Federal Judge Strikes Down Chicago Ban On Handgun Sales
A Federal District Court in Chicago has struck down the a provision of the Chicago code which provides that “”No Firearm May Be Sold, Acquired or Otherwise Transferred Within [Chicago], Except Through Inheritance.” The law was actually passed by the City of Chicago in response to the Court decisions in McDonald v. Chicago, in which the Supreme Court struck down what had already been one of the most restrictive handgun laws in the country. The new law included both the sales restrictions dealt with by the Court in the decision issued yesterday, and provisions that limit the possession of legal handguns inside the home which appear to strike at the very heart of the Heller decision. Those provisions appear to be part of a separate law suit, but the sales restrictions are, at least as far as Judge Edmond Chang, an Obama appointee who has sat on the Federal Bench since the end of 2010, is concerned completely unconstitutional:
CHICAGO — This city’s ban on gun shops violates the Constitution, a federal judge ruled on Monday, dealing the latest setback to politicians here who had put in place some of the nation’s strictest limits on firearms.
“The stark reality facing the city each year is thousands of shooting victims and hundreds of murders committed with a gun,” the judge, Edmond E. Chang, of Federal District Court for the Northern District of Illinois, wrote. “But on the other side of this case is another feature of government: certain fundamental rights are protected by the Constitution, put outside government’s reach, including the right to keep and bear arms for self-defense under the Second Amendment.”
The judge stayed his ruling, giving the city a chance to appeal, and said it could still enact regulations on the sale and transfer of weapons if they did not amount to a complete ban.
Mayor Rahm Emanuel strongly disagreed with the judge’s finding against the ban and directed the city’s lawyers to “consider all options to better regulate the sale of firearms within the city’s borders,” said Roderick Drew, a spokesman for the city’s law department.
Chicago, which has wrestled with gang-related violence and more killings in recent years than in the larger cities of New York and Los Angeles, had for decades banned handguns within city limits. But in 2010, the United States Supreme Court ruled that the city went too far, prompting leaders here to settle for new limits, including outlawing the sale of firearms in the city.
Several residents and an association of Illinois firearms retailers filed a lawsuit, leading to Judge Chang’s decision. “Chicago’s ordinance goes too far in outright banning legal buyers and legal dealers from engaging in lawful acquisitions and lawful sales of firearms,” the judge wrote, “and at the same time the evidence does not support that the complete ban sufficiently furthers the purposes that the ordinance tries to serve.”
Gun rights advocates said they hoped the ruling would send a message to Chicago and other cities setting similar limits. “Just because people live in Chicago doesn’t mean they’ve given up their rights,” said Richard Pearson, the executive director of the Illinois State Rifle Association. Even with Chicago’s ban on sales, officials have long complained about the patchwork of laws that allowed guns to be obtained in neighboring states and suburbs.
As Eugene Volokh notes, Chang relies heavily on the McDonald and District of Columbia v. Heller decisions, as well as Ezell v. City of Chicago, 651 F.3d 684, a 2011 decision from the 7th Circuit Court of Appeals in which the Court had struck down a ban on gun ranges within Chicago’s city limits, in determining that the right protected by the Second Amendment includes not just the right to own such weapons, but, by definition, also the right to acquire those weapons:
The City argues in response that these ordinances do not ban acquisition, but merely regulate where acquisition may occur. Defs.’ Br. at 23. It is true that some living on the outskirts of the City might very well currently live closer to gun stores now than they would absent these ordinances. But Ezell makes clear that this type of argument “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.” 651 F.3d at 697. It was no answer there that plenty of gun ranges were located in the neighboring suburbs, or even right on the border of Chicago and the suburbs. Instead, the Seventh Circuit drew on First Amendment jurisprudence to reason that Second Amendment rights must be guaranteed within a specified geographic unit—be it a city or a State. See id. (“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.’” (quoting Schad v. Borough of Mt. Ephraim, 452 U.S. 61, 76-77 (1981))).5
Indeed, this reasoning makes sense, because if all cities and municipalities can prohibit gun sales and transfers within their own borders, then all gun sales and transfers may be banned across a wide swath of the country if this principle is carried forward to its natural conclusion. Therefore, just as in Ezell, where the fact “[t]hat residents may travel outside the jurisdiction to fulfill the training requirement is irrelevant to the validity of the ordinance inside the City,” id. at 712 (Rovner, J., concurring in the judgment), so too here: the fact that Chicagoans may travel outside the City to acquire a firearm does not bear on the validity of the ordinance inside the City.
The City, however, does supply a reason: it contends that inner-city gang members and criminals find it hard to travel to the suburbs, thus making it more difficult for them or their likely straw purchasers to shop at gun stores. See DSOF ¶ 78. Dr. Philip Cook, one of the City’s experts, attributes this travel difficulty to the ”parochial[ism]” of gang members, and CPD Commander Gorman believes that making the trip to the suburbs is dangerous for gang members because they may have to cross rival gang boundaries both in Chicago and in the suburbs. Id. So through these ordinances, Chicago intentionally increases the distance that Chicagoans have to travel to get to gun stores in order to tack on extra transaction costs (measured in time, effort and danger) to any criminal attempt to buy guns. These extra transaction costs, the argument goes, deter would-be criminals from buying guns.
But these transaction costs are also borne by law-abiding residents of these neighborhoods, who are equally parochial and may suffer many of the same dangers by crossing into gang-infested territory. See Pls.’ Resp. DSOF ¶¶ 78-A, 78-B. So whatever burdens the City hopes to impose on criminal users also falls squarely on law-abiding residents who want to exercise their Second Amendment right. What’s more, it is doubtful that keeping criminal users away from legitimate retail stores will choke the supply of guns to those users. According to a survey of convicted felons proffered by the City itself, “[l]egitimate firearms retailers play a minor and unimportant role as direct sources of the criminal handgun supply.”
Thus, it is likely that residents who seek to legally buy a gun bear more of the share of the added transaction costs in time, effort, and danger than gang members or would-be criminals, who rarely buy guns from legitimate dealers directly. Given the close fit between justification and means that the City must demonstrate, it cannot justify its ban on legitimate gun sales and transfers with over inclusive means that impact more law-abiding citizens than criminals. And without a valid explanation for how its chosen means actually achieves its goal of reducing criminal access to guns, the City’s first justification fails
It is true that, with a sales-and-transfer ban, the Chicago police would not have to worry about investigating burglaries of gun dealers or devoting manpower to preventing those burglaries. But a blanket ban on all gun dealers to solve the burglary problem sweeps too broadly. To address the City’s concern that gun stores make ripe targets for burglary, the City can pass more targeted ordinances aimed at making gun stores more secure — for example, by requiring that stores install security systems, gun safes, or trigger locks …. Or the City can consider designating special zones for gun stores to limit the area that police would have to patrol to deter burglaries. Such regulations would be a far closer fit with the City’s desired goal of reducing burglaries at gun stores, as opposed to a blanket ban on the operation of all gun stores (even the most secure ones) within Chicago. The general danger that some gun stores may pose does not justify banning all gun sales and transfers within Chicago….
In sum, given the rigorous showing that Ezell demands, the City has not demonstrated that allowing gun sales and transfers within city limits creates such genuine and serious risks to public safety that flatly prohibiting them is justified.
On the whole, it seems to me that Judge Chang has gotten it pretty much correct here. Given the fact that the Supreme Court has recognized that, at the first least, the Second Amendment includes the right to keep a firearm in their home for self-defense, it seems absurd for the City of Chicago to say that they ought to be able to outright ban all sales of those handguns inside the city limits, including those conducted via a federally licensed firearms dealer such as the owner of any gun store must be. In his opinion, Judge Chang examines each of the arguments advanced by the City and finds, correctly it seems, that there are less restrictive means by which the goals that the city claims that it is concerned with can be achieved, This is expecially true given the fact, as Judge Chang notes, that most of the crime committed in the City of Chicago is committed using illegally acquired weapons and that criminals are highly unlikely to attempt to acquire their weapons via legitimate means like going to a local gun stores, because they are unlikely to be able to pass the criminal background check that would be necessary to complete such a transaction. Therefore, the only people who are really harmed by the ban are law abiding people in Chicago who desire to obtain a weapon for the purposes permitted by Heller and McDonald, and the people who wish to sell to them.
The next step for this case, of course, will be the 7th Circuit Court of Appeals, where both Chicago and the State of Illinois have found their restrictive gun laws called into question in recent years, and, if it accepts the case, the Supreme Court if one side or the other chooses to take the case that far. Given that Chicago has not seen its gun laws fare well it Court in recent years, it seems rather obvious where this case is headed in this end.
Here’s the opinion: