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Monday, January 20, 2014

Municipalities Should Review Gun Shop Bans After Court Strikes Down Chicago Ban

Recently, a federal court struck down Chicago's sweeping ban on gun sales and transfers in Illinois Ass'n of Firearms Retailers v. City of Chicago, 2014 WL 31339 (N.D. Ill. Jan. 6, 2014). The City's ban on the sale or transfer of firearms, except in the case of inheritance, was challenged by gun dealers under the Second Amendment. 

The district court found that the City failed to establish that the ordinance regulates activity generally understood to be unprotected by the Second Amendment in 1791. Next, the Court went on to test the justifications for the City's ban under heightened, but “not quite strict scrutiny,” due to the number of people affected and the heavy burden on the core Second Amendment right. In arguing for lesser scrutiny, the City pointed to the fact that gun purchases could be completed in the suburbs. The Court rejected this argument, citing the line of First Amendment cases requiring alternative channels "within the city."

The City argued that its ban on gun transfers was justified by its desire to (1) restrict criminals’ access to licensed dealers; (2) restrict gun acquisition in the illegal market; and (3) eliminate gun stores from Chicago, which are dangerous in themselves and cannot be safely regulated. Even if licensed dealers gave criminals more access to guns, the City could have used a more focused regulation that would not have burdened the rights of non-criminals. Next, the Court found the sales-and-transfer ban does not significantly reduce illegal-market gun acquisition by increasing the frictions inherent in illegal sales. Finally, the Court rejected the City's argument that a complete ban is required based on the supposed ineffectiveness of ATF in regulating gun dealers. Additionally, possible burglaries at gun shops do not justify a sweeping ban on gun sales and transfers. The City offered no evidence to justify its ban on the transfer of guns as gifts.

While the Court rejected the Chicago ban, it concluded that “nothing in this opinion prevents the City from considering other regulations—short of the complete ban—on sales and transfers of firearms to minimize the access of criminals to firearms and to track the ownership of firearms.” Chicago has decided not to appeal this decision, which means that it will not be binding on other courts.

Nevertheless, a complete prohibition on gun sales and gun shops will likely draw a Second Amendment challenge, and municipalities should review their ordinances to ensure such a ban is not on their books. Zoning codes may unintentionally prohibit gun shops, by omitting “gun shops” and “sporting goods stores” from lists of permitted and special uses. While no court has held that a gun shop must be located in every town, firearms retailers may be emboldened by the Chicago decision, and municipalities may wish to consider appropriate locations for such uses within their limits to avoid becoming the next Second Amendment test case. At least one federal court (in California)  has upheld local zoning restrictions for gun shops. Teixeira v. Cnty. of Alameda (requiring sale of guns to occur at least 500 feet away from schools, residences, establishments that sell liquor, and other gun stores). Sales of “dangerous and unusual weapons” such as machine guns and short-barrel shotguns may be prohibited. D.C. v. Heller; see also 720 ILCS 5/24-1.   

While municipalities might be tempted to tax gun sales, Cook County’s $25 gun tax is being challenged under the Second Amendment, and the preemption provisions of the Firearm Concealed Carry Act. ERP Inc. v. Ali.

Post Authored by Daniel J. Bolin, Ancel Glink


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