November 4, 2015
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. 10 C 5135 -
Virginia M. Kendall, Judge.
Kanne, Rovner, and Sykes, Circuit Judges.
case returns to us with new controversies arising from
Chicago's response to Heller and
McDonald,  the Supreme Court's Second Amendment
decisions. Last time we addressed an ordinance banning
shooting ranges throughout the city. See Ezell v. City of
Chicago ("Ezell I"), 651 F.3d 684 (7th Cir.
2011). The range ban was part of a sweeping ordinance adopted
in the wake of McDonald, which invalidated
Chicago's law prohibiting handgun possession.
McDonald v. City of Chicago, 561 U.S. 742, 791
(2010). To replace the handgun ban, the City established a
permit regime for lawful gun possession and required one hour
of range training as prerequisite to a permit, but prohibited
firing ranges everywhere in the city. Ezell I, 651
F.3d at 689-90. We held that the range ban was incompatible
with the Second Amendment and instructed the district court
to preliminarily enjoin it. Id. at 710-11.
City responded by replacing the range ban with an elaborate
scheme of regulations governing shooting ranges. Litigation
resumed, prompting the City to rewrite or repeal parts of the
new regime. The district judge invalidated some of the
challenged regulations and upheld others. Ezell v. City
of Chicago ("Ezell II"), 70 F.Supp.3d 871,
882-92 (N.D. Ill. 2014). Three provisions currently remain in
dispute: (1) a zoning restriction allowing gun ranges only as
special uses in manufacturing districts; (2) a zoning
restriction prohibiting gun ranges within 100 feet of another
range or within 500 feet of a residential district, school,
place of worship, and multiple other uses; and (3) a
provision barring anyone under age 18 from entering a
shooting range. The judge permanently enjoined the
manufacturing-district restriction but upheld the distancing
and age restrictions. Both sides appealed.
affirm in part and reverse in part. The two zoning
regulations-the manufacturing-district classification and the
distancing rule-dramatically limit the ability to site a
shooting range within city limits. Under the combined effect
of these two regulations, only 2.2% of the city's total
acreage is even theoretically available, and the commercial
viability of any of these parcels is questionable-so much so
that no shooting range yet exists. This severely limits
Chicagoans' Second Amendment right to maintain
proficiency in firearm use via target practice at a range. To
justify these barriers, the City raised only speculative
claims of harm to public health and safety. That's not
nearly enough to survive the heightened scrutiny that applies
to burdens on Second Amendment rights.
restriction also flunks heightened scrutiny. We held in
Ezell I that the Second Amendment protects the right
to learn and practice firearm use in the controlled setting
of a shooting range. The City insists that no person under
age 18 enjoys this right. That's an extraordinarily broad
claim, and the City failed to back it up. Nor did the City
adequately justify barring anyone under 18 from entering a
range. To the contrary, its own witness on this subject
agreed that the age restriction is overbroad because
teenagers can safely be taught to shoot and youth firearm
instruction is both prudent and can be conducted in a safe
Ezell I we held that Chicago's ban on firing
ranges could not be reconciled with the Second Amendment and
ordered the district court to preliminarily enjoin its
enforcement. 651 F.3d at 710-11. We assume familiarity with
that opinion, though we'll repeat the key holdings as
responded to our decision by promulgating a host of new
regulations governing firing ranges, including zoning
restrictions, licensing and operating rules, construction
standards, and environmental requirements. (Firing ranges
operated by law enforcement and private-security firms are
exempt from the regulatory scheme; there are currently 11 of
these located throughout the city.) The plaintiffs returned
to court arguing that many of the new regulations violate the
face of this second round of litigation, the City amended the
regulatory scheme four times, Ezell II, 70 F.Supp.3d
at 876, repealing or revising some of the new rules. The
parties eventually filed cross-motions for summary judgment.
Ruling on the motions, the judge invalidated some regulations
and upheld others, id. at 884-93, leaving both sides
with something to appeal. And appeal they did, though many of
the judge's rulings are left unchallenged, helpfully
narrowing the present scope of the dispute.
regulations remain contested. The first two are zoning
provisions limiting where shooting ranges may locate. Section
17-5-0207 of the Chicago Municipal Code permits ranges only
in manufacturing districts with a special-use permit. Section
17-9-0120 is a distancing restriction barring shooting ranges
within 100 feet of another range or within 500 feet of any
district that is zoned for residential use or planned
residential use, or any preexisting school, day-care
facility, place of worship, liquor retailer, children's
activities facility, library, museum, or hospital. The third
contested regulation, section 4-151-100(d), prohibits anyone
under age 18 from entering a shooting range.
judge held that the zoning restrictions severely limit where
shooting ranges can be located and accordingly required the
City to establish a close fit between the restrictions and
the public interests they serve. Id. at 883. The
City identified several harmful secondary effects that it
claimed were associated with shooting ranges: gun theft, fire
hazards, and airborne lead contamination. Id. at
883-84. But it produced no evidentiary support for these
claims beyond the speculative testimony of three city
officials-Zoning Administrator Patricia Scudiero, Police
Lieutenant Kevin Johnson, and Rosemary Krimbel, the
Commissioner of Business Affairs and Consumer Protection.
return to the specifics of their testimony later; for now
it's enough to say that the judge found it wholly
inadequate to discharge the City's burden to justify
relegating shooting ranges to manufacturing districts.
Id. Because the City failed to establish a
connection between this zoning rule and the public interests
it is meant to serve, the judge invalidated the
manufacturing-district restriction. Id. at 884.
judge rejected the challenge to the 500-foot distancing
requirement. She found this restriction "significantly
less burdensome" when considered "standing
alone." Id. She likened it "to a 'law
forbidding the carrying of firearms in sensitive places such
as schools and government buildings, '" which
Heller specifically did not call into question.
Id. (quoting District of Columbia v.
Heller, 554 U.S. 570, 626-27 (2008)). Without further
analysis, the judge upheld the 500-foot distancing
restriction. She did not specifically address the additional
requirement of a 100-foot buffer zone between firing ranges.
the judge upheld the age restriction, concluding that
"minors are not guaranteed Second Amendment
rights." Id. at 889. Cross-appeals followed.
City asks us to reinstate its zoning restriction limiting
firing ranges to manufacturing districts. The plaintiffs
defend the judge's decision to strike that rule; they
argue as well that the distancing and age restrictions fail
Second Amendment scrutiny. Our review is de novo, so we give
these issues a fresh look. See Dunnet Bay Constr. Co. v.
Borggren, 799 F.3d 676, 688 (7th Cir. 2015) ("We
review the district court's ruling on the cross-motions
for summary judgment de novo, construing all
reasonable inferences from the record in favor of the party
against whom the motion under consideration is made.").
as settled what was established in Ezell I. There we
held that resolving Second Amendment cases usually entails
two inquiries. The threshold question is whether the
regulated activity falls within the scope of the Second
Amendment. Ezell I, 651 F.3d at 701-02. This is a
textual and historical inquiry; if the government can
establish that the challenged law regulates activity falling
outside the scope of the right as originally understood, then
"the regulated activity is categorically unprotected,
and the law is not subject to further Second Amendment
review." Id. at 703.
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
government's justification for restricting or regulating
the exercise of Second Amendment rights." Id.
This requires an evaluation of "the regulatory means the
government has chosen and the public-benefits end it seeks to
achieve." Id. The rigor of this means-end
review depends on "how close the law comes to the core
of the Second Amendment right and the severity of the
law's burden on the right." Id. Severe
burdens on the core right of armed defense require a very
strong public-interest justification and a close means-end
fit; lesser burdens, and burdens on activity lying closer to
the margins of the right, are more easily justified.
Id. In all cases the government bears the burden of
justifying its law under a heightened standard of scrutiny;
rational-basis review does not apply. Id. at 706.
the "scope" question in Ezell I, we
rejected the City's argument that range training is
categorically unprotected by the Second Amendment. We held
that the core individual right of armed defense-as recognized
in Heller and incorporated against the states in
McDonald-includes a corresponding right to acquire
and maintain proficiency in firearm use through target
practice at a range. 651 F.3d at 704. We explained that the
core right to possess firearms for protection
"wouldn't mean much without the training and
practice that make it effective." Id. We noted
that Heller itself supports this understanding.
Id. at 704 (citing Heller, 554 U.S. at 616,
619). Finally, we held that the City had failed to establish
that target practice is wholly unprotected as a matter of
history and legal tradition in the founding era or when the
Fourteenth Amendment was ratified. Id. at 704-06.
holding and these observations control here. Range training
is not categorically outside the Second Amendment. To the
contrary, it lies close to the core of the individual right
of armed defense.
City also failed to carry its burden in Ezell I at
step two of the analytical framework. We held that banishing
firing ranges from the city was a severe encroachment on the
right of law-abiding, responsible Chicagoans to acquire and
maintain proficiency in firearm use, "an important
corollary to the meaningful exercise of the core right to
possess firearms for self-defense." Id. at 708.
Accordingly, we applied a strong form of intermediate
scrutiny and required the City to demonstrate "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." Id. at 708-09. The
City did not carry this burden, so we instructed the district
court to enjoin the firing-range ban. Id. at 709-11.
this is established law. Resisting these settled
propositions, the City now asks us to revisit and modify the
analytical framework established in Ezell I. In its
view only laws that substantially or "unduly"
burden Second Amendment rights should get any form of
heightened judicial scrutiny. This is an odd argument; we
specifically addressed and rejected that approach in
Ezell I. Id. at 703 n.12; id. at 706. Our
reasoning flowed from Heller itself: The Supreme
Court explicitly rejected rational-basis review, making it
clear that burdens on Second Amendment rights are always
subject to heightened scrutiny. Heller, 554 U.S. at
628 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
prohibition on irrational laws, and would have no
effect."). In McDonald the Court cautioned
against treating the Second Amendment as a "second-class
right, subject to an entirely different body of rules than
the other Bill of Rights guarantees." 561 U.S. at 780.
The City's proposed "substantial burden" test
as a gateway to heightened scrutiny does exactly that.
for good measure that most other circuits have adopted the
framework articulated in Ezell I and require some
form of heightened scrutiny when evaluating the
government's justification for a law challenged on Second
Amendment grounds. See, e.g., Tyler v. Hillsdale Cty.
Sheriff's Deft, 775 F.3d 308, 326 (6th Cir. 2014);
Jackson v. City & County of San Francisco, 746
F.3d 953, 961 (9th Cir. 2014); Nat'l Rifle Ass'n
of Am., Inc. v. Bureau of Alcohol, Tobacco, Firearms &
Explosives, 700 F.3d 185, 194 (5th Cir. 2012);
Heller v. District of Columbia, 670 F.3d 1244, 1252
(D.C. Cir. 2011); United States v. Chester, 628 F.3d
673, 680 (4th Cir. 2010); United States v. Reese,
627 F.3d 792, 800-01 (10th Cir. 2010); United States v.
Marzzarella, 614 F.3d 85, 89 (3d Cir. 2010). We see no
reason to retreat from our settled approach and now repeat
what we said in Ezell I: If the challenged law
regulates activity protected by the Second Amendment, the
government "bears the burden of justifying its action[s]
under some heightened standard of judicial
review." 651 F.3d at 706.
New Regulations, New Challenges
new round of litigation is somewhat different,
however; this time we're reviewing a set of zoning
restrictions, not an outright ban on shooting ranges
throughout the city. Still, the record reflects that the
zoning regulations at issue here severely limit where
shooting ranges may locate. The combined effect of the
manufacturing-district classification and the distancing
restriction leaves only about 2.2% of the city's total
acreage even theoretically available to site a shooting range
(10.6% of the total acreage currently zoned for business,
commercial, and manufacturing use). It's unclear how many
of these parcels are commercially suitable for siting a
shooting range catering to the general public.
plaintiffs presented evidence-including the testimony of two
experts-showing that in other jurisdictions shooting ranges
are treated as commercial uses and are often attached to gun
retailers, and that banishing them to a tiny subset of the
land zoned for manufacturing reduces their commercial
viability based on traffic patterns, lack of arterial roads,
and other impediments. Tellingly, years after Ezell
I no publicly accessible shooting range yet exists in
Chicago. We therefore agree with the district judge that the
challenged zoning regulations, though not on their face an
outright prohibition of gun ranges, nonetheless severely
restrict the right of Chicagoans to train in firearm use at a
agree with the judge's decision to require the City to
establish a close fit between the challenged zoning
regulations and the actual public benefits they serve-and to
do so with actual evidence, not just assertions. 70 F.Supp.3d
at 883. The judge's analysis went offtrack, however, when
she examined the two zoning regulations separately and
summarily upheld the 500-foot ...