Zoning laws are a peculiarly American way of legally barring people we don’t like from doing things we find aesthetically unappealing with their own property. Occasionally, though, one of these laws runs up against someone who wants to use their own property to exercise a core civil right who has the wherewithal and endurance challenge it. And sometimes justice prevails.

That was the case in the matter of Ezell v. Chicago before the 7th Circuit Court of Appeals, where yesterday – in a win for Second Amendment advocates – the city of Chicago was stopped from enforcing zoning ordinances that have kept any gun ranges from opening in the Windy City.

This saga began back in 2010, when the Supreme Court’s McDonald v. Chicago decision struck down Chicago’s onerous gun control regime. The decision forced city elders to re-write their laws. This they did, very carefully and with an eye toward throwing up as many obstacles as they could to hinder residents’ attempts to exercise their civil rights, while still staying within the letter of the Supreme Court’s decision.

Their first attempt fell apart in 2011, when the 7th Circuit took the entirely reasonable position that if Chicago was going to mandate one-hour of live fire range time as a prerequisite to merely owning a firearm, the city couldn’t actually enact a ban on gun ranges within city limits. (The 2011 case was styled Ezell v. Chicago.)

Gun range. Not in Chicago.

Bowed but unbroken, hoplophobic city elders tried a different tack: they’d technically allow gun ranges to open, but would apply so many restrictions on their location and use as to make any gun ranges as inaccessible and unprofitable as possible.

The same people who challenged Chicago the first time–Rhonda Ezell, Joseph Brown, and William Hespen, joined by Action Target, Inc., the Illinois State Rifle Association, and the Second Amendment Foundation–came back for seconds, along with their eminently capable attorneys, Alan Gura and David Sigale. By the time the case found its way back to the Court of Appeals, there were three specific regulations being challenged:

(1) Restricting shooting ranges only to land zoned for manufacturing purposes.
(2) Barring shooting ranges from existing within 100 feet of another shooting range, or within 500 feet of a residential district, school, place of worship, “and multiple other uses”.
(3) Banning persons under the age of 18 years of age from entering a shooting range for any reason.

In a cogent, well-written 19-page decision written by Judge Diane S. Sykes, the Court held that all three of these regulations had to fall in deference to the Second Amendment right to keep and bear arms.

Judge Sykes addressed the location issue first. The cumulative restrictions barred any gun range from opening on 97.8% of the land area of the city. Chicago had claimed that the existence of a gun range might “attract gun thieves, cause airborne lead contamination, and carry a risk of fire.” Judge Sykes dismissed the city’s claims, as the city hadn’t given any actual evidence to support them.

She called their offerings little more than “speculative claims of harm to public health and safety,” which didn’t pass the intermediate-level scrutiny that courts are using for Second Amendment issues. As Judge Sykes wryly noted, “[t]he City’s own witnesses testified to the lack of evidentiary support for these assertions. They repeatedly admitted that they knew of no data or empirical evidence to support any of these claims.” (Emphasis in original.)

The city had imposed a carve-out for ranges operated by civilian law enforcement, which Judge Sykes said, belied their apparent concern about safety and environmental issues.

[T]he City concedes (as it must) that law-enforcement and private-security ranges operate in commercial districts throughout Chicago near schools, churches, parks, and stores; the City acknowledges that they operate quite safely in those locations. Common sense suggests that law-enforcement ranges probably do not attract many thieves, but the City’s theft-protection rationale for these zoning rules is so woefully unsupported that the distinction between law-enforcement and commercial ranges doesn’t carry much weight. The City doesn’t even try to argue that commercial ranges crate greater fire or environmental risks than law-enforcement ranges.

The city fared even worse when it came to the 18-year-old age restriction. Chicago argued that minors had no Second Amendment rights which the state was obligated to respect. Judge Sykes found “zero historical evidence that firearm training for this age group is categorically unprotected. At least the City hasn’t identified any, and we’ve found none ourselves.”

She then cited this little gem cited in the footnotes in Heller:

“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.” Benjamin Vaughan Abbott, Judge and Jury: A Popular Explanation of the Leading Topics in the Law of the Land at 333 (1880), cited in Heller v. District of Columbia, 554 U.S. at 617-18.

Maybe the most amazing part of the ruling, however, was when Judge Sykes looked at the testimony Chicago had offered to the lower court. Their own witness, Rosemary Krimbel, the Commissioner of Business Affairs and Consumer Protection, “actually agreed with the plaintiff’s attorney that banning anyone under 18 from entering a shooting range goes too far and extends beyond legitimate safety concerns.” (Emphasis added.)

“I will give you this: I believe [the age restriction] is inartfully drafted because it seem[s] clear to me that the purpose of it is not to have kids running around unsupervised…. [Y]ou might want to draft that a little bit differently” because shooting ranges are a “good place” to teach a youngster “how to fire a rifle….”

“In fact, my own son took a shooting class when he was 12, so I’m well aware of the fact it’s okay to teach a young person how to shoot a gun properly.”

Commissioner Krimbel also conceded that the City lacked any data or empirical evidence to justify its blanket no-one-under-18 rule.

Overall, this was a solid win, and another feather in the cap of attorney Gura. Two things to note, though:

First, the decision was made all the easier for the judge by the fact that the city had so little evidence to support its contentions about environmental or safety issues related to gun ranges. I guaran-damn-tee you that a bunch of tenure-seeking assistant professors in the social sciences just found their next research topic. This is one of the areas where billionaire plutocrat Mike Bloomberg and others of his ilk are throwing money at academic ideologues to publish stuff, even if it’s crap. How is a lawyer or a judge supposed to know the difference? How is anyone supposed to know the difference, unless they’re a statistician who’s done their own analysis of the findings?

I confess that I’m a little concerned that. With the exception of John Lott, there hasn’t been much work done in the social sciences from the pro-gun perspective. At some point, we may be in a position where the only social science work done has been from studies done solely to score an ideological point against our movement.

This is also why I might think about compromise on something as odious as background checks long before I’d ever compromise on a repeal of the Dickey Amendment. Background checks would be a straightforward loss, but the damage might be contained, maybe even rolled back in time. Junk science promoted by our tax dollars being used to undermine our own rights is a poison gas that you can’t un-breathe.

Second, the judge who authored the opinion, Diane Sykes, writes in a clear manner that’s understandable (I’d wager) to the average layperson. She’s also on President-Elect Donald Trump’s short list for consideration to the Supreme Court. I was impressed by her writing. Jake Curtis wrote an article about her in the National Review last year talking up her judicial philosophy as a textual originalist. According to Curtis, Judge Sykes explained her approach to the law as follows:

Judicial deference to the policy choices enacted into law by the legislature requires that statutory interpretation focus primarily on the language of the statute. We assume that the legislature’s intent is expressed in the statutory language. Extrinsic evidence of legislative intent may become relevant to statutory interpretation in some circumstances, but is not the primary focus of inquiry. It is the enacted law, not the unenacted intent, that is binding on the public. Therefore, the purpose of statutory interpretation is to determine what the statute means so that it may be given its full, proper, and intended effect.

She doesn’t sound like a “living constitution” kind of woman, does she?

RELATED ARTICLESMORE FROM AUTHOR

45 COMMENTS

  3. Well that’s special! Now if you can get all the gangbangers to stop using Chiraq as “America’s Largest Outdoor Shooting Range”? I vividly remember not long ago when they had shotguns blasting away right off Lakeshore Drive…

    • I remember that as well, at the end of Division I think it was, on the lake front just east of the end of LSD, by the marina. Shot there once myself on a school outing when I was 16. It was the first time I’d ever handled much less fired a real firearm. I assume it was a 12 gauge, but all I really remember was that it was a semiautomatic, and that I even scored a double. I wonder if that range is still there.

        • Maaaan, f*ck seagulls. All they do is crap everywhere and leave rotting half-eaten fish everywhere. That is one animal we should be allowed to hunt to extinction.

    • I suspect the city attorney was just trying to play the hand he had. Directed by his political masters to bet money on a pretty miserable case, when all he had was a pair of twos.

  5. “First, the decision was made all the easier for the judge by the fact that the city had so little evidence to support its contentions about environmental or safety issues related to gun ranges. I guaran-damn-tee you that a bunch of tenure-seeking assistant professors in the social sciences just found their next research topic.”

    Yet if they had this ‘evidence’, it would apply to the police and security companies ranges as well, no?

    Since it was ruled a violation of the 2A, can they sue for lawyer’s fees, etc?

    “Second, the judge who authored the opinion, Diane Sykes, writes in a clear manner that’s understandable (I’d wager) to the average layperson. She’s also on President-Elect Donald Trump’s short list for consideration to the Supreme Court.”

    She looks like she would be an *excellent* candidate, and being female, a good counter to charges of Trump being a ‘misogynist’.

    And a good balance to the self-described “Wise Latina”, (who is anything but)…

  6. She doesn’t sound like a “living Constitution” proponent.

    This is a good example of “judicial activism,” which is appropriate in some cases, including this one.

    • No it’s not. This was a clear constitutional ruling, the exact opposite of judicial activism. Judicial activism is the invention of a law or right or striking down a right that clearly exists in the constitution. The invention of the right to gay marriage for an example.

  7. I spent fifteen years on my County Zoning Board, so let me first correct Mr. Paulsen’s first sentence with regard to the purpose of zoning laws.

    Do you like bacon? Of course you do. Would you like to live next door to the 2,000 sow hog farm where they raise the bacon? You will answer no if you’ve ever driven past a modern hog facility. Seriously, a rotting skunk carcass in the middle of the road smells better. That’s where zoning comes in. Separate incompatible land uses. Put the houses over here, the hog farms over there, and the factories somewhere else. Residential, commercial, agricultural and industrial are the major zone classifications.

    Without zoning laws, your next door neighbor could decide to raise hogs or install an asphalt batch plant in his back yard. It’s his property, right? So what if you find it aesthetically unappealing? Suks 2BU! Property rights!

    A gun range is a commercial use. It’s a place where customers come, use the facilities and go home. Commercial zones typically come with a long list of requirements (adequate parking, setbacks, structure height consistent with the neighborhood, etc.).

    Illinois statute with regard to zoning laws is clear about one thing: They can’t be arbitrary and capricious. They need to have a clear basis with regard to the health, safety and welfare of the citizens. This is where Chicago went afoul of the law. If they prohibit gun ranges where they allow other commercial uses, they need to have a reason. In layman’s terms, Judge Diane S. Sykes looked at their phony, made-up reasons and said, “Bull$h!t!”

    It always warms my heart when our court system exposes gun-grabbers’ arguments for the lies that they are. Thank you, Judge Sykes, for helping to make America great again!

    • Zoning IS NOT BAD, this case is simply an abuse.
      Houston had no zoning (might still be that way) and industrial businesses would move into a residential subdivision and operate a noisy smelly operation with impunity. Even rural areas get hit — would you like a cement plant or rock crushing plant or asphalt plant to suddenly move in next door to your 10 acre “former” Eden ???

      • Really? Do you have an actual example, or are you just parroting what someone else has told you about Houston?

        I lived in and around Houston for over 40 years (relocated to Austin a few years ago). While topography and climate means Houston is never going to top anyone’s list of vacation or scenic locales, it’s hardly the hellhole the zoning proponents make it out to be.

        Why is that? Because most of the residential areas in the city were (and still are) developed under restrictive covenants. In short, the property owners *agreed* as to what uses would be permitted, and those covenants are legally enforceable by private litigants. If circumstances change (e.g., a location becomes so valuable that the highest and best use would be high rise multifamily, as opposed to SFR), then the developer has to buy out the other landowners and break the restrictions, as opposed to greasing the palms of the local politicians.

        Want to put in a refinery next door to an established residential neighborhood (the usual refrain of the pro-zoning folks)? Lotsa luck. You’ll probably be hit with a nuisance lawsuit, not to mention that you’d probably never be able to get the required building and emissions permits (neither of which have anything to do with zoning).

        Houston is and remains the case study for why you don’t have to have zoning and all the associated problems with it in order to have a successful city.

        • We had a great adventure zoning story in my town. Developer bought a large piece of forested land that served as a noise and vision break from a nearby hiway. The owners of homes behind the forest were all very high-dollar types, very protective of their little enclave of paradise. So, the new developer applies for a zoning variance to allow high-density residential, where the current zoning required half-acre per dwelling. The people of paradise objected, organized, lobbied, threatened political repercussions, and the like. The matter dragged on for almost a year. Then one day, the developer ordered the forest (on his land) clear cut. At the end of the day, all that was left was bare dirt, all 15 acres of it. Nothing larger than a dirt clod left standing. The developer left the land barren for three months, and could not be reached for comment. Finally, the developer again applied for a zoning variance. At the meeting, the people of paradise were out in full force, objecting. After a two hour hearing, the developer and his attorneys began packing up to leave the meeting. The head of the zoning committee asked the developer why he was leaving. The developer stated that he could see the committee would not approve the variance, so the developer was ending his effort to seek a variance. The committee chairman asked the developer what he intended to do with the land. The developer stated (paraphrase), “Nothing. I’ll come back in 20 years and clear cut it again.” The meeting adjourned. Something happened in the background, and the homeowners of paradise decided that high-dollar apartments were better than bare dirt for years. Variance issued.

        • A little off-topic but I seem to remember a story about a man around here who wanted to use his land for some industrial purpose to which his neighbors objected. They used local zoning to keep him from moving forward with his endeavor. The property was zoned for residential and agricultural so he opened a pig farm. Turns out pig farming was pretty lucrative, much to his neighbors’ dismay.

        • A little off-topic but I seem to remember a story about a man around here who wanted to use his land for some industrial purpose to which his neighbors objected. They used local zoning to keep him from moving forward with his endeavor. The property was zoned for residential and agricultural so he opened a pig farm. Turns out pig farming was pretty lucrative, much to his neighbors’ dismay.

      • Zoning contributes to crime, class resentment, discrimination, traffic congestion, and more. While it has practical uses, it is far too frequently used to allow an elite to arrange communities to match their preferences, and to hell with the “little people”.

    • Yeah, right. Houston is the fourth largest city in the country and one of the most vibrantly economically . . . and it has no zoning, and never has had any.

      In theory, zoning can be a good thing. In practice, it leads to corruption, rent seeking, and economic waste. Far better to use the private remedies of restrictive covenants and conventional tort law.

      • The point I was trying to make was that zoning is not about prohibiting aesthetically unappealing land uses. It’s about making sure such uses have a place to exist.

    • All of what you have said is quite true. And none of what you have said contradicts this thesis: “Zoning laws are a peculiarly American way of legally barring people we don’t like from doing things we find aesthetically unappealing with their own property.” In fact, your apologia strengthens it.

      Embrace the power of “and.”

    • Blah blah blah, blowhard know-it-all.

      C’mon, Curtis, tell us some more about how Illinois, the place where one LITERALLY has to make a federal case about it, just to open up a friggin’ everyday ol’ gun range, is ohhhhh sooooo much better than most other places when it comes to firearms freedom. Tell us how Illinois gets a bad rap, but………to keep it interesting, try doing so, for once, without playing that tired, whiny brat “bbbut…..bbbbut…..Chicago is the bad place…..not the rest of Illinois” card, m’kay? That shtick gets old. Besides, nobody’s going to Illinois except to Chicago. For all intents and purposes, Chicago = Illinois.

      The reason nobody else here but me calls you on your B.S., is that these guys all have more sense than I do not to bang their head against the wall of your imbecility.

      • Jonathan- you’re right on. Here’s what’s happening with Illinois NRA members like Curtis: NRA lobbyist Todd Vandermye lies to them, and Richard Pearson of ISRA (state tumor of NRA) lies to them too, and their heads are so far up their asses that they believe it.

        To this day Vandermyde and Pearson lie to their faces and tell the asswipes that Illinois has a “shall-issue” carry bill, while THOUSANDS of citizens have been waiting over a year for their licenses because some cop objected to their application- anonymously.

        “…to keep it interesting, try doing so, for once, without playing that tired, whiny brat “bbbut…..bbbbut…..Chicago is the bad place…..not the rest of Illinois” card, m’kay?”

        Curtis and the rest of the asswipes don’t have the balls necessary to set foot in the city of Chicago to check out a Cubs game or ride a CTA bus, that’s the point. They talk brave from the VFW hall in their all-white small towns though. Then parrot lies from rats like Vandermyde about how “we had to have” Duty to Inform in “our” (NRA backed) carry bill, or “we” would never have got a “shall-issue” bill.

        As you have figured out long distance from Texas, these losers are so stupid that they don’t know how stupid they are. These are the types of cowards who sold out Otis McDonald (after they used him as a plaintiff.) They don’t know how to win.

      • Gosh, Jonathan,

        I’m not sure what I did to get your knickers in a twist. What we have here is a good judge who knows her job and did it properly. She struck down an arbitrary, capricious and unconstitutional zoning law that discriminates against gun owners and those who want to build gun ranges.

        On this glorious inauguration day, let’s all celebrate this great nation together, shall we?

  8. Now, whoever proceeds to build a range will have to put up with the inevitable foot-dragging that will occur in getting the myriad permits needed to operate a business in the city, starting with the approval of whatever worthless Aldercreature represents the ward where it’s to be built.

  9. A good decision.

    One of my pet hates with zoning is when someone moves next to legal range or farm then tries to shut it down.

    My local range is 5000 acres with just about every type of shooting and archery covered. Been there about 30 years. The state government and local council have approved a massive subdivision of 80 000 plus houses for 200 000 people about three miles away. We are expecting the first complaint any day now.

  10. “This is also why I might think about compromise on something as odious as background checks long before I’d ever compromise on a repeal of the Dickey Amendment”.

    We in Maine would beg to differ — there was NO WAY we were going to take Bloomberg’s version of “Universal Background Checks” without a vicious fight.

    You can’t compromise with people like Bloomberg because they come right back at you for the next bite.

    Thank God we able to beat back his agenda in Maine (for now).

    • Don’t give me wrong, I don’t want it either and would fight hard against it, just as you did. I was just saying in my opinion one is way worse than the other long run.

      Truth is, I have now lived in two states where private transfers of handguns are effectively abolished through mandatory background checks : PA and now MI. That may be affecting my perception on this issue, perhaps not in a good way. I’ll have to think about that. Thanks.

      • The “devil is in the details” on these Bloomberg UBC referendums.

        Bloomberg’s Universal Background Check initiatives require nearly every gun TRANSFER to go through a mandatory background check – even if ownership of the gun does not change.

        Loan a gun to a hunting buddy – do a background check – AND DO IT AGAIN TO GET YOUR OWN GUN BACK.

        Just horrible.

        On top of that, Bloomberg’s background check referendums also result in a de-facto handgun ban for 18-21 year olds since FFL’s can not transfer a handgun to anyone under 21 — and FFL’s would be tasked with performing all the background checks.

        Of course, Bloomberg never reveals that gun ban to voters.

        We Mainers carefully examined Bloomberg’s referendum and were able to poke holes all through it. It actually got somewhat embarrassing for the proponents at some points along the way.

        Thank God the Maine people saw the deception behind Bloomberg’s plans and defeated the referendum despite being outspent 5-1, and having every Maine media outlet beating the drum for it.

  12. Anyone know if Chicago “leaders” have the nerve to risk appealing this decision? A second loss would be helpful precedent.

    Did not see in the article whether the decision was sole judge, three judge, or en banc. Is there still room for Chicago to run with this case?

    • Three judge panel (standard for Court of Appeals cases). City could request en banc rehearing, but procedurally that’s not likely to be granted on this record IMO.

      Could Chicago appeal to Los Supremos? Sure, but I doubt the Court would grant the cert petition and consider it. Right now, neither side can be sure how Justice Kennedy would come down on any 2A case, so neither the conservative or liberal wings are going to want to grant cert on major 2A cases for fear of either radically expanding or contracting Heller/MacDonald. (This is why I doubt that despite being a truly goofy opinion and creating a circuit split, I doubt that cert will be granted in the Peruta case.)

      Now, if Kennedy, Ginsburg, or Breyer leave the Court in the next four years, the conservative wing of the Court will likely have a rock-solid majority, and it’s game on for an expansive reading of the Second Amendment and lots of other issues.

      • Ever since the Obamacare decision, Roberts cannot be trusted. I know, he’s posted plenty of conservative votes overall. Still, that one was the Superbowl and he just basically just handed the ball to the nearest linebacker.

        The vote and the reasoning were so bizarre that I cannot help but wonder what they must have on him. Now, with the Scalia replacement and replacements for one or two of the justices you mentioned, now we’re talking. He could select justices by throwing darts at the potential nominee list he issued and still create a kick-ass, Constitution-defending for decades.

        • From what I’ve read over the years, Roberts was operating within the prejudice of courts. That is, legislation is passed and implemented for a reason. Therefore, courts should be very reluctant to overturn. Rather, courts should find a contract (or legislation) whenever possible, rather than declare the legislation (contract) void. The parties intended for something to be done, or allowed. It is up to the courts to find it, or something that can be inferred from the legislation (contract). Roberts looked at the law, and rather than trying to find a way to kill it (not the SC responsibility to engineer a means to defeat the action), Roberts looked for a means to save it. The same philosophy appeared later, when the courts were asked to kill the legislation because there was coercive wording designed to blackmail states into complying. The court essentially held that given the overwhelming wording in the law clearly designed to facilitate establishment of marketplaces, a single sentence in the law could never have been intended to establish a means to end the law.

          Roberts was acting within judicial tradition.

          Do not be surprised to find “conservative” judges Trump installs follow tradition. Or that they rule from the position that before a dispute can reach the level of constitutional violation, they always look for a way to rule on other grounds.

  13. ” banning anyone under 18 from entering a shooting range goes too far”

    Can we take this as precedent to repeal the GCA?

  14. “attract gun thieves, cause airborne lead contamination, and carry a risk of fire.”
    ROTFL. That made my day right there/

  15. When Diane Sykes was a circuit judge in Milwaukee, you did not want her for your judge if you were a defendant in a criminal case. Aside from that, she has done really well as an appellate judge, first on the Wisconsin Supreme Court, and now as a federal judge. She would make an excellent choice for U.S. Supreme Court.

  16. Black folks like Rhonda Ezell and Otis McDonald have become very profitable to use as fronts for lawsuits in the past ten years or so. If only Richard Pearson and the insane clown posse at ISRA World Headquarters in Chatsworth, Illinois, had spent a few bucks to promote concealed carry twenty years ago, where would we be now? They kept telling the grassroots people “it’s not the right time.”

    Back in the Bad Old Days circa 1997, when Pearson and the aging mummified hicks at ISRA were appointing their own successor board members without elections (that’s a story of good old boy corruption for another day) ISRA had no interest in concealed carry, just hunting with their double barrels.

    After Pearson had a tiny hand in conning Otis McDonald into signing up for the city of Chicago lawsuit, he now thinks concealed carry was his idea all along. Otis was paid back when Pearson let NRA state lobbyist Todd Vandermyde put Duty to Inform in the “NRA backed” carry bill. Pearson figured that DTI was only going to affect blacks in Chicago anyway, so who cares?

    Otis knew that Pearson betrayed him before he died. How will NRA sell out Rhonda Ezell?

Comments are closed.