Posted September 30, 2014 2:37 PM
Updated October 3, 2014 4:42 PM
   

City loses battle over gun-range hours, zoning

Virginia M. Kendall
Virginia M. Kendall
By Patricia Manson
Law Bulletin staff writer

A federal judge has issued a split decision in a long-running battle over the location of the line between a person’s right to bear arms and Chicago’s obligation to protect its citizens.

In a written opinion Monday, U.S. District Judge Virginia M. Kendall struck down some restrictions on firing ranges imposed by the city while upholding several others.

She ruled that a provision in the Chicago Municipal Code allowing ranges to operate only in manufacturing districts violates the Second Amendment right to maintain proficiency in the use of firearms.

The city contended the restriction is based on concerns that firing ranges attract thieves and that lead-contaminated air released outside ranges can pollute waterways and pose risks to people in populated areas.

Although those are important interests, Kendall wrote, “the city has not sufficiently substantiated a connection” between them and the ban on ranges outside manufacturing districts.

Kendall also struck down a provision limiting firing ranges’ hours of operation from 9 a.m. to 8 p.m.

But she upheld a provision requiring ranges to be at least 500 feet away from residential districts and from a variety of places, including schools, liquor stores, day-care centers, libraries and hospitals.

In recognizing the constitutional right to possess firearms for self-defense, Kendall wrote, quoting District of Columbia v. Heller, 554 U.S. 570 (2008), the U.S. Supreme Court emphasized it was not casting doubt on “longstanding prohibitions on the carrying of firearms in sensitive places.”

Kendall issued her ruling in a lawsuit filed by three Chicago residents and three entities — the Second Amendment Foundation Inc., the Illinois State Rifle Association and Action Target Inc., a company that designs and builds firing ranges — in 2010.

The suit challenged the constitutionality of a ban on operating firing ranges open to the public within Chicago’s borders.

The suit alleged the city was violating the Second Amendment by imposing the blanket ban on ranges while at the same time requiring residents seeking gun permits to undergo one hour of training at a range.

After Kendall declined to issue a preliminary injunction that would have blocked enforcement of the ban, the plaintiffs turned to the 7th U.S. Circuit Court of Appeals.

The 7th Circuit held that prohibiting any firing ranges from operating in the city likely ran afoul of the right to bear arms. Ezell v. City of Chicago, 651 F.3d 684 (7th Cir. 2011). The appeals court directed Kendall to temporarily halt enforcement of the ban while she considered the plaintiffs’ suit.

In response, the Chicago City Council approved a new ordinance imposing zoning restrictions on firing ranges and setting out construction, licensing and operational requirements.

In Monday’s opinion, Kendall considered the plaintiffs’ challenge to the constitutionality of several of the new provisions.

She ruled that a provision barring minors from firing ranges passes constitutional muster.

The “minute burden” on ranges’ profitability is justified by the reasons for the age restriction, Kendall wrote.

“The parties do not dispute that ranges can be dangerous due to lead exposure, toxic fumes, exposure to high noise levels and the ever-present chance of a misfired weapon or a ricocheting bullet,” she wrote.

Kendall also upheld requirements that a “range master” always be present during a range’s operating hours and that all range employees possess Illinois Firearm Owners Identification (FOID) cards.

She noted that Chicago officials say the owners of firing ranges are not required to have FOID cards.

And Kendall upheld provisions setting out construction standards for firing ranges. The standards require ballistic-proof walls and doors, limits on sound and separate ventilation systems for each shooting range at a facility.

The standards, Kendall wrote, quoting Ezell, “merely regulate” the way ranges are constructed.

Under that circumstance, she continued, they “create only a minor encumbrance on individual Second Amendment rights to maintain proficiency in the use of firearms.”

The case is Rhonda Ezell, et al. v. City of Chicago, No. 10 C 5135.

The lead attorney for the plaintiffs, David G. Sigale of the Law Firm of David G. Sigale P.C. in Glen Ellyn, said he’s pleased Kendall struck down the zoning and hours-of-operation provisions.

He contended the other challenged restrictions are unconstitutional.

“Just saying ‘we’re trying to keep people safe’ is not enough without showing evidence that the restrictions would actually solve that problem,” Sigale said.

He said his clients are weighing their next move.

Law Department attorneys representing the city include Rebecca Alfert Hirsch, Mardell Nereim, William Macy Aguiar, Andrew W. Worseck and Mary E. C. Wells.

Law Department spokesman John Holden said the city is pleased Kendall upheld nine of the 11 challenged provisions.

“We believe the remaining two, zoning that limited gun ranges to manufacturing districts and hours of operation from 9 a.m. to 8 p.m., are commonsense restrictions that do not violate the Second Amendment,” he wrote in an e-mail. “We are thoroughly reviewing the judge’s opinion and weighing our options on potential next steps.”

 

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