Firearm Law &  Commentary
by Victor Quilici, ISRA General Counsel


GOWDER v CHICAGO:  ISRA MEMBER'S SECOND AMENDMENT RIGHTS HELD VIOLATED BY CITY OF CHICAGO GUN ORDINANCE

June 20th 2012

    An ISRA member’s Second Amendment rights were violated when a provision in the City of Chicago’s amended Ordinance barred his ownership and possession of a firearm in his home because of a prior misdemeanor conviction. So held the United States District Court for the Northern District of Illinois, Eastern Division, in a case that abrogates the City’s continued efforts to side-step the ground-breaking decisions in District of Columbia v. Heller, and McDonald vs. City of Chicago, by amending its firearm ordinance with overly-stringent requirements to obtain a  Chicago Firearm Permit  as a pre-condition  to registration of a firearm. In  Gowder vs. City of Chicago, No. 11 C 1304, Judge Samuel Der-Yeghiayan held that “[t]he effect of Section (b)(3)(iii) of the Chicago Firearm Ordinance is to forever strip certain persons residing in Chicago of their constitutional right to protect themselves in their homes, including, for example, a person convicted forty years ago of simply possessing a firearm (and not unlawfully using it against another).”      

       The Court noted further that the subject provision “directly restricts the core Second Amendment right of armed self-defense in one’s home.”  An amicus brief filed on behalf of the Illinois State Rifle Association  was referenced several times in the Court’s opinion, including its rebuttal of studies and statistics relied upon by the City of Chicago.  The ISRA brief had a chilling effect upon the City’s attempt to steer the Court’s attention to what it deemed credible studies and statistics supporting the outlandish provisions of the Ordinance which prevent an applicant from obtaining a Chicago Firearm Permit which is a prerequisite to registering a firearm.  The draconian section held to be unconstitutionally void for vagueness, and in violation  of the Second Amendment right to keep and bear arms, bars a person from obtaining the permit if that person has been convicted “in any jurisdiction” of an “unlawful use of a weapon that is a firearm.” Chicago Municipal Code 8-20-110(b)(3)(iii).

       The plaintiff, Shawn Gowder, an ISRA member, had a prior conviction under the Illinois Unlawful Use of Weapon statute which was deemed a misdemeanor offense after the Safe  Neighborhoods Act was held to be unconstitutional.  Under Illinois law,  currently under  attack in other lawsuits backed by the NRA  ( including one in which  ISRA is a plaintiff, and another where ISRA has filed an amicus brief)  the unlawful use of a weapon statute  effectively prohibits mere possession of a firearm, without any attempt to use the firearm against another, as was the case scenario when Gowder  was  convicted  of  a first-time UUW offense in 1995 and given 12 months probation.

       In the extremely well-written opinion, His Honor, Judge Der-Yeghiayan cited cases that Second Amendment scholars, theorists, and commentators maintain have followed the dictates of Heller and McDonald, and which  some courts in other jurisdictions have given a warped interpretation when ruling that no  Second Amendment violation occurred.  That is not to say that other courts in Illinois have been free of  grinding out a decision that upholds an indiscriminate and arbitrary governmental regulation that infringes upon a core right afforded by the Second Amendment, and in doing so seem to have not only misinterpreted Heller and McDonald, but cited and misconstrued cases that are their progeny and somehow found the challenged ordinance or statute does not implicate constitutional protected conduct.

       Here, the Judge initially weighed the evidence to determine whether the subject section reached a substantial amount of constitutionally protected conduct, and found that “[s]ection (b)(3)(iii) of the Chicago Firearm Ordinance takes away Gowder’s constitutional right to possess a firearm in his own home for self-defense.” Then, examining the facial vagueness challenge to the Ordinance, the Court stated:

    A person of ordinary intelligence, such as Gowder, would not clearly understand who  

    is barred from obtaining a Chicago Firearm Permit under Section (b)(3)(iii) of the

    Chicago Firearm Ordinance. A person of ordinary intelligence would understand or

    interpret the term “unlawful use of a weapon that is a firearm” to mean using a firearm

    for an unlawful purpose, and not mere unlawful possession. In fact, under the plain

    and ordinary meaning of the term “use,” the phrase “unlawful use of a weapon” would

    not connote possession. Since the term “unlawful use of a weapon” is not defined in

    the Chicago Municipal Code, this statutory term must be given its plain and ordinary

    meaning. [Emphasis added.]

 

       The Court also ruled that Section (b)(3)(iii) of the Chicago Firearm Ordinance  fails to provide explicit standards to prevent arbitrary and discriminatory enforcement by those enforcing the ordinance. Finding the challenged section unconstitutionally void for vagueness, the Court then found that under a text, history, and tradition analysis, the subject challenged ordinance section violates plaintiff  Gowder’s Second Amendment Constitutional right. Reinforcing the court’s findings, Judge Der-Yeghiayan held  that in addition to the text, history, and tradition  approach in analyzing the constitutionality of the challenged ordinance section, that under Justice Scalia’s findings in Heller I and McDonald, and those by Justice Kavanaugh, dissenting) in Heller II, the strict scrutiny test[1] would produce the same result.

 

      Not to leave things undone, His Honor states that the subject ordinance section does not pass constitutional muster even under an intermediate scrutiny test, [2] which he notes is not the proper test to employ in deciding this case. The failure of the ordinance to distinguish between individuals convicted of firearms that involve violence and those misdemeanants convicted  of firearms violations that do not involve violence, such as those convicted for mere possession [such as Gowder], accentuates the City’s failure to make a strong showing that Section (b)(3)(iii) is substantially related to an important government objective. 

 

       Although this decision is by a federal district court, and other decisions by appellate tribunals and, of course, the U.S. Supreme Court weigh more heavily as precedent, the

well-thought-out findings in this case will go a long way toward countering those  adverse to our Second Amendment rights  rendered by other courts, and should prove of significant interest to our higher courts.



Victor D. Quilici ISRA General Counsel

[1] The law at issue must be narrowly tailored to serve a compelling governmental  interest.

[2] Regulations affecting  2nd Amendment rights are valid only if they are substantially related to an important government objective.

 

 

This analysis is not to be construed as legal advice. Please consult with your own attorney for such advice. 


The Webmaster notes:

If you are an ISRA member, we need your continued support. Please make a
donation on-line here , or over the phone at 815-635-3198. If you would like to mail or fax a donation, we have a printable form here .

If you're not an ISRA member, now is the time. You can
join on-line , or over the phone at 815-635-3198. You can download a printable application form here .