Rhonda Ezell v. City of Chicago

In the
United States Court of Appeals
For the Seventh Circuit
No. 10-3525
R HONDA E ZELL, et al.,
Plaintiffs-Appellants,
v.
C ITY OF C HICAGO,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 10 cv 5135—Virginia M. Kendall, Judge.
A RGUED A PRIL 4, 2011—D ECIDED JULY 6, 2011
Before K ANNE, R OVNER, and S YKES, Circuit Judges.
S YKES, Circuit Judge. For nearly three decades, the
City of Chicago had several ordinances in place
“effectively banning handgun possession by almost all
private citizens.” McDonald v. City of Chicago, 130 S. Ct.
3020, 3026 (2010). In 2008 the Supreme Court struck
down a similar District of Columbia law on an original-
2 No. 10-3525
meaning interpretation of the Second Amendment.1
District of Columbia v. Heller, 554 U.S. 570, 635-36 (2008).
Heller held that the Amendment secures an individual
right to keep and bear arms, the core component of
which is the right to possess operable firearms—
handguns included—for self-defense, most notably in
the home. Id. at 592-95, 599, 628-29.
Soon after the Court’s decision in Heller, Chicago’s
handgun ban was challenged. McDonald, 130 S. Ct. at
3027. The foundational question in that litigation was
whether the Second Amendment applies to the States
and subsidiary local governments. Id. at 3026. The
Supreme Court gave an affirmative answer: The
Second Amendment applies to the States through the
Due Process Clause of the Fourteenth Amendment. Id.
at 3050. In the wake of McDonald, the Chicago City
Council lifted the City’s laws banning handgun posses-
sion and adopted the Responsible Gun Owners
Ordinance in their place.
The plaintiffs here challenge the City Council’s treat-
ment of firing ranges. The Ordinance mandates one
hour of range training as a prerequisite to lawful gun
ownership, see C HI. M UN. C ODE § 8-20-120, yet at the
same time prohibits all firing ranges in the city, see id.
1
The Second Amendment provides: “A well regulated Militia,
being necessary to the security of a free State, the right of the
people to keep and bear Arms, shall not be infringed.” U.S.
C ONST . amend. II.
No. 10-3525 3
§ 8-20-080. The plaintiffs contend that the Second Amend-
ment protects the right to maintain proficiency in
firearm use—including the right to practice marks-
manship at a range—and the City’s total ban on firing
ranges is unconstitutional. They add that the Ordinance
severely burdens the core Second Amendment right to
possess firearms for self-defense because it conditions
possession on range training but simultaneously
forbids range training everywhere in the city. Finally,
they mount a First Amendment challenge to the
Ordinance on the theory that range training is protected
expression. The plaintiffs asked for a preliminary injunc-
tion, but the district court denied this request.
We reverse. The court’s decision turned on several legal
errors. To be fair, the standards for evaluating Second
Amendment claims are just emerging, and this type
of litigation is quite new. Still, the judge’s deci-
sion reflects misunderstandings about the nature of the
plaintiffs’ harm, the structure of this kind of constitutional
claim, and the proper decision method for evaluating
alleged infringements of Second Amendment rights. On
the present record, the plaintiffs are entitled to a prelimi-
nary injunction against the firing-range ban. The harm
to their Second Amendment rights cannot be remedied
by damages, their challenge has a strong likelihood of
success on the merits, and the City’s claimed harm to
the public interest is based entirely on speculation.
4 No. 10-3525
I. Background
A. Chicago’s Responsible Gun Owners Ordinance
The day after the Supreme Court decided McDonald,
the Chicago City Council’s Committee on Police and Fire
held a hearing to explore possible legislative responses
to the decision. A Chicago alderman asked the City’s
legal counsel what could be done about firearms posses-
sion and other gun-related activity in the city, including
shooting ranges. The City’s Corporation Counsel replied
that the Council could “limit what we allow to operate
in our city however is reasonable as decided by the
City Council.”
The Committee quickly convened hearings and took
testimony about the problem of gun violence in Chicago.
Witnesses included academic experts on the issue of gun
violence in general; community organizers and gun-
control advocates; and law-enforcement officers, in-
cluding Jody Weis, then the Superintendent of the
Chicago Police Department. Based on these hearings,
the Committee made recommendations to the City
Council about how it should regulate firearm posses-
sion and other firearm-related activity.
The Council immediately took up the Committee’s
recommendations and, just four days after McDonald was
decided, repealed the City’s laws banning handgun
possession and unanimously adopted the Responsible
Gun Owners Ordinance. See Nat’l Rifle Ass’n of Am., Inc. v.
City of Chicago, Ill., Nos. 10-3957, 10-3965 & 11-1016, 2011
WL 2150785, at *1 (7th Cir. June 2, 2011). The new Ordi-
No. 10-3525 5
nance—a sweeping array of firearm restrictions—took
effect on July 12, 2010. To give a sense of its scope:
The Ordinance prohibits handgun possession outside the
home, C HI. M UN. C ODE § 8-20-020, and the possession
of long guns outside the home or the owner’s fixed place
of business, id. § 8-20-030. It forbids the sale or other
transfer of firearms except through inheritance or
between peace officers. Id. § 8-20-100. A person may
have “no more than one firearm in his home assembled
and operable.” Id. § 8-20-040. The Ordinance bans
certain kinds of firearms, including assault weapons
and “unsafe handgun[s],” as well as certain firearm
accessories and types of ammunition. Id. §§ 8-20-060, 8-20-
085, 8-20-170.
The Ordinance also contains an elaborate permitting
regime. It prohibits the possession of any firearm
without a Chicago Firearm Permit. C HI. M UN. C ODE § 8-20-
110(a). (Certain public-safety and private-security pro-
fessionals are exempt.) In addition, all firearms must
have a registration certificate, and to register a firearm, the
owner must have a valid Permit.2 Id. at § 8-20-140(a), (b).
2
Once issued, a Chicago Firearm Permit is valid for three years.
C HI. M UN . C ODE § 8-20-130(a). Any registration certificate
expires with the Permit. The Permit fee is $100; the registra-
tion certificate fee is $15. Id. §§ 8-20-130(b), 8-20-150(a). An
application for a registration certificate must be submitted
“no later than 5 business days after a person takes possession
within the city of a firearm from any source,” id. § 8-20-140(d),
and registration certificates are subject to an annual reporting
(continued...)
6 No. 10-3525
To apply for a Permit, a person must have an Illinois
Firearm Owner’s Identification Card. Id. § 8-20-110(b)(2).
Only those 21 years of age or older may apply for a
Permit, except that a person between the ages of 18 and 20
may apply with the written consent of a parent or legal
guardian if the parent or guardian is not prohibited from
having a Permit or a Firearm Owner’s Identification
Card. Id. § 8-20-110(b)(1). Persons convicted of certain
crimes may not obtain a Permit. Id. § 8-20-110(b)(3) (dis-
qualifying persons convicted of any violent crime, a
second or subsequent drunk-driving offense, or an
offense relating to the unlawful use of a firearm). Other
lawsuits challenging these and other provisions of the
Ordinance are currently pending in the District Court
for the Northern District of Illinois. See, e.g., Second Amend-
ment Arms v. City of Chicago, No. 10 C 4257 (N.D. Ill. filed
July 9, 2010); Benson v. City of Chicago, No. 10 C 4184
(N.D. Ill. filed July 6, 2010).
As relevant here, permits are conditioned upon com-
pletion of a certified firearm-safety course. Applicants
must submit an affidavit signed by a state-certified
firearm instructor attesting that the applicant has com-
pleted a certified firearm-safety and training course that
provides at least four hours of classroom instruction
2
(...continued)
requirement, id. § 8-20-145(c). Failure to file an annual report
regarding each registered firearm “may result” in revocation
of the owner’s registration certificate, his Permit, or both. Id. § 8-
20-145.
No. 10-3525 7
and one hour of range training. 3 C HI. M UN. C ODE § 8-20-
120(a)(7). At the same time, however, the Ordinance
prohibits all “[s]hooting galleries, firearm ranges, or any
other place where firearms are discharged.” Id. § 8-20-280.
The Ordinance also prohibits the “discharge [of]
any firearm within the city,” making no exception
for controlled shooting at a firing range—because, of
course, firing ranges are banned throughout the city.4
Id. § 8-24-010.
Violations are punishable by a fine of $1,000 to $5,000
and incarceration for a term of “not less than 20 days
nor more than 90 days,” and “[e]ach day that such viola-
tion exists shall constitute a separate and distinct of-
fense.” C HI. M UN. C ODE § 8-20-300(a), (b). The penalties
go up for subsequent convictions. Id. § 8-20-300(b) (For
“[a]ny subsequent conviction,” the penalty is a fine of
$5,000 to $10,000 and incarceration for a term of “not
less than 30 days, nor more than six months.”).
The firing-range ban does not apply to governmental
agencies. Id. § 8-20-280. The federal government operates
3
The Ordinance provided a 90-day “grandfathering” period
after its effective date during which previously acquired
firearms could be registered. C HI. M UN . C ODE § 8-20-140(d)(2).
To take advantage of this provision, a firearm owner had
to complete all of the prerequisites for a Permit, including
a firearm-safety course with one hour of range training.
4
There are exceptions for discharging a firearm in self-defense
or in defense of another, and also for game-bird hunting
in certain limited areas of the city. Id. § 8-24-010.
8 No. 10-3525
four indoor firing ranges in Chicago, and the Chicago
Police Department operates five. Apparently, the City
also exempts private security companies; there are
two indoor firing ranges operated by private security
companies in Chicago.5
B. The Litigation
The plaintiffs are three Chicago residents, Rhonda
Ezell, William Hespen, and Joseph Brown; and three
organizations, Action Target, Inc.; the Second Amend-
ment Foundation, Inc.; and the Illinois State Rifle Associa-
tion. Action Target designs, builds, and furnishes
firing ranges throughout the United States and
would like to do so in Chicago. The Second Amendment
Foundation and the Illinois Rifle Association are
nonprofit associations whose members are firearms
enthusiasts; among other activities, these organizations
advocate for Second Amendment rights and have made
arrangements to try to bring a mobile firing range to
Chicago.
5
We say “apparently” because it is not clear whether the
exception allowing private security companies to operate
firing ranges is codified. The Ordinance contains an exemp-
tion for private security contractors at section 8-20-020(b), but
this exemption appears to apply only to the provision of the
Ordinance making it “unlawful for any person to carry or
possess a handgun, except when in the person’s home,” id.
§ 8-20-020(a), not to section 8-20-280, the provision banning
firing ranges.
No. 10-3525 9
The plaintiffs sought a temporary restraining order
(“TRO”), a preliminary injunction, and a permanent
injunction against the City’s ban on firing ranges, and
corresponding declaratory relief invalidating the ban.
The district court twice denied a TRO, finding that the
plaintiffs were not irreparably harmed. The parties con-
ducted expedited discovery, and the court held a two-day
hearing on the preliminary-injunction motion. The plain-
tiffs presented the testimony of representatives of Action
Target, the Second Amendment Foundation, and the
Illinois Rifle Association. Declarations from the three
individual plaintiffs were already in the record, so they
did not testify.
The City called two witnesses: Sergeant Daniel Bartoli,
a former rangemaster for the Chicago Police Department,
and Patricia Scudiero, Chicago’s Zoning Commissioner.
Bartoli testified that firing ranges can carry a risk of
injury from unintentional discharge and raised concerns
about criminals seeking to steal firearms from range
users. He also explained the possible problem of con-
tamination from lead residue left on range users’ hands
after shooting. He identified various measures that a
firing range should take to reduce these risks. To
prevent theft, he said a range should have a secure
parking lot and only one entrance into its facilities. To
avoid injury from unintentional discharge, a range
should provide a separate location for the loading and
unloading of firearms and should erect a permanent,
opaque fence to deter bystanders from congregating
around the facility. He also said a range should have
running water onsite so users can wash lead residue
from their hands after shooting.
10 No. 10-3525
Scudiero testified that Chicago’s zoning code prohibits
all property uses not expressly permitted and contains
no provision for gun ranges. 6 If firing ranges were
added as a permitted use, she said they should be classi-
fied as an “intensive use” under the Code. An “intensive
use,” she explained, is a use “that could pose a threat to
the health, safety and welfare” of city residents and
therefore may be located only in a manufacturing
district; even then, intensive uses are allowed only by
special-use permit, not presumptively. On cross-examina-
tion Scudiero admitted she has never been to a firing
range. She acknowledged as well that the governmental
firing ranges within the city are not limited to manu-
facturing districts; they are located near churches, schools,
university buildings, residential housing, a county court-
house, retail stores, and parks. She has not received
any complaints from the public about these ranges.
The City introduced evidence that there are 14 firing
ranges open to the public and located within 50 miles
of its borders. Of these, seven are located within
6
See C HI . M UN . C ODE §§ 17-2-0204 (Residential Districts
section stating: “Uses that are not listed in the [corresponding
use] table are . . . prohibited.”), 17-3-0204 (Business & Com-
mercial Districts section stating the same), 17-4-0204 (Down-
town Districts section stating the same), 17-5-0204 (Manu-
facturing Districts section stating the same), 17-6-0403-C
(Special Purpose Districts section stating the same). Apparently,
the City does not interpret the “Sports and Recreation” special-
use category allowed in manufacturing districts, see id.
§ 17-5-0207, to include firing ranges.
No. 10-3525 11
25 miles of the city, and five are located within 5 miles of
the city.
Because the legal issues in the case had been fully
briefed, the plaintiffs asked the court to consider the
preliminary-injunction hearing as a trial on the merits.
See F ED. R. C IV. P. 65(a)(2) (permitting the court to
“advance the trial on the merits and consolidate it
with the [preliminary-injunction] hearing”). The court
declined to do so and took the matter under advisement.
C. The Decision Below
Soon after the hearing, the district court issued a
decision denying preliminary injunctive relief because
the plaintiffs were neither irreparably harmed nor likely
to succeed on the merits. The court’s decision is a bit
hard to follow; standing and merits inquiries are mixed
in with the court’s evaluation of irreparable harm. As
we will explain, the court made several critical legal
errors. To see how the decision got off-track requires
that we identify its key holdings.
The judge began by “declin[ing] to adopt the inter-
mediate scrutiny standard” of review, but held in the
alternative that “even if” intermediate scrutiny applied,
the “[p]laintiffs still fail to meet their burden of demon-
strating irreparable harm.” The judge said the organiza-
tional plaintiffs “do not have the necessary standing to
demonstrate their irreparable harm” because “Heller and
McDonald addressed an individual’s right to possess a
firearm” but “did not address an organization’s right.”
Again, the court purported to enter an alternative
12 No. 10-3525
holding: “Even if” the organizations had standing to
assert a claim under Heller and McDonald, they “failed to
present sufficient evidence . . . that their constituency has
been unable to comply with the statute.” The court held
that none of the plaintiffs were suffering irreparable
harm because the injury in question was limited to the
minor cost and inconvenience of having to travel outside
the city to obtain the range training necessary to qualify
for a Permit and money damages would be sufficient
to compensate the plaintiffs for this travel-related injury
if they ultimately prevailed.
On the plaintiffs’ likelihood of success on the merits,
the judge was skeptical that the firing-range ban
violated anyone’s Second Amendment rights: “Sug-
gesting that firing a weapon at a firing range is tanta-
mount to possessing a weapon within one’s residence
for self-defense would be establishing law that has not
yet been expanded to that breadth.” If the Second Amend-
ment was implicated at all, the judge characterized the
claim as a minor dispute about an inconvenient permit
requirement: “[T]he [c]ity’s boundaries are merely
artificial borders allegedly preventing an individual
from obtaining a [firearm] permit . . . .” The court con-
cluded that the City’s evidence about “stray bullets,”
potential theft, and lead contamination was sufficient
to show that “the safety of its citizens is at risk when
compared to the minimal inconvenience of traveling
outside of the [c]ity for a one-hour course.”
Finally, the judge concluded that the balance of
harms favored the City because the “potential harmful
No. 10-3525 13
effects of firing ranges” outweighed any inconvenience
the plaintiffs might experience from having to travel to
ranges outside of Chicago. The court summarily
rejected the plaintiffs’ First Amendment claim, finding it
underdeveloped. Alternatively, the court held that the
range ban did not appear to implicate any expressive
message.
The plaintiffs appealed. See 28 U.S.C. § 1292(a)(1) (autho-
rizing immediate appeal of a decision granting or
denying injunctive relief).
II. Analysis
To win a preliminary injunction, a party must show that
it has (1) no adequate remedy at law and will suffer
irreparable harm if a preliminary injunction is denied and
(2) some likelihood of success on the merits. See Christian
Legal Soc’y v. Walker, 453 F.3d 853, 859 (7th Cir. 2006);
Joelner v. Vill. of Wash. Park, 378 F.3d 613, 619 (7th
Cir. 2004); Abbott Labs. v. Mead Johnson & Co., 971 F.2d 6,
11-12 (7th Cir. 1992). If the moving party meets these
threshold requirements, the district court weighs the
factors against one another, assessing whether the bal-
ance of harms favors the moving party or whether
the harm to the nonmoving party or the public is suffi-
ciently weighty that the injunction should be denied.
Christian Legal Soc’y, 453 F.3d at 859. We review the
court’s legal conclusions de novo, its findings of fact
for clear error, and its balancing of the injunction
factors for an abuse of discretion. Id.
14 No. 10-3525
The district court got off on the wrong foot by
accepting the City’s argument that its ban on firing
ranges causes only minimal harm to the plain-
tiffs—nothing more than the minor expense and incon-
venience of traveling to one of 14 firing ranges
located within 50 miles of the city limits—and this harm
can be adequately compensated by money dam-
ages. This characterization of the plaintiffs’ injury fun-
damentally misunderstands the form of this claim
and rests on the mistaken premise that range training
does not implicate the Second Amendment at all, or at
most only minimally. The City’s confused approach to
this case led the district court to make legal errors on
several fronts: (1) the organizational plaintiffs’ standing;
(2) the nature of the plaintiffs’ harm; (3) the scope of the
Second Amendment right as recognized in Heller and
applied to the States in McDonald; and (4) the structure
and standards for judicial review of laws alleged to
infringe Second Amendment rights.
A. Standing
We start with the organizational plaintiffs’ standing.
Article III restricts the judicial power to actual “Cases” and
” Controversies,” a limitation understood to confine the
federal judiciary to “the traditional role of Anglo-
American courts, which is to redress or prevent actual or
imminently threatened injury to persons caused by
private or official violation of the law.” Summers v. Earth
Island Inst., 129 S. Ct. 1142, 1148 (2009); see also Lujan v.
Defenders of Wildlife, 504 U.S. 555, 559-60 (1992); U.S. C ONST.
No. 10-3525 15
art. III, § 1. The doctrine of standing enforces this limita-
tion. Summers, 129 S. Ct. at 1149; Lujan, 504 U.S. at 559-60.
“Standing exists when the plaintiff suffers an actual or
impending injury, no matter how small; the injury is
caused by the defendant’s acts; and a judicial decision in
the plaintiff’s favor would redress the injury.” Bauer v.
Shepard, 620 F.3d 704, 708 (7th Cir. 2010) (citing Summers,
129 S. Ct. 1142, and Steel Co. v. Citizens for a Better Env’t,
523 U.S. 83 (1998)).
We note first that the district court did not address
the individual plaintiffs’ standing, probably because it
is not in serious doubt. Ezell, Hespen, and Brown are
Chicago residents who own firearms and want to main-
tain proficiency in their use via target practice at
a firing range. Ezell is the victim of three attempted
burglaries and applied for a Chicago Firearm Permit to
keep a handgun in her home for protection. Hespen is
a retired Chicago police detective who maintains a col-
lection of handguns, shotguns, and rifles. Brown is a U.S.
Army veteran who was honorably discharged after
service in World War II; he is currently chairman of the
Marksmanship Committee of the Illinois unit of the
American Legion and teaches a junior firearms course
at an American Legion post outside the city. Ezell
and Hespen left the city to complete the range training
necessary to apply for a Permit to legalize their
firearm possession in the city. Brown owns a firearm that
he keeps outside the city’s limits because he does not
have a Permit.
The plaintiffs—all of them—frame their Second Amend-
ment claim in two ways. First, they contend that the
16 No. 10-3525
Amendment protects the right of law-abiding people to
maintain proficiency in firearm use via marksmanship
practice and the City’s absolute ban on firing ranges
violates this right. Second, they contend that the range
ban impermissibly burdens the core Second Amendment
right to possess firearms in the home for self-defense
because it prohibits, everywhere in the city, the means
of satisfying a condition the City imposes for lawful
firearm possession. They seek a declaration that the
range ban is invalid and an injunction blocking its en-
forcement.
Ezell and Hespen took affirmative steps to comply
with the Ordinance’s permitting process by completing
the range-training requirement outside the city. Brown
did not, so he must keep his firearm outside the city
to avoid violating the Ordinance. For all three the City’s
ban on firing ranges inflicts continuous harm to their
claimed right to engage in range training and interferes
with their right to possess firearms for self-defense.
These injuries easily support Article III standing.
Moreover, this is a pre-enforcement challenge to the
Ordinance. The plaintiffs contend that the City’s ban on
firing ranges is wholly incompatible with the Second
Amendment. It is well-established that “pre-enforcement
challenges . . . are within Article III.” Brandt v. Vill. of
Winnetka, Ill., 612 F.3d 647, 649 (7th Cir. 2010). The plain-
tiffs need not violate the Ordinance and risk prosecution
in order to challenge it. Schirmer v. Nagode, 621 F.3d 581,
586 (7th Cir. 2010) (“A person need not risk arrest before
bringing a pre-enforcement challenge . . . .”). The
No. 10-3525 17
very “existence of a statute implies a threat to prosecute,
so pre-enforcement challenges are proper, because a
probability of future injury counts as ‘injury’ for the
purpose of standing.” Bauer, 620 F.3d at 708. The City did
not question the individual plaintiffs’ standing; their
injury is clear.
Regarding the organizational plaintiffs, however, the
City’s argument led the district court astray. The City
emphasized that the Second Amendment protects an
individual right, not an organizational one, and this
point led the court to conclude that “the organizations
do not have the necessary standing to demonstrate their
irreparable harm.” 7 This was error. Action Target, as a
supplier of firing-range facilities, is harmed by the firing-
range ban and is also permitted to “act[] as [an] advo-
cate[] of the rights of third parties who seek access to”
its services. See Craig v. Boren, 429 U.S. 190, 195 (1976)
(allowing beer vendor to challenge alcohol regulation
based on its patrons’ equal-protection rights); see also
Pierce v. Soc’y of Sisters, 268 U.S. 510, 536 (1925) (allowing
private schools to assert parents’ rights to direct the
7
The district court’s emphasis on the organizational plain-
tiffs’ standing is puzzling. As we have noted, it’s clear the
individual plaintiffs have standing. Where at least one
plaintiff has standing, jurisdiction is secure and the court will
adjudicate the case whether the additional plaintiffs have
standing or not. See Vill. of Arlington Heights v. Metro. Hous. Dev.
Corp., 429 U.S. 252, 264 (1977); Bond v. Utreras, 585 F.3d 1061,
1070 (7th Cir. 2009); Bethune Plaza, Inc. v. Lumpkin, 863 F.2d
525, 530-31 (7th Cir. 1988).
18 No. 10-3525
education of their children and citing “other cases where
injunctions have issued to protect business enterprises
against interference with the freedom of patrons or cus-
tomers”); Mainstreet Org. of Realtors v. Calumet City,
505 F.3d 742, 746-47 (7th Cir. 2007). The Second Amend-
ment Foundation and the Illinois Rifle Association
have many members who reside in Chicago and easily
meet the requirements for associational standing: (1) their
members would otherwise have standing to sue in
their own right; (2) the interests the associations seek to
protect are germane to their organizational purposes;
and (3) neither the claim asserted nor the relief re-
quested requires the participation of individual associa-
tion members in the lawsuit. See United Food &
Commercial Workers Union Local 751 v. Brown Group, 517
U.S. 544, 553 (1996); Hunt v. Wash. State Apple Adver.
Comm’n, 432 U.S. 333, 343 (1977); Disability Rights Wis. v.
Walworth Cnty. Bd. of Supervisors, 522 F.3d 796, 801-02
(7th Cir. 2008).
The district court held in the alternative that the organi-
zational plaintiffs “failed to present sufficient evidence
to support their position that their constituency has been
unable to comply with the statute.” More specifically,
the court held that the plaintiffs failed to produce “evi-
dence of any one resident [of Chicago] who has been
unable to travel to . . . a range [or] has been unable to
obtain [the] range training” required for a Permit. It’s
not clear whether these observations were directed at
standing or the merits of the motion for a preliminary
injunction; this discussion appears in the court’s evalua-
tion of irreparable harm. Either way, the point is irrele-
No. 10-3525 19
vant. Nothing depends on this kind of evidence. The
availability of range training outside the city neither
defeats the organizational plaintiffs’ standing nor has
anything to do with merits of the claim. The question
is not whether or how easily Chicago residents can
comply with the range-training requirement by
traveling outside the city; the plaintiffs are not seeking
an injunction against the range-training requirement. The
pertinent question is whether the Second Amendment
prevents the City Council from banning firing ranges
everywhere in the city; that ranges are present in neigh-
boring jurisdictions has no bearing on this question.
B. Irreparable Harm and Adequacy of Remedy at Law
The City’s misplaced focus on the availability of firing
ranges outside the city also infected the district court’s
evaluation of irreparable harm. The judge’s primary
reason for rejecting the plaintiffs’ request for a pre-
liminary injunction was that they had “failed to
establish the irreparable harm they have suffered by
requiring them to travel outside of the [c]ity’s borders
to obtain their firing[-]range permits.” The judge thus
framed the relevant harm as strictly limited to
incidental travel burdens associated with satisfying the
Ordinance’s range-training requirement. The judge
noted that for at least some—perhaps many—Chicago
residents, complying with the range-training requirement
did not appear to pose much of a hardship at all. She
observed that it might actually be easier for some Chicago-
ans to travel to a firing range in the suburbs than to
20 No. 10-3525
one located, say, at the opposite end of the city if ranges
were permitted to locate within city limits. The judge
thought it significant that none of the individual
plaintiffs had “testif[ied] that s/he was unable to travel
outside of the [c]ity’s borders to obtain the one-hour
range training and all three have shown that they are
capable of doing so and have done so in the past.” The
court held that although the Ordinance may force the
plaintiffs to travel longer distances to use a firing range,
this was a “quantifiable expense that can be easily calcu-
lated as damages.”
This reasoning assumes that the harm to a constitu-
tional right is measured by the extent to which it can
be exercised in another jurisdiction. That’s a profoundly
mistaken assumption. 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.’ ” Schad v. Borough of
Mt. Ephraim, 452 U.S. 61, 76-77 (1981) (quoting Schneider
v. State of New Jersey, 308 U.S. 147, 163 (1939)). The
same principle applies here. It’s hard to imagine anyone
suggesting that Chicago may prohibit the exercise of a free-
speech or religious-liberty right within its borders on
the rationale that those rights may be freely enjoyed in
the suburbs. That sort of argument should be no less
unimaginable in the Second Amendment context.
Focusing on individual travel harms was mistaken for
another equally fundamental reason. The plaintiffs have
challenged the firing-range ban on its face, not merely
No. 10-3525 21
as applied in their particular circumstances. In a facial
constitutional challenge, individual application facts
do not matter. Once standing is established, the plain-
tiff’s personal situation becomes irrelevant. It is enough
that “[w]e have only the [statute] itself” and the “state-
ment of basis and purpose that accompanied its promulga-
tion.” Reno v. Flores, 507 U.S. 292, 300-01 (1993); see also
Nicholas Quinn Rosenkranz, The Subjects of the Constitu-
tion, 62 S TAN. L. R EV. 1209, 1238 (2010) (“[F]acial chal-
lenges are to constitutional law what res ipsa loquitur is
to facts—in a facial challenge, lex ipsa loquitur: the law
speaks for itself.”); David L. Franklin, Facial Challenges,
Legislative Purpose, and the Commerce Clause, 92 IOWA L. R EV.
41, 58 (2006) (“A valid-rule facial challenge asserts that
a statute is invalid on its face as written and authorita-
tively construed, when measured against the applicable
substantive constitutional doctrine, without reference to
the facts or circumstances of particular applications.”);
Mark E. Isserles, Overcoming Overbreadth: Facial Chal-
lenges and the Valid Rule Requirement, 48 A M . U. L. R EV. 359,
387 (1998) (“[A] valid rule facial challenge directs
judicial scrutiny to the terms of the statute itself, and
demonstrates that those terms, measured against the
relevant constitutional doctrine, and independent of the
constitutionality of particular applications, contains a
constitutional infirmity that invalidates the statute in
its entirety.”).
Though she did not specifically mention it, the judge
might have had the Salerno principle in mind when she
limited her focus to individual travel harms. Under
Salerno a law is not facially unconstitutional unless it “is
22 No. 10-3525
unconstitutional in all of its applications.” Wash. State
Grange v. Wash. State Republican Party, 552 U.S. 442, 449
(2008) (citing United States v. Salerno, 481 U.S. 739, 745
(1987)). Stated differently, “[a] person to whom a statute
properly applies can’t obtain relief based on arguments
that a differently situated person might present.” 8
United States v. Skoien, 614 F.3d 638, 645 (7th Cir. 2010)
(en banc) (citing Salerno, 481 U.S. at 745).
Here, the judge zeroed in on the occasional expense
and inconvenience of having to travel to a firing range
in the suburbs, but that’s not the relevant constitutional
harm. The plaintiffs contend that the Second Amend-
ment protects the right to maintain proficiency in
firearm use—including the right to train at a range—and
8
We noted in Skoien that “the Salerno principle has been
controversial” and does not apply to all facial challenges: “[T]he
Justices have allowed ‘overbreadth’ arguments when dealing
with laws that restrict speech and reach substantially more
conduct than the justifications advanced for the statute
support . . . .” United States v. Skoien, 614 F.3d 638, 645 (7th
Cir. 2010) (en banc) (citing United States v. Stevens, 130 S. Ct.
1577, 1587 (2010)). Overbreadth claims are a distinct type of
facial challenge. Stevens, 130 S. Ct. at 1587 (“In the First Amend-
ment context, . . . this Court recognizes ‘a second type of
facial challenge,’ whereby a law may be invalidated as
overbroad if ‘a substantial number of its applications are
unconstitutional, judged in relation to the statute’s plainly
legitimate sweep.’ ” (emphasis added) (quoting Wash. State
Grange v. Wash. State Republican Party, 552 U.S. 442, 449 n.6
(2008))).
No. 10-3525 23
the City’s complete ban on range training violates this
right. They also claim that the range ban impermissibly
burdens the core Second Amendment right to possess
firearms at home for protection because the Ordinance
conditions lawful possession on range training but
makes it impossible to satisfy this condition any-
where in the city. If they’re right, then the range ban was
unconstitutional when enacted and violates their Second
Amendment rights every day it remains on the books.
These are not application-specific harms calling for indi-
vidual remedies.
In a facial challenge like this one, the claimed constitu-
tional violation inheres in the terms of the statute, not
its application. See Rosenkranz, The Subjects of the Con-
stitution, 62 S TAN. L. R EV. at 1229-38. The remedy is nec-
essarily directed at the statute itself and must be injunc-
tive and declaratory; a successful facial attack means
the statute is wholly invalid and cannot be applied to
anyone. Chicago’s law, if unconstitutional, is unconstitu-
tional without regard to its application—or in all its ap-
plications, as Salerno requires. That is, the City Council
violated the Second Amendment when it made this law;
its very existence stands as a fixed harm to every Chica-
goan’s Second Amendment right to maintain proficiency
in firearm use by training at a range. This kind of constitu-
tional harm is not measured by whether a particular
person’s gasoline or mass-transit bill is higher because
he must travel to a firing range in the suburbs rather
than one in the city, as the district court seemed to think.
Whatever else the Salerno principle might mean for this
24 No. 10-3525
case, it neither requires nor supports the district court’s
approach to irreparable harm.9
Beyond this crucial point about the form of the claim,
for some kinds of constitutional violations, irreparable
harm is presumed. See 11A C HARLES A LAN W RIGHT ET AL.,
F EDERAL P RACTICE & P ROCEDURE § 2948.1 (2d ed. 1995)
(“When an alleged deprivation of a constitutional right
is involved, most courts hold that no further showing
of irreparable injury is necessary.”). This is particularly
true in First Amendment claims. See, e.g., Christian Legal
Soc’y, 453 F.3d at 867 (“[V]iolations of First Amendment
rights are presumed to constitute irreparable injuries . . . .”
(citing Elrod v. Burns, 427 U.S. 347, 373 (1976))). The loss
of a First Amendment right is frequently presumed to
cause irreparable harm based on “the intangible nature
9
For different views of the Salerno doctrine and the structure
of the facial and as-applied forms of judicial review, see gener-
ally Nicholas Quinn Rosenkranz, The Subjects of the Constitu-
tion, 62 S TAN . L. R EV . 1209, 1242-50 (2010); David L. Franklin,
Facial Challenges, Legislative Purpose, and the Commerce Clause, 92
I OWA L. R EV . 41, 58 (2006); Matthew D. Adler, Rights, Rules,
and the Structure of Constitutional Adjudication: A Response to
Professor Fallon, 113 H ARV . L. R EV . 1371 (2000); Richard H. Fallon,
Jr., As-Applied and Facial Challenges and Third-Party Standing, 113
H ARV . L. R EV . 1321 (2000); Mark E. Isserles, Overcoming
Overbreadth: Facial Challenges and the Valid Rule Requirement, 48
A M . U. L. R EV . 359 (1998); Michael C. Dorf, Facial Challenges
to State and Federal Statutes, 46 S TAN . L. R EV . 235 (1994); Henry P.
Monaghan, Harmless Error and the Valid Rule Requirement,
1989 S UP . C T . R EV . 195.
No. 10-3525 25
of the benefits flowing from the exercise of those rights;
and the fear that, if those rights are not jealously safe-
guarded, persons will be deterred, even if imperceptibly,
from exercising those rights in the future.” Miles Christi
Religious Order v. Twp. of Northville, 629 F.3d 533, 548
(6th Cir. 2010) (internal alteration and quotation marks
omitted); see also KH Outdoor, LLC v. City of Trussville,
458 F.3d 1261, 1272 (11th Cir. 2006). The Second Amend-
ment protects similarly intangible and unquantifiable
interests. Heller held that the Amendment’s central com-
ponent is the right to possess firearms for protection. 554
U.S. at 592-95. Infringements of this right cannot be
compensated by damages.1 0
10
The City cites our opinion in Campbell v. Miller, 373 F.3d
834, 835 (7th Cir. 2004), which cautioned against the assump-
tion “that money never is an adequate remedy for a constitu-
tional wrong.” But Campbell concerned a Fourth Amendment
unreasonable-search claim—a claim properly characterized as
“a constitutional tort” and “often . . . analogized to (other)
personal-injury litigation.” Id. In Campbell the plaintiff con-
tended that jail officers violated the Fourth Amendment by
subjecting him to an unreasonable search; the proper, fully
adequate remedy for that kind of constitutional violation is
damages. The constitutional claim here is quite different. The
plaintiffs do not contend that a city official violated the
Second Amendment by enforcing the range ban against
them; they contend that the City Council violated the Second
Amendment by enacting the firing-range ban in the first
place. If they prevail, the only appropriate remedy is a declara-
tion that the firing-range ban is invalid and an injunction
forbidding its enforcement.
(continued...)
26 No. 10-3525
In short, for reasons related to the form of the claim
and the substance of the Second Amendment right, the
plaintiffs’ harm is properly regarded as irreparable and
having no adequate remedy at law.
C. Likelihood of Success on the Merits
Having rejected the plaintiffs’ claim of irreparable
harm, the district court only summarily addressed
whether they were likely to succeed on the merits. Early
on in her decision, the judge said she would not apply
intermediate scrutiny to evaluate the constitutionality
of the range ban—and by implication, rejected any form
of heightened review. When she later returned to the
merits, the judge suggested that banning range training
10
(...continued)
The City also cites the First Circuit’s decision in Public Service
Co. of New Hampshire v. Town of West Newbury, 835 F.2d 380,
382 (1st Cir. 1987). In Public Service Co., local regulators
ordered a nuclear power plant to remove utility poles from its
property because they were too high. The plant owner sued,
alleging a denial of due process. The First Circuit noted that
the “alleged denial of procedural due process, without more,
does not automatically trigger” a finding of irreparable harm.
Id. The court then affirmed the denial of preliminary injunc-
tive relief because “the prospects of any irreparable damage
were speculative” and the owner had little likelihood of
success on the merits. Id. at 383. Public Service Co., like
Campbell, does not help the City. An improper order requiring
the removal of utility poles can easily be remedied by
damages—not so with the constitutional violations alleged here.
No. 10-3525 27
might not implicate anyone’s Second Amendment rights
at all. She observed that although Chicago requires
range training as a prerequisite to firearm possession,
“the City does not have the ability to create a Constitu-
tional right to that training.” Instead, the judge thought
the key question was “whether the individual’s right to
possess firearms within his residence expands to the
right to train with that same firearm in a firing range
located within the [c]ity’s borders.” This statement of
the question ends the court’s discussion of the merits.
There are several problems with this analysis. First, it
is incomplete. The judge identified but did not evaluate
the Second Amendment merits question. More impor-
tantly, the court framed the inquiry the wrong way.
Finally, it was a mistake to reject heightened scrutiny.
The judge was evidently concerned about the novelty
of Second Amendment litigation and proceeded from
a default position in favor of the City. The concern
is understandable, but the default position cannot be
reconciled with Heller.
1. Heller, McDonald, and a framework for Second
Amendment litigation
It’s true that Second Amendment litigation is new, and
Chicago’s ordinance is unlike any firearms law that has
received appellate review since Heller. But that doesn’t
mean we are without a framework for how to proceed.
The Supreme Court’s approach to deciding Heller points
in a general direction. Although the critical question in
Heller—whether the Amendment secures an individual
28 No. 10-3525
or collective right—was interpretive rather than doctrinal,
the Court’s decision method is instructive.
With little precedent to synthesize, Heller focused
almost exclusively on the original public meaning of the
Second Amendment, consulting the text and relevant
historical materials to determine how the Amendment
was understood at the time of ratification. This inquiry
led the Court to conclude that the Second Amendment
secures a pre-existing natural right to keep and bear
arms; that the right is personal and not limited to
militia service; and that the “central component of the
right” is the right of armed self-defense, most notably
in the home. Heller, 554 U.S. at 595, 599-600; see also McDon-
ald, 130 S. Ct. at 3036-37, 3044. On this understanding
the Court invalidated the District of Columbia’s ban
on handgun possession, as well as its requirement that
all firearms in the home be kept inoperable. Heller, 554
U.S. at 629-35. The Court said these laws were uncon-
stitutional “[u]nder any . . . standard[] of scrutiny” because
“the inherent right of self-defense has been central to
the Second Amendment right” and the District’s restric-
tions “extend[] . . . to the home, where the need for
defense of self, family, and property is most acute.” Id. at
628-29. That was enough to decide the case. The Court
resolved the Second Amendment challenge in Heller
without specifying any doctrinal “test” for resolving
future claims.
For our purposes, however, we know that Heller’s
reference to “any standard of scrutiny” means any height-
ened standard of scrutiny; the Court specifically excluded
No. 10-3525 29
rational-basis review. Id. at 628-29 & n.27 (“If all that
was required to overcome the right to keep and bear
arms was a rational basis, the Second Amendment
would be redundant with the separate constitutional
prohibitions on irrational laws, and would have no ef-
fect.”); see also Skoien, 614 F.3d at 641 (“If a rational basis
were enough [to justify a firearms law], the Second
Amendment would not do anything . . . because a
rational basis is essential for legislation in general.”).
Beyond that, the Court was not explicit about how
Second Amendment challenges should be adjudicated
now that the historic debate about the Amendment’s
status as an individual-rights guarantee has been settled.
Heller, 554 U.S. at 635 (“[S]ince this case represents
this Court’s first in-depth examination of the Second
Amendment, one should not expect it to clarify the
entire field . . . .”). Instead, the Court concluded that
“whatever else [the Second Amendment] leaves to
future evaluation, it surely elevates above all other inter-
ests the right of law-abiding, responsible citizens to use
arms in defense of hearth and home.” Id.
And in a much-noted passage, the Court carved out
some exceptions:
[N]othing in our opinion should be taken to cast
doubt on longstanding prohibitions on the posses-
sion of firearms by felons and the mentally ill, or
laws forbidding the carrying of firearms in sensitive
places such as schools and government buildings, or
laws imposing conditions and qualifications on the
commercial sale of arms.
30 No. 10-3525
Id. at 626-27. The Court added that this list of “presump-
tively lawful regulatory measures” was illustrative, not
exhaustive. Id. at 627 n.26; see also McDonald, 130 S. Ct. at
3047 (repeating Heller’s “assurances” about exceptions).
These now-familiar passages from Heller hold several
key insights about judicial review of laws alleged to
infringe Second Amendment rights. First, the threshold
inquiry in some Second Amendment cases will be a
“scope” question: Is the restricted activity protected by
the Second Amendment in the first place? See Eugene
Volokh, Implementing the Right to Keep and Bear Arms for
Self-Defense: An Analytical Framework and a Research
Agenda, 56 UCLA L. R EV. 1443, 1449. The answer requires
a textual and historical inquiry into original meaning.
Heller, 554 U.S. at 634-35 (“Constitutional rights are en-
shrined with the scope they were understood to have
when the people adopted them, whether or not future
legislatures or (yes) even future judges think that scope
too broad.”); McDonald, 130 S. Ct. at 3047 (“[T]he scope
of the Second Amendment right” is determined by
textual and historical inquiry, not interest-balancing.).
McDonald confirms that when state- or local-govern-
ment action is challenged, the focus of the original-mean-
ing inquiry is carried forward in time; the Second Amend-
ment’s scope as a limitation on the States depends on
how the right was understood when the Fourteenth
Amendment was ratified. See McDonald, 130 S. Ct. at 3038-
42. Setting aside the ongoing debate about which part
of the Fourteenth Amendment does the work of incorpo-
ration, and how, see id. at 3030-31 (plurality opinion of
No. 10-3525 31
Alito, J.); id. at 3058-80 (Thomas, J., concurring); id. at 3089-
99 (Stevens, J., dissenting); id. at 3120-21 (Breyer, J., dis-
senting), this wider historical lens is required if we are
to follow the Court’s lead in resolving questions about
the scope of the Second Amendment by consulting its
original public meaning as both a starting point and an
important constraint on the analysis. See Heller, 554 U.S.
at 610-19; McDonald, 130 S. Ct. at 3038-42.1 1
11
On this aspect of originalist interpretive method as applied
to the Second Amendment, see generally A KHIL R EED A MAR ,
T HE B ILL OF R IGHTS : C REATION AND R ECONSTRUCTION 215-30, 257-
67 (1998); Brannon P. Denning & Glenn H. Reynolds, Five Takes
on McDonald v. Chicago, 26 J.L & P OL . 273, 285-87 (2011);
Josh Blackman & Ilya Shapiro, Keeping Pandora’s Box Sealed:
Privileges or Immunities, The Constitution in 2020, and Properly
Extending the Right to Keep and Bear Arms to the States, 8 G EO . J.L.
& P UB . P OL ’Y 1, 51-57 (2010); Clayton E. Cramer, Nicholas J.
Johnson & George A. Mocsary, “This Right Is Not Allowed by
Governments That Are Afraid of the People”: The Public Meaning
of the Second Amendment When the Fourteenth Amendment Was
Ratified, 17 G EO . M ASON L. R EV . 823, 824-25 (2010); Steven G.
Calabresi & Sarah E. Agudo, Individual Rights Under State
Constitutions When the Fourteenth Amendment Was Ratified in
1868: What Rights Are Deeply Rooted in American History and
Tradition?, 87 T EX . L. R EV . 7, 11-17, 50-54 (2008); Randy E.
Barnett, Was the Right to Keep and Bear Arms Conditioned on
Service in an Organized Militia?, 83 T EX . L. R EV . 237, 266-70
(2004); David B. Kopel, The Second Amendment in the Nineteenth
Century, 1998 BYU L. R EV . 1359; Stephen P. Halbrook, Personal
Security, Personal Liberty, and “The Constitutional Right to Bear
(continued...)
32 No. 10-3525
The Supreme Court’s free-speech jurisprudence con-
tains a parallel for this kind of threshold “scope” in-
quiry. The Court has long recognized that certain “well-
defined and narrowly limited classes of speech”—e.g.,
obscenity, defamation, fraud, incitement—are categorically
“outside the reach” of the First Amendment. United
States v. Stevens, 130 S. Ct. 1577, 1584-85 (2010); see also
Brown v. Entm’t Merchants Ass’n, No. 08-1448, 2011 WL
2518809, at *3-4 (June 27, 2011). When the Court has
“identified categories of speech as fully outside the pro-
tection of the First Amendment, it has not been on the
basis of a simple cost-benefit analysis.” Stevens, 130 S.
Ct. at 1586. Instead, some categories of speech are unpro-
tected as a matter of history and legal tradition. Id. So too
with the Second Amendment. Heller suggests that some
federal gun laws will survive Second Amendment chal-
lenge because they regulate activity falling outside the
terms of the right as publicly understood when the Bill
of Rights was ratified; McDonald confirms that if the
claim concerns a state or local law, the “scope” question
asks how the right was publicly understood when the
Fourteenth Amendment was proposed and ratified.
Heller, 554 U.S. at 625-28; McDonald, 130 S. Ct. at 3038-47.
Accordingly, if the government can establish that a chal-
lenged firearms law regulates activity falling outside
the scope of the Second Amendment right as it was
understood at the relevant historical moment—1791 or
11
(...continued)
Arms”: Visions of the Framers of the Fourteenth Amendment,
5 S ETON H ALL C ONST . L.J. 341 (1995).
No. 10-3525 33
1868—then the analysis can stop there; the regulated
activity is categorically unprotected, and the law is not
subject to further Second Amendment review.
If the government cannot establish this—if the historical
evidence is inconclusive or suggests that the regulated
activity is not categorically unprotected—then there
must be a second inquiry into the strength of the gov-
ernment’s justification for restricting or regulating the
exercise of Second Amendment rights. Heller’s reference
to “any . . . standard[] of scrutiny” suggests as much.
554 U.S. at 628-29. McDonald emphasized that the
Second Amendment “limits[,] but by no means elimi-
nates,” governmental discretion to regulate activity
falling within the scope of the right. 130 S. Ct. at 3046
(emphasis and parentheses omitted). Deciding whether
the government has transgressed the limits imposed by
the Second Amendment—that is, whether it has “in-
fringed” the right to keep and bear arms—requires the
court to evaluate the regulatory means the government
has chosen and the public-benefits end it seeks to
achieve. Borrowing from the Court’s First Amendment
doctrine, the rigor of this judicial review will depend on
how close the law comes to the core of the Second Amend-
ment right and the severity of the law’s burden on the
right. See generally, Volokh, Implementing the Right to
Keep and Bear Arms for Self-Defense, 56 UCLA L. R EV. at
1454-72 (explaining the scope, burden, and danger-re-
duction justifications for firearm regulations post-
Heller); Nelson Lund, The Second Amendment, Heller, and
Originalist Jurisprudence, 56 UCLA L. R EV. 1343, 1372-75
(2009); Adam Winkler, Heller’s Catch-22, 56 UCLA L. R EV.
34 No. 10-3525
1551, 1571-73 (2009); Lawrence B. Solum, District of
Columbia v. Heller and Originalism, 103 N W . U. L. R EV. 923,
979-80 (2009); Glenn H. Reynolds & Brannon P. Denning,
Heller’s Future in the Lower Courts, 102 N W . U. L. R EV.
2035, 2042-44 (2008).
Both Heller and McDonald suggest that broadly prohibi-
tory laws restricting the core Second Amendment
right—like the handgun bans at issue in those cases, which
prohibited handgun possession even in the home—are
categorically unconstitutional. Heller, 554 U.S. at 628-35
(“We know of no other enumerated constitutional right
whose core protection has been subjected to a free-
standing ‘interest-balancing’ approach.”); McDonald, 130
S. Ct. at 3047-48. For all other cases, however, we are left
to choose an appropriate standard of review from
among the heightened standards of scrutiny the Court
applies to governmental actions alleged to infringe enu-
merated constitutional rights; the answer to the Second
Amendment “infringement” question depends on the
government’s ability to satisfy whatever standard of
means-end scrutiny is held to apply.
The approach outlined here does not undermine
Skoien, 614 F.3d at 639-43, or United States v. Williams,
616 F.3d 685, 691-93 (7th Cir. 2010), both of which
touched on the historical “scope” question before
applying a form of intermediate scrutiny. And this
general framework has been followed by the Third,
Fourth, and Tenth Circuits in other Second Amendment
No. 10-3525 35
cases.12 See United States v. Marzzarella, 614 F.3d 85, 89 (3d
Cir. 2010) (“As we read Heller, it suggests a two-pronged
approach to Second Amendment challenges. First, we
ask whether the challenged law imposes a burden on
conduct falling within the scope of the Second Amend-
ment’s guarantee. . . . If it does not, our inquiry is com-
plete. If it does, we evaluate the law under some form
of means-end scrutiny.”); United States v. Chester, 628
F.3d 673, 680 (4th Cir. 2010) (A “two-part approach to
Second Amendment claims seems appropriate under
Heller, as explained by . . . the now-vacated Skoien panel
12
The Ninth Circuit recently adopted a somewhat different
framework for Second Amendment claims. In Nordyke v. King,
a divided panel announced a gatekeeping “substantial bur-
den” test before the court will apply heightened scrutiny.
No. 07-15763, 2011 WL 1632063, at *4-6 (9th Cir. May 2, 2011)
(O’Scannlain, J.). Under this approach only laws that substan-
tially burden Second Amendment rights will get some form
of heightened judicial review. Id. The Nordyke majority specifi-
cally deferred judgment on “what type of heightened
scrutiny applies to laws that substantially burden Second
Amendment rights.” Id. at *6 n.9. Judge Gould, concurring
in Nordyke, would apply heightened scrutiny “only [to] arms
regulations falling within the core purposes of the Second
Amendment, that is, regulations aimed at restricting defense
of the home, resistance of tyrannous government, and protec-
tion of country.” Id. at *15. All other firearms laws, he said,
should be reviewed for reasonableness, id., although by this
he meant the sort of reasonableness review that applies in
the First Amendment context, not the deferential rational-
basis review that applies to all laws, id. at *16.
36 No. 10-3525
opinion . . . .”); United States v. Reese, 627 F.3d 792, 800-01
(10th Cir. 2010) (same). Each of these cases involved a
Second Amendment challenge asserted as a defense to a
federal prosecution under 18 U.S.C. § 922, but we think
the same principles apply here. McDonald reiterated
that the Court has long since “abandoned ‘the notion
that the Fourteenth Amendment applies to the States
only a watered-down, subjective version of the
individual guarantees of the Bill of Rights.’ ” 130 S. Ct. at
3035 (quoting Malloy v. Hogan, 378 U.S. 1, 10-11 (1964)).
2. Applying the framework to Chicago’s firing-
range ban
The plaintiffs challenge only the City’s ban on firing
ranges, so our first question is whether range training
is categorically unprotected by the Second Amendment.
Heller and McDonald suggest to the contrary. The Court
emphasized in both cases that the “central component” of
the Second Amendment is the right to keep and bear
arms for defense of self, family, and home. Heller, 554 U.S.
at 599; McDonald, 130 S. Ct. at 3048. The right to possess
firearms for protection implies a corresponding right
to acquire and maintain proficiency in their use; the
core right wouldn’t mean much without the training
and practice that make it effective. Several passages in
Heller support this understanding. Examining post-
Civil War legal commentaries to confirm the founding-
era “individual right” understanding of the Second
Amendment, the Court quoted at length from the “mas-
sively popular 1868 Treatise on Constitutional Limita-
No. 10-3525 37
tions” by judge and professor Thomas Cooley: “[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.” 554 U.S.
at 616, 617-18 (internal quotation marks omitted); 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 B ENJAMIN
V AUGHAN A BBOTT, JUDGE AND JURY: A P OPULAR E XPLANA-
TION OF THE L EADING T OPICS IN THE L AW OF THE L AND
333 (1880))).
Indeed, the City considers live firing-range training
so critical to responsible firearm ownership that it man-
dates this training as a condition of lawful firearm pos-
session. At the same time, however, the City insists in
this litigation that range training is categorically outside
the scope of the Second Amendment and may be com-
pletely prohibited. There is an obvious contradiction
here, but we will set it aside for the moment and consider
the City’s support for its categorical position. The City
points to a number of founding-era, antebellum, and
Reconstruction state and local laws that limited the dis-
charge of firearms in urban environments. As we have
noted, the most relevant historical period for questions
about the scope of the Second Amendment as applied
to the States is the period leading up to and sur-
rounding the ratification of the Fourteenth Amend-
ment. That point aside, most of the statutes cited by
the City are not specific to controlled target practice
38 No. 10-3525
and, in any event, contained significant carveouts and
exemptions.
For example, the City cites a 1790 Ohio statute that
prohibited the discharge of a firearm before sunrise, after
sunset, or within one-quarter of a mile from the nearest
building. Act of Aug. 4, 1790, Ch. XIII, § 4, in 1 The
Statutes of Ohio and of the Northwestern Territory 104
(Chase ed. 1833). This statute is not directly related
to controlled target practice. A similar 1746 statute
limiting the discharge of firearms in Boston provided an
exception for target practice: City residents could “fir[e]
at a Mark or Target for the Exercise of their Skill and
Judgment . . . at the lower End of the Common” if they
obtained permission from the “Field Officers of the Regi-
ment in Boston”; they could also “fir[e] at a Mark from
the Several Batteries in” Boston with permission from
the “Captain General.” Act of May 28, 1746, Ch. X, in Acts
and Laws of the Massachusetts Bay 208 (Kneeland ed.
1746).
The City cites other eighteenth- and nineteenth-century
statutes regulating the discharge of firearms in cities,
but most of these allowed citizens to obtain a permit
or license to engage in firearms practice from the
governor or city council.1 3 That was the case under the
13
See Act of Aug. 26, 1721, § IV, in A Digest of the Acts of
Assembly Relating to the City of Philadelphia 183 (Duane ed.
1856) (hereinafter Philadelphia Digest) (providing for “gover-
nor’s special license”); Act of Feb. 9, 1750-51, ch. 388, in 1 Laws
(continued...)
No. 10-3525 39
Philadelphia Act of August 26, 1721, § 4, one of the very
statutes the Supreme Court considered in Heller and
deemed “a licensing regime.” 554 U.S. at 633. In short,
these laws were merely regulatory measures, distinguish-
able from the City’s absolute prohibition on firing ranges.
See id. at 632, 574 (founding-era statute that “restricted
the firing of guns within the city limits to at least
some degree” did not support the District of
Columbia’s “general[] prohibit[ion] on the possession of
handguns”). These “time, place, and manner” regulations
do not support the City’s position that target practice is
categorically unprotected.
13
(...continued)
of the Commonwealth of Pennsylvania 312 (Carey ed. 1803)
(providing for “Governor’s special license”); Ordinance of
June 7, 1813, § V, in Philadelphia Digest 188 (providing for
permission from the board of commissioners); Ordinance
of Sept. 8, 1851, § IX, in Philadelphia Digest 419 (providing for
permission from the president of the board of commissioners);
Ordinance of 1854, ch. 5, § 20, in Revised Ordinances of the
City of Manchester, N.H. 59 (Gage ed. 1859) (providing for
“permission of the Mayor and Aldermen in writing”); Act of
Feb. 14, 1855, § 78, in Private Laws of the State of Illinois 144
(Bailhache ed. 1861) (providing for “permission from the
mayor or common council”); Bylaw, Title XI, ch. IV, in Charter
and By-Laws of the City of New Haven, Conn. 90 (Benham ed.
1865) (providing for “permission . . . of the Mayor, or some one
or more of the Aldermen”); Ordinance of June 12, 1869, § 17, in
Laws and Ordinances Governing the City of St. Joseph, Mo.
110 (Grubb ed. 1869) (providing for “permission from the
city council or written permission from the mayor”).
40 No. 10-3525
To be sure, a few of the eighteenth- and nineteenth-
century statutes cited by the City might accurately be
described as general prohibitions on discharging
firearms within cities. Three of these, however, had
clear fire-suppression purposes and do not support the
proposition that target practice at a safely sited and
properly equipped firing range enjoys no Second Amend-
ment protection whatsoever.1 4 Only two—a Baltimore
statute from 1826 and an Ohio statute from 1831—flatly
prohibited the discharge of firearms based on concerns
unrelated to fire suppression, in contrast to the other
regulatory laws we have mentioned.1 5 Cf. Heller, 554 U.S.
14
See Act of Apr. 22, 1786, in The New York Daily Advertiser,
Dec. 30, 1788 (prohibiting discharge of firearms “for the more
effectual prevention of FIRES in the city of New York”); Ordi-
nance of July 1, 1817, art. 12, in Ordinances of the City of New
Orleans 62, 68 (prohibiting the discharge of firearms for the
“Prevention of fires”); Ordinance of Apr. 18, 1881, ch. XV, art.
XX, § 1298, in Municipal Code of Chicago 307 (Jamieson
ed. 1881) (prohibiting firearms discharge under article govern-
ing “Fire-arms, Fireworks and Cannons”).
15
See Ordinance of Mar. 9, 1826, § 6, in Baltimore Gazette and
Daily Advertiser, Dec. 17, 1827 (“[I]f any person shall fire or
discharge any Gun or Pistol or fire arms within the City, unless
it be on some occasion of Military parade and then by order
of some officer having the command, every such person, for
every such offense, shall forfeit and pay a sum not exceeding
five dollars.”); Acts of Feb. 17, 1831, § 6, in 29 Acts of a
General Nature of the State of Ohio 162 (Olmsted ed. 1831)
(subjecting “any person or persons [who] shall shoot or
(continued...)
No. 10-3525 41
at 632 (“[W]e would not stake our interpretation of
the Second Amendment upon a single law . . . that contra-
dicts the overwhelming weight of other evidence . . . .”).
This falls far short of establishing that target prac-
tice is wholly outside the Second Amendment as it was
understood when incorporated as a limitation on the
States.
We proceed, then, to the second inquiry, which asks
whether the City’s restriction on range training survives
Second Amendment scrutiny. As we have explained,
this requires us to select an appropriate standard of
review. Although the Supreme Court did not do so in
either Heller or McDonald, the Court did make it clear
that the deferential rational-basis standard is out, and
with it the presumption of constitutionality. Heller, 554
U.S. at 628 n.27 (citing United States v. Carolene Prods.,
304 U.S. 144, 152 n.4 (1938)). This necessarily means
that the City bears the burden of justifying its action
under some heightened standard of judicial review.
The district court specifically decided against an inter-
mediate standard of scrutiny but did not settle on any
other, then sided with the City “even if” intermediate
scrutiny applied. A choice must be made. The City urges
us to import the “undue burden” test from the Court’s
abortion cases, see, e.g., Planned Parenthood of Se. Pa. v.
15
(...continued)
fire a gun at a target within the limits of any recorded town
plat” to a fine “not exceeding five dollars, nor less than
fifty cents”).
42 No. 10-3525
Casey, 505 U.S. 833, 876-79 (1992), but we decline the
invitation. Both Heller and McDonald suggest that First
Amendment analogues are more appropriate, see Heller,
554 U.S. at 582, 595, 635; McDonald, 130 S. Ct. at 3045, and
on the strength of that suggestion, we and other circuits
have already begun to adapt First Amendment doctrine
to the Second Amendment context, see Skoien, 614 F.3d
at 641; id. at 649 (Sykes, J., dissenting); Chester, 628 F.3d at
682; Marzzarella, 614 F.3d at 89 n.4; see also Volokh, Imple-
menting the Right to Keep and Bear Arms for Self-Defense, 56
UCLA L. R EV. at 1449, 1452, 1454-55; Lund, The Second
Amendment, Heller, and Originalist Jurisprudence, 56 UCLA
L. R EV . at 1376; Winkler, Heller’s Catch-22, 56 UCLA L.
R EV. at 1572.
In free-speech cases, the applicable standard of judicial
review depends on the nature and degree of the govern-
mental burden on the First Amendment right and some-
times also on the specific iteration of the right. For exam-
ple, “[c]ontent-based regulations are presumptively
invalid,” R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992),
and thus get strict scrutiny, which means that the law
must be narrowly tailored to serve a compelling govern-
mental interest, id. at 395; see also Ariz. Free Enter. Club’s
Freedom Club PAC v. Bennett, Nos. 10-238, 10-239, 2011
WL 2518813, at *9 (June 27, 2011). Likewise, “[l]aws
that burden political speech are subject to strict scru-
tiny.” Citizens United v. Fed. Election Comm’n, 130 S. Ct. 876,
898 (2010) (internal quotation marks omitted). On the
other hand, “time, place, and manner” regulations on
speech need only be “reasonable” and “justified without
reference to the content of the regulated speech.” Ward v.
No. 10-3525 43
Rock Against Racism, 491 U.S. 781, 791 (1989). The
Supreme Court also uses a tiered standard of review in
its speech-forum doctrine; regulations in a traditional
public or designated public forum get strict scrutiny,
while regulations in a nonpublic forum “must not dis-
criminate on the basis of viewpoint and ‘must be reason-
able in light of the forum’s purpose.’ ” Choose Life Ill., Inc.
v. White, 547 F.3d 853, 864 (7th Cir. 2008) (quoting Good
News Club v. Milford Cent. Sch., 533 U.S. 98, 106-07 (2001)).
In election-law cases, regulations affecting the
expressive association rights of voters, candidates, and
parties are subject to a fluctuating standard of review
that varies with the severity of the burden on the right;
laws imposing severe burdens get strict scrutiny, while
more modest regulatory measures need only be rea-
sonable, politically neutral, and justified by an important
governmental interest. See Crawford v. Marion Cnty.
Election Bd., 553 U.S. 181, 190-91 (2008); Wash. State Grange,
552 U.S. at 451-52; Burdick v. Takushi, 504 U.S. 428, 434
(1992); Lee v. Keith, 463 F.3d 763, 768 (7th Cir. 2006). “First
Amendment challenges to disclosure requirements in
the electoral context”—for example, laws compelling
the disclosure of the names of petition signers—are
reviewed “under what has been termed ‘exacting scru-
tiny.’ ” Doe v. Reed, 130 S. Ct. 2811, 2818 (2010). This stan-
dard of review requires “a substantial relation be-
tween the disclosure requirement and a sufficiently
important governmental interest,” and “the strength of
the governmental interest must reflect the seriousness
of the actual burden on First Amendment rights.” Id.
(internal quotation marks omitted).
44 No. 10-3525
Similarly, restrictions imposed on adult bookstores are
reviewed under an intermediate standard of scrutiny
that requires the municipality to present “evidence that
the restrictions actually have public benefits great enough
to justify any curtailment of speech.” Annex Books, Inc.
v. City of Indianapolis, 581 F.3d 460, 462 (7th Cir. 2009)
(citing Los Angeles v. Alameda Books, Inc., 535 U.S. 425
(2002), and Renton v. Playtime Theatres, Inc., 475 U.S. 41
(1986)). And in commercial-speech cases, the Court
applies an intermediate standard of review that
accounts for the “subordinate position” that commercial
speech occupies “in the scale of First Amendment val-
ues.” Bd. of Trs. of State Univ. of N.Y. v. Fox, 492 U.S. 469,
477 (1989). In this context intermediate scrutiny requires
“a fit between the legislature’s ends and the means
chosen to accomplish those ends, . . . a fit that is not
necessarily perfect, but reasonable; that represents not
necessarily the single best disposition but one whose
scope is in proportion to the interest served.” Id. at 480
(internal quotation marks and citation omitted); see also
Sorrell v. IMS Health Inc., No. 10-779, 2011 WL 2472796,
at *13 (June 23, 2011) (To justify commercial-speech re-
strictions, “the State must show at least that the statute
directly advances a substantial governmental interest
and that the measure is drawn to achieve that interest.”).
Labels aside, we can distill this First Amendment
doctrine and extrapolate a few general principles to the
Second Amendment context. First, a severe burden on
the core Second Amendment right of armed self-defense
will require an extremely strong public-interest justifica-
tion and a close fit between the government’s means and
No. 10-3525 45
its end. Second, laws restricting activity lying closer to
the margins of the Second Amendment right, laws that
merely regulate rather than restrict, and modest burdens
on the right may be more easily justified. How much
more easily depends on the relative severity of the
burden and its proximity to the core of the right.
In Skoien we required a “form of strong showing”—a/k/a
“intermediate scrutiny”—in a Second Amendment chal-
lenge to a prosecution under 18 U.S.C. § 922(g)(9), which
prohibits the possession of firearms by persons con-
victed of a domestic-violence misdemeanor. 614 F.3d
at 641. We held that “logic and data” established a “sub-
stantial relation” between dispossessing domestic-
violence misdemeanants and the important governmental
goal of “preventing armed mayhem.” Id. at 642. Inter-
mediate scrutiny was appropriate in Skoien because
the claim was not made by a “law-abiding, responsible
citizen” as in Heller, 554 U.S. at 635; nor did the case
involve the central self-defense component of the
right, Skoien, 614 F.3d at 645.
Here, in contrast, the plaintiffs are the “law-abiding,
responsible citizens” whose Second Amendment rights
are entitled to full solicitude under Heller, and their
claim comes much closer to implicating the core of the
Second Amendment right. The City’s firing-range ban is
not merely regulatory; it prohibits the “law-abiding, re-
sponsible citizens” of Chicago from engaging in target
practice in the controlled environment of a firing range.
This is a serious encroachment on the right to maintain
proficiency in firearm use, an important corollary to
46 No. 10-3525
the meaningful exercise of the core right to possess fire-
arms for self-defense. That the City conditions gun pos-
session on range training is an additional reason to
closely scrutinize the range ban. All this suggests that a
more rigorous showing than that applied in Skoien
should be required, if not quite “strict scrutiny.” To be
appropriately respectful of the individual rights at issue
in this case, the City bears the burden of establishing
a strong public-interest justification for its ban on range
training: The City must establish a close fit between
the range ban and the actual public interests it serves,
and also that the public’s interests are strong enough
to justify so substantial an encumbrance on individual
Second Amendment rights. Stated differently, the City
must demonstrate that civilian target practice at a firing
range creates such genuine and serious risks to public
safety that prohibiting range training throughout the
city is justified.
At this stage of the proceedings, the City has not
come close to satisfying this standard. In the district
court, the City presented no data or expert opinion to
support the range ban, so we have no way to evaluate
the seriousness of its claimed public-safety concerns.
Indeed, on this record those concerns are entirely specula-
tive and, in any event, can be addressed through sensible
zoning and other appropriately tailored regulations.
That much is apparent from the testimony of the
City’s own witnesses, particularly Sergeant Bartoli, who
testified to several common-sense range safety measures
that could be adopted short of a complete ban.
No. 10-3525 47
The City maintains that firing ranges create the risk
of accidental death or injury and attract thieves wanting
to steal firearms. But it produced no evidence to
establish that these are realistic concerns, much less that
they warrant a total prohibition on firing ranges. In the
First Amendment context, the government must supply
actual, reliable evidence to justify restricting protected
expression based on secondary public-safety effects.
See Alameda Books, Inc., 535 U.S. at 438 (A municipality
defending zoning restrictions on adult bookstores
cannot “get away with shoddy data or reasoning.
The municipality’s evidence must fairly support the
municipality’s rationale for its ordinance.”); see also
Annex Books, Inc. v. City of Indianapolis, 624 F.3d 368, 369
(7th Cir. 2010) (affirming preliminary injunction where
a city’s “empirical support for [an] ordinance [limiting
the hours of operation of an adult bookstore] was too
weak”); New Albany DVD, LLC v. City of New Albany, 581
F.3d 556, 560-61 (7th Cir. 2009) (affirming preliminary
injunction where municipality offered only “anecdotal
justifications” for adult zoning regulation and em-
phasizing the necessity of assessing the seriousness of
the municipality’s concerns about litter and theft).
By analogy here, the City produced no empirical evi-
dence whatsoever and rested its entire defense of the
range ban on speculation about accidents and theft.
Much of the focus in the district court was on
the possible hazards of mobile firing ranges. The City
hypothesized that one cause of range-related injury
could be stray bullets, but this seems highly implausible
insofar as a properly equipped indoor firing range is
48 No. 10-3525
concerned. The district court credited the plaintiffs’
evidence that “mobile ranges are next to Sam’s Clubs
and residences and shopping malls and in parking lots,
and there’s not been any difficulties with them in those
places.” Commissioner Scudiero acknowledged that the
law-enforcement and private-security firing ranges in
Chicago are located near schools, churches, parks, and
stores, and they operate safely in those locations.
And Sergeant Bartoli testified about the availability of
straightforward range-design measures that can effec-
tively guard against accidental injury. He mentioned,
for example, that ranges should be fenced and should
designate appropriate locations for the loading and
unloading of firearms. Other precautionary measures
might include limiting the concentration of people and
firearms in a range’s facilities, the times when firearms
can be loaded, and the types of ammunition allowed. See
also, e.g., NRA R ANGE S OURCE B OOK (providing “basic
and advanced guidance to assist in the planning,
design, construction and maintenance of shooting range
fa c ilit ies”), http ://w w w .n r a h q .o rg /s h o ot in g r an g e /
sourcebook. asp (last visited June 2, 2011); F LA . S TAT.
§ 823.16(6) (2011) (referencing the safety standards of the
NRA Range Source Book); K AN. A DMIN . R EGS. § 115-22-1(b)
(2011) (same); M INN. S TAT. § 87A.02 (2010) (same); N EB.
R EV. S TAT. § 37-1302(4) (2010) (same); O HIO A DMIN.
C ODE 1501: 31-29-03(D) (2011) (same).
At the preliminary-injunction hearing, the City high-
lighted an additional public-safety concern also limited
to mobile ranges: the risk of contamination from lead
residue left on range users’ hands after firing a gun.
No. 10-3525 49
Sergeant Bartoli was asked a series of questions about
the importance of hand-washing after shooting; he
said that “lucrative amounts of [cold running] water and
soap” were required to ensure that lead contaminants
were removed. The City argued below that mobile
firing ranges might not be sufficiently equipped for this
purpose, suggesting that mobile ranges would have
inadequate restroom facilities and might have to rely
on “port-a-potties.” This sparked a discussion about
the adequacy of the water supply available at a
standard “port-a-potty.” The City continued on this topic
until the judge cut it short by acknowledging her own
familiarity with “port-a-potties.” On appeal the City
raised but did not dwell on its concern about lead con-
tamination. For good reason: It cannot be taken seriously
as a justification for banishing all firing ranges from
the city. To raise it at all suggests pretext.
Perhaps the City can muster sufficient evidence to
justify banning firing ranges everywhere in the city, though
that seems quite unlikely. As the record comes to us at
this stage of the proceedings, the firing-range ban is
wholly out of proportion to the public interests the
City claims it serves. Accordingly, the plaintiffs’ Second
Amendment claim has a strong likelihood of success on
the merits.
D. Balance of Harms
The remaining consideration for preliminary injunctive
relief is the balance of harms. It should be clear from
the foregoing discussion that the harms invoked by the
50 No. 10-3525
City are entirely speculative and in any event may be
addressed by more closely tailored regulatory measures.
Properly regulated firing ranges open to the public
should not pose significant threats to public health and
safety. On the other side of the scale, the plaintiffs
have established a strong likelihood that they are
suffering violations of their Second Amendment rights
every day the range ban is in effect. The balance of
harms favors the plaintiffs.
The plaintiffs asked the district court to enjoin the
enforcement of Chicago Municipal Code § 8-20-280—the
prohibition on “[s]hooting galleries, firearm ranges, or
any other place where firearms are discharged.” They
are entitled to a preliminary injunction to that effect. To
be effective, however, the injunction must also
prevent the City from enforcing other provisions of
the Ordinance that operate indirectly to prohibit range
training. The plaintiffs have identified several provisions
of the Ordinance that implicate activities integral to
range training: C HI. M UN. C ODE §§ 8-20-020 (prohibiting
the possession of handguns outside the home), 8-20-030
(prohibiting the possession of long guns outside the
home or business), 8-20-080 (prohibiting the possession
of ammunition without a corresponding Permit and
registration certificate), 8-20-100 (prohibiting the
transfer of firearms and ammunition except through
inheritance), 8-24-010 (prohibiting the discharge of
firearms except for self-defense, defense of another, or
hunting). To the extent that these provisions prohibit
law-abiding, responsible citizens from using a firing
range in the city, the preliminary injunction should
No. 10-3525 51
include them as well. Similarly, the injunction should
prohibit the City from using its zoning code to exclude
firing ranges from locating anywhere in the city.
Finally, because range training is required for the
issuance of a Chicago Firearm Permit, a registration
certificate, and ultimately, for lawful possession of any
firearm, see C HI. M UN. C ODE §§ 8-20-110(a), 8-20-140(a)-(b),
the firing-range ban implicates not only the right to train
at a range but also the core Second Amendment right
to possess firearms for self-defense. Accordingly, the
preliminary injunction should include sections 8-20-110(a)
and 8-20-140(a) to the extent that those provisions
operate to prohibit otherwise eligible persons from
“carry[ing] or possess[ing] a firearm” at a range without
a Permit or registration certificate while they are trying
to complete the range-training prerequisite for lawful
firearm possession.
Those are the bounds of the proposed preliminary
injunction, which should be entered upon remand. The
City worries that entering an order enjoining the range
ban would allow “anyone [to] park a mobile range any-
where, anytime”; shoddy ranges operated by unlicensed
instructors and lacking adequate hand-washing facilities
could crop up in Chicago’s most dangerous neighbor-
hoods. To the contrary, a preliminary injunction
against the range ban does not open the door to a parade
of firing-range horribles. Cf. McDonald, 130 S. Ct. at 3047
(“Despite municipal respondents’ doomsday proclama-
tions, incorporation does not imperil every law regulating
firearms.”). The City may promulgate zoning and safety
52 No. 10-3525
regulations governing the operation of ranges not incon-
sistent with the Second Amendment rights of its citi-
zens; the plaintiffs may challenge those regulations, but
not based on the terms of this injunction. As for
the City’s concern about a “regulatory vacuum” be-
tween the issuance of the preliminary injunction and the
promulgation of firing-range zoning and safety regula-
tions, we note that it faced a similar dilemma after
the Supreme Court decided McDonald. The sky did not
fall. The City Council moved with dispatch and
enacted the Ordinance just four days later.
The plaintiffs have established their entitlement to a
preliminary injunction based on their Second Amend-
ment claim, so we need not address the alternative argu-
ment that range training is protected expression under
the First Amendment. Given the strong likelihood of
success on the former claim, the latter claim seems
like surplusage.
For the foregoing reasons, we R EVERSE the district
court’s order denying the plaintiffs’ motion for a prelimi-
nary injunction and R EMAND with instructions to enter
a preliminary injunction consistent with this opinion.
No. 10-3525 53
R OVNER, Circuit Judge, concurring in the judgment.
Stung by the result of McDonald v. City of Chicago, 130
S. Ct. 3020 (2010), the City quickly enacted an ordinance
that was too clever by half. Recognizing that a complete
gun ban would no longer survive Supreme Court review,
the City required all gun owners to obtain training that
included one hour of live-range instruction, and then
banned all live ranges within City limits.1 This 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 effect of the ordinance is another complete
ban on gun ownership within City limits. That residents
may travel outside the jurisdiction to fulfill the training
requirement is irrelevant to the validity of the ordinance
inside the City. In this I agree with the majority: given
the framework of District of Columbia v. Heller, 554 U.S.
570 (2008), and McDonald, the City may not condition gun
ownership for self-defense in the home on a prerequi-
site that the City renders impossible to fulfill within the
City limits. The plaintiffs have a strong likelihood of
success on the merits of that claim and the district court
should have granted an injunction against the operation
of the ordinance to the extent that it imposed an
impossible pre-condition on gun ownership for self-
defense in the home. There are two obvious ways for
the City to remedy this problem: it may either drop the
1
As the majority clarifies, the City grants exceptions for
ranges in a few select circumstances such as ranges used by
law enforcement personnel. None of these ranges are open to
the public in general or to the plaintiffs in particular.
54 No. 10-3525
requirement for one hour of live-range training or it may
permit live-range training within the City limits.
Even if the City were to drop the live-range require-
ment, though, the plaintiffs claim an independent
Second Amendment right to maintain proficiency in
firearm use by practicing live-range shooting. The
majority goes much farther than is required or justified,
however, in finding that the plaintiffs’ claim for live-
range training is so closely allied to “core” Second Amend-
ment rights that a standard akin to strict scrutiny should
be applied. Granted, the right to use a firearm in the
home for self-defense would be seriously impaired if
gun owners were prevented from obtaining the training
necessary to use their weapons safely for that purpose.
We do not yet know how a complete ban on any
firearms training would be received by the Supreme
Court, but Heller and McDonald strongly suggest that a
comprehensive training ban would not pass constitu-
tional muster. But the City has not banned all firearms
training; it has banned only one type of training. There
is no ban on classroom training. There 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.
See e.g. http://www.virtrasystems.com/law-enforcement-
training/virtra-range-le (last visited July 6, 2011);
http://www.meggitttrainingsystems.com/main.php?id=2
5&name=LE_Virtual_Bluefire_Weapons (last visited
July 6, 2011); http://www.ontargetfirearmstraining.com/
simulator.php (last visited July 6, 2011). It is possible
that, with simulated training, technology will obviate
No. 10-3525 55
the need for live-range training. In any case, the lim-
ited record to date suggests that even the City considers
live-range training necessary to the safe operation of
guns in the home for self-defense. A complete ban on live
ranges in the City, therefore, is unlikely to withstand
scrutiny under any standard of review. The plaintiffs have
a strong likelihood of succeeding on the merits of this
claim. Public safety interests apply on both sides of the
balance: there are obvious safety risks associated with
operating live shooting ranges (more on that later), but
there are perhaps equally compelling safety interests in
ensuring that gun owners possess the skills necessary
to handle their weapons safely. On the record as it cur-
rently stands, the district court should have enjoined
that part of the ordinance banning all live ranges within
City limits. For that reason, I concur in the judgment.
I write separately because the majority adopts a
standard of review on the range ban that is more stringent
than is justified by the text or the history of the Second
Amendment. Although the majority characterizes this
aspect of the ordinance as a complete ban on an activity
“implicating the core of the Second Amendment right,” a
more accurate characterization would be a regulation
in training, an area ancillary to a core right. Ante, at 45.
A right to maintain proficiency in firearms handling is
not the same as the right to practice at a live gun range.
As such, I cannot agree that “a more rigorous showing
than that applied in Skoien should be required, if not quite
‘strict scrutiny.’ ” Ante, at 46. Skoien required the govern-
ment to demonstrate that the statute at issue served
an “important government objective,” and that there
was a “substantial relationship” between the challenged
56 No. 10-3525
legislation and that objective. United States v. Skoien,
614 F.3d 638, 642 (7th Cir. 2010), cert. denied, 131 S. Ct.
1674 (2011).
The majority’s analysis of laws in effect during the
time period surrounding the adoption of the Second and
Fourteenth Amendments helps to prove the point that
no scrutiny beyond that described in Skoien is necessary.
The majority concedes that the City has presented us
with “a number of founding-era, antebellum, and Recon-
struction state and local laws that limited the discharge
of firearms in urban environments.” Ante, at 37. Some
jurisdictions enacted outright bans on discharging
firearms in city limits. Some laws limited the time, place
and manner of firearms discharges. Some laws re-
quired permission from a government authority before
discharging firearms in urban areas. The majority finds
these laws irrelevant to the Second Amendment
analysis here because they are “not specific to controlled
target practice and, in any event, contained significant
carveouts and exemptions.” Ante, at 37-38. The majority
also distinguishes them as regulatory measures rather
than outright bans on firing ranges. Finally, the majority
dismisses some of the laws because they were clearly
aimed at fire suppression, which the majority believes
would not be a concern at a safely sited and properly
equipped firing range.
But these observations contravene rather than support
the majority’s ensuing analysis. First of all, none of the
18th and 19th century jurisdictions cited by the City and
dismissed by the majority were apparently concerned
that banning or limiting the discharge of firearms within
No. 10-3525 57
city limits would seriously impinge the rights of gun
owners or limit their ability to learn how to safely use
their weapons. Citizens living in densely populated areas
had few legitimate reasons to discharge their firearms
near their homes, and likely used them mostly when out
in the country. Opportunities to hunt and practice
outside of city limits were likely adequate for training
purposes. Given the majority’s nod to the relevance of
historical regulation, curt dismissal of actual regulations
of firearms discharges in urban areas is inappropriate.
Second, as I noted above, many of these jurisdictions
regulated the time, place and manner of gun discharges.
For example, as the majority itself points out, one
statute prohibited the discharge of firearms before
sunrise, after sunset, or within one quarter mile of the
nearest building. Others prohibited firearms discharge
without specific permissions and only then at specific
locations. The “time, place and manner” framework of
the First Amendment seems well-suited to the regulation
of live-range training within a densely populated urban
area. A complete ban on live-range training in Chicago,
of course, likely would not survive under the inter-
mediate scrutiny applied to restrictions on time, place
and manner, especially because the City itself concedes
the importance of this training to the safe operation of
firearms for self-defense in the home. Indeed, the City
allows ranges to operate in some of the most densely
populated parts of the City, albeit strictly for the use of
law enforcement and trained security personnel. The
majority purports to distinguish time, place and manner
restrictions and other regulations on the grounds that
58 No. 10-3525
the City’s ordinance is a complete ban, but the ban on
live ranges affects only one aspect of firearms training.
The intermediate scrutiny applied to time, place and
manner restrictions is both adequate and appropriate
in these circumstances.
Finally, that some of those early laws were concerned
with fire suppression does not mean that they are irrele-
vant to our analysis today. On the contrary, these laws
inform us that public safety was a paramount value to
our ancestors, a value that, in some circumstances,
trumped the Second Amendment right to discharge a
firearm in a particular place. Analogizing to the First
Amendment context, a categorical limit is sometimes
appropriate, as in the case of bans on obscenity, defama-
tion, and incitement to crime. See Skoien, 614 F.3d at 641. In
the same way that a person may not with impunity cry
out “Fire!” in a crowded theater, a person in 18th century
New York, and 19th century Chicago and New Orleans
could not fire a gun in the tinder boxes that these cities
had become. See Footnote 14 above. If we are to acknowl-
edge the historical context and the values of the period
when the Second and Fourteenth Amendments were
adopted, then we must accept and apply the full under-
standing of the citizenry at that time. In the instance
of firearms ordinances which concerned themselves with
fire safety, we must acknowledge that public safety
was seen to supercede gun rights at times. Although fire
is no longer the primary public safety concern when
firearms are discharged within City limits, historical
context tells us that cities may take public safety
into account in setting reasonable time, place and
No. 10-3525 59
manner restrictions on the discharge of firearms within
City limits.
The majority’s summary dismissal of the City’s concern
for public safety related to live gun ranges is to my
mind naive. One need only perform a simple internet
search on “gun range accidents” to see the myriad ways
that gun owners manage to shoot themselves and others
while practicing in these supposedly safe environments.
From dropping a loaded gun in a parking lot to losing
control of a strong weapon on recoil, gun owners have
caused considerable damage to themselves and others
at live gun ranges. To say that the City’s concerns for
safety are “entirely speculative” is unfounded. Ante, at
46. The plaintiffs themselves “do not doubt that gun
ranges may be regulated in the interest of public safety.”
Reply Brief at 22. See also Reply Brief at 26-27 (conceding
that the City may except certain parts of the City, set
range distances from other uses, require a license or
permission for target practice, and regulate the opera-
tion and location of gun ranges). The plaintiffs’
concessions regarding gun range regulations are by
no means a complete list of restrictions the City may
impose on gun ranges. At this stage of the litigation,
the City has not yet had an opportunity to develop a
full record on the safety issues raised by placing live
gun ranges in an urban environment. Common sense
tells us that guns are inherently dangerous; responsible
gun owners treat them with great care. Unfortunately,
not all gun owners are responsible. The City has a right
to impose reasonable time, place and manner restric-
tions on the operation of live ranges in the interest
60 No. 10-3525
of public safety and other legitimate governmental con-
cerns.
As for the remaining parts of the ordinance challenged
by the plaintiffs, I agree that, to the extent that these
provisions entirely prohibit gun owners from practicing
at live ranges, they must be enjoined for the time being.
As far as I can tell, though, the plaintiffs have not pre-
sented any evidence demonstrating, for example, that
prohibiting gun owners from possessing guns outside
the home will impinge on their ability to practice at a
range. As the plaintiffs’ own witnesses testified, some
ranges lend patrons guns with which to practice. But
if the ordinance both prohibits gun owners from trans-
porting their own weapons and prevents ranges from
lending weapons for practice, then those aspects of the
ordinance must be enjoined.
The ordinance admittedly was designed to make
gun ownership as difficult as possible. The City has
legitimate, indeed overwhelming, concerns about the
prevalence of gun violence within City limits. But the
Supreme Court has now spoken in Heller and McDonald
on the Second Amendment right to possess a gun in the
home for self-defense and the City must come to terms
with that reality. Any regulation on firearms ownership
must respect that right. For that reason, I respectfully
concur in the judgment.
7-12-11