# Rhonda Ezell v. City of Chicago > Court of Appeals for the Seventh Circuit · July 6, 2011 · 651 F.3d 684 URL: https://www.frixlaw.com/law-library/cases/9441935 ## Case - **Full name:** Rhonda EZELL, Et Al., Plaintiffs-Appellants, v. CITY OF CHICAGO, Defendant-Appellee - **Court:** Court of Appeals for the Seventh Circuit - **Decided:** July 6, 2011 - **Citations:** 651 F.3d 684; 2011 U.S. App. LEXIS 14108; 2011 WL 2623511 - **Precedential status:** Published - **Opinion:** Concurrence by Rovner - **Judges:** Kanne, Rovner, Sykes - **Cited by:** 453 later opinions in the Frix Law Library ## Citator (automated) - **Red flag:** Abrogated on other grounds by New York State Rifle & Pistol Assn., Inc. v. Bruen, 597 U.S. 1 (2022). - Negative treatments: 1 - Distinguished by: 1 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9441935 ## How later opinions describe it (automated extraction) - holding 16 1 that “a severe burden on the core Second Amendment right of 2 armed self-defense will require an extremely strong public- 3 interest justification and a close fit between the 4 government’s means and its end” but that “laws restricting 5 activity lying closer to t… - holding that “a severe burden on the core Second Amendment right of armed self-defense will require an extremely strong public-interest justification and a close fit between the government’s means and its end” but that “laws restricting activity lying closer to the margins of … - finding standing where plaintiffs complained that a ban on firing ranges within the city, accompanied by a requirement that firearm owners have completed training at a firing range, unconstitutionally impaired their Second Amendment right, emphasizing that “the occasional expe… - explaining in dicta that plaintiffs’ injuries “easily supported] Article III standing” where plaintiffs challenging the Ordinance’s provisions relating to firing ranges alleged that they owned firearms and wanted to maintain their proficiency, and traveled outside of the City … - holding that, in order for the Seventh Circuit's preliminary injunction "[t]o be effective," the court "must also prevent [the government] from enforcing other provisions of the [gun range] [o]rdinance that operate indirectly to prohibit range training," not just the ordinance… ## Opinion text ROVNER, Circuit Judge, concurring in the judgment. Stung by the result of McDonald v. City of Chicago, — U.S.-, 130 S.Ct. 3020 , 177 L.Ed.2d 894 (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 *712 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, 128 S.Ct. 2783 , 171 L.Ed.2d 637 (2008), and McDonald , the City may not condition gun ownership for self-defense in the home on a prerequisite 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 precondition 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 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 requirement, 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 Amendment 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 constitutional 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-enforeementtraining/virtra-range-le (last visited July 6, 2011); http://www.meggitttrainingsystems. com/main.php?id=25&name=LE_Virtual_ Bluefire_Weapons (last visited July 6, 2011); http://www.ontargetfire armstraining.com/simulator.php (last visited July 6, 2011). It is possible that, with simulated training, technology will obviate the need for live-range training. In any case, the limited 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 currently 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. *713 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 708. 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 709. Skoien required the government to demonstrate that the statute at issue served an “important government objective,” and that there was a “substantial relationship” between the challenged legislation and that objective. United States v. Skoien, 614 F.3d 638, 642 (7th Cir.2010), cert. denied, — U.S. -, 131 S.Ct. 1674 , 179 L.Ed.2d 645 (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 Reconstruction state and local laws that limited the discharge of firearms in urban environments.” Ante, at 705. Some jurisdictions enacted outright bans on discharging firearms in city limits. Some laws limited the time, place and manner of firearms discharges. Some laws required 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 705. 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 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 intermediate scruti *714 ny 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 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 irrelevant 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, defamation, 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 acknowledge 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 understanding 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 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 709. 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 operation 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 restrictions on the operation of *715 live ranges in the interest of public safety and other legitimate governmental concerns. 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 presented 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 transporting 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. . 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 *712 open to the public in general or to the plaintiffs in particular. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9441935. Public record. Not legal advice.