Attempts by Chicago officials over the past four decades to limit the availability of guns on the city’s crime-ridden streets are being steadily eroded by federal judges. The latest blow came Monday when a federal judge said the city is violating the Constitution by banning gun stores and private gun sales.
“Chicago's ordinance goes too far in outright banning legal buyers and legal dealers from engaging in lawful acquisitions and lawful sales of firearms,” US District Judge Edmond Chang wrote. In other words, according to Northwestern University constitutional law professor Eugene Kontorovich, the constitutional right to own a gun in turn requires the right to buy a gun.
“At the same time,” Judge Chang continued, “the evidence does not support that the complete ban sufficiently furthers the purposes [of crime control] the ordinance tries to serve.”
The federal court ruling is a stinging one for city officials, including Mayor Rahm Emmanuel, who has vowed to continue the tough gun-control policies put into place by the previous Daley administration.
Moreover, Monday’s pro-gun-rights ruling reasserts Chicago’s role as a national cultural and legal battleground over the extent to which US society should be armed.
Into that debate go arguments about whether higher gun ownership rates lead to more gun deaths, as Chicago’s lawyers argued in federal court, or whether more guns in citizens’ hands actually means less crime in cities with high violent crime rates like the Windy City.
More practically for would-be Chicago gun owners, however, the ruling is an important part of a process in which lower federal courts are interpreting the Supreme Court’s gun rights decisions in Heller and MacDonald, where justices ruled that the Second Amendment protects the use of handguns for self-defense.
Chicago is the only city in the US that has managed to end run those rulings, in part by writing zoning laws (unconstitutionally, as it turned out) to keep shooting ranges out of the city limits, and by banning retail sales, which on Monday was also declared unconstitutional.
“Chicago was actually one of the outliers among American cities in terms of having a retail sales ban, and they fought very hard to keep it,” says Bob Cottrol, a law profesor and gun policy expert at George Washington University Law School, in D.C. “It’s one thing for the Supreme Court to have grand pronouncements about what the Constitution says, but once that’s done, as a practical matter, it doesn’t really get implemented [until] lower federal district courts say X is permissible and Y is [impermissible].”
In his 35-page ruling, Chang rejected the city’s core argument: that legal gun sales would flood the illegal market, and thus boost a crime and murder rate that hovers at the very top among major American cities.
Chicago recorded 503 murders in 2012, more than in any other US city, but the number of homicides dropped to 415 in 2013, a nearly 18 percent shift.
Chang, an Obama appointee, cited statistics as he pointed out that those committing gun crimes in Chicago are likely not getting their weapons from a licensed firearms dealer in the suburbs, as the city contended, but on the street.
In 2010, the Supreme Court heard two Chicago-related cases – McDonald v. Chicago and NRA v. Chicago – that resulted in the court reaffirming that the Second Amendment has to apply in each state. Then in 2012, the US Court of Appeals found the city’s gun-range ban unconstitutional.
The NRA keeps “filing suits and filing suits to chip away laws and get to their ultimate goal of a complete armed citizenry,” Mark Walsh, the campaign director for the Illinois Council Against Handgun Violence, told the Chicago Tribune on Tuesday.
But other Second Amendment policy experts said that ultimately the city’s insistence on a ban versus tough regulations on retail sales suggested political, not crime-related, motivations for its efforts to keep legally procured guns out of the city.
“The problem in Chicago is not a hardware problem, it’s a cultural problem, and also a failure of law enforcement,” says Mr. Cottrol. The big question, he says, “is the extent to which this is a city that has egregiously failed to protect its population and uses guns as a scapegoat.”
For his part, Chang acknowledged that guns are a problem in Chicago, but disagreed with the legality of the city’s historical prescription to ban gun sales to non-criminal residents.
“The stark reality facing the city each year is thousands of shooting victims and hundreds of murders committed with a gun,” the federal judge said. “But on the other side of this case is another feature of government: Certain fundamental rights are protected by the Constitution, put outside government's reach, including the right to keep and bear arms for self-defense under the Second Amendment.”
Chang’s ruling, however, isn’t a total loss for the city, which is considering an appeal, as he left the door open for the city to regulate in any way “short of the complete ban.”
On Sunday Illinois became the last state to allow civilians to carry concealed weapons with a permit, although police retain the authority to deny applications for the permits.