B.L.U.F.
A look back at a case that was used against us for many years. Today, it can be used in our favor to combat any attack on our Second Amendment protected rights through “it isn’t really an arm”.
(3300 words)

Wow, that is powerful language from the Seventh Circuit court. They are saying that the lower court done messed up, big time. You don’t normally think of the Seventh Circuit court as siding with The People on anything, much less a Second Amendment challenge.

It gets better

The day after the Supreme Court decided McDonald, the Chicago City Council’s Committee on Police and Fire held a hearing to explore possible legislative responses to the decision. A Chicago alderman asked the City’s legal counsel what could be done about firearms possession and other gun-related activity in the city, including shooting ranges. The City’s Corporation Counsel replied that the Council could “limit what we allow to operate in our city however is reasonable as decided by the City Council.”

The Committee quickly convened hearings and took testimony about the problem of gun violence in Chicago. Witnesses included academic experts on the issue of gun violence in general; community organizers and gun-control advocates; and law-enforcement officers, including Jody Weis, then the Superintendent of the Chicago Police Department. Based on these hearings, the Committee made recommendations to the City Council about how it should regulate firearm possession and other firearm-related activity.

The Council immediately took up the Committee’s recommendations and, just four days after McDonald was decided, repealed the City’s laws banning handgun possession and unanimously adopted the Responsible Gun Owners Ordinance. See Nat’l Rifle Ass’n of Am., Inc. v. City of Chicago, Ill., Nos. 10-3957, 10-3965 & 11-1016, 2011 WL 2150785, at *1 (7th Cir. June 2, 2011). The new Ordinance—a sweeping array of firearm restrictions—took effect on July 12, 2010. To give a sense of its scope: The Ordinance prohibits handgun possession outside the home, CHI. MUN. CODE § 8-20-020, and the possession of long guns outside the home or the owner’s fixed place of business, id. § 8-20-030. It forbids the sale or other transfer of firearms except through inheritance or between peace officers. Id. § 8-20-100. A person may have “no more than one firearm in his home assembled and operable.” Id. § 8-20-040. The Ordinance bans certain kinds of firearms, including assault weapons and “unsafe handgun[s],” as well as certain firearm accessories and types of ammunition. Id. §§ 8-20-060, 8-20-085, 8-20-170.
—id. at 4–5

And this is why we knew there were going to be Bruen response tantrums from every infringing Homo Sovieticus. They had done it after Heller in some states. When McDonald shoved it down their throats, they did it again. Every time. Every time.

Of course, the hearings were packed. There was nobody outside of rights infringing “Little Eichmanns” allowed into those hearings. Only one side was heard. They had stated a problem and were going to find a solution to the stated problem. A final solution, as it were. The problem, as stated, “How do we keep The People from keeping and bearing arms?”

They were able to get this new, Orwellian named, infringement passed in just four days.

Besides all the nasty documented above, The Ordinance also contains an elaborate permitting regime. It prohibits the possession of any firearm without a Chicago Firearm Permit.—id. at 5

Because the legal issues in the case had been fully briefed, the plaintiffs asked the court to consider the preliminary-injunction hearing as a trial on the merits. See FED. R. CIV. P. 65(a)(2) (permitting the court to “advance the trial on the merits and consolidate it with the [preliminary-injunction] hearing”). The court declined to do so and took the matter under advisement.
—id. at 11

We have written about the stages of a case, multiple times. The plaintiffs file for a TRO, preliminary injunction, and permanent injunction. They might request summary judgement anywhere along that path.

Each step takes time. Each step allows for an appeal. A court can drag its feet to extend a simple case over years. In this case, the judge was told that they had all the facts and had heard all the arguments to render a final judgement on the merits. He decided to just deal with the preliminary injunction.

That decision, by itself, added at least 6 months to the length of the case.

Oh, this is harsh:

Soon after the hearing, the district court issued a decision denying preliminary injunctive relief because the plaintiffs were neither irreparably harmed nor likely to succeed on the merits. The court’s decision is a bit hard to follow; standing and merits inquiries are mixed in with the court’s evaluation of irreparable harm. As we will explain, the court made several critical legal errors. To see how the decision got off-track requires that we identify its key holdings.
—id.

“Hard to follow” is polite legal jargon for “done messed up, badly.”

The judge began by “declin[ing] to adopt the intermediate scrutiny standard” of review, but held in the alternative that “even if” intermediate scrutiny applied, the “[p]laintiffs still fail to meet their burden of demonstrating irreparable harm.” The judge said the organizational plaintiffs “do not have the necessary standing to demonstrate their irreparable harm” because “Heller and McDonald addressed an individual’s right to possess a firearm” but “did not address an organization’s right.” Again, the court purported to enter an alternative holding: “Even if” the organizations had standing to assert a claim under Heller and McDonald, they “failed to present sufficient evidence … that their constituency has been unable to comply with the statute.” The court held that none of the plaintiffs were suffering irreparable harm because the injury in question was limited to the minor cost and inconvenience of having to travel outside the city to obtain the range training necessary to qualify for a Permit and money damages would be sufficient to compensate the plaintiffs for this travel-related injury if they ultimately prevailed.
—id. at 11–12

The first step, under Heller and affirmed by Bruen is to look at the plain text of the Second Amendment. If the conduct falls within the scope of the plain text, then the conduct is presumptively protected.

The inferior court ruled that organizations were not protected by the Second Amendment, at all. The court then found that the individuals had not suffered irreparable harm because it was just a minor hindrance to exercising their Second Amendment protected rights.

To Infringe: To destroy; to hinder. —Samuel Johnson, Samuel Johnson’s Dictionary: infringe (1773) The Second Amendment’s unqualified command is “shall not be infringed”. Any hindrance is an infringement.

That view, which of course cannot be reconciled with the law relating to libel, slander, misrepresentation, obscenity, perjury, false advertising, solicitation of crime, complicity by encouragement, conspiracy, and the like, is said to be compelled by the fact that the commands of the First Amendment are stated in unqualified terms: “Congress shall make no law … abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble …” But as Mr. Justice Holmes once said: “[T]he provisions of the Constitution are not mathematical formulas having their essence in their form; they are organic living institutions transplanted from English soil. Their significance is vital not formal; it is to be gathered not simply by taking the words and a dictionary, but by considering their origin and the line of their growth.” Gompers v. United States, 233 U.S. 604, 610. In this connection also compare the equally unqualified command of the Second Amendment: “the right of the people to keep and bear arms shall not be infringed.” And see United States v. Miller, 307 U.S. 174.
—Konigsberg V. State Bar of Cal., 6 L. Ed. 2d 105, n. 10 (1961)

irreparable harm: Deprivation of constitutional rights—Depriving someone of their constitutional rights, such as the right to free speech or due process, may cause irreparable harm that cannot be fully compensated with money.—irreparable harm, LII / Legal Information Institute, (last visited Feb. 6, 2024)

In other words, hindering the right to keep and bear arms is irreparable harm. The inferior court got it wrong.

There is a methodology in many court opinions, and state filings, that goes something like: This infringement is completely acceptable because X, Y and Z. Even if that were not true, here is an entirely different reason it is acceptable.

That is what the Seventh Circuit court is saying the inferior court did.

On the plaintiffs’ likelihood of success on the merits, the judge was skeptical that the firing-range ban violated anyone’s Second Amendment rights: “Suggesting that firing a weapon at a firing range is tantamount to possessing a weapon within one’s residence for self-defense would be establishing law that has not yet been expanded to that breadth.” If the Second Amendment was implicated at all, the judge characterized the claim as a minor dispute about an inconvenient permit requirement: “[T]he [c]ity’s boundaries are merely artificial borders allegedly preventing an individual from obtaining a [firearm] permit …” The court concluded that the City’s evidence about “stray bullets,” potential theft, and lead contamination was sufficient to show that “the safety of its citizens is at risk when compared to the minimal inconvenience of traveling outside of the [c]ity for a one-hour course.”
—Rhonda Ezell V. City of Chicago, No. 10-3525, slip op. at 12

The entire bit about “establishing law that has not yet been expanded to that breath” is jaw-droppingly stupid. The breath of the rights protected by the Second Amendment exists within its unqualified command, “The right of The People to keep and bear arms shall not be infringed!” It is the court that is attempting to narrow the breath to fit its myopic view point.

If it is a minor dispute, why didn’t the court rule for the plaintiffs (good guys)? It might not be minor at that.

It never ceases to amaze me just how hard it is to prove to a rogue court that the plaintiffs are being irreparably harmed by denial of rights, yet how easy it is for the state to “show” that something bad might happen…

The Good Stuff

Again, powerful language. The inferior court got it wrong. “Getting off on the wrong foot” strongly implies that the inferior court never got it right.

No other civil right is treated with as much disrespect as is the right to keep and bear arms. No court in the land would dream of finding the limitation of some communists rants “a minor inconvenience”. No court would find that some BLM protest being limited to a “free speech zone” was a “minor inconvenience.”

Yet time and time again, we find the state and rogue courts ruling that egregious infringements are “just a minor inconvenience”.

The inferior court had to have worked diligently to twist the logic to allow them to avoid finding that the conduct was outside the scope of Second Amendment protections.

My only disagreement with the merits panel is that they say it was the fault of the city confusing the inferior court. I do not believe that the inferior court was the least bit confused.

I’m not going to cover standing. We know the inferior court got it wrong. The merits panel slaps them around a bit.

Even the Seventh Circuit sees that the inferior, rogue, court is using every excuse possible to shut down the case.

The Seventh follows up with a jab to the chin, the inferior court staggers:

“Profoundly mistaken” is legal speak for dumb ass mistake. It is extremely harsh language coming from a superior court.

The Seventh Circuit does yeoman like work in pointing out that these sorts of “minor inconveniences” would never be accepted in a First Amendment challenge.

They also point out that the inferior court was treating a facial constitutional challenge as an “as applied” case. Because these particular individuals could travel, the harm was correctable with payment of damages. That only works for as applied. As a facial challenge, there are people that cannot travel.

The Seventh agrees, depriving somebody of their constitutionally protected rights, be it First Amendment, Second Amendment, or any other, constitutes irreparable harm.

Of course, Easterbrook and Woods would disagree.

I double-checked, this was not an opinion out of the Fifth Circuit. The Seventh really did say this.

And this as well: With little precedent to synthesize, Heller focused almost exclusively on the original public meaning of the Second Amendment, consulting the text and relevant historical materials to determine how the Amendment was understood at the time of ratification. … —id. at 28

Here is the Seventh, quoting McDonald: “[T]he scope of the Second Amendment right” is determined by textual and historical inquiry, not interest-balancing.—id. at 30

The court then babbles about which time frame to use, 1791 or 1868. An argument that has to be shutdown, today. They also have an inversion of the state’s burden. The language is a bit stilted, but it seems as if they are saying that if the state can’t find an “it is allowed”, it is assumed to be unconstitutional. For example: If 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. at 33

Another right cross to the chin:

To give you an example of just how bad it was before Heller, the court discusses how the new standards under Heller forbid the use of “rational-basis”. If you thought “intermediate-scrutiny” was bad, “ration-basis” is “we want to do this” and that was good enough.

Firing ranges are not mentioned in the Second Amendment, they are still protected.

Some Extras

Judge Rovner is not a friend. He concurs, but finds that the idea of nearly strict-scrutiny is too much.

Conclusion

It is important to look at some of these past loses for language that is useful today. Jude Rovner doesn’t think that firing ranges are protected under the Second Amendment because they are ancillary. The majority did find them protected.

There is a reason that Judge Benitez is such a strong defender of The People, his use of the infringers own words in citing Ezell is more proof of that.