The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Chicago's gun range regulations ban, among other things, anyone younger than 18 from going to a shooting range within city limits. Yesterday's 7th Circuit opinion in Ezell v. City of Chicago, written by Judge Diane Sykes, joined by Judge Michael Kanne and largely agreed with by Judge Ilana Rovner, struck that down:
The City's primary defense of the age-18 limitation is to argue that minors have no Second Amendment rights at all. To support this sweeping claim, the City points to some nineteenth-century state laws prohibiting firearm possession by minors and prohibiting firearm sales to minors. Laws of this nature might properly inform the question whether minors have a general right, protected by the Second Amendment, to purchase or possess firearms. But they have little relevance to the issue at hand.
The plaintiffs do not question the permissibility of regulating the purchase and possession of firearms by minors. They challenge only the extraordinary breadth of the City's age restriction. Banning anyone under age 18 from entering a firing range prevents older adolescents and teens from accessing adult-supervised firearm instruction in the controlled setting of a range. There's zero historical evidence that firearm training for this age group is categorically unprotected. At least the City hasn't identified any, and we've found none ourselves.
To the contrary, Heller itself points in precisely the opposite direction. 554 U.S. at 617-18 ("[T]o bear arms implies something more than the mere keeping; it implies the learning to handle and use them … ; it implies the right to meet for voluntary discipline in arms, observing in doing so the laws of public order." (quoting Thomas Mcintyre Cooley, A Treatise on the Constitutional Limitations 271 (1868))); see also id. at 619 ("No doubt, a citizen who keeps a gun or pistol under judicious precautions, practices in safe places the use of it, and in due time teaches his sons to do the same, exercises his individual right." (quoting Benjamin Vaughan Abbott, Judge and Jury: A Popular Explanation of the Leading Topics in the Law of the Land 333 (1880))).
For the same reason, the City's reliance on contemporary caselaw is entirely misplaced. The few cases it identifies all address laws prohibiting minors from possessing, purchasing, or carrying firearms….
In short, no case has yet addressed a claim comparable to this one: A challenge to 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. Because the City has not met its burden to establish that no person under the age of 18 enjoys this right, we proceed to [deciding whether the restriction may nonetheless be upheld on the grounds that it's adequately justified by the factual evidence—EV].
The City staked most of its case on the categorical argument and made little effort to justify prohibiting older adolescents and teens from engaging in supervised target practice at a range. Its rationale rests largely on an argument from "common sense" about public safety and the safety of children. Yet even common sense does not lie with the City.
In what must have come as a surprise to the City, Commissioner Krimbel, the City's own witness on this subject, actually agreed with the plaintiffs' attorney that banning anyone under 18 from entering a shooting range goes too far and extends beyond legitimate safety concerns. Here's a taste: "I will give you this: I believe [the age restriction] is inartfully drafted because it seem[s] clear to me that the purpose of it is to not have kids running around unsupervised." And this: "[Y]ou might want to draft that a little bit differently" because shooting ranges are a "good place" to teach a youngster "how to fire a rifle." And this: "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.
The City is left to rely on generalized assertions about the developmental immaturity of children, the risk of lead poisoning by inhalation or ingestion, and a handful of tort cases involving the negligent supervision of children who were left to their own devices with loaded firearms. No one can disagree—and we certainly do not—that firearms in the hands of young children or unsupervised youth are fraught with serious risks to safety. Nor do we question the aim of protecting children against lead poisoning. We accept as well that the presence of young children at a firing range can be a risky distraction during target practice, even for a skilled marksman.
But the City has specific regulations aimed at containing the environmental risks, as we've already noted. And the remaining public-safety interests can be addressed by a more closely tailored age restriction—one that does not completely extinguish the right of older adolescents and teens in Chicago to learn how to shoot in an appropriately supervised setting at a firing range. As presently written, however, the City has failed to adequately justify its broad age restriction.
Judge Rovner, who generally takes a narrower view of Second Amendment protections than does the majority, agreed with the bottom line but wrote separately:
To the extent that McDonald v. City of Chicago and its progeny allow for firearm ownership within the City of Chicago, the practical argument that parents who have guns within the City limits might also wish to teach gun safety to their children is not without merit. (Although, as I noted in my concurrence in [an earlier phase of this case], "[t]here is no ban on training with a simulator and several realistic simulators are commercially available, complete with guns that mimic the recoil of firearms discharging live ammunition. It is possible that, with simulated training, technology will obviate the need for live‐range training.") And the legal argument that the outright ban is unconstitutional has merit as well.
I write separately on this point to note the limited rights of minors under the Second Amendment. Importing the concepts from First Amendment jurisprudence into this Second Amendment context, as courts have come to do, it is worth noting that the First Amendment rights of minors are limited—in some contexts far more than others. Although minors do not "'shed their constitutional rights to freedom of speech or expression at the schoolhouse gate' … the First Amendment rights of students in the public schools are 'not automatically coextensive with the rights of adults in other settings.'" And First Amendment rights are particularly limited when the interest balanced on the other side is the health and safety of minors. See Morse v. Frederick, 551 U.S. 393, 407 (2007) (upholding school's discipline of student who displayed pro‐drug banner noting that deterring drug use by schoolchildren is an "important—indeed, perhaps compelling interest" given the potential severe and permanent damage to the health and well‐being of young people); Erznoznik v. City of Jacksonville, 422 U.S. 205, 212 (1975) ("[i]t is well settled that a State or municipality can adopt more stringent controls on communicative materials available to youths than on those available to adults."); Ginsberg v. State of N.Y., 390 U.S. 629, 637 (1968) (government can prohibit sale to minors of sexually explicit material that would be available to adults).
Outside of the First Amendment context, it goes without saying that the government may restrict the rights of minors for purposes of protecting their health and welfare. A state's interest in the welfare of its young citizens justifies a variety of protective measures. Every jurisdiction in the country protects the health, safety, and welfare of minors by prohibiting them from purchasing alcohol and cigarettes, by restricting at what age they may drive and with what limitations, when they may enlist in the military and work, when they may marry, when they may gamble, how long they must attend school, and when they can enter into binding contracts. Some of these regulations, like those surrounding marriage and pregnancy, burden fundamental rights and yet have been upheld regardless of the increased scrutiny given to such laws.
In addition to the general protections noted above, states and municipalities impose laws and regulations that protect the health and safety of children in myriad specific ways, many of which interfere fairly significantly with the fundamental right of parents to make decisions concerning the care, custody, and control of their children.
For example, Illinois law requires adults to secure children under the age of eight in an approved child safety restraint while riding in vehicles. It prohibits children under the age of fourteen from being left without supervision for "an unreasonable period of time without regard for the mental or physical health, safety, or welfare of that minor." The Illinois Administrative Code even prohibits a day care facility from placing a baby to sleep in any position other than on her back, regardless of the parent's request.
Sometimes the encroachments can be severe 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.
In short, statutes, regulations, law enforcement and social services resources are employed to protect children from harm even where the risk of harm is slight or negligible. And as the majority states, "No one can disagree—and we certainly do not—that firearms in the hands of young children or unsupervised youth are fraught with serious risks to safety." I would add that firearms even in the hands of older children, even while they are supervised by trained instructors, can have deadly consequences. In one highly publicized incident on an Arizona shooting range, a nine‐year‐old girl accidentally killed her instructor, Charles Vacca, when the Uzi she was firing became too difficult for her to control, jumping out of her hand and firing a bullet into the brain of her instructor. But other recent shootings by and of children on ranges have slipped by without as much attention. In many cases the accidents did not involve high powered weapons or even a child as the shooter. In some incidents, the child at the range was killed by an adult. [Citations omitted.—EV]