Mimesis Law
27 January 2022

If Chicago Won’t Learn, Alan Gura Will Make It

Jan. 20, 2017 (Fault Lines) – Set aside your concerns about the inauguration. It’s a frabjous day! Both Chicago’s gun lovers and aficionados of the Constitution have a lot to be happy about, what with yesterday’s big Second Amendment win out of the Windy City.

This is a nice change of pace at a time when Chicago’s getting a lot of bad press. Just last week, DoJ dropped a much-ballyhooed report on misconduct by the CPD, the culmination of yet another extended, expensive federal effort to tell the city’s residents and the nation what they already knew. Public servants are going around brutalizing people while paying less than lip service to their constitutional rights. They’re unionized, so they’re tough to discipline and fire. Oversight is a bad joke. And rather than address the problem, Mayor Rahm Emanuel prefers to duck and weave in an ongoing effort not to get shit on his mayor hat.

But the thing about problems is that they don’t go away when you ignore them. There’s now a big hole in the municipal budget, the result of all the police-brutality lawsuits Chicago’s had to settle. (In July 2016, the Chicago Reporter calculated the total payout from 2012 to 2015: a staggering $210 million.) Worse, the extremely costly, sprawling and deeply entrenched police force has been doing a bad job of fighting crime. For roughly the past ten months, Chicago residents have had to deal with a crime wave street cops describe as “unprecedented.” Auto thefts, armed robberies and burglaries are all up, as are homicides.

This kind of environment creates a demand for guns. And the good news for prospective Chicago gun owners (and the starting point of this story) is that the Supreme Court, in its 2008 Heller decision, rediscovered the individual right to bear arms, doing away with 70 years of poorly justified assumptions to the contrary.

It’s important to note that the decision isn’t perfect. Heller acknowledges that the individual right can be restricted, but doesn’t explain why and in what circumstances. Instead, it offers dubious examples of regulations that the majority considered historically and constitutionally acceptable. But it was totally earthshaking in that it reestablished the Second Amendment right to keep and bear guns, not just collectively but also and especially for self-defense.

After a win this big, nobody would’ve blamed the attorney who pulled it off, Alan Gura, for kicking back and taking it easy. Instead, he decided to press the advantage. Heller only restricted the ability of the federal government to regulate guns: the question of “incorporation,” or whether the Fourteenth Amendment’s Due Process Clause also keeps the states from infringing the individual right, was left open. Accordingly, in 2010, Gura went back to the Supreme Court to represent four Chicago residents – Otis McDonald, Adam Orlov, Colleen Lawson and David Lawson – who wanted to keep firearms in their homes for self-defense, but couldn’t legally do so because of the city’s handgun ban.

Their stories would likely resonate with today’s residents suffering from the crime wave. For instance, McDonald, the lead petitioner, was a community organizer in his late seventies who’d repeatedly been threatened by drug dealers for trying to help clean up his neighborhood. Colleen Lawson wanted a gun to keep the burglars who’d robbed her home from coming back.

In the end, the Supreme Court sided with Gura for a second time. The individual right was incorporated to the states’ detriment, Chicago’s handgun ban was invalidated and McDonald and the others were newly free to protect themselves. End of story? Maybe somewhere sane, but in America’s Second City, the struggle was doomed to continue.

In a traditional display of Chicago-style politics, City Hall, then still run by legendary mayor Richard Daley, attempted an end run around the Constitution. Instead of banning handguns, the city set up a permit regime that a) required licensees to take an hour of gun instruction at a shooting range and b) outlawed shooting ranges anywhere in the city. As is typical of these kinds of bans, it’s precisely those low-income, minority residents who are most likely to live in Chicago’s high-crime areas and therefore want guns who were hardest hit: they’re the ones who’d struggle most with the cost and logistics of reaching gun ranges in the countryside.

Gura, of course, was unfazed by what passes for cleverness in the Windy City and decided to give City Hall another spanking. In Ezell v. City of Chicago (2011), aka Ezell I, the Seventh Circuit ruled that Daley’s range scheme violated the Second Amendment and enjoined it. Notably, the court reached its decision by devising a two-part test for Second Amendment cases that fills in some of the gaps left over from Heller.

To prevail, the government first has to try and show that the activity it wants to regulate isn’t covered by the Second Amendment. If it can’t do that, the regulation has to survive an “inquiry into the strength of the government’s justification for restricting or regulating the exercise of Second Amendment rights” that takes into account how burdensome it would be; how compelling the government’s goal is; and how effective the regulation would be at making the goal happen.

(Per Heller, regulations that implicate the Second Amendment are always subject to heightened scrutiny. There’s an easier “rational basis” standard that any minimally justified law can pass, but it doesn’t apply to these cases.)

Daley’s range ban flunked the Seventh Circuit’s test, so Chicago’s bureaucrats went back to the drawing board. This time, under the new leadership of Mayor Emanuel, they came up with a byzantine network of regulations to make it impossible to set up commercially viable ranges. Rhonda Ezell, the plaintiff who successfully challenged the range ban, was left with no choice but to mount a second challenge. Her opposition to the new rules prompted Chicago to “rewrite or repeal” them in part, but the city left three regulations in place that, taken together, had the effect of forcing ranges into some of the least desirable parts of town and barred underage people from going in. This was unacceptable, so Ezell and Gura went back to the Seventh Circuit.

Their latest win, Ezell II, is a complete rout. The appellate court invalidated two of the three disputed rules and upheld a district court’s invalidation of the third after all three flunked the Ezell I test. The result is that for the third time, the city of Chicago’s run into a brick wall with its unconstitutional efforts to keep residents from exercising their Second Amendment rights. Will they ever learn?

This is a good outcome regardless of how you feel about guns. As Fault Lines contributor Ken White puts it, rights are bundled, not a la carte. They rise and fall together. From a constitutional perspective, it’d be every bit as deplorable if Chicago were a red city trying to keep its residents from getting access to abortion.

But the part of the story that’s at risk of being overlooked is how utterly stubborn and resistant to change Chicago’s leadership is. If the Gura wins prove anything, it’s that City Hall’s completely unwilling to rethink its assumptions. Rather, it mindlessly doubles down on regulations that are ineffective – Chicago’s been awash in illegal guns for a long time – and profoundly lawless.

In other words, its attitude towards guns is the same as its approach to policing. Forget shiny DoJ reports and their optimistic promises: it’s this, more than anything else, that should make you skeptical of the prospects for reform.

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