Guns

Champaign (Ill.) Emergency Order Doesn't Ban Guns, But Does Authorize (Likely Unconstitutional) Emergency Gun Bans

The order activates a pre-existing ordinance, which authorizes a wide range of actions, including curfews, alcohol sales, gun sales, property seizures, and more.

|The Volokh Conspiracy |

Thursday, the mayor of Champaign (Ill.) declared an emergency, based on the coronavirus epidemic, and Friday the city council approved the declaration. This in turn triggered a 2006 ordinance that authorized the mayor to do many things, including

(2) Order a general curfew …;

(4) Order the discontinuance of the sale of alcoholic liquor by any wholesaler or retailer;

(5) Order the discontinuance of selling, distributing, or giving away gasoline or other liquid flammable or combustible products in any container other than a gasoline tank properly affixed to a motor vehicle;

(6) Order the discontinuance of selling, distributing, dispensing or giving away of explosives or explosive agents, firearms or ammunition of any character whatsoever;

(7) Order the control, restriction and regulation within the City by rationing, issuing quotas, fixing or freezing prices, allocating the use, sale or distribution of food, fuel, clothing and other commodities, materials, goods or services or the necessities of life;

(8)(a) Order City employees or agents, on behalf of the City, to take possession of any real or personal property of any person …;

(b) In the event any real or personal property is utilized by the City, the City shall be liable to the owner thereof for the reasonable value of the use or for just compensation as the case may be …;

The list goes on, but recall that this is the general grab-bag authorization from the ordinance; it's not a specific choice to include any of the provisions in this particular emergency declaration. I've seen no indication that the mayor has any plans related to blocking sales of alcohol or guns or ammunition or anything else (or for that matter seizing guns or ammunition, as part of the authorization for seizing property generally). The City Attorney specifically said "the city doesn't plan to use" these particular provisions. (The ordinance, by the way, is patterned on an Illinois statute, which dates back at least to 1988, that provides for similar emergency powers on the Governor's part, though the ordinance mentions ammunition and the statute doesn't.)

I thus think that it's a mistake to describe this—as some headlines ("Champaign Illinois First Locality To Cite 'Emergency Powers' To Ban Gun Transfers") seem to do—as a ban on gun sales, just as we wouldn't call it a ban on alcohol sales. I expect that both kinds of sales are proceeding at their normal pace, or perhaps even more than normal, notwithstanding the ordinance. The ordinance is an authorization of such bans, should the mayor conclude that an emergency requires it, and one can disapprove of that; but it's not actually a ban itself.

Now any broad order actually forbidding gun and ammunition sales and transfers (which would cover a friend seeing a bag of hundreds of rounds in his closet from the last target-shooting trip, and sharing it with relatives or friends) may well be unconstitutional. Bateman v. Perdue, a 2012 federal district court case from North Carolina struck down certain North Carolina statutes related to guns in emergencies:

The first statute, North Carolina General Statute § 14-288.7, makes it a Class 1 misdemeanor "for any person to transport or possess off his own premises any dangerous weapon or substance in any area" in which a state of emergency has been declared. The other statutes at issue in this case authorize government officials to impose further "prohibitions and restrictions[]… [u]pon the possession, transportation, sale, purchase, storage, and use of dangerous weapons and substances" during a state of emergency.

The court concluded that the Second Amendment protects guns outside the home as well as inside (a matter on which federal courts are in disagreement, though the Seventh Circuit seems to lean in the same direction as did the North Carolina federal court); and it held—correctly, I think—that both prohibitions were unconstitutional:

North Carolina General Statute § 14-288.7 prohibits the transportation or possession of both "deadly weapons" and ammunition off one's own premises. This prohibition applies equally to all individuals and to all classes of firearms, not just handguns. It is not limited to a certain manner of carrying weapons or to particular times of the day. Most significantly, it prohibits law abiding citizens from purchasing and transporting to their homes firearms and ammunition needed for self-defense….

While the bans imposed pursuant to these statutes may be limited in duration, it cannot be overlooked that the statutes strip peaceable, law abiding citizens of the right to arm themselves in defense of hearth and home, striking at the very core of the Second Amendment. As such, these laws, much like those involved in Heller, are at the "far end of the spectrum of infringement on protected Second Amendment rights."

That being the case, the emergency declaration statutes are presumed invalid, and defendants bear the burden of rebutting that presumption by showing that the laws are narrowly tailored to serve a compelling government interest. This defendants have failed to do.

There is no dispute that defendants have a compelling interest in public safety and general crime prevention. "'[P]rotecting the community from crime' by keeping guns out of the hands of dangerous persons is an important governmental interest."

The problem here is that the emergency declaration statutes, are not narrowly tailored to serve the government's interest in public safety. They do not target dangerous individuals or dangerous conduct. Nor do they seek to impose reasonable time, place and manner restrictions by, for example, imposing a curfew to allow the exercise of Second Amendment rights during circumscribed times.

Rather, the statutes here excessively intrude upon plaintiffs' Second Amendment rights by effectively banning them (and the public at large) from engaging in conduct that is at the very core of the Second Amendment at a time when the need for self-defense may be at its very greatest. See D.C. v. Heller ("[A]mericans understood the 'right of self-preservation' as permitting a citizen to 'repe[l] force by force' when 'the intervention of society in his behalf, may be too late to prevent an injury.'" (quoting Blackstone's Commentaries)). Consequently, the emergency declaration laws are invalid as applied to plaintiffs.

Gun restrictions imposed under the Champaign ordinance would thus be unconstitutional, unless perhaps they were somehow particularly "narrowly tailored" to "target[ing] dangerous individuals" or "dangerous conduct" (as opposed to merely acquiring guns or ammunition).

Nonetheless, while it's certainly worth noting that the ordinance authorizes something that's likely unconstitutional (and certainly quite burdensome on people's ability to defend themselves), there has so far been no attempt to exercise this power, and no indication that the mayor has any plans to exercise the power. We're talking about an authorization of a ban—and perhaps one that wasn't specifically intended by the Mayor and City Council right now, though it had been intended by the drafters of the ordinance and the statute on which it was based—not a ban as such.

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  1. I realize this is a catch-all list of catch-all items, and need not be invoked all together all at once. But some of them strike me as dumber than usual.

    (5) Order the discontinuance of selling, distributing, or giving away gasoline or other liquid flammable or combustible products in any container other than a gasoline tank properly affixed to a motor vehicle;

    Often that’s the only way to refuel off-road equipment such as tractors, backhoes, bulldozers, which are mighty handy in the very kinds of emergencies which would be most likely to make it hard to bring in new supplies and most in need of their services.

    (8)(a) Order City employees or agents, on behalf of the City, to take possession of any real or personal property of any person …;

    I hope they give receipts! Authorizing general theft doesn’t seem particularly narrowly crafted or to serve a compelling interest.

    1. Well, under (8)(b), “In the event any real or personal property is utilized by the City, the City shall be liable to the owner thereof for the reasonable value of the use or for just compensation as the case may be.”

      1. Thanks — more answer than my quick snark deserved 🙂

      2. “Reasonable” as defined by whom?

        1. In Illinois, just compensation for takings is determined by a jury; the Illinois Constitution provides: “Private property shall not be taken or damaged for public use without just compensation as provided by law. Such compensation shall be determined by a jury as provided by law.” I assume “reasonable value of the use” would be determined by a jury as well.

          1. What if jury trial’s are suspended because of a virus?

    2. My guess regarding (5) is that it was intended to severely curtail hoarding of fuel, a particularly useful commodity.

      1. I would have guessed, to make it harder to make Molotov cocktails in a rioting situation.

    3. The part about gasoline only being sold to motor vehicles is likely intended to prevent arson during riots. The arson-plagued City of Lynn, Massachusetts had (and may still have) a similar ordinance that was in effect 24/7.

      It’s rather asinine, not only for all of your reasons but the additional fact that a lot of “other liquid flammable or combustible products” (e.g. paint thinner, kerosene, hand sanitizer) — not only would they become useless if put into your car’s gas tank, but your car wouldn’t run very well with them in it….

  2. The problem here is that the emergency declaration statutes, are not narrowly tailored to serve the government’s interest in public safety. They do not target dangerous individuals or dangerous conduct. Nor do they seek to impose reasonable time, place and manner restrictions by, for example, imposing a curfew to allow the exercise of Second Amendment rights during circumscribed times.

    In an emergency, with public safety personnel strained to the max, a lot of conduct which would not at other times be dangerous, becomes dangerous. Instances which might distract a first-responder from an emergency task—such as calls that some nitwit is parading around with a gun to help “keep order,”—are plausibly numbered among public dangers, even though at other times they might not be. Reduction in the efficiency of public response to emergency conditions is dangerous.

    More generally, the tone of EV’s comment goes far to elevate the 2A above other constitutional powers and protections, while disregarding the emergency context. I don’t see the justification for putting the 2A out in front of everything else.

    1. So let’s ban people from otherwise normal, legal behaviour for what “might happen” in someone’s imagination. Sounds reasonable to me.

    2. “More generally, the tone of EV’s comment goes far to elevate the 2A above other constitutional powers and protections, while disregarding the emergency context. I don’t see the justification for putting the 2A out in front of everything else.”

      One reason to elevate the 2nd Amendment in an emergency situation is that during an emergency may be when the rights guaranteed by the 2nd Amendment are most needed.

      Alternatively, a reporter covering government agents during an emergency would also result in a reduction of effiency too. But having a reporter filming government agents seizing property could also be more needed uring an emergency.

      1. Harvey Mosley, reporters who cover emergencies are typically well versed in keeping out of the way. Their presence seldom results in reduced efficiency, but it can. When that happens, reporters typically get arrested, as they should be. It also sometimes happens that they get constrained, or arrested, when they they should not be. That too, goes with the job.

        EV seems to argue that gun carriers cannot be similarly constrained, because the 2A is sacred, or something.

        1. Let’s make the 2A half as sacred as your people believe killing babies and anally sodomizing other man to be.

        2. What if the nitwit in question is parading around without a gun trying to keep order? Is it your contention that someone who is not carrying a gun can not be constrained if needed? Or is it your contention that Volokh is claiming that those without guns could be constrained but those with guns couldn’t?

          Maybe I’m wrong but it seems like you are the one shouting, “But GUNS!”

          1. This is kind of the point. A person behaving illegally with a gun or without should be constrained.

            A reporter behaving illegally should also be constrained. But there need be no suspension of the first Amendment to do that.

            Any time a reporter stops emergency from personnel from doing their jobs is illegal. But sharing what the government is doing with the public should not be. We don’t need to be protected from the truth unless classified stuff is being revealed.

            1. Roman, situations are not always clear. I could not be more in agreement that reporters need broad scope to cover government, including first responders. No government policy that prohibits that should stand.

              But government actors in emergencies also need scope to do their work, and that includes controlling access to their actual workspace, however hastily created and uncertainly bounded. You don’t want a reporter trying to get a good camera angle impeding access of an emergency medical technician to a patient.

              That part is easy. Where it gets tricky is, folks who need to concentrate also don’t want their attention divided by other stuff. That other stuff very much includes bystander conduct that merely threatens to get in the way. If they have that around them, emergency workers need to divert resources to keep those threats proactively under control. Anything which threatens to increase disorder in an already out-of-control situation is justifiably treated as part of the emergency. But the need to do that imposes costs that it would be better to avoid. Hence the understandable, but too frequent, impulse of government situation managers to over-control.

              I comment from the point of view of someone who has been a reporter at a fair number of emergency scenes. I have also managed reporters, and trained them how to behave, to be sure they got what journalism required, while not adding stress to emergencies.

              While I agree that there need be no suspension of the first Amendment, from time-to-time situations arise which put guaranteed personal rights in conflict with other constitutionally legitimate functions of government. You can’t justify a rule which says the personal rights should always win those contests.

              1. “You can’t justify a rule which says the personal rights should always win those contests.”

                Where in the OP does Volokh espouse that? He’s doing the opposite by saying that a blanket law that is always in favor of the government vs. personal rights is wrong. A man walking around with a gun in a holster should not be a concern that requires the reallocation of resources. And if some hoplophobic ninny can’t handle the sight of that without getting the vapors then the hoplophobic ninny is the problem.

    3. such as calls that some nitwit is parading around with a gun to help “keep order,”

      Citing behavior that is already illegal in IL as a whole is a pretty weak in support of the need for banning the sale of firearms/ammo in general in any part thereof.

      1. “pretty weak argument”

    4. Those bitter clingers with their phallic substitutes…they’ll soon be replaced, and nobody will have to worry about them.

      /sarc

    5. “In an emergency, with public safety personnel strained to the max, a lot of conduct which would not at other times be dangerous, becomes dangerous.”

      You are looking at things backwards. Emergencies where public safety personnel are strained to the max are precisely the time when the right to keep and bear arms is at its max, because that is the time when these public safety people are least able to protect the rest of the citizenry. We know that looters and the like very often are out in force, as are other law breakers, because they know that law enforcement have more important things to do at such a time. We saw this esp around NOLA after Katrina, when armed criminals were out in force, and esp after law enforcement started disarming the law abiding gun owners.

      I will submit that it is almost impossible to find a compelling state interest in disarming law abiding citizens, at a time when law enforcement is unable to protect the citizenry, and law abiding citizens need their arms to protect themselves against the heightened criminality that often results from such a dangerous situation. Moreover, such a blanket ban could never legitimately be narrowly tailored, if most of those swept into the ban are law abiding citizens.

    6. “ Instances which might distract a first-responder from an emergency task—such as calls that some nitwit is parading around with a gun to help “keep order,”—are plausibly numbered among public dangers, even though at other times they might not be. Reduction in the efficiency of public response to emergency conditions is dangerous.”

      Woefully short as a compelling state interest. That you may be scared by someone trying to keep order because they are armed is completely on you. Your fear is not a compelling state interest, but rather your own phobia. I, for one, would probably feel more secure, not less so seein that, and maybe even volunteer to help. A reminder, that the 2nd Amdt says that the right no keep and bear arms shall not be infringed, and not that your right not to be scared by people keeping and bearing arms that shall not be infringed.

      1. Bruce, you write as if you are talking about an action movie—set in a courtroom, and directed by lawyers. That is unrealistic.

        In the movies, the law-abiding folks are evident, and easily distinguished from the others. The plot tends toward predictable conflicts between the forces of good and the forces of evil, and those conflicts come at easily-anticipated times and places. The audience always gets optimal insight—as the action develops—from a camera position carefully selected to deliver a commanding view of everything that matters.

        That is all fantasy. It has nothing to do with real-life experience. In real life, no one can tell in advance which strangers are law abiding and which are not. Nothing about the scene is predictable. Many participants will be in less-than-optimal condition for the demands placed upon them. All will be taken by surprise. Judgment will be clouded by uncertainty, and fear, among other things. Chaos will reign.

        I have a suggestion. Use a different, more realistic, standard of comparison. Do you want to understand the way armed people actually interact in uncertain situations? Look to history. Get yourself any good history of modern armed combat, from WWII onward. You need an author who gets down to the level of individual combat experience. Here are two examples which might help: We Were Soldiers Once and Young, by Lt. Gen. Harold G. Moore (Ret.) and war journalist Joseph L. Galloway; and, D-Day: The Battle for Normandy, by Antony Beevor.

        Again and again, in those books, you find armed good guys chaotically killing each other. They do it because they don’t know what’s going on; they do it because they are jumpy; they do it because someone is riding in the wrong kind of vehicle; they do it because smoke markers are the wrong color; they do it because it is dark, they don’t see, and they shoot anyway; they do it because the order not to do it did not arrive; they do it because they become convinced that the good guys they see must be convinced that they are bad guys, so the only thing to do is shoot the other good guys first, before the other good guys shoot them; they do it because, under stress, good guys can turn into bad guys, and kill innocents indiscriminately; and on and on. And none of that is rare or exceptional. It is the rule of modern combat, as experienced among professionally trained and professionally led soldiers, under military discipline, conducting missions which have been planned in advance, and thoroughly briefed.

        It really is time to dismiss the outlandish fantasies of gun enthusiasts—that they will make important social contributions by preparing for, and actually engaging in, armed combat during crises and emergencies. Please, no more of that, until you show some sign of at least trying to understand what combat is actually like. Turn off the TV, put down Guns and Ammo, and read some history instead.

        1. And you’re writing as though the government was guaranteed to be the good guys in an emergency. When the whole point of having a Bill of Rights, never mind just the 2nd amendment, is that the government will sometimes want to do the wrong thing.

        2. “Use a different, more realistic, standard of comparison. Do you want to understand the way armed people actually interact in uncertain situations? Look to history. Get yourself any good history of modern armed combat, from WWII onward. You need an author who gets down to the level of individual combat experience. Here are two examples which might help: We Were Soldiers Once and Young, …”

          Hmmmm…. your deductive skills lead you to the conclusion that a natural disaster in society where people are armed leads to the battle of the Ia Drang valley. I guess it’s a good thing that we’ve never had a hurricane or influenza pandemic anyplace where any substantial fraction of the population had access to weapons, or it would have been really bad.

    7. such as calls that some nitwit is parading around with a gun to help “keep order,”—are plausibly numbered among public dangers,

      Then maybe they should outlaw people from calling to report that people are parading around with guns.

    8. “More generally, the tone of EV’s comment goes far to elevate the 2A above other constitutional powers and protections, while disregarding the emergency context”

      Not to worry, there are already people talking about eliminating the 1A as well, preventing everyone other than “authorized officials” from commenting on the Wuhan Virus, or even calling it that.

      And I wouldn’t be surprised to see an attack on the Third Amendment before this was all over.

      Never forget that Hitler won a basically-fair election in 1933….

      1. The Nazis never approached a majority in any election. So by U.S. political standards, it is misleading to claim the Nazis, “won.” Because the German political system worked differently, Hitler’s 1933 plurality put him in a position to leverage alliances with other parties to the Nazi’s advantage. Hitler was greatly assisted in doing that by catastrophic failures of judgment among other politicians, who underrated his ambition, audacity, and ruthlessness. Those latter qualities are far more telling in the tale of Hitler’s rise than any election statistics.

        1. > The Nazis never approached a majority in any election.

          They didn’t need to, in order to win. Just like the electoral college in the U.S. means you don’t need a majority to win.

  3. If you have to ask if one is, by carrying a concealed firearm, “parading around with a gun”, then you’re wasting breathe those who might say it is so.

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