The Volokh Conspiracy
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People younger than 18 have a Second Amendment right to target practice, with adult supervision. Broad bans on the location of firing ranges are unconstitutional. On these points, all three judges of a 7th Circuit panel agree, in the newly decided Ezell II.
Released Wednesday, Ezell II held that:
- Chicago may not prohibit all persons under 18 from entering licensed firing ranges.
- Chicago may not constrict firing ranges to a tiny sliver of the city.
The opinion of the court was written by Judge Diane Sykes, joined by Judge Michael Kanne. Judge Ilana Rovner concurred in part and dissented in part. She agreed with the above two points but construed them more narrowly than did the majority.
The 2010 Supreme Court case McDonald v. City of Chicago held that Chicago's handgun ban violated the Second and 14th amendments. In McDonald, as in the Ezell cases, Alan Gura and David Sigale represented the plaintiffs.
After McDonald, the Chicago City Council enacted a gun licensing ordinance. One of the license requirements was safety training at a gun range. Yet the City Council banned firearms ranges that were open to the public. The city already had 11 firing ranges, but only for government employees and security guards.
In the first Ezell case, the 7th Circuit held that Chicago could not prohibit firearms ranges.
In response, the city enacted a licensing law for firearms ranges. Licensees had to comply with many safety conditions, such as proper ventilation, noise controls and appropriate disposal of lead fragments. Ezell II involved three parts of the new ordinance:
- "barring anyone under age 18 from entering a shooting range";
- allowing gun ranges only in manufacturing districts; and
- banning gun ranges "within 100 feet of another range or within 500 feet of a residential district, school, place of worship, and multiple other uses."
Because the restrictions affect Second Amendment rights, the court applied "heightened scrutiny," as in other cases involving fundamental rights. The court required strong proof from the government, because "Range training … lies close to the core of the individual right of armed defense."
Although Ezell I had held that "the Second Amendment protects the right to learn and practice firearm use in the controlled setting of a shooting range. The City insists that no person under age 18 enjoys this right. That's an extraordinarily broad claim …" There had never been a case "comparable to this one: … an age restriction that extinguishes even the right of older adolescents and teens to receive adult-supervised firearm instruction in the controlled setting of a firing range."
Although the government bore the burden of proof, "In what must have come as a surprise to the City, Commissioner Krimbel, the City's own witness on this subject," testified that "shooting ranges are a 'good place to teach a youngster how to fire a rifle. … In fact, my own son took a shooting class when he was 12, so I'm well aware of the fact it's okay to teach a young person how to shoot a gun properly.' Commissioner Krimbel also conceded that the City lacked any data or empirical evidence to justify its blanket no-one-under-18 rule."
Regarding the zoning limits: "only 2.2% of the city's total acreage is even theoretically available, and the commercial viability of any of these parcels is questionable-so much so that no shooting range yet exists. This severely limits Chicagoans' Second Amendment right to maintain proficiency in firearm use via target practice at a range."
The government speculated that commercial firing ranges "attract gun thieves, cause airborne lead contamination, and carry a risk of fire."
But the Chicago government "provided no evidentiary support for these claims." For example, "Patricia Scudiero, the City's zoning administrator, conceded that neither she nor anyone else in her department made any effort to review how other cities zone firing ranges. She conducted no investigation, visited no firing ranges in other jurisdictions, consulted no expert, and essentially did no research at all."
Similarly, "the City relies on a study by the National Institute for Occupational Safety and Health explaining that improperly ventilated shooting ranges can release lead-contaminated air into the surrounding environment. But the report goes on to describe appropriate filtering techniques that prevent this danger entirely. As for the concern about fire, the City provided no evidence to suggest that a properly constructed and responsibly operated commercial shooting range presents a greater risk of spontaneous combustion than other commercial uses."
Indeed, the government lets "law-enforcement and private-security ranges operate in commercial districts throughout Chicago near schools, churches, parks, and stores; the City acknowledges that they operate quite safely in these locations…. The City doesn't even try to argue that commercial ranges create greater fire or environmental risks than law-enforcement ranges."
Writing separately, Rovner dissented in part and concurred in part. She agreed that limiting gun ranges to manufacturing areas was too extreme. She thought that ranges must be allowed in commercial areas.
However, she would have upheld the ban on firing ranges within 500 feet of numerous types of places.
She wrote that the difference between a ban for all commercial areas and a ban only for the 500-foot buffer zones "is the difference between a carpet bomb and a surgical strike."
This seems overstated. In a built-up city such as Chicago, there may be hardly any commercially zoned space that is not within 500 feet of a "school, day-care facility, place of worship, liquor retailer, children's activities facility, library, museum, or hospital."
Rovner agreed that minors have Second Amendment rights, that families have rights to instruct children in safe use of firearms and that Chicago's ban on minors at firing ranges is unconstitutional.
The judge did suggest that in future cases, the above rights could be construed narrowly, because laws sometimes impose "severe" "encroachments" on families "even when the risk is low. Parents have been charged with neglect for allowing their children to walk to a park, or walk to school, or play unsupervised in a back yard. This is true despite the fact that the rate of occurrence of the main concern, stranger abduction, is quite low (approximately 60-100 per year) and continually declining."