Second Amendment Challenge to Gun Dealer Ban in Chicago Suburb Can Go Forward

So holds a federal district court in northern Illinois, in Kole v. Village of Norridge (N.D. Ill. Apr. 19, 2013):

Although the Supreme Court [in Heller] explained that laws regulating the commercial sale of firearms are “presumptively lawful,” it did not purport to exempt those laws from constitutional scrutiny…. The Seventh Circuit’s analysis in United States v. Williams, 616 F.3d 685 (7th Cir. 2010), is particularly instructive. Williams involved 18 U.S.C. § 922(g)(1)’s ban on the possession of firearms by felons—one of the other “presumptively lawful” regulatory measures specifically identified in Heller. Nonetheless, the Seventh Circuit explained that “the government does not get a free pass”; “it still must prove that the ban is constitutional, a mandate that flows from Heller itself”; and “putting the government through its paces in proving the constitutionality of § 922(g)(1) is only proper.” The Seventh Circuit ultimately applied a form of intermediate scrutiny and upheld § 922(g)(1).

[Footnote: Similarly, before the Ninth Circuit agreed to rehear Nordyke v. King en banc, the panel opinion explained that:

We believe it most unlikely that, in a one-sentence footnote, the Supreme Court would undermine the rest of its analysis by declaring, inter alia, that all gun sales regulations, no matter how burdensome, should receive the rubber stamp of rational basis review. Instead, we read “presumptively lawful regulations” to mean “regulations which we presume will survive constitutional scrutiny,” and to say nothing about what standard of review should be applied to them.]

[I]n any event, at least with respect to the Revised Ordinance, the Village is seemingly doing more than just “imposing conditions and qualifications on the commercial sale of arms” — it is trying to ban gun stores outright….

To resolve the Second Amendment issues present in this case, the Court will need to follow the two-part framework established in Ezell [the Seventh Circuit case that issued a preliminary injunction against Chicago’s ban on shooting ranges]. “First, the threshold inquiry … will be a ‘scope’ question: Is the restricted activity protected by the Second Amendment in the first place?” As the Seventh Circuit explained, the answer to this question “requires a textual and historical inquiry into the Second Amendment’s original meaning.” Second, if the regulated activity is not outside the scope of the Second Amendment, “then there must be a[n] … inquiry into the strength of the government’s justification for restricting or regulating the exercise of Second Amendment rights.” “[T]he rigor of this judicial review will depend on how close the law comes to the core Second Amendment right and the severity of the law’s burden on the right.” As the Seventh Circuit explained:

First, a severe burden on the core Second Amendment right of armed self-defense will require an extremely strong public-interest justification and a close fit between the government’s means and its end. Second, laws restricting activity lying closer to the margins of the Second Amendment right, laws that merely regulate rather than restrict, and modest burdens on the right may be more easily justified. How much more easily depends on the relative severity of the burden and its proximity to the core of the right.

The threshold scope inquiry here involves two separate issues. The first is whether Plaintiffs have a Second Amendment right to sell firearms. The Second Amendment does not expressly address a right to sell firearms (“the right of the people to keep and bear Arms, shall not be infringed”); Heller and McDonald each only address a personal right to keep and bear arms; and, as Defendants note, some courts have suggested that there is no right sell firearms.

The Court does not need to resolve that issue now, however, because even if the Second Amendment does not protect the sale of firearms directly, Plaintiffs can still pursue a claim that the Agreement and Revised Ordinance infringe their customers’ personal right to keep and bear arms. Surprisingly, although the parties argue at length about whether Plaintiffs have standing on behalf of their customers, no one discusses Ezell, which addressed this very issue. …

Threshold issues aside, the Court will then need to analyze the strength of Defendants’ justifications for the Agreement and Revised Ordinance. Defendants ask the Court to uphold their actions based largely on a statement in the Revised Ordinance’s preamble that “the amendments set forth herein … improve the health, safety and welfare of the Village.” But this conclusory statement likely would not satisfy even rational basis review, let alone the heightened scrutiny required under the Second Amendment. At this stage, the Court does not need to decide how heavily the Agreement and Revised Ordinance burden the Second Amendment right to keep and bear arms — including what the Seventh Circuit has described as a “corresponding right to acquire” firearms — or how strong of a justification Defendants will need to establish in order to uphold their actions in this case. Under any standard, Defendants’ motion to dismiss falls short….