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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