A municipality’s community character is often now defined, at least in part, by its relationship to the Second Amendment. Some localities, like the newly self-labelled “Second Amendment Sanctuaries,” define themselves by their intense attraction to firearms and devotion to an unconstrained Second Amendment. Other localities, like large and liberal New York City or Chicago for example, head in the other cultural direction, adopting numerous gun control measures and preferring a more cabined version of gun rights to define their cultural identity.
When this latter type of locality is called to defend the constitutionality of a gun control measure, courts continually struggle with the following question: does it matter that whatever is being limited can be easily accessed beyond a locality’s borders? So, for instance, can one locality prohibit firing ranges, as long as an adjoining jurisdiction has plenty of them readily accessible?
Three recent cases suggest that when answering this question, size matters. Ezell v. City of Chicago, Chicago Gun Club v. Willowbrook, and Teixeira v. County of Alameda in combination suggest that if the locality is a large metropolis, the answer is probably no. But if we scale either down or up from there, such that our relevant juridical unit is either a small township or large county respectively, the answer for certain localities might be yes. In other words, cities may not be able to limit gun facilities in the same way that small towns, or large counties, can.
Ezell v. City of Chicago is really two cases, Ezell I and Ezell II, which considered the constitutionality of an ordinance that initially banned shooting ranges in Chicago, and then was loosened slightly so that 2.2 percent of total city acreage became “theoretically available to site a shooting range” (though “no range yet existed in the city”). Chicago defended this ordinance in part by showing that while no range currently existed inside Chicago, residents could easily access numerous firing ranges just outside of city limits, including five ranges within a mere few miles of the city. The district court found this to be highly persuasive evidence. The appellate court, however, disagreed. The appellate court held that any consideration of firing ranges beyond city limits was wrongheaded, as “the pertinent question [was] whether the Second Amendment prevents the City Council from banning firing ranges everywhere in the city; that ranges are present in neighboring jurisdictions has no bearing on this question.” The appellate court held that Chicago’s ordinance was a constitutional violation, notwithstanding the availability of ranges nearby.
But scaling down the locality size produced a different answer in Chicago Gun Club v. Willowbrook. In this 2018 case, the court considered whether it was unconstitutional for the Village of Willowbrook to deny a gun club’s application for a special use zoning permit and a variance to establish an indoor firing range. Relying on Ezell, the gun club argued that the Village’s zoning rules and rejection amounted to an unconstitutional ban on firing ranges. Like Chicago, Willowbrook, a “rather small town, sized at 2.75 square miles and made up of less than 9,000 people,” had no indoor firing ranges of its own, but there were four gun ranges within 15 miles of the Village. The availability of these nearby facilities and the small population of Willowbrook were compelling factors for the Willowbrook court. The court stated that when an ordinance impacted only a small population of people, a lesser degree of scrutiny was appropriate, and held that the “Second Amendment right of the public to train in firearm proficiency […] had already been abundantly accommodated by nearby facilities.” The court suggested that the Village had a strong and defensible interest in excluding a gun range and store from locating within its borders, noting it was reasonable for the Village to believe that a “gun range and gun store located in the middle of a small village is incompatible with […] the enjoyment of domestic Tranquility.” The court thus held that the Village could constitutionally craft its community character in this way.
The spirit of Justice Burger’s dissent in Schad v. Borough of Mount Ephraim seems present in this alternative view of a locality’s ability to leave the provision of gun facilities to other more-inclined jurisdictions. In Schad, a First Amendment case involving a ban on nude dancing, Justice Burger suggested that “a small borough” like Mount Ephraim should be treated differently than a large city, and should receive significant deference in determining its community character through land use ordinances. Small townships cannot, by their nature, provide a full panoply of services and facilities; some things will necessarily have to be excluded. Accordingly, on this view, smaller locales must therefore be afforded more freedom to carefully curate themselves. Cities, on the other hand, are often defined by a vast array of choices and seemingly endless menu of options, and the suggestion that emerges from Ezell is that cities have little ability to deviate from this template. On this reading, cities may not attempt to craft a community character different from the typical, cosmopolitan, cater-to-all-stripes vision; and courts will be less generous in allowing them to refine their community character in ways that contrast with that normative view.
But, if we scale up our juridical unit, we can once again land in a place where firing ranges might be constitutionally excluded from localities, so long as the exclusion is due to the operation of county law. Willowbrook suggests that a small village might be able to functionally exclude gun ranges; Teixeira v. County of Alameda similarly suggests that when the relevant juridical unit is not a small village but instead a large county, the fact that some even fairly large localities within that county will not have gun facilities may not be constitutionally infirm. In Teixeira, the plaintiff sought to open a gun retail and training business in San Lorenzo, an unincorporated community of approximately 24,000 people in Alameda County. An ordinance prohibited gun facilities from being sited within 500 feet of various sensitive places, and the plaintiff produced evidence that this in effect precluded the possibility of any new gun facility opening up in any unincorporated part of the county. The court, viewing the county as a whole (including incorporated and unincorporated areas), noted that there were already ten firearm retailers present within it (three within the unincorporated zones). Accordingly, the court held that a county zoning ordinance could thus function to preclude a gun facility from being sited in a particular community, as long as in the county as a whole retailers were available. In other words, when the county is the relevant juridical unit, it is possible that the same sited scenario as occurred in Ezell might be constitutional, as the availability of ranges outside a locality would then matter a great deal.
Playing with the size of our juridical lens, and broadening or narrowing the relevant jurisdictional borders, illuminates some of the challenging questions circulating in these cases. As courts grapple with the conflict between physical space and legal abstractions, the political and actual meanings of jurisdictional boundaries, and the appropriate navigation of the unsettled strip between the Second Amendment and community character, normative conceptions of the obligations and natures of different-sized communities appears to be subtly shaping the case law.
[Ed. note: This post is part of series of guest posts from scholars at the Center’s recent colloquium on Localism, Popular Constitutionalism, Preemption, and Firearms.]