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Chicago Residents Closer to Getting Second Amendment Rights

JURIST Guest Columnist Joyce Lee Malcolm of George Mason University Antonin Scalia Law School discusses the impact that a recent court opinion will have on Chicago residents and their Second Amendment rights...

This Constitution, and the Laws of the United States which shall be made in pursuance thereof...shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the Contrary notwithstanding. US Constitution, Article VI

Nearly seven years after the US Supreme Court overturned Chicago's strict ban on handguns and affirmed the Second Amendment right of law-abiding Americans to keep and bear guns for their protection, few of the people of Chicago are able to exercise their right. In the face of the appalling violence in Chicago before and since that ruling—over 3800 people shot last year and a 58% increase in homicides—Chicago's mayor and City Council continue to defy the landmark Second Amendment cases of District of Columbia v. Heller, and McDonald v. City of Chicago and permit residents to keep guns for protection. On January 18, 2017, however, the US Court of Appeals for the Seventh Circuit in Ezell v. City of Chicago (Ezell II), put the people of Chicago one small step closer to gaining their constitutional right to be armed.

This has been a long, and costly struggle for petitioners, for the city and especially for all its law-abiding residents. Just four days after the Supreme Court overturned the city's strict ban on handguns in McDonald, Mayor Daley and the Council issued regulations designed to make it as difficult as possible for a resident to have a gun. Added to the requirement for an Illinois firearms permit the new Chicago regulations required that the applicant pass a police background check, a 4-hour class, and spend one hour at a gun range, although ranges were banned in Chicago. Gun shops were also banned in the city as were all firearm sales. When transported, every firearm had to be broken down, unloaded and in a case, making it useless for self-defense. Only one working gun could be kept in the home. The gun had to be registered within 5 days of purchase with payment of a $100 fee and needed to be re-registered annually with seizure and fines for any failure to re-register. Should a resident manage to negotiate these hurdles, he or she could not take the gun outside their home, even to their garage or porch.

A long series of law suits have followed in an effort to gain Chicago residents the constitutional right that the Supreme Court claimed was theirs. The first round of the present case, Ezell v. Chicago, was decided a year after McDonald, when the Seventh Circuit reversed the ban on shooting ranges in the City of Chicago, refuting the city's claim that the ban was lawful since gun ranges existed outside the city. The Court pointed out that "Chicago could not infringe Second Amendment rights on the grounds that they could be exercised elsewhere any more than it could infringe the right to freedom of speech on the grounds that citizens could speak elsewhere."

In Moore v. Madison in December, 2012, the Court of Appeals forced Illinois to allow law-abiding residents to carry a concealed weapon. In 2014 District Judge Edmond Chang found Chicago's ban on gun shops and on the sale and transfer of firearms unconstitutional. While conceding the government has a duty to protect its citizens, the judge insisted it is also obligated to protect constitutional rights, including the right to keep and bear arms for self-defense.

Now comes an opinion in Ezell II. After the ban on gun ranges was struck down in 2011, the city amended its scheme four times, ultimately crafting a zoning rule that no range could be within 100 feet of another range or 500 feet of any district zoned for residential use or planned residential use, or any preschool, day-care facility, place of worship, liquor retailer, children's activities facility, library, museum or hospital. That left only about 2.2% of the city's total area, small manufacturing districts, even theoretically available. Further, no one under 18 was to enter a shooting range, should one actually be established.

The city argued that firing ranges attract gun thieves, cause airborne lead contamination and carry a risk of fire. Judge Sykes writing for the Seventh Circuit Court of Appeals pointed out in its January reversal, that the city "provided no evidentiary support for these claims." Indeed their own witness admitted she had not conducted an investigation, or consulted any expert or knew of any evidence to support the city's assertions. The judges concluded that she "essentially did no research at all." In fact, law-enforcement and private-security firing ranges are operating throughout Chicago quite safely.

Nor did the city fare better with the age restriction to meet its burden that a person under the age of 18 be prohibited from a range. That rule, Judge Sykes explained, extinguishes "even the right of older adolescents and teens to receive adult-supervised firearm instruction in the controlled setting of a firing range." The city's witness, Commissioner Krimbel, agreed that shooting ranges are a "good place" to teach a youngster "how to fire a rifle," adding that his son had taken a shooting class when he was 12.

In striking down restrictions making it practically impossible to establish a shooting range in Chicago and the age restriction on entering a shooting range, Judge Sykes reminded the Chicago government of Justice Alito's caution in McDonald, against treating the Second Amendment as "a second-class right, subject to an entirely different body of rules than the other Bill of rights Guarantees."

The law-abiding people of Chicago have been ill served by the city government's insistence on flaunting the Supreme Court opinions, attempting to circumvent the Appeals Court decisions, and effectively denying residents their constitutional right and ability to protect themselves in the lawless environment in which they live.

Joyce Lee Malcolm is a Patrick Henry Professor of Constitutional Law and the Second Amendment. Professor Malcolm is is a historian and constitutional scholar active in the area of constitutional history, focusing on the development of individual rights in Great Britain and America. She has written many books and articles on gun control, the Second Amendment, and individual rights. Her work was cited several times in the recent US Supreme Court opinion in District of Columbia v. Heller.

Suggested citation: Joyce Lee Malcolm, Chicago Residents Closer to Getting Second Amendment Rights, JURIST - Academic Commentary, Jan. 31, 2017, http://jurist.org/forum/2017/1/Joyce-Lee-Malcolm-chicago-residents-closer-to-getting-second-amendment-rights-Chicago.php

This article was prepared for publication by Ben Cohen, an Assistant Editor for JURIST Commentary. Please direct any questions or comments to him at commentary@jurist.org

Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.

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