Gun Owners' Victory on Retail Sales Ban Leaves Questions Unanswered

JURIST Guest Columnist John Frazer says that while the IAFR v. City of Chicago decision is illuminating, critical Second Amendment questions remain unanswered...

Can politicians in a major city decide that a constitutional right may be exercised but not in their back yards? That is the issue that was raised and decided in the case of Illinois Association of Firearms Retailers (IAFR) v. City of Chicago (PDF), decided January 6, 2014 by Judge Edmond Chang of the US District Court for the Northern District of Illinois.

The "not in my back yard" ordinance in question was one of the new gun laws passed by the Chicago City Council in response to the US Supreme Court's decision in McDonald v. City of Chicago, which struck down the city's handgun ban. After the Supreme Court held that the Second Amendment applies to the states through the Fourteenth Amendment, Chicago radically retooled its local gun laws. The new laws added stringent conditions that raised great obstacles to Chicago citizens wishing to exercise their Second Amendment rights—and that also presented great opportunities to litigators hoping to vindicate those rights.

Central to the city's efforts was the creation of a new Chicago firearms permit, required for possession of any firearm by a city resident. Among the prerequisites for getting a permit was live-fire training on a shooting range—but the law also banned the operation of ranges in the city. That catch-22 was struck down by the US Court of Appeals for the Seventh Circuit in Ezell v. City of Chicago, in which the court held that the ban on ranges was "a serious encroachment on the right to maintain proficiency in firearm use, an important corollary to the meaningful exercise of the core right to possess firearms for self-defense."

However, the city still banned virtually all sales and transfers of firearms in the city. Even gifts between family members were prohibited (with uncharacteristic generosity to gun owners, the city did allow transfers by inheritance).

The plaintiffs challenging these laws included the IAFR, as well as residents who were licensed to possess firearms by the state and the city but who were unable to buy firearms without traveling to the suburbs. The IAFR and other plaintiffs argued that just as in Ezell, a jurisdiction could not condition the exercise of a fundamental, enumerated constitutional right on carrying out necessary related activities in some other jurisdiction.

In the two-step Second Amendment analysis that has become common in the federal courts' analysis of Second Amendment claims, the first question is whether the regulatory measure affects conduct protected by the Second Amendment and how close the measure cuts to the "core" of the right. A law that does not burden the Second Amendment will be upheld, and laws that burden law-abiding citizens' possession of guns for home defense will be subject to more exacting scrutiny than those which primarily affect criminals, or that mainly affect gun possession or use outside the home.

An interesting twist to this step of the analysis is whether the scope of the Second Amendment, as applied to the states through the Fourteenth Amendment, is determined by the understanding of the right to arms at the time the Second Amendment was ratified in 1791 or at the time the Fourteenth Amendment was ratified in 1868. This question may be important in some cases where regulations that were rare or unknown in 1791—such as restrictions on carrying concealed weapons—had begun to take root by 1868.

The Seventh Circuit panel in Ezell suggested that federal laws should be analyzed based on the 1791 understanding of the Second Amendment, while state laws should be assessed against the 1868 understanding, but in Moore v. Madigan, a later Seventh Circuit panel that struck down Illinois' total ban on carrying firearms for self-defense outside homes and businesses suggested that the relevant date is always 1791. The Moore court's choice was based on the Supreme Court's language in McDonald stating that "incorporated Bill of Rights protections are all to be enforced against the states under the Fourteenth Amendment according to the same standards that protect those personal rights against federal encroachment." Heller itself noted the importance of 19th-century interpretations for understanding the 18th-century meaning of the Second Amendment.

This question may have to be resolved by higher courts in the future, but in IAFR, Judge Chang's choice to adopt the Moore court's choice of 1791 may have been significant; it helped him easily reject the city's claim that firearms sales and transfers were outside the scope of the Second Amendment, because the city could only cite three "isolated statutes ... enacted 50 to 110 years after 1791" that banned sale, manufacture and transfer of firearms in three states (tellingly left unsaid by Chicago was that all of the cited statutes were enacted either by antebellum southern states or their Jim Crow successors after Reconstruction).

If the conduct at issue is within the scope of the Second Amendment, the courts move to the second step of the analysis—choosing and applying a standard of review that tests the law's appropriateness to serve the government's interests. In IAFR, Chicago argued that the appropriate standard was intermediate scrutiny, under which the Seventh Circuit had previously upheld the federal law banning gun possession by domestic violence misdemeanants, in the case of US v. Skoien. To bolster this, Chicago suggested that its law did not ban gun acquisition—only acquisition in Chicago.

Chang rejected both arguments, finding that the transfer ban, unlike the domestic violence law, affected "the gun rights of the entire law-abiding adult population." He also scoffed at the idea that gun acquisition—"the most fundamental prerequisite of legal gun ownership"—could be banned in one jurisdiction on the premise that guns would still be available elsewhere. As he pointed out, that doctrine was rejected in the First Amendment arena decades ago, and just as strongly rejected with respect to shooting ranges in Ezell, where the court wrote that "This reasoning assumes that the harm to a constitutional right is measured by the extent to which it can be exercised in another jurisdiction. That's a profoundly mistaken assumption."

Because the transfer ban fell so heavily on law-abiding citizens' gun possession in their homes, Chang adopted the Ezell standard of "not quite strict scrutiny," under which the city would have to establish a "strong public-interest justification" for the ban, and show a "close fit" between the ban and those public interests.

The city proposed three justifications:

1. That its ban would reduce criminal access to dealers—in part, because inner-city criminals would be unwilling to travel through rival gang boundaries to reach suburban gun stores;

2. That the ban would aid police efforts to restrict illegal markets—partly by reducing the city's overall gun ownership rate; and

3. That gun stores in general should be eliminated from the city because they cannot be effectively policed by a "fundamentally broken" federal regulatory system.

Chang rejected all three ideas. First of all, he pointed out that few guns used in crime are acquired directly from licensed retailers—and law-abiding people would also be unwilling to cross gang-infested territory. Second, even without the transfer ban, Chicago police could still target illegal gun markets through traditional tactics such as traffic and pedestrian stops (Chang also noted that after District of Columbia v. Heller, "trying to minimize the exercise of [the Second Amendment] right cannot be a valid basis for the sales-and-transfer ban."). Finally, the supposedly ineffective federal enforcement system would be equally ineffective against any rogue dealers operating outside the city.

Faced with this well-reasoned decision, Chicago quickly folded, announcing it would not appeal; suburban gun stores have already announced plans to expand into the city. Between the outcome in IAFR and the repeal of Chicago's local handgun restrictions as part of the political compromise—sparked by the Moore decision—to pass a carry permit system at the state level, the city has now been dragged unwillingly into the mainstream of American firearms laws.

Still, Chang's decision leaves important questions for the future.

For example, may a city stop short of banning gun sales but impose such severe restrictions on dealers' operations that few—or no—dealers choose to do business there? Shortly after Heller, that was the situation in Washington, DC, where "emergency" zoning rules prohibited firearms sales in the vast majority of the city. Even since those rules have been somewhat relaxed, only one federally licensed firearms dealer has been willing to make sales to the public (when he lost his commercial lease, the Washington, DC government—perhaps to keep the issue out of the courts—threw him a lifeline by changing the zoning rules (PDF) to let him rent an office in the headquarters of the district's own police department).

Additionally, as applied to individuals, what regulations fall short of imposing de facto gun bans yet impermissibly approach the same result? Consider, for example, the laws of Puerto Rico (PDF), which require gun owners to gather letters of reference as to their good character, limit the number of guns and the amount of ammunition that may be possessed, control the number of guns that may be transported and regulate the manner in which guns must be stored in the home. Similarly, plaintiffs in Washington, DC are challenging a number of registration provisions that the US Court of Appeals for the DC Circuit found to be "novel, not historic"—including any registration requirement at all for long guns, and a one-gun-a-month limit for handguns.

Finally, what about laws regulating the firearms industry, such as California's "microstamping" requirement (PDF) or New Jersey's statute that proposes to eventually ban the sale of all non-"personalized" handguns? Under either proposal, many or all current handguns will become unlawful to sell in these states (major manufacturers already plan to pull out of the California market). These laws do not ban handgun possession or sale outright, but will eventually make all current models unavailable for purchase. Can California and New Jersey make a straight-faced argument that the availability of a handful of new and expensive compliant guns is sufficient to allow citizens to exercise their Second Amendment rights?

Such are the questions that the courts, and litigators, are likely to confront as Second Amendment jurisprudence moves from infancy to adolescence.

John Frazer is an attorney in Fairfax, Virginia and is a member of the Virginia State Bar. Before entering private practice, he worked for twenty years as an attorney, researcher and lobbyist for the National Rifle Association's Institute for Legislative Action.

Suggested citation: John Frazer, Gun Owners' Victory on Retail Sales Ban Leaves Questions Unanswered, JURIST - Sidebar, Feb. 23, 2014, http://jurist.org/sidebar/2014/02/john-frazier-gun-laws.php.



This article was prepared for publication by Stephen Krug, an associate editor for JURIST's professional commentary service. Please direct any questions or comments to him at professionalcommentary@jurist.org

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