Ezell v. Chicago (Gun Range) update

[hoffmang]

This past week has been very exciting in Chicago. In Alan Gura's challenge to the Chicago Gun Range ban he attempted to obtain a Temporary Restraining Order against the law. The hearing was this past Tuesday. Here is the first hearing on August 23rd (part 1, part 2) and the best part is the transcript of the decision on the TRO on August 24th.

Alan did not get the TRO but it was "denied without prejudice for the reasons stated on the record in open court." However, the Judge shortened the time for the hearing schedule on the Preliminary Injunction over vehement objection from the City. Basically, the Judge said that because the mobile range couldn't get into town fast enough therefor the TRO wasn't "ripe." It appears on the record that as soon as a mobile range can arrive, the Judge looks like she'll grant the TRO to allow the range to move into Chicago.

However, the NRA case in front of Judge Guzman makes a smaller range claim. The City badly wants to relate Ezell into the NRA case which would take this case from a very likely win to a loss.

As I've said before, as the RKBA becomes more established, these kinds of cases will move much quicker. Things are changing minute to minute on this case so stay tuned.

-Gene

[Gray Peterson]

Wow, that transcript was a delight to read.

[Purple K]

Gotta love that steamroller!

[dantodd]

Really enjoyed the TRO transcript. Sorry,I've been out of town for a week, what's wrong with the NRA case? A link is plenty.

[choprzrul]

Originally Posted by Purple K

Gotta love that steamroller!

APB: where's the picture of the CGF, Gura, Gene steamroller picture?

.

[yakmon]

[Theseus]

Originally Posted by yakmon

I officially request that we commission that there be a photo shoot or caricature of Gene, Alan and Wayne (NRA guy)
on a roller crushing something representing Anti-gun legislation.

[Stonewalker]

Wow that was fast, awesome!

[Stonewalker]

Wow - this is a sharp blow to the City from the Court:

(The Court, addressing the City's argument for the range ban)

And I think that I would like to see in your filings
more addressing the unique nature of this fact basis as far as
the scrutiny to be applied, and I think that I would like to
see more of a reason for the City's prohibition on these
firing ranges. I literally went through all my notes and all
I found was there would be bullets flying en masse and people
would be transporting weapons. But that transportation of
weapons doesn't make any sense, because you'd have to
transport your weapon to get out of the City borders to go to
the other firing ranges.
So if you're requiring everyone to take their weapons
outside to the suburbs to fire them in order to get certified
to possess them, that doesn't wash. And so I think that you
have some thinking to do about how you're going to approach
this in the future, in the very, very near future.

That was delicious

[Maestro Pistolero]

She certainly didn't waste any time getting to the scrutiny issue and she was extremely forthcoming and transparent about her views. That will help Gura to hone his approach.

I wonder if the judge's inclination to apply intermediate scrutiny would be different if the issue was more intimate to the core right, i.e. lawful carry for self-defense as opposed to a permitting a firing range for practice?

[timdps]

So what is it going to take to get the mobile firing range into Chicago before September 15th?

Tim

[Dovii4ever]

Now thats a thing of beauty, just wish the faces of all the big anti gun nuts were under the steam roller

[Doug L]

Love to see this happening to Chicago!

Mayor Daley doesn't like to lose.

He illegally tore up Meigs Field when the FAA wouldn't let him close it.

Naturally, he was never prosecuted for that.

[RKV]

The transcript says "And I think to be on the safe side, the Court is inclined to apply an intermediate scrutiny, although I think the City probably could make an argument that the lower level of scrutiny is available to them still, although they haven't really done that or certainly haven't elucidated that." This runs directly counter to McDonald "it is clear that the Framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty."

I cannot imagine why anyone here is pleased with that. About the only good news that I can read out of the transcript is that the defendant attorneys are apparent buffoons. Specifically, I note their whining about inadequate time for discovery.

As is becoming a pattern, the courts are ignoring the "bear" part of right to keep and bear arms. In doing so, they are treating the 2nd Amendment as a privilege, not a right. The defendants in Kachalsky v. Cacace are exhibiting similar behavior as are those in Peruta v. County of San Diego and Bateman v. Perdue. The common elements are a) reading Heller and McDonald as narrowly as possible so as to completely ignore the word "bear" in the 2nd Amendment and b) denial of any legal responsibility for their (the government's) actions and c) unwillingness to moot the issue by granting the plaintiffs request (which would have the effect of making the suit go away and then they could still not issue permits to others). To summarize the three part tactic, ignore Heller and McDonald and hope that judges will nullify them, deny that the 2nd Amendment applies to states, counties and cities and delay, delay, delay.

[hill billy]

I giggled like a little girl reading that transcript. Nice to see calls going in our favor.

[RKV]

"You've almost pled yourself into the relatedness issue with Judge Guzman, though, because by implicating all of those other subsections with your gun range case you are making a case for relatedness to the broader statutory attack in front of Judge Guzman."

I doubt if it's in our best interests to join Ezell and Benson. Gura sure believes otherwise based on his comments to the judge. It would certainly cause a delay in Ezell. Is the NRA butting in (again) with Benson - apparently so.

[Maestro Pistolero]

The transcript says "And I think to be on the safe side, the Court is inclined to apply an intermediate scrutiny, although I think the City probably could make an argument that the lower level of scrutiny is available to them still, although they haven't really done that or certainly haven't elucidated that." This runs directly counter to McDonald "it is clear that the Framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty."

Yes, but this case isn't about the right to have a gun for immediate use for self-defense. Training for a license is somewhat less immediate, though no less important to the right than actually owning a functional firearm. If intermediate scrutiny is the standard she uses, I hope she makes this clear. It's not like this judge is hard to read, or that any of this will be lost on Gura.

[ed bernay]

Originally Posted by RKV

The transcript says "And I think to be on the safe side, the Court is inclined to apply an intermediate scrutiny, although I think the City probably could make an argument that the lower level of scrutiny is available to them still, although they haven't really done that or certainly haven't elucidated that." This runs directly counter to McDonald "it is clear that the Framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty."

I cannot imagine why anyone here is pleased with that. About the only good news that I can read out of the transcript is that the defendant attorneys are apparent buffoons. Specifically, I note their whining about inadequate time for discovery.

As is becoming a pattern, the courts are ignoring the "bear" part of right to keep and bear arms. In doing so, they are treating the 2nd Amendment as a privilege, not a right. The defendants in Kachalsky v. Cacace are exhibiting similar behavior as are those in Peruta v. County of San Diego and Bateman v. Perdue. The common elements are a) reading Heller and McDonald as narrowly as possible so as to completely ignore the word "bear" in the 2nd Amendment and b) denial of any legal responsibility for their (the government's) actions and c) unwillingness to moot the issue by granting the plaintiffs request (which would have the effect of making the suit go away and then they could still not issue permits to others). To summarize the three part tactic, ignore Heller and McDonald and hope that judges will nullify them, deny that the 2nd Amendment applies to states, counties and cities and delay, delay, delay.

I agree 100%. The anti judges are going to play games and to minimize Heller and McDonald as much as possible. Until SCOTUS says "strict scrutiny", gunnies are going to be facing this BS at every turn especially in the anti sections of the country. IMHO, if Heller 2 gets to SCOTUS, that will be the case to get SCOTUS to say strict scrutiny.

[RKV]

"Training for a license is somewhat less immediate..."

Gura certainly argues otherwise in the transcript. He basically says the ban violates the core right of the 2nd Amendment - and conflates churches, bookstores and shooting ranges as protected places. Which conflation I absolutely agree with. You're falling into the same trap as the anti's and using the argument of the City of Chicago. Her's what their attorney said "Nothing prohibits these plaintiffs from exercising what is really at the core of the Second Amendment, which is the possession of arms for self defense in the home. They are free to apply to do that at any time." The 2nd Amendment protects much more than just having a gun in your house.

Gura had this to say describing his courtesy to the Chicago attorney's. "And I feel that what we have here is a case of no good deed going unpunished, because instead of taking the time that we've given them to meet the merits of the case, instead they have come out with some kind of an argument for why the case should never be addressed."

It's long past time to kick Chicago's @$$. No more Mr. Nice Guy with these thugs.

[hill billy]

Originally Posted by RKV

The transcript says "And I think to be on the safe side, the Court is inclined to apply an intermediate scrutiny, although I think the City probably could make an argument that the lower level of scrutiny is available to them still, although they haven't really done that or certainly haven't elucidated that." This runs directly counter to McDonald "it is clear that the Framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty."

I cannot imagine why anyone here is pleased with that. About the only good news that I can read out of the transcript is that the defendant attorneys are apparent buffoons. Specifically, I note their whining about inadequate time for discovery.

As is becoming a pattern, the courts are ignoring the "bear" part of right to keep and bear arms. In doing so, they are treating the 2nd Amendment as a privilege, not a right. The defendants in Kachalsky v. Cacace are exhibiting similar behavior as are those in Peruta v. County of San Diego and Bateman v. Perdue. The common elements are a) reading Heller and McDonald as narrowly as possible so as to completely ignore the word "bear" in the 2nd Amendment and b) denial of any legal responsibility for their (the government's) actions and c) unwillingness to moot the issue by granting the plaintiffs request (which would have the effect of making the suit go away and then they could still not issue permits to others). To summarize the three part tactic, ignore Heller and McDonald and hope that judges will nullify them, deny that the 2nd Amendment applies to states, counties and cities and delay, delay, delay.

This DOES concern me.

And so in looking at the cases that were presented to
me both orally and in the papers, I note that the plaintiffs'
position that strict scrutiny should apply is not supported in
any particular case as of yet.

[RKV]

My RIA it isn't.

McDonald majority opinion says "it is clear that the Framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty."

"Fundamental right" is a term of art which demands strict scrutiny. Ask Judge Urbina in his denial of Heller's 2nd lawsuit (re: DC's unconstitutional re-vamped gun laws AND before McDonald) "to recognize that the individual right to keep and bear arms is a ‘fundamental right,’ in the sense that restrictions on this right are subject to ‘strict scrutiny’ by the courts and require a ‘compelling state interest,’ it would have used these constitutional terms of art”)."

The judge in this case is completely ignoring McDonald.

[Maestro Pistolero]

The judge in this case is completely ignoring McDonald.

If this judge can be swayed, Gura is the one who can do it.

The judge's comment: "to be on the safe side" (she is inclined to use intermediate scrutiny) is interesting. On the safe side of what?
Also, it may be that this case won't need to utilize a level of scrutiny beyond intermediate, i.e. that the plaintiffs arguments may so secure that even intermediate scrutiny would be enough to decide in the plaintiffs favor.

[press1280]

Originally Posted by Maestro Pistolero

If this judge can be swayed, Gura is the one who can do it.

The judge's comment: "to be on the safe side" (she is inclined to use intermediate scrutiny) is interesting. On the safe side of what?
Also, it may be that this case won't need to utilize a level of scrutiny beyond intermediate, i.e. that the plaintiffs arguments may so secure that even intermediate scrutiny would be enough to decide in the plaintiffs favor.

But this part gives me hope (Judge to Chicago attorney):

"And I think that I would like to see in your filings
more addressing the unique nature of this fact basis as far as
the scrutiny to be applied, and I think that I would like to
see more of a reason for the City's prohibition on these
firing ranges. I literally went through all my notes and all
I found was there would be bullets flying en masse and people
would be transporting weapons. But that transportation of
weapons doesn't make any sense, because you'd have to
transport your weapon to get out of the City borders to go to
the other firing ranges.
So if you're requiring everyone to take their weapons
outside to the suburbs to fire them in order to get certified
to possess them, that doesn't wash. And so I think that you
have some thinking to do about how you're going to approach
this in the future, in the very, very near future."

How's Chicago going to answer those issues? More blood in the streets talk with LCAV/Brady stats?

[Gray Peterson]

Originally Posted by Maestro Pistolero

If this judge can be swayed, Gura is the one who can do it.

The judge's comment: "to be on the safe side" (she is inclined to use intermediate scrutiny) is interesting. On the safe side of what?
Also, it may be that this case won't need to utilize a level of scrutiny beyond intermediate, i.e. that the plaintiffs arguments may so secure that even intermediate scrutiny would be enough to decide in the plaintiffs favor.

What the court means here is the possibility of this going up to the 7th Circuit, which isn't exactly friendly to us.

[Left Coast Conservative]

Originally Posted by Stonewalker

Wow - this is a sharp blow to the City from the Court:

(The Court, addressing the City's argument for the range ban)


That was delicious

Especially the last paragraph. Should that not be a wake up call to the City that their ordinance prohibiting gun ranges infringes on 2nd Amendments rights since range qualification is necessary?

What other restrictions might come under that precedent if set? Ammunition sales restrictions perhaps?

[Maestro Pistolero]

Actually re: scrutiny, Gura is arguing that the ability to go to a gun range to practice is part of the core right, so no decision about the level of scrutiny need even be reached.

[Tom Gresham]

The NRA is on tract to sabotage this case. It needs to immediately take the range issue OUT of its lawsuit.

[press1280]

How do you get the NRA off the case enough so Ezell and Benson don't get consolidated?

[Maestro Pistolero]

Originally Posted by Tom Gresham

The NRA is on tract to sabotage this case. It needs to immediately take the range issue OUT of its lawsuit.

Is that a serious comment? If so, how are they about to sabotage this case? Are you referring to Benson?

[dantodd]

Originally Posted by dantodd

Really enjoyed the TRO transcript. Sorry,I've been out of town for a week, what's wrong with the NRA case? A link is plenty.

So, what is wrong with the NRA case again?

[hill billy]

It seems to me that they are challenging two different aspects of the law, why would they get consolidated?

[N6ATF]

New TRO filed in this case:
http://bit.ly/dvfBtb

Highlights:

A gun range becomes unusually dangerous if one runs into the line of fire, but that is also true of vehicular traffic.

...

Counsel’s description of “arms being discharged en masse and with great frequency,” Tr., 8/23/10, p. 51, l. 25 - p.52, l.1, does not even amount to a conjectural harm at a
gun range, any more than “gasoline set ablaze en masse and with great frequency” could be used to describe internal combustion engines driven along a highway.

[jdberger]

Lawyers with snark.

Love 'em.

[Shotgun Man]

Originally Posted by N6ATF

New TRO filed in this case:
http://bit.ly/dvfBtb

Highlights:

Thanks for the update.

It probably merits its own thread.

[Crom]

Alan's arguments are masterful.

[OleCuss]

I really enjoyed that read! Really seemed to wrap things up tight.

I like the idea that while there really wasn't much of an argument being made for strict scrutiny, the First Amendment was frequently invoked in parallel with the Second Amendment - with at least an implicit suggestion that similar (if not identical) standards apply.

I'd expected more to be made of the fact that not only is training at a gun range protected speech, it is speech which is required by the City of Chicago. And yes, it is pretty clear that the argument is made, I just thought it would be more prominent/stick out at me.

Anyway, I expect a win. After the injunction is granted I expect a rapid appeal which will be accepted. I guess I don't really know whether the 7th Circuit would take the case, but if they do, either the injunction will be granted at the Circuit level (a big win) or it will immediately go to SCOTUS where I think a win is a slam-dunk. And since there are significant timelines I think it will likely go relatively rapidly!

I'm liking this pretty well. . .

[Dr Rockso]

Originally Posted by N6ATF

[Davidoff]

I like this part:

...As the range has three positions, Plaintiffs can save the Second Amendment rights of twenty-four Chicagoans each eight-hour day, assuming only one trainee per lane per hour.

[2009_gunner]

Each sentence in a Gura brief has a great force of words. I like this one

The only secondary effects of a gun range, apart from noise that can be, as in the Blue Line range, mitigated, is the offense such establishments give to gun rights opponents.

[N6ATF]

Originally Posted by Shotgun Man

Thanks for the update.

It probably merits its own thread.

Maybe when there's a ruling. This thread is barely out of diapers and into big boy underwear.