In the

United States Court of Appeals
For the Seventh Circuit
No. 10‐3525
RHONDA EZELL, et al.,Plaintiffs‐Appellants,
v.
CITY OF CHICAGO,
Defendant‐Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 10 cv 5135—Virginia M. Kendall, Judge.

ARGUED APRIL 4, 2011—DECIDED JULY 6, 2011Œ

Before KANNE, ROVNER, and SYKES, Circuit Judges.
SYKES, Circuit Judge. For nearly three decades, theCity of Chicago had several ordinances in place“effectively banning handgun possession by almost all
private citizens.” McDonald v. City of Chicago, 130 S. Ct. 3020,
3026 (2010). In 2008 the Supreme Court struck
down a similar District of Columbia law on an original‐ŒThis opinion is released in typescript; a printed version will
follow.

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No. 10‐3525

meaning interpretation of the Second Amendment.1
District of Columbia v. Heller, 554 U.S. 570, 635‐36 (2008).
Heller held that the Amendment secures an individual
right to keep and bear arms, the core component of which is
the right to possess operable firearms—
handguns included—for self‐defense, most notably inthe home. Id. at 592‐95, 599, 628‐29.
Soon after the Court’s decision in Heller, Chicago’s
handgun ban was challenged. McDonald, 130 S. Ct. at3027. The foundational question in that litigation waswhether the Second Amendment applies to the Statesand subsidiary local governments. Id. at 3026. The
Supreme Court gave an affirmative answer: The
Second Amendment applies to the States through the
Due Process Clause of the Fourteenth Amendment. Id.
at 3050. In the wake of McDonald, the Chicago City
Council lifted the City’s laws banning handgun posses‐
sion and adopted the Responsible Gun Owners
Ordinance in their place.
The plaintiffs here challenge the City Council’s treat‐ment of firing ranges. The Ordinance mandates one
hour of range training as a prerequisite to lawful gun
ownership, see CHI. MUN. CODE § 8‐20‐120, yet at thesame time prohibits all firing ranges in the city, see id.
§ 8‐20‐080. The plaintiffs contend that the Second Amend‐

1

The Second Amendment provides: “A well regulated Militia,
being necessary to the security of a free State, the right of thepeople to keep and bear Arms, shall not be infringed.” U.S.
CONST. amend. II.

No. 10‐3525

3ment protects the right to maintain proficiency infirearm use—including the right to practice marks‐
manship at a range—and the City’s total ban on firing
ranges is unconstitutional. They add that the Ordinanceseverely burdens the core Second Amendment right topossess firearms for self‐defense because it conditions
possession on range training but simultaneously
forbids range training everywhere in the city. Finally,
they mount a First Amendment challenge to theOrdinance on the theory that range training is protected
expression. The plaintiffs asked for a preliminary injunction,
but the district court denied this request.
We reverse. The court’s decision turned on several legal
errors. To be fair, the standards for evaluating Second
Amendment claims are just emerging, and this typeof litigation is quite new. Still, the judge’s deci‐sion reflects misunderstandings about the nature of theplaintiffs’ harm, the structure of this kind of constitutional
claim, and the proper decision method for evaluating
alleged infringements of Second Amendment rights. On thepresent record, the plaintiffs are entitled to a preliminary
injunction against the firing‐range ban. The harm to their
Second Amendment rights cannot be remedied by damages,
their challenge has a strong likelihood of success on the
merits, and the City’s claimed harm to the public interest isbased entirely on speculation.

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No. 10‐3525
I. Background

A. Chicago’s Responsible Gun Owners OrdinanceThe 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 theCouncil 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, in‐cluding 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 posses‐
sion 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 posses‐
sion 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 Ordi‐nance—a sweeping array of firearm restrictions—took effectNo. 10‐3525

5

on July 12, 2010. To give a sense of its scope: The Ordinanceprohibits 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 homeassembled and operable.” Id. § 8‐20‐040. The Ordinancebans certain kinds of firearms, including assault weaponsand “unsafe handgun[s],” as well as certain firearm accesso‐
ries and types of ammunition. Id. §§ 8‐20‐060, 8‐20‐085, 8‐20‐
170.
The Ordinance also contains an elaborate permitting
regime. It prohibits the possession of any firearmwithout a Chicago Firearm Permit. CHI. MUN. CODE § 8‐20‐
110(a). (Certain public‐safety and private‐security pro‐fessionals are exempt.) In addition, all firearms must have aregistration certificate, and to register a firearm, the ownermust have a valid Permit.2 Id. at § 8‐20‐140(a), (b). To apply

2

Once issued, a Chicago Firearm Permit is valid for three years.
CHI. MUN. CODE § 8‐20‐130(a). Any registration certificate expires
with the Permit. The Permit fee is $100; the registration certificate
fee is $15. Id. §§ 8‐20‐130(b), 8‐20‐150(a). An application for aregistration certificate must be submitted “no later than 5business days after a person takes possession within the city of a
firearm from any source,” id. § 8‐20‐140(d), and registration
certificates are subject to an annual reporting requirement, id.
§ 8‐20‐145(c). Failure to file an annual report regarding eachregistered firearm “may result” in revocation of the owner’s(continued...)6

No. 10‐3525

for a Permit, a person must have an Illinois Firearm
Owner’s Identification Card. Id. § 8‐20‐110(b)(2). Only those
21 years of age or older may apply for a Permit, except thata person between the ages of 18 and 20 may apply with thewritten consent of a parent or legal guardian if the parent or
guardian is not prohibited from having a Permit or a
Firearm Owner’s Identification Card. Id. § 8‐20‐110(b)(1).
Persons convicted of certain crimes may not obtain a Permit.
Id. § 8‐20‐110(b)(3) (disqualifying persons convicted of any
violent crime, a second or subsequent drunk‐driving
offense, or an offense relating to the unlawful use of a
firearm). Other lawsuits challenging these and otherprovisions of the Ordinance are currently pending in theDistrict Court for the Northern District of Illinois. See, e.g.,
Second Amendment Arms v. City of Chicago, No. 10 C 4257
(N.D. Ill. filed July 9, 2010); Benson v. City of Chicago, No. 10
C 4184 (N.D. Ill. filed July 6, 2010).
As relevant here, permits are conditioned upon com‐pletion of a certified firearm‐safety course. Applicants must
submit an affidavit signed by a state‐certified
firearm instructor attesting that the applicant has completed
a certified firearm‐safety and training course that provides
at least four hours of classroom instruction and one hour ofrange training.3 CHI. MUN. CODE § 8‐20‐2(...continued)
registration certificate, his Permit, or both. Id. § 8‐20‐145.

3

The Ordinance provided a 90‐day “grandfathering” period
after its effective date during which previously acquired firearms(continued...)No. 10‐3525

7

120(a)(7). At the same time, however, the Ordinanceprohibits all “[s]hooting galleries, firearm ranges, or any
other place where firearms are discharged.” Id. § 8‐20‐280.
The Ordinance also prohibits the “discharge [of] any firearmwithin the city,” making no exception for controlled shoot‐ing at a firing range—because, of course, firing ranges arebanned throughout the city.4 Id. § 8‐24‐010.
Violations are punishable by a fine of $1,000 to $5,000 andincarceration for a term of “not less than 20 days nor morethan 90 days,” and “[e]ach day that such violation exists
shall constitute a separate and distinct offense.” CHI. MUN.
CODE § 8‐20‐300(a), (b). The penalties go up for subsequentconvictions. Id. § 8‐20‐300(b) (For “[a]ny subsequent convic‐
tion,” the penalty is a fine of $5,000 to $10,000 and incarcera‐tion for a term of “not less than 30 days, nor more than six
months.”).
The firing‐range ban does not apply to governmental
agencies. Id. § 8‐20‐280. The federal government operates
four indoor firing ranges in Chicago, and the Chicago Police
Department operates five. Apparently, the City
also exempts private security companies; there are

3(...continued)
could be registered. CHI. MUN. CODE § 8‐20‐140(d)(2). To takeadvantage of this provision, a firearm owner had to complete allof the prerequisites for a Permit, including a firearm‐safety coursewith one hour of range training.
4

There are exceptions for discharging a firearm in self‐defense
or in defense of another, and also for game‐bird hunting
in certain limited areas of the city. Id. § 8‐24‐010.

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No. 10‐3525

two indoor firing ranges operated by private security
companies in Chicago.5

B. The Litigation
The plaintiffs are three Chicago residents, Rhonda
Ezell, William Hespen, and Joseph Brown; and threeorganizations, Action Target, Inc.; the Second Amend‐
ment Foundation, Inc.; and the Illinois State Rifle Associa‐
tion. Action Target designs, builds, and furnishes
firing ranges throughout the United States and would like to
do so in Chicago. The Second Amendment Foundation andthe Illinois Rifle Association are nonprofit associations
whose members are firearms enthusiasts; among otheractivities, these organizations advocate for Second Amend‐
ment rights and have made arrangements to try to bring amobile firing range to Chicago.
The plaintiffs sought a temporary restraining order(“TRO”), a preliminary injunction, and a permanent injunc‐tion against the City’s ban on firing ranges, and correspond‐
ing declaratory relief invalidating the ban. The district court
twice denied a TRO, finding that the plaintiffs were5

We say “apparently” because it is not clear whether the
exception allowing private security companies to operate
firing ranges is codified. The Ordinance contains an exemp‐tion for private security contractors at section 8‐20‐020(b), but thisexemption appears to apply only to the provision of the Ordi‐nance making it “unlawful for any person to carry or possess ahandgun, except when in the person’s home,” id. § 8‐20‐020(a),not to section 8‐20‐280, the provision banning firing ranges.

No. 10‐3525

9

not irreparably harmed. The parties conducted expedited
discovery, and the court held a two‐day hearing on the
preliminary‐injunction motion. The plaintiffs presented
the testimony of representatives of Action Target, theSecond Amendment Foundation, and the Illinois Rifle
Association. Declarations from the three individual plain‐tiffs were already in the record, so they did not testify.
The City called two witnesses: Sergeant Daniel Bartoli,
a former rangemaster for the Chicago Police Department,
and Patricia Scudiero, Chicago’s Zoning Commissioner.
Bartoli testified that firing ranges can carry a risk of
injury from unintentional discharge and raised concerns
about criminals seeking to steal firearms from range
users. He also explained the possible problem of contamina‐tion from lead residue left on range users’ hands after
shooting. He identified various measures that a firing range
should take to reduce these risks. To prevent theft, he saida range should have a secure parking lot and only one
entrance into its facilities. To avoid injury from uninten‐
tional discharge, a range should provide a separate location
for the loading and unloading of firearms and should erecta permanent, opaque fence to deter bystanders fromcongregating around the facility. He also said a range
should have running water onsite so users can wash leadresidue from their hands after shooting.
Scudiero testified that Chicago’s zoning code prohibits allproperty uses not expressly permitted and contains

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No. 10‐3525

no provision for gun ranges.6 If firing ranges wereadded as a permitted use, she said they should be classified
as an “intensive use” under the Code. An “intensive use,”
she explained, is a use “that could pose a threat tothe health, safety and welfare” of city residents and there‐
fore may be located only in a manufacturing district; eventhen, intensive uses are allowed only by special‐use permit,
not presumptively. On cross‐examination Scudiero admitted
she has never been to a firing range. She acknowledged aswell that the governmental firing ranges within the city are
not limited to manufacturing districts; they are located nearchurches, schools, university buildings, residential housing,a county courthouse, retail stores, and parks. She has notreceived any complaints from the public about these ranges.
The City introduced evidence that there are 14 firing
ranges open to the public and located within 50 milesof its borders. Of these, seven are located within
25 miles of the city, and five are located within 5 miles of thecity.
Because the legal issues in the case had been fully briefed,6

See CHI. MUN. CODE §§ 17‐2‐0204 (Residential Districts
section stating: “Uses that are not listed in the [correspondinguse] table are . . . prohibited.”), 17‐3‐0204 (Business & Com‐
mercial Districts section stating the same), 17‐4‐0204 (Down‐
town Districts section stating the same), 17‐5‐0204 (Manufactur‐
ing Districts section stating the same), 17‐6‐0403‐C(Special Purpose Districts section stating the same). Apparently,
the City does not interpret the “Sports and Recreation” special‐use category allowed in manufacturing districts, see id.
§ 17‐5‐0207, to include firing ranges.

No. 10‐3525

11

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.

C. The Decision Below
Soon after the hearing, the district court issued adecision 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 tofollow; standing and merits inquiries are mixed in with thecourt’s evaluation of irreparable harm. As we will explain,
the court made several critical legal errors. To see how thedecision got off‐track requires that we identify its key
holdings.
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 nothave the necessary standing to demonstrate their irreparable
harm” because “Heller and McDonald addressed an individ‐
ual’s right to possess a firearm” but “did not address anorganization’s right.” Again, the court purported to enter analternative holding: “Even if” the organizations had stand‐ing 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 thatnone of the plaintiffs were suffering irreparable

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No. 10‐3525

harm because the injury in question was limited to theminor cost and inconvenience of having to travel outside thecity 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.
On the plaintiffs’ likelihood of success on the merits,
the judge was skeptical that the firing‐range banviolated anyone’s Second Amendment rights: “Sug‐gesting that firing a weapon at a firing range is tanta‐
mount 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 Amend‐
ment was implicated at all, the judge characterized theclaim as a minor dispute about an inconvenient permit
requirement: “[T]he [c]ity’s boundaries are merely
artificial borders allegedly preventing an individualfrom 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 theminimal inconvenience of traveling outside of the [c]ity fora one‐hour course.”
Finally, the judge concluded that the balance ofharms favored the City because the “potential harmful
effects of firing ranges” outweighed any inconvenience
the plaintiffs might experience from having to travel toranges outside of Chicago. The court summarily rejected theplaintiffs’ First Amendment claim, finding it underdevel‐
oped. Alternatively, the court held that the range ban did
not appear to implicate any expressive message.

No. 10‐3525

13

The plaintiffs appealed. See 28 U.S.C. § 1292(a)(1) (autho‐
rizing immediate appeal of a decision granting or
denying injunctive relief).

II. Analysis
To win a preliminary injunction, a party must show thatit has (1) no adequate remedy at law and will suffer irrepa‐
rable harm if a preliminary injunction is denied and (2)some likelihood of success on the merits. See Christian Legal
Soc’y v. Walker, 453 F.3d 853, 859 (7th Cir. 2006); Joelner v.
Vill. of Wash. Park, 378 F.3d 613, 619 (7th Cir. 2004); Abbott
Labs. v. Mead Johnson & Co., 971 F.2d 6, 11‐12 (7th Cir. 1992).
If the moving party meets these threshold requirements, thedistrict court weighs the factors against one another,assessing whether the balance of harms favors the moving
party or whether the harm to the nonmoving party or the
public is sufficiently weighty that the injunction should bedenied. Christian Legal Soc’y, 453 F.3d at 859. We review the
court’s legal conclusions de novo, its findings of fact
for clear error, and its balancing of the injunction factors foran abuse of discretion. Id.
The district court got off on the wrong foot by
accepting the City’s argument that its ban on firing
ranges causes only minimal harm to theplaintiffs—nothing more than the minor expense and incon‐
venience of traveling to one of 14 firing ranges
located within 50 miles of the city limits—and this harm canbe adequately compensated by money
damages. This characterization of the plaintiffs’ injury fun‐damentally misunderstands the form of this claim

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No. 10‐3525

and rests on the mistaken premise that range training
does not implicate the Second Amendment at all, or at
most only minimally. The City’s confused approach tothis case led the district court to make legal errors on several
fronts: (1) the organizational plaintiffs’ standing; (2) thenature of the plaintiffs’ harm; (3) the scope of the Second
Amendment right as recognized in Heller and applied to theStates in McDonald; and (4) the structure and standards
for judicial review of laws alleged to infringe Second
Amendment rights.

A. Standing
We start with the organizational plaintiffs’ standing.
Article III restricts the judicial power to actual “Cases” and” Controversies,” a limitation understood to confine thefederal judiciary to “the traditional role of Anglo‐
American courts, which is to redress or prevent actual or
imminently threatened injury to persons caused byprivate or official violation of the law.” Summers v. Earth
Island Inst., 129 S. Ct. 1142, 1148 (2009); see also Lujan v.
Defenders of Wildlife, 504 U.S. 555, 559‐60 (1992); U.S. CONST.
art. III, § 1. The doctrine of standing enforces this limitation.
Summers, 129 S. Ct. at 1149; Lujan, 504 U.S. at 559‐60.
“Standing exists when the plaintiff suffers an actual or
impending injury, no matter how small; the injury is causedby the defendant’s acts; and a judicial decision in theplaintiff’s favor would redress the injury.” Bauer v. Shepard,
620 F.3d 704, 708 (7th Cir. 2010) (citing Summers, 129 S. Ct.
1142, and Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83(1998)).

No. 10‐3525

15

We note first that the district court did not address
the individual plaintiffs’ standing, probably because it is notin serious doubt. Ezell, Hespen, and Brown are Chicago
residents who own firearms and want to main‐
tain proficiency in their use via target practice ata firing range. Ezell is the victim of three attempted burglar‐
ies and applied for a Chicago Firearm Permit to keep ahandgun in her home for protection. Hespen is a retired
Chicago police detective who maintains a collection ofhandguns, shotguns, and rifles. Brown is a U.S. Armyveteran who was honorably discharged after service inWorld War II; he is currently chairman of the Marksman‐ship Committee of the Illinois unit of the American Legion
and teaches a junior firearms course at an American Legion
post outside the city. Ezell and Hespen left the city tocomplete the range training necessary to apply for a Permit
to legalize their firearm possession in the city. Brown owns
a firearm that he keeps outside the city’s limits because hedoes not have a Permit.
The plaintiffs—all of them—frame their Second Amend‐
ment claim in two ways. First, they contend that theAmendment protects the right of law‐abiding people tomaintain proficiency in firearm use via marksmanshippractice and the City’s absolute ban on firing ranges violates
this right. Second, they contend that the range
ban impermissibly burdens the core Second Amendment
right to possess firearms in the home for self‐defense
because it prohibits, everywhere in the city, the meansof satisfying a condition the City imposes for lawful firearm
possession. They seek a declaration that the range ban isinvalid and an injunction blocking its enforcement.

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No. 10‐3525

Ezell and Hespen took affirmative steps to comply
with the Ordinance’s permitting process by completing
the range‐training requirement outside the city. Brown
did not, so he must keep his firearm outside the city
to avoid violating the Ordinance. For all three the City’s ban
on firing ranges inflicts continuous harm to their claimed
right to engage in range training and interferes with theirright to possess firearms for self‐defense. These injuries
easily support Article III standing.
Moreover, this is a pre‐enforcement challenge to theOrdinance. The plaintiffs contend that the City’s ban on
firing ranges is wholly incompatible with the Second
Amendment. It is well‐established that “pre‐enforcement
challenges . . . are within Article III.” Brandt v. Vill. ofWinnetka, Ill., 612 F.3d 647, 649 (7th Cir. 2010). The plaintiffs
need not violate the Ordinance and risk prosecution in orderto challenge it. Schirmer v. Nagode, 621 F.3d 581, 586 (7th Cir.
2010) (“A person need not risk arrest before bringing a pre‐enforcement challenge . . . .”). The very “existence of astatute implies a threat to prosecute, so pre‐enforcement
challenges are proper, because a probability of future injury
counts as ‘injury’ for the purpose of standing.” Bauer, 620
F.3d at 708. The City did not question the individual plain‐tiffs’ standing; their injury is clear.
Regarding the organizational plaintiffs, however, theCity’s argument led the district court astray. The Cityemphasized that the Second Amendment protects an
individual right, not an organizational one, and thispoint led the court to conclude that “the organizations
do not have the necessary standing to demonstrate their

No. 10‐3525

17

irreparable harm.”7 This was error. Action Target, as asupplier of firing‐range facilities, is harmed by the firing‐
range ban and is also permitted to “act[] as [an] advo‐
cate[] of the rights of third parties who seek access to”
its services. See Craig v. Boren, 429 U.S. 190, 195 (1976)(allowing beer vendor to challenge alcohol regulation basedon its patrons’ equal‐protection rights); see also Pierce v. Soc’yof Sisters, 268 U.S. 510, 536 (1925) (allowing private schools
to assert parents’ rights to direct the education of theirchildren and citing “other cases where injunctions haveissued to protect business enterprises against interferencewith the freedom of patrons or customers”); Mainstreet Org.
of Realtors v. Calumet City, 505 F.3d 742, 746‐47 (7th Cir.
2007). The Second Amendment Foundation and the Illinois
Rifle Association have many members who reside in
Chicago and easily meet the requirements for associational
standing: (1) their members would otherwise have standing
to sue in their own right; (2) the interests the associations
seek to protect are germane to their organizational pur‐poses; and (3) neither the claim asserted nor the relief re‐quested requires the participation of individual associa‐

7

The district court’s emphasis on the organizational plain‐tiffs’ standing is puzzling. As we have noted, it’s clear theindividual plaintiffs have standing. Where at least one
plaintiff has standing, jurisdiction is secure and the court will
adjudicate the case whether the additional plaintiffs havestanding or not. See Vill. of Arlington Heights v. Metro. Hous. Dev.
Corp., 429 U.S. 252, 264 (1977); Bond v. Utreras, 585 F.3d 1061, 1070
(7th Cir. 2009); Bethune Plaza, Inc. v. Lumpkin, 863 F.2d 525, 530‐31(7th Cir. 1988).

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No. 10‐3525

tion members in the lawsuit. See United Food &Commercial Workers Union Local 751 v. Brown Group, 517
U.S. 544, 553 (1996); Hunt v. Wash. State Apple Adver.
Comm’n, 432 U.S. 333, 343 (1977); Disability Rights Wis. v.
Walworth Cnty. Bd. of Supervisors, 522 F.3d 796, 801‐02(7th Cir. 2008).
The district court held in the alternative that the organiza‐
tional plaintiffs “failed to present sufficient evidence
to support their position that their constituency has been
unable to comply with the statute.” More specifically,
the court held that the plaintiffs failed to produce “evidenceof any one resident [of Chicago] who has been unable totravel to . . . a range [or] has been unable to obtain [the]range training” required for a Permit. It’s not clear whether
these observations were directed at standing or the meritsof the motion for a preliminary injunction; this discussion
appears in the court’s evaluation of irreparable harm. Eitherway, the point is irrelevant. Nothing depends on this kindof evidence. The availability of range training outside thecity neither defeats the organizational plaintiffs’ standing
nor has anything to do with merits of the claim. The ques‐tion is not whether or how easily Chicago residents cancomply with the range‐training requirement bytraveling outside the city; the plaintiffs are not seeking
an injunction against the range‐training requirement. The
pertinent question is whether the Second Amendment
prevents the City Council from banning firing ranges
everywhere in the city; that ranges are present in neigh‐boring jurisdictions has no bearing on this question.

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B. Irreparable Harm and Adequacy of Remedy at Law
The City’s misplaced focus on the availability of firing
ranges outside the city also infected the district court’s
evaluation of irreparable harm. The judge’s primaryreason for rejecting the plaintiffs’ request for a pre‐liminary injunction was that they had “failed toestablish the irreparable harm they have suffered byrequiring them to travel outside of the [c]ity’s borders
to obtain their firing[‐]range permits.” The judge thus
framed the relevant harm as strictly limited toincidental travel burdens associated with satisfying theOrdinance’s range‐training requirement. The judge
noted that for at least some—perhaps many—Chicago
residents, complying with the range‐training requirement
did not appear to pose much of a hardship at all. She
observed that it might actually be easier for some Chicago‐
ans to travel to a firing range in the suburbs than to
one located, say, at the opposite end of the city if ranges
were permitted to locate within city limits. The judge
thought it significant that none of the individual
plaintiffs had “testif[ied] that s/he was unable to travel
outside of the [c]ity’s borders to obtain the one‐hourrange training and all three have shown that they arecapable of doing so and have done so in the past.” The court
held that although the Ordinance may force the plaintiffs totravel longer distances to use a firing range, this was a“quantifiable expense that can be easily calculated asdamages.”This reasoning assumes that the harm to a constitu‐
tional right is measured by the extent to which it canbe exercised in another jurisdiction. That’s a profoundly

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mistaken assumption. In the First Amendment context,
the Supreme Court long ago made it clear that “ ‘one is
not to have the exercise of his liberty of expression inappropriate places abridged on the plea that it may be
exercised in some other place.’ ” Schad v. Borough of
Mt. Ephraim, 452 U.S. 61, 76‐77 (1981) (quoting Schneider
v. State of New Jersey, 308 U.S. 147, 163 (1939)). The
same principle applies here. It’s hard to imagine anyone
suggesting that Chicago may prohibit the exercise of a free‐speech or religious‐liberty right within its borders on
the rationale that those rights may be freely enjoyed in
the suburbs. That sort of argument should be no lessunimaginable in the Second Amendment context.
Focusing on individual travel harms was mistaken foranother equally fundamental reason. The plaintiffs havechallenged the firing‐range ban on its face, not merely
as applied in their particular circumstances. In a facialconstitutional challenge, individual application facts
do not matter. Once standing is established, the plain‐
tiff’s personal situation becomes irrelevant. It is enough that“[w]e have only the [statute] itself” and the “statement ofbasis and purpose that accompanied its promulgation.”
Reno v. Flores, 507 U.S. 292, 300‐01 (1993); see also Nicholas
Quinn Rosenkranz, The Subjects of the Constitution, 62 STAN.
L. REV. 1209, 1238 (2010) (“[F]acial challenges are to consti‐
tutional law what res ipsa loquitur is to facts—in a facialchallenge, lex ipsa loquitur: the law speaks for itself.”); David
L. Franklin, Facial Challenges, Legislative Purpose, and theCommerce Clause, 92 IOWA L. REV. 41, 58 (2006) (“A valid‐rulefacial challenge asserts that a statute is invalid on its face as
written and authoritatively construed, when measured

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21

against the applicable substantive constitutional doctrine,
without reference to the facts or circumstances of particularapplications.”); Mark E. Isserles, Overcoming Overbreadth:
Facial Challenges and the Valid Rule Requirement, 48 AM. U. L.
REV. 359, 387 (1998) (“[A] valid rule facial challenge directs
judicial scrutiny to the terms of the statute itself, anddemonstrates that those terms, measured against therelevant constitutional doctrine, and independent of theconstitutionality of particular applications, contains a
constitutional infirmity that invalidates the statute inits entirety.”).
Though she did not specifically mention it, the judge
might have had the Salerno principle in mind when she
limited her focus to individual travel harms. Under Salerno a
law is not facially unconstitutional unless it “is unconstitu‐
tional in all of its applications.” Wash. State Grange v. Wash.
State Republican Party, 552 U.S. 442, 449 (2008) (citing UnitedStates v. Salerno, 481 U.S. 739, 745 (1987)). Stated differently,“[a] person to whom a statute properly applies can’t obtainrelief based on arguments that a differently situated person
might present.”8 United States v. Skoien, 614 F.3d 638, 645

8

We noted in Skoien that “the Salerno principle has been contro‐
versial” and does not apply to all facial challenges: “[T]he Justices
have allowed ‘overbreadth’ arguments when dealing with lawsthat restrict speech and reach substantially more conduct than thejustifications advanced for the statute support . . . .” United States
v. Skoien, 614 F.3d 638, 645 (7th Cir. 2010) (en banc) (citing UnitedStates v. Stevens, 130 S. Ct. 1577, 1587 (2010)). Overbreadth claims
are a distinct type of facial challenge. Stevens, 130 S. Ct. at 1587
(continued...)22

No. 10‐3525(7th Cir. 2010) (en banc) (citing Salerno, 481 U.S. at 745).
Here, the judge zeroed in on the occasional expense
and inconvenience of having to travel to a firing range in thesuburbs, but that’s not the relevant constitutional harm. The
plaintiffs contend that the Second Amendment protects theright to maintain proficiency in firearm use—including theright to train at a range—and the City’s complete ban on
range training violates this right. They also claim that therange ban impermissibly burdens the core Second Amend‐
ment right to possess firearms at home for protection
because the Ordinance conditions lawful possession on
range training but makes it impossible to satisfy thiscondition anywhere in the city. If they’re right, then therange ban was unconstitutional when enacted and violates
their Second Amendment rights every day it remains on thebooks. These are not application‐specific harms calling forindividual remedies.
In a facial challenge like this one, the claimed constitu‐
tional violation inheres in the terms of the statute, notits application. See Rosenkranz, The Subjects of the Con‐
stitution, 62 STAN. L. REV. at 1229‐38. The remedy is nec‐
essarily directed at the statute itself and must be injunc‐

8(...continued)(“In the First Amendment context, . . . this Court recognizes ‘asecond type of facial challenge,’ whereby a law may be invali‐
dated as overbroad if ‘a substantial number of its applications areunconstitutional, judged in relation to the statute’s plainly
legitimate sweep.’ ” (emphasis added) (quoting Wash. State Grange
v. Wash. State Republican Party, 552 U.S. 442, 449 n.6 (2008))).

No. 10‐3525

23

tive and declaratory; a successful facial attack means
the statute is wholly invalid and cannot be applied toanyone. Chicago’s law, if unconstitutional, is unconstitu‐
tional without regard to its application—or in all its ap‐
plications, as Salerno requires. That is, the City Council
violated the Second Amendment when it made this law;its very existence stands as a fixed harm to every Chica‐
goan’s Second Amendment right to maintain proficiency
in firearm use by training at a range. This kind of constitu‐
tional harm is not measured by whether a particular per‐son’s gasoline or mass‐transit bill is higher because he musttravel to a firing range in the suburbs rather than one in thecity, as the district court seemed to think. Whatever else theSalerno principle might mean for this case, it neither requires
nor supports the district court’s approach to irreparable
harm.99For different views of the Salerno doctrine and the structureof the facial and as‐applied forms of judicial review, see generally
Nicholas Quinn Rosenkranz, The Subjects of the Constitution, 62
STAN. L. REV. 1209, 1242‐50 (2010); David L. Franklin, Facial
Challenges, Legislative Purpose, and the Commerce Clause, 92 IOWA L.
REV. 41, 58 (2006); Matthew D. Adler, Rights, Rules, and theStructure of Constitutional Adjudication: A Response to Professor
Fallon, 113 HARV. L. REV. 1371 (2000); Richard H. Fallon, Jr., As‐
Applied and Facial Challenges and Third‐Party Standing, 113 HARV.
L. REV. 1321 (2000); Mark E. Isserles, Overcoming Overbreadth:
Facial Challenges and the Valid Rule Requirement, 48 AM. U. L. REV.
359 (1998); Michael C. Dorf, Facial Challenges to State and Federal
Statutes, 46 STAN. L. REV. 235 (1994); Henry P. Monaghan,(continued...)24

No. 10‐3525

Beyond this crucial point about the form of the claim,
for some kinds of constitutional violations, irreparable harmis presumed. See 11A CHARLES ALAN WRIGHT ET AL., FED‐ERAL PRACTICE & PROCEDURE § 2948.1 (2d ed. 1995) (“Whenan alleged deprivation of a constitutional right is involved,
most courts hold that no further showing of irreparable
injury is necessary.”). This is particularly true in First
Amendment claims. See, e.g., Christian Legal Soc’y, 453 F.3d
at 867 (“[V]iolations of First Amendment rights are pre‐sumed to constitute irreparable injuries . . . .” (citing Elrod v.
Burns, 427 U.S. 347, 373 (1976))). The loss of a First Amend‐
ment right is frequently presumed to cause irreparable harm
based on “the intangible nature of the benefits flowing fromthe exercise of those rights; and the fear that, if those rights
are not jealously safeguarded, persons will be deterred,even if imperceptibly, from exercising those rights in the
future.” Miles Christi Religious Order v. Twp. of Northville, 629
F.3d 533, 548 (6th Cir. 2010) (internal alteration and quota‐
tion marks omitted); see also KH Outdoor, LLC v. City of
Trussville, 458 F.3d 1261, 1272 (11th Cir. 2006). The Second
Amendment protects similarly intangible and unquantifi‐
able interests. Heller held that the Amendment’s centralcomponent is the right to possess firearms for protection.
554 U.S. at 592‐95. Infringements of this right cannot becompensated by damages.109(...continued)
Harmless Error and the Valid Rule Requirement, 1989 SUP. CT. REV.
195.
10

The City cites our opinion in Campbell v. Miller, 373 F.3d
(continued...)No. 10‐3525

25

10(...continued)
834, 835 (7th Cir. 2004), which cautioned against the assump‐tion “that money never is an adequate remedy for a constitutional
wrong.” But Campbell concerned a Fourth Amendment
unreasonable‐search claim—a claim properly characterized as“a constitutional tort” and “often . . . analogized to (other)
personal‐injury litigation.” Id. In Campbell the plaintiff contended
that jail officers violated the Fourth Amendment by subjecting
him to an unreasonable search; the proper, fully adequate remedy
for that kind of constitutional violation is damages. The constitu‐
tional claim here is quite different. The plaintiffs do not contend
that a city official violated the Second Amendment by enforcing
the range ban against them; they contend that the City Council
violated the Second Amendment by enacting the firing‐range banin the first place. If they prevail, the only appropriate remedy isa declaration that the firing‐range ban is invalid and an injunction
forbidding its enforcement.
The City also cites the First Circuit’s decision in Public Service
Co. of New Hampshire v. Town of West Newbury, 835 F.2d 380,382 (1st Cir. 1987). In Public Service Co., local regulators ordered anuclear power plant to remove utility poles from its property
because they were too high. The plant owner sued, alleging adenial of due process. The First Circuit noted that the “alleged
denial of procedural due process, without more, does not
automatically trigger” a finding of irreparable harm. Id. The court
then affirmed the denial of preliminary injunctive relief because“the prospects of any irreparable damage were speculative” andthe owner had little likelihood of success on the merits. Id. at 383.
Public Service Co., like Campbell, does not help the City. An
improper order requiring the removal of utility poles can easily
be remedied by damages—not so with the constitutional viola‐(continued...)26

No. 10‐3525

In short, for reasons related to the form of the claim
and the substance of the Second Amendment right, theplaintiffs’ harm is properly regarded as irreparable andhaving no adequate remedy at law.

C. Likelihood of Success on the Merits
Having rejected the plaintiffs’ claim of irreparable
harm, the district court only summarily addressed
whether they were likely to succeed on the merits. Earlyon in her decision, the judge said she would not applyintermediate scrutiny to evaluate the constitutionality of therange ban—and by implication, rejected any formof heightened review. When she later returned to the merits,
the judge suggested that banning range training might not
implicate anyone’s Second Amendment rights at all. She
observed that although Chicago requires range training asa prerequisite to firearm possession, “the City does not havethe ability to create a Constitutional right to that training.”
Instead, the judge thought the key question was “whether
the individual’s right to possess firearms within his resi‐
dence expands to the right to train with that same firearm ina firing range located within the [c]ity’s borders.” This
statement of the question ends the court’s discussion of themerits.
There are several problems with this analysis. First, it
is incomplete. The judge identified but did not evaluate

10(...continued)
tions alleged here.

No. 10‐3525

27

the Second Amendment merits question. More importantly,
the court framed the inquiry the wrong way. Finally, it wasa mistake to reject heightened scrutiny. The judge wasevidently concerned about the novelty of Second Amend‐
ment litigation and proceeded from a default position infavor of the City. The concern is understandable, but thedefault position cannot be reconciled with Heller.

1.

Heller, McDonald, and a framework for Second
Amendment litigation

It’s true that Second Amendment litigation is new, andChicago’s ordinance is unlike any firearms law that hasreceived appellate review since Heller. But that doesn’t mean
we are without a framework for how to proceed.
The Supreme Court’s approach to deciding Heller points in a
general direction. Although the critical question inHeller—whether the Amendment secures an individual
or collective right—was interpretive rather than doctrinal,
the Court’s decision method is instructive.
With little precedent to synthesize, Heller focused
almost exclusively on the original public meaning of theSecond Amendment, consulting the text and relevant
historical materials to determine how the Amendment
was understood at the time of ratification. This inquiry
led the Court to conclude that the Second Amendment
secures a pre‐existing natural right to keep and beararms; that the right is personal and not limited tomilitia service; and that the “central component of the right”
is the right of armed self‐defense, most notably in the home.
Heller, 554 U.S. at 595, 599‐600; see also McDonald, 130 S. Ct.

28

No. 10‐3525

at 3036‐37, 3044. On this understanding the Court invali‐
dated the District of Columbia’s ban on handgun posses‐
sion, as well as its requirement that all firearms in the home
be kept inoperable. Heller, 554 U.S. at 629‐35. The Court said
these laws were unconstitutional “[u]nder any . . . stan‐dard[] of scrutiny” because “the inherent right of self‐
defense has been central to the Second Amendment right”
and the District’s restrictions “extend[] . . . to the home,where the need for defense of self, family, and property ismost acute.” Id. at 628‐29. That was enough to decide thecase. The Court resolved the Second Amendment challenge
in Heller without specifying any doctrinal “test” for resolv‐
ing future claims.
For our purposes, however, we know that Heller’s refer‐ence to “any standard of scrutiny” means any heightened
standard of scrutiny; the Court specifically excluded
rational‐basis review. Id. at 628‐29 & n.27 (“If all thatwas required to overcome the right to keep and beararms was a rational basis, the Second Amendment would be
redundant with the separate constitutional prohibitions on
irrational laws, and would have no effect.”); see also Skoien,
614 F.3d at 641 (“If a rational basis were enough [to justify
a firearms law], the Second Amendment would not doanything . . . because a rational basis is essential for legisla‐tion in general.”). Beyond that, the Court was not explicit
about how Second Amendment challenges should be
adjudicated now that the historic debate about the Amend‐
ment’s status as an individual‐rights guarantee has been
settled. Heller, 554 U.S. at 635 (“[S]ince this case represents
this Court’s first in‐depth examination of the Second
Amendment, one should not expect it to clarify theNo. 10‐3525

29

entire field . . . .”). Instead, the Court concluded that“whatever else [the Second Amendment] leaves tofuture evaluation, it surely elevates above all other interests
the right of law‐abiding, responsible citizens to use arms in
defense of hearth and home.” Id.
And in a much‐noted passage, the Court carved out
some exceptions:[N]othing in our opinion should be taken to cast
doubt on longstanding prohibitions on the possession of
firearms by felons and the mentally ill, or
laws forbidding the carrying of firearms in sensitive
places such as schools and government buildings, orlaws imposing conditions and qualifications on thecommercial sale of arms.
Id. at 626‐27. The Court added that this list of “presump‐tively lawful regulatory measures” was illustrative, notexhaustive. Id. at 627 n.26; see also McDonald, 130 S. Ct. at
3047 (repeating Heller’s “assurances” about exceptions).
These now‐familiar passages from Heller hold several
key insights about judicial review of laws alleged to infringe
Second Amendment rights. First, the threshold inquiry insome Second Amendment cases will be a “scope” question:
Is the restricted activity protected by the Second Amend‐
ment in the first place? See Eugene Volokh, Implementing theRight to Keep and Bear Arms for Self‐Defense: An Analytical
Framework and a Research Agenda, 56 UCLA L. REV. 1443,
1449. The answer requires a textual and historical inquiry
into original meaning. Heller, 554 U.S. at 634‐35 (“Constitu‐
tional rights are enshrined with the scope they were under‐stood to have when the people adopted them, whether or30

No. 10‐3525

not future legislatures or (yes) even future judges think that
scope too broad.”); McDonald, 130 S. Ct. at 3047 (“[T]hescope of the Second Amendment right” is determined by
textual and historical inquiry, not interest‐balancing.).
McDonald confirms that when state‐ or local‐govern‐
ment action is challenged, the focus of the original‐meaninginquiry is carried forward in time; the Second Amendment’s
scope as a limitation on the States depends on how the rightwas understood when the Fourteenth Amendment was
ratified. See McDonald, 130 S. Ct. at 3038‐42. Setting aside theongoing debate about which part of the Fourteenth Amend‐
ment does the work of incorporation, and how, see id. at3030‐31 (plurality opinion of Alito, J.); id. at 3058‐80(Thomas, J., concurring); id. at 3089‐99 (Stevens, J., dissent‐ing); id. at 3120‐21 (Breyer, J., dissenting), this wider histori‐
cal lens is required if we are to follow the Court’s lead in
resolving questions about the scope of the Second Amend‐
ment by consulting its original public meaning as both astarting point and an important constraint on the analysis.
See Heller, 554 U.S. at 610‐19; McDonald, 130 S. Ct. at 3038‐
42.11

11

On this aspect of originalist interpretive method as applied
to the Second Amendment, see generally AKHIL REED AMAR,
THE BILL OF RIGHTS: CREATION AND RECONSTRUCTION 215‐30, 257‐
67 (1998); Brannon P. Denning & Glenn H. Reynolds, Five Takes
on McDonald v. Chicago, 26 J.L & POL. 273, 285‐87 (2011);
Josh Blackmun & Ilya Shapiro, Keeping Pandora’s Box Sealed:
Privileges or Immunities, The Constitution in 2020, and Properly
Extending the Right to Keep and Bear Arms to the States, 8 GEO. J.L.
(continued...)No. 10‐3525

31

The Supreme Court’s free‐speech jurisprudence contains aparallel for this kind of threshold “scope” inquiry. The
Court has long recognized that certain “well‐defined andnarrowly limited classes of speech”—e.g., obscenity,
defamation, fraud, incitement—are categorically “outside
the reach” of the First Amendment. United States v. Stevens,
130 S. Ct. 1577, 1584‐85 (2010); see also Brown v. Entm’t
Merchants Ass’n, No. 08‐1448, 2011 WL 2518809, at *3‐4 (June27, 2011). When the Court has “identified categories ofspeech as fully outside the protection of the First Amend‐
ment, it has not been on the basis of a simple cost‐benefit
analysis.” Stevens, 130 S. Ct. at 1586. Instead, some catego‐ries of speech are unprotected as a matter of history andlegal tradition. Id. So too with the Second Amendment.

11(...continued)& PUB. POL’Y 1, 51‐57 (2010); Clayton E. Cramer, Nicholas J.
Johnson & George A. Mocsary, “This Right Is Not Allowed byGovernments That Are Afraid of the People”: The Public Meaningof the Second Amendment When the Fourteenth Amendment Was
Ratified, 17 GEO. MASON L. REV. 823, 824‐25 (2010); Steven G.
Calabresi & Sarah E. Agudo, Individual Rights Under State
Constitutions When the Fourteenth Amendment Was Ratified in
1868: What Rights Are Deeply Rooted in American History andTradition?, 87 TEX. L. REV. 7, 11‐17, 50‐54 (2008); Randy E. Barnett,
Was the Right to Keep and Bear Arms Conditioned on Service in an
Organized Militia?, 83 TEX. L. REV. 237, 266‐70 (2004); David B.
Kopel, The Second Amendment in the Nineteenth Century, 1998 BYU
L. REV. 1359; Stephen P. Halbrook, Personal Security, Personal
Liberty, and “The Constitutional Right to Bear Arms”: Visions of the
Framers of the Fourteenth Amendment, 5 SETON HALL CONST. L.J. 341(1995).

32

No. 10‐3525

Heller suggests that some federal gun laws will survive
Second Amendment challenge because they regulate
activity falling outside the terms of the right as publicly
understood when the Bill of Rights was ratified; McDonald
confirms that if the claim concerns a state or local law, the“scope” question asks how the right was publicly under‐stood when the Fourteenth Amendment was proposed andratified. Heller, 554 U.S. at 625‐28; McDonald, 130 S. Ct. at
3038‐47. Accordingly, if the government can establish thata challenged firearms law regulates activity falling outside
the scope of the Second Amendment right as it was under‐stood at the relevant historical moment—1791 or 1868—then
the analysis can stop there; the regulated activity is categori‐cally unprotected, and the law is not subject to further
Second Amendment review.
If the government cannot establish this—if the historicalevidence is inconclusive or suggests that the regulated
activity is not categorically unprotected—then there must bea second inquiry into the strength of the government’s
justification for restricting or regulating the exercise of
Second Amendment rights. Heller’s reference to “any . . .
standard[] of scrutiny” suggests as much. 554 U.S. at 628‐29.
McDonald emphasized that the Second Amendment“limits[,] but by no means eliminates,” governmental
discretion to regulate activity falling within the scope of theright. 130 S. Ct. at 3046 (emphasis and parentheses omitted).
Deciding whether the government has transgressed thelimits imposed by the Second Amendment—that is, whether
it has “infringed” the right to keep and bear arms—requires
the court to evaluate the regulatory means the government
has chosen and the public‐benefits end it seeks to

No. 10‐3525

33

achieve. Borrowing from the Court’s First Amendment
doctrine, the rigor of this judicial review will depend on
how close the law comes to the core of the Second Amend‐
ment right and the severity of the law’s burden on the right.
See generally, Volokh, Implementing the Right to Keep and Bear
Arms for Self‐Defense, 56 UCLA L. REV. at 1454‐72 (explaining
the scope, burden, and danger‐reduction justifications for
firearm regulations post‐ Heller); Nelson Lund, The Second
Amendment, Heller, and Originalist Jurisprudence, 56 UCLA L.
REV. 1343, 1372‐75 (2009); Adam Winkler, Heller’s Catch‐22,
56 UCLA L. REV. 1551, 1571‐73 (2009); Lawrence B. Solum,District of Columbia v. Heller and Originalism, 103 NW. U. L.
REV. 923, 979‐80 (2009); Glenn H. Reynolds & Brannon P.
Denning, Heller’s Future in the Lower Courts, 102 NW. U. L.
REV. 2035, 2042‐44 (2008).
Both Heller and McDonald suggest that broadly prohibi‐
tory laws restricting the core Second Amendment
right—like the handgun bans at issue in those cases, which
prohibited handgun possession even in the home—are
categorically unconstitutional. Heller, 554 U.S. at 628‐35(“We know of no other enumerated constitutional rightwhose core protection has been subjected to a free‐standing ‘interest‐balancing’ approach.”); McDonald, 130
S. Ct. at 3047‐48. For all other cases, however, we are left
to choose an appropriate standard of review fromamong the heightened standards of scrutiny the Court
applies to governmental actions alleged to infringe enumer‐
ated constitutional rights; the answer to the Second Amend‐
ment “infringement” question depends on the government’s
ability to satisfy whatever standard of means‐end scrutiny
is held to apply.

34

No. 10‐3525

The approach outlined here does not undermine
Skoien, 614 F.3d at 639‐43, or United States v. Williams,
616 F.3d 685, 691‐93 (7th Cir. 2010), both of which
touched on the historical “scope” question before applying aform of intermediate scrutiny. And this general frameworkhas been followed by the Third, Fourth, and Tenth Circuits
in other Second Amendment cases.12 See United States v.
Marzzarella, 614 F.3d 85, 89 (3d Cir. 2010) (“As we readHeller, it suggests a two‐pronged approach to Second
Amendment challenges. First, we ask whether the chal‐lenged law imposes a burden on conduct falling within the

12

The Ninth Circuit recently adopted a somewhat different
framework for Second Amendment claims. In Nordyke v. King,a divided panel announced a gatekeeping “substantial bur‐den” test before the court will apply heightened scrutiny. No. 07‐
15763, 2011 WL 1632063, at *4‐6 (9th Cir. May 2, 2011)(O’Scannlain, J.). Under this approach only laws that substan‐tially burden Second Amendment rights will get some formof heightened judicial review. Id. The Nordyke majority specifi‐
cally deferred judgment on “what type of heightened
scrutiny applies to laws that substantially burden Second
Amendment rights.” Id. at *6 n.9. Judge Gould, concurringin Nordyke, would apply heightened scrutiny “only [to] arms
regulations falling within the core purposes of the Second
Amendment, that is, regulations aimed at restricting defenseof the home, resistance of tyrannous government, and protec‐
tion of country.” Id. at *15. All other firearms laws, he said,should be reviewed for reasonableness, id., although by thishe meant the sort of reasonableness review that applies in
the First Amendment context, not the deferential rational‐
basis review that applies to all laws, id. at *16.

No. 10‐3525

35

scope of the Second Amendment’s guarantee. . . . If it does
not, our inquiry is complete. If it does, we evaluate the law
under some form of means‐end scrutiny.”); United States v.
Chester, 628 F.3d 673, 680 (4th Cir. 2010) (A “two‐partapproach to Second Amendment claims seems appropriate
under Heller, as explained by . . . the now‐vacated Skoien
panel opinion . . . .”); United States v. Reese, 627 F.3d 792,
800‐01 (10th Cir. 2010) (same). Each of these cases involved
a Second Amendment challenge asserted as a defense to afederal prosecution under 18 U.S.C. § 922, but we think
the same principles apply here. McDonald reiterated that the
Court has long since “abandoned ‘the notion that the
Fourteenth Amendment applies to the States only awatered‐down, subjective version of theindividual guarantees of the Bill of Rights.’ ” 130 S. Ct. at
3035 (quoting Malloy v. Hogan, 378 U.S. 1, 10‐11 (1964)).

2.

Applying the framework to Chicago’s firing‐
range ban

The plaintiffs challenge only the City’s ban on firing
ranges, so our first question is whether range training
is categorically unprotected by the Second Amendment.
Heller and McDonald suggest to the contrary. The Court
emphasized in both cases that the “central component” of
the Second Amendment is the right to keep and beararms for defense of self, family, and home. Heller, 554 U.S.
at 599; McDonald, 130 S. Ct. at 3048. The right to possess
firearms for protection implies a corresponding rightto acquire and maintain proficiency in their use; thecore right wouldn’t mean much without the training

36

No. 10‐3525

and practice that make it effective. Several passages in Heller
support this understanding. Examining post‐Civil War legal
commentaries to confirm the founding‐era “individual
right” understanding of the Second Amendment, the Court
quoted at length from the “massively popular 1868 Treatise
on Constitutional Limitations” by judge and professor
Thomas Cooley: “[T]o bear arms implies something morethan the mere keeping; it implies the learning to handle anduse them . . . ; it implies the right to meet for voluntary
discipline in arms, observing in doing so the laws of publicorder.” 554 U.S. at 616, 617‐18 (internal quotation marks
omitted); see also id. at 619 (“ ‘No doubt, a citizen who keeps
a gun or pistol under judicious precautions, practices in safe
places the use of it, and in due time teaches his sons to do
the same, exercises his individual right.’ ” (quoting
BENJAMIN VAUGHAN ABBOTT, JUDGE AND JURY: A POPULAR
EXPLANATION OF THE LEADING TOPICS IN THE LAW OF THE
LAND 333 (1880))).
Indeed, the City considers live firing‐range training
so critical to responsible firearm ownership that it mandates
this training as a condition of lawful firearm possession. At
the same time, however, the City insists in this litigationthat range training is categorically outside the scope of theSecond Amendment and may be completely prohibited.
There is an obvious contradiction here, but we will set it
aside for the moment and consider the City’s support for its
categorical position. The City points to a number offounding‐era, antebellum, and Reconstruction state andlocal laws that limited the discharge of firearms in urban
environments. As we have noted, the most relevant histori‐
cal period for questions about the scope of the Second

No. 10‐3525

37

Amendment as applied to the States is the period leading up
to and surrounding the ratification of the Fourteenth
Amendment. That point aside, most of the statutes cited by
the City are not specific to controlled target practice
and, in any event, contained significant carveouts andexemptions.
For example, the City cites a 1790 Ohio statute thatprohibited the discharge of a firearm before sunrise, aftersunset, or within one‐quarter of a mile from the nearest
building. Act of Aug. 4, 1790, Ch. XIII, § 4, in 1 The
Statutes of Ohio and of the Northwestern Territory 104(Chase ed. 1833). This statute is not directly related
to controlled target practice. A similar 1746 statutelimiting the discharge of firearms in Boston provided an
exception for target practice: City residents could “fir[e] at aMark or Target for the Exercise of their Skill andJudgment . . . at the lower End of the Common” if theyobtained permission from the “Field Officers of the Regi‐
ment in Boston”; they could also “fir[e] at a Mark fromthe Several Batteries in” Boston with permission fromthe “Captain General.” Act of May 28, 1746, Ch. X, in Acts
and Laws of the Massachusetts Bay 208 (Kneeland ed. 1746).
The City cites other eighteenth‐ and nineteenth‐century
statutes regulating the discharge of firearms in cities,
but most of these allowed citizens to obtain a permit
or license to engage in firearms practice from thegovernor or city council.13 That was the case under the13

See Act of Aug. 26, 1721, § IV, in A Digest of the Acts of(continued...)38

No. 10‐3525

Philadelphia Act of August 26, 1721, § 4, one of the very
statutes the Supreme Court considered in Heller and deemed“a licensing regime.” 554 U.S. at 633. In short, these laws
were merely regulatory measures, distinguishable from theCity’s absolute prohibition on firing ranges. See id. at 632, 574(founding‐era statute that “restricted the firing of guns
within the city limits to at least some degree” did notsupport the District of Columbia’s “general[] prohibit[ion]on the possession of handguns”). These “time, place, andmanner” regulations do not support the City’s position that13(...continued)
Assembly Relating to the City of Philadelphia 183 (Duane ed.
1856) (hereinafter Philadelphia Digest) (providing for “governor’s
special license”); Act of Feb. 9, 1750‐51, ch. 388, in 1 Laws of theCommonwealth of Pennsylvania 312 (Carey ed. 1803) (providing
for “Governor’s special license”); Ordinance of June 7, 1813, § V,
in Philadelphia Digest 188 (providing for permission from theboard of commissioners); Ordinance of Sept. 8, 1851, § IX, in
Philadelphia Digest 419 (providing for permission from thepresident of the board of commissioners); Ordinance of 1854, ch.
5, § 20, in Revised Ordinances of the City of Manchester, N.H. 59(Gage ed. 1859) (providing for “permission of the Mayor andAldermen in writing”); Act of Feb. 14, 1855, § 78, in Private Lawsof the State of Illinois 144 (Bailhache ed. 1861) (providing for“permission from the mayor or common council”); Bylaw, Title
XI, ch. IV, in Charter and By‐Laws of the City of New Haven,Conn. 90 (Benham ed. 1865) (providing for “permission . . . of the
Mayor, or some one or more of the Aldermen”); Ordinance ofJune 12, 1869, § 17, in Laws and Ordinances Governing the Cityof St. Joseph, Mo. 110 (Grubb ed. 1869) (providing for “permis‐
sion from the city council or written permission from themayor”).

No. 10‐3525

39target practice is categorically unprotected.
To be sure, a few of the eighteenth‐ and nineteenth‐century statutes cited by the City might accurately bedescribed as general prohibitions on discharging
firearms within cities. Three of these, however, hadclear fire‐suppression purposes and do not support the
proposition that target practice at a safely sited and prop‐
erly equipped firing range enjoys no Second Amendment
protection whatsoever.14 Only two—a Baltimore statutefrom 1826 and an Ohio statute from 1831—flatly prohibitedthe discharge of firearms based on concerns unrelated to fire
suppression, in contrast to the other regulatory laws wehave mentioned.15 Cf. Heller, 554 U.S. at 632 (“[W]e would

14

See Act of Apr. 22, 1786, in The New York Daily Advertiser,Dec. 30, 1788 (prohibiting discharge of firearms “for the more
effectual prevention of FIRES in the city of New York”); Ordi‐nance of July 1, 1817, art. 12, in Ordinances of the City of New
Orleans 62, 68 (prohibiting the discharge of firearms for the“Prevention of fires”); Ordinance of Apr. 18, 1881, ch. XV, art. XX,§ 1298, in Municipal Code of Chicago 307 (Jamieson ed. 1881)(prohibiting firearms discharge under article governing “Fire‐arms, Fireworks and Cannons”).
15

See Ordinance of Mar. 9, 1826, § 6, in Baltimore Gazette andDaily Advertiser, Dec. 17, 1827 (“[I]f any person shall fire ordischarge any Gun or Pistol or fire arms within the City, unless
it be on some occasion of Military parade and then by orderof some officer having the command, every such person, forevery such offense, shall forfeit and pay a sum not exceeding five
dollars.”); Acts of Feb. 17, 1831, § 6, in 29 Acts of a(continued...)40

No. 10‐3525

not stake our interpretation of the Second Amendment upona single law . . . that contradicts the overwhelming weightof other evidence . . . .”). This falls far short of establishingthat target practice is wholly outside the Second Amend‐
ment as it was understood when incorporated as a limita‐tion on the States.
We proceed, then, to the second inquiry, which asks
whether the City’s restriction on range training survives
Second Amendment scrutiny. As we have explained,
this requires us to select an appropriate standard of re‐view. Although the Supreme Court did not do so in either
Heller or McDonald, the Court did make it clear that thedeferential rational‐basis standard is out, and with it thepresumption of constitutionality. Heller, 554 U.S. at 628 n.27
(citing United States v. Carolene Prods., 304 U.S. 144, 152 n.4(1938)). This necessarily means that the City bears theburden of justifying its action under some heightened
standard of judicial review.
The district court specifically decided against an inter‐mediate standard of scrutiny but did not settle on any other,
then sided with the City “even if” intermediate scrutiny
applied. A choice must be made. The City urges us toimport the “undue burden” test from the Court’s abortion
cases, see, e.g., Planned Parenthood of Se. Pa. v. Casey, 505 U.S.

15(...continued)
General Nature of the State of Ohio 162 (Olmsted ed. 1831)(subjecting “any person or persons [who] shall shoot or fire a gun
at a target within the limits of any recorded town plat” to a fine“not exceeding five dollars, nor less than fifty cents”).

No. 10‐3525

41

833, 876‐79 (1992), but we decline the invitation. Both Heller
and McDonald suggest that First Amendment analogues are
more appropriate, see Heller, 554 U.S. at 582, 595, 635;
McDonald, 130 S. Ct. at 3045, and on the strength of thatsuggestion, we and other circuits have already begun toadapt First Amendment doctrine to the Second Amendment
context, see Skoien, 614 F.3d at 641; id. at 649 (Sykes, J.,dissenting); Chester, 628 F.3d at 682; Marzzarella, 614 F.3d at
89 n.4; see also Volokh, Implementing the Right to Keep andBear Arms for Self‐Defense, 56 UCLA L. REV. at 1449, 1452,
1454‐55; Lund, The Second Amendment, Heller, and Originalist
Jurisprudence, 56 UCLA L. REV. at 1376; Winkler, Heller’sCatch‐22, 56 UCLA L. REV. at 1572.
In free‐speech cases, the applicable standard of judicial
review depends on the nature and degree of the governmen‐
tal burden on the First Amendment right and sometimes
also on the specific iteration of the right. For example,“[c]ontent‐based regulations are presumptively invalid,”
R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992), and thus
get strict scrutiny, which means that the law must be
narrowly tailored to serve a compelling governmental
interest, id. at 395; see also Ariz. Free Enter. Club’s Freedom
Club PAC v. Bennett, Nos. 10‐238, 10‐239, 2011 WL 2518813,
at *9 (June 27, 2011). Likewise, “[l]aws that burden politicalspeech are subject to strict scrutiny.” Citizens United v. Fed.
Election Comm’n, 130 S. Ct. 876, 898 (2010) (internal quota‐
tion marks omitted). On the other hand, “time, place, andmanner” regulations on speech need only be “reasonable”
and “justified without reference to the content of theregulated speech.” Ward v. Rock Against Racism, 491 U.S. 781,
791 (1989). The Supreme Court also uses a tiered standard

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No. 10‐3525

of review in its speech‐forum doctrine; regulations in a
traditional public or designated public forum get strict
scrutiny, while regulations in a nonpublic forum “must notdiscriminate on the basis of viewpoint and ‘must be reason‐
able in light of the forum’s purpose.’ ” Choose Life Ill., Inc.
v. White, 547 F.3d 853, 864 (7th Cir. 2008) (quoting Good
News Club v. Milford Cent. Sch., 533 U.S. 98, 106‐07 (2001)).
In election‐law cases, regulations affecting theexpressive association rights of voters, candidates, andparties are subject to a fluctuating standard of review
that varies with the severity of the burden on the right; laws
imposing severe burdens get strict scrutiny, while moremodest regulatory measures need only be rea‐
sonable, politically neutral, and justified by an important
governmental interest. See Crawford v. Marion Cnty.
Election Bd., 553 U.S. 181, 190‐91 (2008); Wash. State Grange,
552 U.S. at 451‐52; Burdick v. Takushi, 504 U.S. 428, 434(1992); Lee v. Keith, 463 F.3d 763, 768 (7th Cir. 2006). “First
Amendment challenges to disclosure requirements inthe electoral context”—for example, laws compellingthe disclosure of the names of petition signers—are re‐viewed “under what has been termed ‘exacting
scrutiny.’ ” Doe v. Reed, 130 S. Ct. 2811, 2818 (2010). This
standard of review requires “a substantial relation be‐
tween the disclosure requirement and a sufficiently impor‐tant governmental interest,” and “the strength of
the governmental interest must reflect the seriousness of theactual burden on First Amendment rights.” Id. (internal
quotation marks omitted).
Similarly, restrictions imposed on adult bookstores arereviewed under an intermediate standard of scrutiny

No. 10‐3525

43that requires the municipality to present “evidence thatthe restrictions actually have public benefits great enoughto justify any curtailment of speech.” Annex Books, Inc.
v. City of Indianapolis, 581 F.3d 460, 462 (7th Cir. 2009) (citing
Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002), andRenton v. Playtime Theatres, Inc., 475 U.S. 41 (1986)). And incommercial‐speech cases, the Court applies an intermediatestandard of review that accounts for the “subordinate
position” that commercial speech occupies “in the scale ofFirst Amendment values.” Bd. of Trs. of State Univ. of N.Y. v.
Fox, 492 U.S. 469, 477 (1989). In this context intermediate
scrutiny requires “a fit between the legislature’s ends andthe means chosen to accomplish those ends, . . . a fit that is
not necessarily perfect, but reasonable; that represents notnecessarily the single best disposition but one whose
scope is in proportion to the interest served.” Id. at 480(internal quotation marks and citation omitted); see also
Sorrell v. IMS Health Inc., No. 10‐779, 2011 WL 2472796,
at *13 (June 23, 2011) (To justify commercial‐speech re‐strictions, “the State must show at least that the statutedirectly advances a substantial governmental interestand that the measure is drawn to achieve that interest.”).
Labels aside, we can distill this First Amendment doctrineand extrapolate a few general principles to the Second
Amendment context. 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 theSecond Amendment right, laws that merely regulate rather
than restrict, and modest burdens on the right may be more

44

No. 10‐3525

easily justified. How much more easily depends on therelative severity of the burden and its proximity to the coreof the right.
In Skoien we required a “form of strong showing”—a/k/a“intermediate scrutiny”—in a Second Amendment chal‐lenge to a prosecution under 18 U.S.C. § 922(g)(9), which
prohibits the possession of firearms by persons convicted ofa domestic‐violence misdemeanor. 614 F.3d at 641. We heldthat “logic and data” established a “substantial relation”
between dispossessing domestic‐violence misdemeanants
and the important governmental goal of “preventing armed
mayhem.” Id. at 642. Intermediate scrutiny was appropriate
in Skoien because the claim was not made by a “law‐abiding,responsible citizen” as in Heller, 554 U.S. at 635; nor did thecase involve the central self‐defense component of theright, Skoien, 614 F.3d at 645.
Here, in contrast, the plaintiffs are the “law‐abiding,responsible citizens” whose Second Amendment rights
are entitled to full solicitude under Heller, and theirclaim comes much closer to implicating the core of theSecond Amendment right. The City’s firing‐range ban is not
merely regulatory; it prohibits the “law‐abiding, responsible
citizens” of Chicago from engaging in target practice in thecontrolled environment of a firing range. This is a serious
encroachment on the right to maintain proficiency infirearm use, an important corollary to the meaningful
exercise of the core right to possess firearms for self‐defense.
That the City conditions gun possession on range training
is an additional reason to closely scrutinize the range ban.
All this suggests that a more rigorous showing than thatapplied in Skoien should be required, if not quite “strict

No. 10‐3525

45

scrutiny.” To be appropriately respectful of the individual
rights at issue in this case, the City bears the burden of
establishing a strong public‐interest justification for its ban
on range training: The City must establish a close fit be‐
tween the range ban and the actual public interests it serves,and also that the public’s interests are strong enoughto justify so substantial an encumbrance on individual
Second Amendment rights. Stated differently, the City must
demonstrate that civilian target practice at a firing range
creates such genuine and serious risks to public safety thatprohibiting range training throughout the city is justified.
At this stage of the proceedings, the City has notcome close to satisfying this standard. In the district
court, the City presented no data or expert opinion to
support the range ban, so we have no way to evaluate
the seriousness of its claimed public‐safety concerns.
Indeed, on this record those concerns are entirely specula‐tive and, in any event, can be addressed through sensible
zoning and other appropriately tailored regulations.
That much is apparent from the testimony of the City’s own
witnesses, particularly Sergeant Bartoli, who testified toseveral common‐sense range safety measures that could be
adopted short of a complete ban.
The City maintains that firing ranges create the riskof accidental death or injury and attract thieves wanting
to steal firearms. But it produced no evidence toestablish that these are realistic concerns, much less thatthey warrant a total prohibition on firing ranges. In the First
Amendment context, the government must supply actual,reliable evidence to justify restricting protected expression
based on secondary public‐safety effects. See Alameda Books,

46

No. 10‐3525

Inc., 535 U.S. at 438 (A municipality defending zoning
restrictions on adult bookstores cannot “get away withshoddy data or reasoning. The municipality’s evidence must
fairly support the municipality’s rationale for its ordi‐
nance.”); see also Annex Books, Inc. v. City of Indianapolis, 624
F.3d 368, 369 (7th Cir. 2010) (affirming preliminary in‐junction where a city’s “empirical support for [an] ordi‐
nance [limiting the hours of operation of an adult bookstore]
was too weak”); New Albany DVD, LLC v. City of
New Albany, 581 F.3d 556, 560‐61 (7th Cir. 2009)(affirming preliminary injunction where municipality
offered only “anecdotal justifications” for adult zoning
regulation and emphasizing the necessity of assessing
the seriousness of the municipality’s concerns about
litter and theft).
By analogy here, the City produced no empirical evidence
whatsoever and rested its entire defense of the range ban on
speculation about accidents and theft. Much of the focus in
the district court was on the possible hazards of mobile
firing ranges. The City hypothesized that one cause ofrange‐related injury could be stray bullets, but this seems
highly implausible insofar as a properly equipped indoor
firing range is concerned. The district court credited theplaintiffs’ evidence that “mobile ranges are next to Sam’s
Clubs and residences and shopping malls and in parking
lots, and there’s not been any difficulties with them in thoseplaces.” Commissioner Scudiero acknowledged that the
law‐enforcement and private‐security firing ranges in
Chicago are located near schools, churches, parks, andstores, and they operate safely in those locations.
And Sergeant Bartoli testified about the availability ofNo. 10‐3525

47

straightforward range‐design measures that can effec‐
tively guard against accidental injury. He mentioned,for example, that ranges should be fenced and should
designate appropriate locations for the loading and unload‐
ing of firearms. Other precautionary measures might
include limiting the concentration of people and firearms ina range’s facilities, the times when firearms can be loaded,
and the types of ammunition allowed. See also, e.g., NRA
RANGE SOURCE BOOK (providing “basic and advanced
guidance to assist in the planning, design, construction andmaintenance of shooting range facilities”),
http://www.nrahq.org/shootingrange/ sourcebook. asp (lastvisited June 2, 2011); FLA. STAT. § 823.16(6) (2011) (referenc‐
ing the safety standards of the NRA Range Source Book);
KAN. ADMIN. REGS. § 115‐22‐1(b) (2011) (same); MINN. STAT.
§ 87A.02 (2010) (same); NEB. REV. STAT. § 37‐1302(4) (2010)(same); OHIO ADMIN. CODE 1501: 31‐29‐03(D) (2011) (same).
At the preliminary‐injunction hearing, the City high‐lighted an additional public‐safety concern also limited
to mobile ranges: the risk of contamination from leadresidue left on range users’ hands after firing a gun. Ser‐geant Bartoli was asked a series of questions about
the importance of hand‐washing after shooting; he said that“lucrative amounts of [cold running] water and soap” wererequired to ensure that lead contaminants were removed.
The City argued below that mobile firing ranges might not
be sufficiently equipped for this purpose, suggesting thatmobile ranges would have inadequate restroom facilities
and might have to rely on “port‐a‐potties.” This sparked a
discussion about the adequacy of the water supply available
at a standard “port‐a‐potty.” The City continued on this48

No. 10‐3525

topic until the judge cut it short by acknowledging her own
familiarity with “port‐a‐potties.” On appeal the City
raised but did not dwell on its concern about lead con‐tamination. For good reason: It cannot be taken seriously
as a justification for banishing all firing ranges from the city.
To raise it at all suggests pretext.
Perhaps the City can muster sufficient evidence tojustify banning firing ranges everywhere in the city, thoughthat seems quite unlikely. As the record comes to us at
this stage of the proceedings, the firing‐range ban iswholly out of proportion to the public interests theCity claims it serves. Accordingly, the plaintiffs’ Second
Amendment claim has a strong likelihood of success on
the merits.

D. Balance of Harms
The remaining consideration for preliminary injunctive
relief is the balance of harms. It should be clear fromthe foregoing discussion that the harms invoked by the City
are entirely speculative and in any event may be addressedby more closely tailored regulatory measures. Properly
regulated firing ranges open to the public should not posesignificant threats to public health and safety. On the otherside of the scale, the plaintiffs have established a strong
likelihood that they are suffering violations of their Second
Amendment rights every day the range ban is in effect. Thebalance of harms favors the plaintiffs.
The plaintiffs asked the district court to enjoin the enforce‐
ment of Chicago Municipal Code § 8‐20‐280—the prohibition

No. 10‐3525

49

on “[s]hooting galleries, firearm ranges, or any other place
where firearms are discharged.” They are entitled to apreliminary injunction to that effect. To be effective, how‐ever, the injunction must also prevent the City from enforc‐
ing other provisions of the Ordinance that operate indirectly
to prohibit range training. The plaintiffs have identified
several provisions of the Ordinance that implicate activities
integral to range training: CHI. MUN. CODE §§ 8‐20‐020(prohibiting the possession of handguns outside the home),
8‐20‐030 (prohibiting the possession of long guns outside
the home or business), 8‐20‐080 (prohibiting the possessionof ammunition without a corresponding permit and regis‐
tration certificate), 8‐20‐100 (prohibiting thetransfer of firearms and ammunition except throughinheritance), 8‐24‐010 (prohibiting the discharge offirearms except for self‐defense, defense of another, or
hunting). To the extent that these provisions prohibit
law‐abiding, responsible citizens from using a firing
range in the city, the preliminary injunction should
include them as well. Similarly, the injunction should
prohibit the City from using its zoning code to exclude
firing ranges from locating anywhere in the city.
Finally, because range training is required for the issuanceof a Chicago Firearm Permit, a registration certificate, andultimately, for lawful possession of any firearm, see CHI.
MUN. CODE §§ 8‐20‐110(a), 8‐20‐140(a)‐(b), the firing‐range
ban implicates not only the right to train at a range but also
the core Second Amendment right to possess firearms forself‐defense. Accordingly, the preliminary injunction should
include sections 8‐20‐110(a) and 8‐20‐140(a) to the extent
that those provisions operate to prohibit otherwise eligible

50

No. 10‐3525

persons from “carry[ing] or possess[ing] a firearm” at a
range without a Permit or registration certificate while they
are trying to complete the range‐training prerequisite for
lawful firearm possession.
Those are the bounds of the proposed preliminary
injunction, which should be entered upon remand. The City
worries that entering an order enjoining the range
ban would allow “anyone [to] park a mobile range any‐
where, anytime”; shoddy ranges operated by unlicensed
instructors and lacking adequate hand‐washing facilities
could crop up in Chicago’s most dangerous neighborhoods.
To the contrary, a preliminary injunction against the range
ban does not open the door to a parade of firing‐range
horribles. Cf. McDonald, 130 S. Ct. at 3047 (“Despite munici‐
pal respondents’ doomsday proclamations, incorporation
does not imperil every law regulating firearms.”). The City
may promulgate zoning and safety regulations governing
the operation of ranges not inconsistent with the Second
Amendment rights of its citizens; the plaintiffs may chal‐lenge those regulations, but not based on the terms of thisinjunction. As for the City’s concern about a “regulatory
vacuum” between the issuance of the preliminary injunction
and the promulgation of firing‐range zoning and safety reg‐ulations, we note that it faced a similar dilemma after
the Supreme Court decided McDonald. The sky did not
fall. The City Council moved with dispatch andenacted the Ordinance just four days later.
The plaintiffs have established their entitlement to apreliminary injunction based on their Second Amend‐
ment claim, so we need not address the alternative argu‐
ment that range training is protected expression underNo. 10‐3525

51

the First Amendment. Given the strong likelihood of successon the former claim, the latter claim seems like surplusage.
For the foregoing reasons, we REVERSE the district
court’s order denying the plaintiffs’ motion for a prelimi‐
nary injunction and REMAND with instructions to entera preliminary injunction consistent with this opinion.

ROVNER, Circuit Judge, concurring in the judgment.
Stung by the result of McDonald v. City of Chicago, 130
S. Ct. 3020 (2010), the City quickly enacted an ordinancethat was too clever by half. Recognizing that a complete gun
ban would no longer survive Supreme Court review, theCity required all gun owners to obtain training that in‐cluded one hour of live‐range instruction, and then banned
all live ranges within City limits.1 This was not so much a
nod to the importance of live‐range training as it was a1

As the majority clarifies, the City grants exceptions forranges in a few select circumstances such as ranges used bylaw enforcement personnel. None of these ranges are open to
the public in general or to the plaintiffs in particular.

52

No. 10‐3525

thumbing of the municipal nose at the Supreme Court. The
effect of the ordinance is another complete ban on gun
ownership within City limits. That residents may travel
outside the jurisdiction to fulfill the training requirement isirrelevant to the validity of the ordinance inside the City. In
this I agree with the majority: given the framework of Dist.
of Columbia v. Heller, 554 U.S. 570 (2008), and McDonald, theCity may not condition gun ownership for self‐defense in
the home on a prerequisite that the City renders impossible
to fulfill within the City limits. The plaintiffs have astrong likelihood of success on the merits of that claim
and the district court should have granted an injunction
against the operation of the ordinance to the extent thatit imposed an impossible pre‐condition on gun owner‐ship for self‐defense in the home. There are two obvious
ways for the City to remedy this problem: it may either drop
the requirement for one hour of live range training or it may
permit live‐range training within the City limits.
Even if the City were to drop the live‐range require‐ment, though, the plaintiffs claim an independent
Second Amendment right to maintain proficiency in firearmuse by practicing live‐range shooting. The majority goesmuch farther than is required or justified, however, infinding that the plaintiffs’ claim for live‐ range training is so
closely allied to “core” Second Amendment rights that astandard akin to strict scrutiny should be applied. Granted,
the right to use a firearm in the home for self‐defense would
be seriously impaired if gun owners were prevented fromobtaining the training necessary to use their weapons safely
for that purpose. We do not yet know how a complete ban
on any firearms training would be received by the Supreme

No. 10‐3525

53

Court, but Heller and McDonald strongly suggest that acomprehensive training ban would not pass constitu‐
tional muster. But the City has not banned all firearms
training; it has banned only one type of training. There is noban on classroom training. There is no ban on training witha simulator and several realistic simulators are commer‐
cially available, complete with guns that mimic the recoil offirearms discharging live ammunition. See e.g.
http://www.virtrasystems.com/law‐enforcement‐ train‐
ing/virtra‐range‐le (last visited July 6, 2011);
http://www.meggitttrainingsystems.com/main.php?id=25&name=LE_Virtual_Bluefire_Weapons (last visited June 24,2011); http://www.ontargetfirearmstraining.com/
simulator.php (last visited July 6, 2011). It is possible
that, with simulated training, technology will obviate
the need for live‐range training. In any case, the limited
record to date suggests that even the City considers live‐
range training necessary to the safe operation of guns in thehome for self‐defense. A complete ban on live ranges in theCity, therefore, is unlikely to withstand scrutiny under any
standard of review. The plaintiffs have a strong likelihoodof succeeding on the merits of this claim. Public safety
interests apply on both sides of the balance: there are
obvious safety risks associated with operating live shooting
ranges (more on that later), but there are perhaps equallycompelling safety interests in ensuring that gun owners
possess the skills necessary to handle their weapons safely.
On the record as it currently stands, the district court shouldhave enjoined that part of the ordinance banning all live
ranges within City limits. For that reason, I concur in the
judgment.

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No. 10‐3525

I write separately because the majority adopts astandard of review on the range ban that is more stringent
than is justified by the text or the history of the Second
Amendment. Although the majority characterizes this
aspect of the ordinance as a complete ban on an activity“implicating the core of the Second Amendment right,” amore accurate characterization would be a regulationin training, an area ancillary to a core right. Ante, at 45.
A right to maintain proficiency in firearms handling is
not the same as the right to practice at a live gun range.
As such, I cannot agree that “a more rigorous showing
than that applied in Skoien, should be required, if not quite‘strict scrutiny.’ ” Ante, at 46. Skoien required the govern‐
ment to demonstrate that the statute at issue served
an “important government objective,” and that there
was a “substantial relationship” between the challenged
legislation and that objective. United States v. Skoien, 614
F.3d 638, 642 (7th Cir. 2010), cert. denied, 131 S. Ct. 1674
(2011).
The majority’s analysis of laws in effect during thetime period surrounding the adoption of the Second andFourteenth Amendments helps to prove the point thatno scrutiny beyond that described in Skoien is necessary.
The majority concedes that the City has presented us
with “a number of founding‐era, antebellum, and Recon‐
struction state and local laws that limited the dischargeof firearms in urban environments.” Ante, at 37. Somejurisdictions enacted outright bans on discharging
firearms in city limits. Some laws limited the time, place andmanner of firearms discharges. Some laws re‐quired permission from a government authority before

No. 10‐3525

55discharging firearms in urban areas. The majority finds
these laws irrelevant to the Second Amendment
analysis here because they are “not specific to controlled
target practice and, in any event, contained significant
carveouts and exemptions.” Ante, at 37‐38. The majority also
distinguishes them as regulatory measures rather
than outright bans on firing ranges. Finally, the majority
dismisses some of the laws because they were clearly aimed
at fire suppression, which the majority believes would not
be a concern at a safely sited and properly equipped firing
range.
But these observations contravene rather than support the
majority’s ensuing analysis. First of all, none of the 18th and19th century jurisdictions cited by the City and dismissed by
the majority were apparently concerned that banning or
limiting the discharge of firearms within city limits would
seriously impinge the rights of gun owners or limit theirability to learn how to safely use their weapons. Citizens
living in densely populated areas had few legitimate
reasons to discharge their firearms near their homes, andlikely used them mostly when out in the country. Opportu‐
nities to hunt and practice outside of city limits were likely
adequate for training purposes. Given the majority’s nod tothe relevance of historical regulation, curt dismissal of
actual regulations of firearms discharges in urban areas is
inappropriate.
Second, as I noted above, many of these jurisdictions
regulated the time, place and manner of gun discharges. For
example, as the majority itself points out, one
statute prohibited the discharge of firearms before
sunrise, after sunset, or within one quarter mile of the

56

No. 10‐3525

nearest building. Others prohibited firearms discharge
without specific permissions and only then at specificlocations. The “time, place and manner” framework of
the First Amendment seems well‐suited to the regulation of
live‐range training within a densely populated urban area.
A complete ban on live‐range training in Chicago, of course,
likely would not survive under the intermediate scrutiny
applied to restrictions on time, place and manner, especiallybecause the City itself concedes the importance of thistraining to the safe operation of firearms for self‐defense in
the home. Indeed, the City allows ranges to operate in someof the most densely populated parts of the City, albeit
strictly for the use of law enforcement and trained security
personnel. The majority purports to distinguish time, placeand manner restrictions and other regulations on the
grounds that the City’s ordinance is a complete ban, but theban on live ranges affects only one aspect of firearms
training. The intermediate scrutiny applied to time, placeand manner restrictions is both adequate and appropriate
in these circumstances.
Finally, that some of those early laws were concerned withfire suppression does not mean that they are irrelevant toour analysis today. On the contrary, these laws inform usthat public safety was a paramount value to our ancestors,
a value that, in some circumstances, trumped the Second
Amendment right to discharge a firearm in a particularplace. Analogizing to the First Amendment context, acategorical limit is sometimes appropriate, as in the case ofbans on obscenity, defamation, and incitement to crime. See
Skoien, 614 F.3d at 641. In the same way that a person may
not with impunity cry out “Fire!” in a crowded theater, aNo. 10‐3525

57

person in 18th century New York, and 19th century Chicago
and New Orleans could not fire a gun in the tinder boxes
that these cities had become. See Footnote 14 above. If weare to acknowledge the historical context and the values ofthe period when the Second and Fourteenth Amendments
were adopted, then we must accept and apply the fullunderstanding of the citizenry at that time. In the instanceof firearms ordinances which concerned themselves withfire safety, we must acknowledge that public safety
was seen to supercede gun rights at times. Although fireis no longer the primary public safety concern whenfirearms are discharged within City limits, historical context
tells us that cities may take public safety into account insetting reasonable time, place and manner restrictions on
the discharge of firearms within City limits.
The majority’s summary dismissal of the City’s concern
for public safety related to live gun ranges is to mymind naive. One need only perform a simple internet searchon “gun range accidents” to see the myriad ways that gun
owners manage to shoot themselves and others while
practicing in these supposedly safe environments. From
dropping a loaded gun in a parking lot to losing control ofa strong weapon on recoil, gun owners have caused consid‐
erable damage to themselves and others at live gun ranges.
To say that the City’s concerns for safety are “entirely
speculative” is unfounded. Ante, at 46. The plaintiffs
themselves “do not doubt that gun ranges may be regulated
in the interest of public safety.” Reply Brief at 22. See also
Reply Brief at 26‐27 (conceding that the City may except
certain parts of the City, set range distances from other uses,
require a license or permission for target practice, and58

No. 10‐3525

regulate the operation and location of gun ranges). The
plaintiffs’ concessions regarding gun range regulations are
by no means a complete list of restrictions the City may
impose on gun ranges. At this stage of the litigation,
the City has not yet had an opportunity to develop a
full record on the safety issues raised by placing live
gun ranges in an urban environment. Common sense
tells us that guns are inherently dangerous; responsible gunowners treat them with great care. Unfortunately, not all
gun owners are responsible. The City has a rightto impose reasonable time, place and manner restric‐
tions on the operation of live ranges in the interestof public safety and other legitimate governmental concerns.
As for the remaining parts of the ordinance challenged by
the plaintiffs, I agree that, to the extent that these provisions
entirely prohibit gun owners from practicing at live ranges,
they must be enjoined for the time being. As far as I can tell,though, the plaintiffs have not presented any evidence
demonstrating, for example, that prohibiting gun owners
from possessing guns outside the home will impinge on
their ability to practice at a range. As the plaintiffs’ own
witnesses testified, some ranges lend patrons guns withwhich to practice. But if the ordinance both prohibits gunowners from transporting their own weapons and prevents
ranges from lending weapons for practice, then those
aspects of the ordinance must be enjoined.
The ordinance admittedly was designed to makegun ownership as difficult as possible. The City has legiti‐
mate, indeed overwhelming, concerns about the prevalenceof gun violence within City limits. But the Supreme Court
has now spoken in Heller and McDonald on the Second

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Amendment right to possess a gun in the home for self‐
defense and the City must come to terms with that reality.
Any regulation on firearms ownership must respect thatright. For that reason, I respectfully concur in the judgment.