Ilana Diamond Rovner
Diane S. Sykes
Chicago officials struck out Wednesday in their continuing bid to reduce the number of firearms within the city limits.
A divided 7th U.S. Circuit Court of Appeals declared unconstitutional three provisions of the Chicago Municipal Code that regulate firing ranges open to the public.
One provision prohibits minors from entering ranges.
Another restricts ranges to manufacturing districts, while the third requires them to be a certain distance from other ranges and from schools, churches, residential districts and other land uses.
The 7th Circuit’s majority wrote the zoning and distancing provisions combine to severely limit the ability of Chicago residents to obtain and maintain firearm proficiency.
Only 2.2 percent of the city’s total acreage is theoretically available to operate a firing range, the majority wrote.
The “commercial viability” of that acreage is so questionable, it continued, that no ranges currently exist in Chicago.
And the majority wrote the city offered only speculation in support of the two provisions.
“It simply asserts, without evidence, that shooting ranges generate increased crime, cause airborne lead contamination in the adjacent neighborhood and carry a greater risk of fire than other uses,” Judge Diane S. Sykes wrote in an opinion joined by Judge Michael S. Kanne.
That defense of the zoning and distancing provisions, Sykes wrote, is not enough to withstand a Second Amendment challenge.
The provision barring minors from shooting ranges also violates the constitutional right to bear arms, Sykes wrote.
The provision’s “extraordinary breadth,” she wrote, leaves no room for older adolescents and teens to learn “in the controlled setting of a firing range” how to handle firearms.
“There’s zero historical evidence that firearm training for this age group is categorically unprotected,” Sykes wrote.
And the city did not bolster its case, she wrote, with its “generalized assertions” about children’s developmental immaturity, the risk of lead poisoning and the dangers of allowing unsupervised minors to have access to loaded firearms.
The city already has regulations aimed at containing the environmental risks of airborne lead, Sykes wrote.
She wrote the city can resolve its other safety concerns by drafting a more narrowly tailored age restriction.
“Range training is not categorically outside the Second Amendment,” Sykes wrote.
“To the contrary, it lies close to the core of the individual right of armed defense.”
The majority upheld a decision by U.S. District Judge Virginia M. Kendall to enjoin the city from enforcing the zoning provision.
But the majority overturned Kendall’s holding that the distancing and age provisions are constitutional.
In a separate opinion, Judge Ilana Diamond Rovner argued the zoning and distancing provisions should be considered separately.
And while she agrees with the majority that restricting shooting ranges to manufacturing districts is unconstitutional, she wrote, she believes the distancing requirement passes muster under the Second Amendment.
Rovner described the zoning regulation as “a blanket prohibition against firing ranges in all but the manufacturing areas of the city.”
The distancing regulation, however, “is a precise and targeted approach to protecting particular populations and activities,” Rovner wrote.
“It is the difference,” she wrote, “between a carpet bomb and a surgical strike.”
Also, Rovner agreed with the majority that the total ban on minors at firing ranges is unconstitutional.
But she noted the city has the leeway to place more restrictions on children than on adults in order to protect those under 18 from “the inherent dangers of firearms.”
Firearms in the hands of children “can have deadly consequences” even when the child is older or even when the child is supervised by a trained instructor, Rovner wrote.
For example, she wrote, a 9-year-old girl in Arizona accidentally killed her instructor in 2014 when the Uzi she was firing jumped out of her hand.
Alan Gura of Gura PLLC in Alexandria, Va., argued the case before the 7th Circuit on behalf of the plaintiffs.
The plaintiffs were three Chicago residents, the Second Amendment Foundation Inc. and Action Target Inc., a company that designs and builds firing ranges.
In a statement, Gura contended the city failed to present any evidence in support of “its wild claims about gun ranges.”
Even the city’s own witnesses admitted the provisions were irrational, Gura maintained.
“Chicagoans should be concerned about the cost of these legislative tantrums, which only harm public safety by impairing people’s access to critical safety training and education,” he wrote.
“City resources would be better spent improving policing and addressing the root causes of crime.”
Suzanne M. Loose of the corporation counsel’s office argued the case on behalf of the city.
In a statement, Law Department spokesman Bill McCaffrey said the city is disappointed by the ruling.
“The mayor's top priority is keeping children and families safe,” McCaffrey said. “The last thing we need are more guns around the city, which is why we are doing everything we can to keep guns away from schools and communities.”
The case is Rhonda Ezell, et al. v. City of Chicago, Nos. 14-3312 and 14-3322.