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Victory in Ezell

It looks like Mr. Gura has won his injunction. From the opinion linked to in the tweet:

We reverse. The court’s decision turned on several legal errors. To be fair, the standards for evaluating Second Amendment claims are just emerging, and this type of litigation is quite new. Still, the judge’s decision reflects misunderstandings about the nature of theplaintiffs’ harm, the structure of this kind of constitutional claim, and the proper decision method for evaluating alleged infringements of Second Amendment rights. On the present record, the plaintiffs are entitled to a preliminary injunction against the firing‐range ban. The harm to their Second Amendment rights cannot be remedied by damages,their challenge has a strong likelihood of success on the merits, and the City’s claimed harm to the public interest is based entirely on speculation.

For those that missed it, the judges savaged the City’s attorney pretty badly during oral arguments. I encourage you to go listen. It’s ear candy for gun rights proponents. This is indeed very good news. We thank Alan Gura and Second Amendment Foundation for taking the time and effort to pursue this case, and for future efforts in continuing to pursue it. I would imagine the next issue would be whether Rahm’s BS ordinance satisfies the injunction. I think the answer should be an emphatic “no.”

UPDATE: Reading the opinion in full, it’s a pretty substantial victory. You get passages like this, where the court is speaking of it being improper to consider individual circumstances on a facial challenge rather than an as-applied challenge:

That is, the City Council violated the Second Amendment when it made this law; its very existence stands as a fixed harm to every Chicagoan’s Second Amendment right to maintain proficiency in firearm use by training at a range. This kind of constitutional harm is not measured by whether a particular person’s gasoline or mass‐transit bill is higher because he must travel to a firing range in the suburbs rather than one in the city, as the district court seemed to think.

UPDATE: We’re told by our opponents that you can’t take the Second Amendment in the same context as the first Amendment. This opinion would seem to slap down that notion:

This reasoning assumes that the harm to a constitutional right is measured by the extent to which it can be exercised in another jurisdiction. That’s a profoundly mistaken assumption. In the First Amendment context, the Supreme Court long ago made it clear that “ ‘one is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place.’ ”

Hey, what do you know Brady’s, CSGV, and VPC, it is a right after all. More here:

The City urges us to import the “undue burden” test from the Court’s abortion cases, see, e.g., Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 876‐79 (1992), but we decline the invitation. Both Heller and McDonald suggest that First Amendment analogues are more appropriate, see Heller, 554 U.S. at 582, 595, 635; McDonald, 130 S. Ct. at 3045, and on the strength of that suggestion, we and other circuits have already begun to adapt First Amendment doctrine to the Second Amendment context […]

Remember this case next time the Brady’s get on their “can’t treat it like the First Amendment” kick.

UPDATE: Here’s another topic: lead contamination:

On appeal the City raised but did not dwell on its concern about lead contamination. For good reason: It cannot be taken seriously as a justification for banishing all firing ranges from the city. To raise it at all suggests pretext.

Perhaps the City can muster sufficient evidence to justify banning firing ranges everywhere in the city, though that seems quite unlikely. As the record comes to us at this stage of the proceedings, the firing‐range ban is wholly out of proportion to the public interests the City claims it serves. Accordingly, the plaintiffs’ Second Amendment claim has a strong likelihood of success on the merits.

UPDATE: This is from the female judge who was least sympathetic to Alan Gura’s argument. She joins the majority opinion in judgement:

A complete ban on live ranges in the City, therefore, is unlikely to withstand scrutiny under any standard of review. The plaintiffs have a strong likelihood of succeeding on the merits of this claim.

Of course, she later goes on to say:

A right to maintain proficiency in firearms handling is not the same as the right to practice at a live gun range. As such, I cannot agree that “a more rigorous showing than that applied in Skoien, should be required, if not quite ‘strict scrutiny.’ ”

Spoken like someone who knows nothing about guns or training :) But we’ll take it. She did the right thing by the law. I disagree with her opinion that lesser scrutiny is called for, but she still agreed in terms of judgement.

10 Responses to “Victory in Ezell”

  1. Alpheus says:

    I can’t say I missed it–I listened to it over and over again! (I didn’t absorb it as much as I would have liked, since I was working at the same time, but I nonetheless loved listening to it, even as background noise.)

  2. Miguel says:

    “Savaged” is a kind word. It is 59 pages of legal bitchslapping or “How in the name of God did you ever pass the Bar?”

  3. Skullz says:

    I only skimmed the ruling (link at Say Uncle’s), but I like this part….

    In the First Amendment context,
    the Supreme Court long ago made it clear that “ ‘one is
    not to have the exercise of his liberty of expression in
    appropriate places abridged on the plea that it may be
    exercised in some other place.’ ” Schad v. Borough of
    Mt. Ephraim, 452 U.S. 61, 76‐77 (1981) (quoting Schneider
    v. State of New Jersey, 308 U.S. 147, 163 (1939)). The
    same principle applies here. It’s hard to imagine anyone
    suggesting that Chicago may prohibit the exercise of a freespeech
    or religious‐liberty right within its borders on
    the rationale that those rights may be freely enjoyed in
    the suburbs. That sort of argument should be no less
    unimaginable in the Second Amendment context.

    IANAL, but could a ruling with this recorded become additional case law supporting Constitutional and / or concealed carry in cities and states that ban it?

  4. And yet another citation to my George Mason Law Review article (footnote 11, p. 31)!

  5. MichaelB says:

    Lumping more coals on the fire…great work SAF et al. We appreciate your help here in the socialist state of Illinois! Keep up the good fight!

  6. LC Scotty says:

    But Denny-Henny just assured us over at Huffpo that Heller was a hollow victory.

  7. chris says:

    Skullz,

    Yes and this ruling will be cited in future cases both in and outside of the 7th circuit. It may even be cited and relied upon in a future SCOTUS case.

  8. Old NFO says:

    Good news, and yes I did listen to the orals :-) One down, hundreds more to go! Thanks Alan and SAF!

  9. Matthew Carberry says:

    Williams v. Maryland (Does the 2nd (Heller) cover carry outside the home?) pops again on July 15. The way the MD Supremes decided on that narrow question made the shaky facts of the case kinda moot, so I don’t think that weakness is much to worry about.

    Given the text of Heller I think the answer to the question asked in the Writ is plain, and MD insulted Scalia to boot.

    A ruling from the Court that “particularly in the home” in no way means “only in the home” is going to make the Illinois/Chicago action even more kinetic.

    As far as discretionary may-issue “carry in name only” goes I think for IL that’ll be off the table as an option as it would conflict directly with the 7th’s position in Ezell that regulations that are in effect bans impermissibly burden the Right.

    Interesting times, and really interesting how the decisions work upon each other.

  10. Hank Archer says:

    Wasn’t it Justice Breyer who stated not long ago that he felt that the DC gun ban was OK and should have been upheld because “if you want to use a gun you can just get on the Metro and go to Virginia.”?

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