights." (25)

The Ezell court adopted a historical test for determining whether a weapons regulation is subject to Second Amendment scrutiny, noting that courts likewise consider "history and legal tradition" in ascertaining which categories of speech are unprotected by the Free Speech Clause. …

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