Here’s a pro tip for government lawyers: You shouldn’t endeavor to eliminate indirectly those constitutional rights you can’t eliminate directly.
Someone needs to explain this rather basic legal reality to the city of Chicago. Yesterday, the Seventh Circuit Court of Appeals struck down yet another series of Chicago laws that transparently and clumsily attempted to circumvent the Second Amendment and controlling legal precedent protecting the rights of Chicago citizens to own handguns for self-defense.
It’s a battle that’s been raging for almost a decade. It began in 2008, just after the Supreme Court decided District of Columbia v. Heller, the case that recognized the rather obvious fact that the Second Amendment protects an individual right to keep and bear arms. In light of the Heller decision, Otis McDonald and three other plaintiffs filed suit to challenge Chicago’s near-total ban on private possession of handguns.
In 2010, McDonald won his case. The Supreme Court held that the Second Amendment was “fully applicable” to the states and protected the right to keep and bear arms from intrusive state and local laws. Chicago’s handgun ban was thus plainly unconstitutional.
But rather than comply with the Constitution, Chicago went back to the drawing board, this time constructing a new, indirect ban. As summarized by the Seventh Circuit, the city allowed residents to possess a handgun if they had a lawful permit, required range training as a prerequisite to getting a permit, and then banned firing ranges from operating in the city.
Rhonda Ezell and two other Chicago residents sued, and in 2011, they won. As Judge Ilana Rovner wrote, Chicago’s range-training requirement was “not so much a nod to the importance of live-range training as it was a thumbing of the municipal nose at the Supreme Court.” The city could not create a requirement for exercising a right and then ban from the city the means of meeting that requirement.
Chicago, however, was hardly done defying the judiciary. In response to the 2011 case, the city created yet another elaborate series of regulations, this time allowing firing ranges only in manufacturing districts, banning them from operating within 100 feet of each other or 500 feet of a residential district, school, or church, and banning anyone under age 18 from entering them. As a result, “Only 2.2 percent of the city’s total acreage is even theoretically available” for a shooting range “and the commercial viability of any of these parcels is questionable — so much so that no shooting range yet exists.”
Yesterday, Rhonda Ezell won again. The Court was particularly unimpressed with the fact that Chicago simply states that it has interests in “preventing crime, protecting the environment, and preventing,” without bothering to prove that ranges cause “increased crime,” “airborne lead contamination,” and a “greater risk of fire.”
The city’s bad faith was obvious:
The City’s own witnesses testified to the lack of evidentiary support for these assertions. They repeatedly admitted that they knew of no data or empirical evidence to support any of these claims. Indeed, 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.
At every turn, the city merely asserted that its regulations were justifiable without actually bothering to justify them, because it couldn’t justify them.
When it comes to the Second Amendment, Chicago is hardly unique. The District of Columbia has waged its own long battle against Heller, and even after the Supreme Court’s decision, it has remained extraordinarily difficult to legally possess a handgun in the city. The result is a citizenry that largely lacks the capacity to defend itself against a criminal class that is killing men and women by the hundreds.
Cities treat gun rights like universities treat rights to free speech, free association, due process, and religious liberty.
Cities can engage in this kind of long-term resistance, losing case after case with little consequence, because of a quirk in the law that other liberal institutions exploit with impunity: It’s difficult to quantify the monetary value of a constitutional right, so damage awards for constitutional violations are often low or nonexistent. Yes, plaintiffs can obtain injunctions, but significant monetary awards are rare. The only real financial penalty is the requirement that losing cities pay the plaintiffs’ attorneys’ fees, which are insignificant sums given the vast size of city budgets.
Thus, cities treat gun rights like universities treat rights to free speech, free association, due process, and religious liberty. They defy the law, wait to be sued, fight for years, write small attorney-fee checks when they lose, and wait to be sued again. Not even the judiciary possesses the tools necessary to truly check abusive government power.
It’s time to close the loophole. It’s time to impose real costs for violations of our most fundamental constitutional rights. The most important task of government at any level in the United States is to protect the liberty of its citizens. A government or public entity that repeatedly violates the rights secured in the Bill of Rights simply doesn’t deserve taxpayer support, and it’s past time to link federal funding to the protection of individual liberty.
There is a new Congress, and tomorrow there will be a new president. Will there be new resolve to defend the Constitution? Let’s hope so.