Rhonda Ezell v. City of Chicago

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 14-3312 & 14-3322
R HONDA EZELL, et al.,
Plaintiffs-Appellees/
Cross-Appellants,
v.
C ITY OF C HICAGO,
Defendant-Appellant/
Cross-Appellee.
____________________
Appeals from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 10 C 5135 — Virginia M. Kendall, Judge.
____________________
A RGUED NOVEMBER 4, 2015 — DECIDED J ANUARY 18, 2017
____________________
Before K ANNE, R OVNER , and S YKES, Circuit Judges.
S YKES, Circuit Judge. This case returns to us with new con-
troversies arising from Chicago’s response to Heller and
McDonald,1 the Supreme Court’s Second Amendment deci-
1 See District of Columbia v. Heller, 554 U.S. 570 (2008); McDonald v. City of
Chicago, 561 U.S. 742 (2010).

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2 Nos. 14-3312 & 14-3322
sions. Last time we addressed an ordinance banning shoot-
ing ranges throughout the city. See Ezell v. City of Chicago
(“Ezell I”), 651 F.3d 684 (7th Cir. 2011). The range ban was
part of a sweeping ordinance adopted in the wake of
McDonald, which invalidated Chicago’s law prohibiting
handgun possession. McDonald v. City of Chicago, 561 U.S.
742, 791 (2010). To replace the handgun ban, the City estab-
lished a permit regime for lawful gun possession and re-
quired one hour of range training as prerequisite to a permit,
but prohibited firing ranges everywhere in the city. Ezell I,
651 F.3d at 689–90. We held that the range ban was incom-
patible with the Second Amendment and instructed the
district court to preliminarily enjoin it. Id. at 710–11.
The City responded by replacing the range ban with an
elaborate scheme of regulations governing shooting ranges.
Litigation resumed, prompting the City to rewrite or repeal
parts of the new regime. The district judge invalidated some
of the challenged regulations and upheld others. Ezell v. City
of Chicago (“Ezell II”), 70 F. Supp. 3d 871, 882–92 (N.D. Ill.
2014). Three provisions currently remain in dispute: (1) a
zoning restriction allowing gun ranges only as special uses
in manufacturing districts; (2) a zoning restriction prohibit-
ing gun ranges within 100 feet of another range or within
500 feet of a residential district, school, place of worship, and
multiple other uses; and (3) a provision barring anyone
under age 18 from entering a shooting range. The judge
permanently enjoined the manufacturing-district restriction
but upheld the distancing and age restrictions. Both sides
appealed.
We affirm in part and reverse in part. The two zoning
regulations—the manufacturing-district classification and

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Nos. 14-3312 & 14-3322 3
the distancing rule—dramatically limit the ability to site a
shooting range within city limits. Under the combined effect
of these two regulations, only 2.2% of the city’s total acreage
is even theoretically available, and the commercial viability
of any of these parcels is questionable—so much so that no
shooting range yet exists. This severely limits Chicagoans’
Second Amendment right to maintain proficiency in firearm
use via target practice at a range. To justify these barriers,
the City raised only speculative claims of harm to public
health and safety. That’s not nearly enough to survive the
heightened scrutiny that applies to burdens on Second
Amendment rights.
The age restriction also flunks heightened scrutiny. We
held in Ezell I that the Second Amendment protects the right
to learn and practice firearm use in the controlled setting of a
shooting range. The City insists that no person under age 18
enjoys this right. That’s an extraordinarily broad claim, and
the City failed to back it up. Nor did the City adequately
justify barring anyone under 18 from entering a range. To
the contrary, its own witness on this subject agreed that the
age restriction is overbroad because teenagers can safely be
taught to shoot and youth firearm instruction is both pru-
dent and can be conducted in a safe manner.
I. Background
In Ezell I we held that Chicago’s ban on firing ranges
could not be reconciled with the Second Amendment and
ordered the district court to preliminarily enjoin its enforce-
ment. 651 F.3d at 710–11. We assume familiarity with that
opinion, though we’ll repeat the key holdings as necessary
here.

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4 Nos. 14-3312 & 14-3322
Chicago responded to our decision by promulgating a
host of new regulations governing firing ranges, including
zoning restrictions, licensing and operating rules, construc-
tion standards, and environmental requirements. (Firing
ranges operated by law enforcement and private-security
firms are exempt from the regulatory scheme; there are
currently 11 of these located throughout the city.) The
plaintiffs returned to court arguing that many of the new
regulations violate the Second Amendment.2
In the face of this second round of litigation, the City
amended the regulatory scheme four times, Ezell II,
70 F. Supp. 3d at 876, repealing or revising some of the new
rules. The parties eventually filed cross-motions for sum-
mary judgment. Ruling on the motions, the judge invalidat-
ed some regulations and upheld others, id. at 884–93, leaving
both sides with something to appeal. And appeal they did,
though many of the judge’s rulings are left unchallenged,
helpfully narrowing the present scope of the dispute.
Three regulations remain contested. The first two are
zoning provisions limiting where shooting ranges may
locate. Section 17-5-0207 of the Chicago Municipal Code
permits ranges only in manufacturing districts with a
special-use permit. Section 17-9-0120 is a distancing re-
striction barring shooting ranges within 100 feet of another
range or within 500 feet of any district that is zoned for
2 The individual plaintiffs are Rhonda Ezell, Joseph Brown, and William
Hespen, Chicago residents who want access to a firing range within city
limits. Action Target, another plaintiff, is a leading designer and builder
of gun ranges. The remaining plaintiffs are the Second Amendment
Foundation and the Illinois Rifle Association, two nonprofits that
advocate for Second Amendment rights.

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Nos. 14-3312 & 14-3322 5
residential use or planned residential use, or any preexisting
school, day-care facility, place of worship, liquor retailer,
children’s activities facility, library, museum, or hospital.
The third contested regulation, section 4-151-100(d), prohib-
its anyone under age 18 from entering a shooting range.
The judge held that the zoning restrictions severely limit
where shooting ranges can be located and accordingly
required the City to establish a close fit between the re-
strictions and the public interests they serve. Id. at 883. The
City identified several harmful secondary effects that it
claimed were associated with shooting ranges: gun theft, fire
hazards, and airborne lead contamination. Id. at 883–84. But
it produced no evidentiary support for these claims beyond
the speculative testimony of three city officials—Zoning
Administrator Patricia Scudiero, Police Lieutenant Kevin
Johnson, and Rosemary Krimbel, the Commissioner of
Business Affairs and Consumer Protection. Id.
We’ll return to the specifics of their testimony later; for
now it’s enough to say that the judge found it wholly inade-
quate to discharge the City’s burden to justify relegating
shooting ranges to manufacturing districts. Id. Because the
City failed to establish a connection between this zoning rule
and the public interests it is meant to serve, the judge invali-
dated the manufacturing-district restriction. Id. at 884.
But the judge rejected the challenge to the 500-foot dis-
tancing requirement. She found this restriction “significantly
less burdensome” when considered “standing alone.” Id. She
likened it “to a ‘law forbidding the carrying of firearms in
sensitive places such as schools and government buildings,’”
which Heller specifically did not call into question. Id. (quot-
ing District of Columbia v. Heller, 554 U.S. 570, 626–27 (2008)).

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6 Nos. 14-3312 & 14-3322
Without further analysis, the judge upheld the 500-foot
distancing restriction. She did not specifically address the
additional requirement of a 100-foot buffer zone between
firing ranges.
Finally, the judge upheld the age restriction, concluding
that “minors are not guaranteed Second Amendment
rights.” Id. at 889. Cross-appeals followed.
II. Analysis
The City asks us to reinstate its zoning restriction limit-
ing firing ranges to manufacturing districts. The plaintiffs
defend the judge’s decision to strike that rule; they argue as
well that the distancing and age restrictions fail Second
Amendment scrutiny. Our review is de novo, so we give
these issues a fresh look. See Dunnet Bay Constr. Co. v.
Borggren, 799 F.3d 676, 688 (7th Cir. 2015) (“We review the
district court’s ruling on the cross-motions for summary
judgment de novo, construing all reasonable inferences from
the record in favor of the party against whom the motion
under consideration is made.”).
A. Ezell I
We take as settled what was established in Ezell I. There
we held that resolving Second Amendment cases usually
entails two inquiries. The threshold question is whether the
regulated activity falls within the scope of the Second
Amendment. Ezell I, 651 F.3d at 701–02. This is a textual and
historical inquiry; if the government can establish that the
challenged law regulates activity falling outside the scope of
the right as originally understood, then “the regulated
activity is categorically unprotected, and the law is not
subject to further Second Amendment review.” Id. at 703.

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Nos. 14-3312 & 14-3322 7
“If the government cannot establish this—if the historical
evidence is inconclusive or suggests that the regulated
activity is not categorically unprotected—then there must be
a second inquiry into the strength of the government’s
justification for restricting or regulating the exercise of
Second Amendment rights.” Id. This requires an evaluation
of “the regulatory means the government has chosen and the
public-benefits end it seeks to achieve.” Id. The rigor of this
means-end review depends on “how close the law comes to
the core of the Second Amendment right and the severity of
the law’s burden on the right.” Id. Severe burdens on the
core right of armed defense require a very strong public-
interest justification and a close means-end fit; lesser bur-
dens, and burdens on activity lying closer to the margins of
the right, are more easily justified. Id. In all cases the gov-
ernment bears the burden of justifying its law under a
heightened standard of scrutiny; rational-basis review does
not apply. Id. at 706.
Addressing the “scope” question in Ezell I, we rejected
the City’s argument that range training is categorically
unprotected by the Second Amendment. We held that the
core individual right of armed defense—as recognized in
Heller and incorporated against the states in McDonald—
includes a corresponding right to acquire and maintain
proficiency in firearm use through target practice at a range.
651 F.3d at 704. We explained that the core right to possess
firearms for protection “wouldn’t mean much without the
training and practice that make it effective.” Id. We noted
that Heller itself supports this understanding. Id. at 704
(citing Heller, 554 U.S. at 616, 619). Finally, we held that the
City had failed to establish that target practice is wholly
unprotected as a matter of history and legal tradition in the

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8 Nos. 14-3312 & 14-3322
founding era or when the Fourteenth Amendment was
ratified. Id. at 704–06.
This holding and these observations control here. Range
training is not categorically outside the Second Amendment.
To the contrary, it lies close to the core of the individual
right of armed defense.
The City also failed to carry its burden in Ezell I at step
two of the analytical framework. We held that banishing
firing ranges from the city was a severe encroachment on the
right of law-abiding, responsible Chicagoans to acquire and
maintain proficiency in firearm use, “an important corollary
to the meaningful exercise of the core right to possess fire-
arms for self-defense.” Id. at 708. Accordingly, we applied a
strong form of intermediate scrutiny and required the City
to demonstrate “a close fit between the range ban and the
actual public interests it serves, and also that the public’s
interests are strong enough to justify so substantial an
encumbrance on individual Second Amendment rights.” Id.
at 708–09. The City did not carry this burden, so we instruct-
ed the district court to enjoin the firing-range ban. Id. at 709–
11.
All this is established law. Resisting these settled propo-
sitions, the City now asks us to revisit and modify the ana-
lytical framework established in Ezell I. In its view only laws
that substantially or “unduly” burden Second Amendment
rights should get any form of heightened judicial scrutiny.
This is an odd argument; we specifically addressed and
rejected that approach in Ezell I. Id. at 703 n.12; id. at 706. Our
reasoning flowed from Heller itself: The Supreme Court
explicitly rejected rational-basis review, making it clear that
burdens on Second Amendment rights are always subject to

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Nos. 14-3312 & 14-3322 9
heightened scrutiny. Heller, 554 U.S. at 628 n.27 (“If all that
was required to overcome the right to keep and bear arms
was a rational basis, the Second Amendment would be
redundant with the separate constitutional prohibition on
irrational laws, and would have no effect.”). In McDonald the
Court cautioned against treating the Second Amendment as
a “second-class right, subject to an entirely different body of
rules than the other Bill of Rights guarantees.” 561 U.S. at
780. The City’s proposed “substantial burden” test as a
gateway to heightened scrutiny does exactly that.
We note for good measure that most other circuits have
adopted the framework articulated in Ezell I and require
some form of heightened scrutiny when evaluating the
government’s justification for a law challenged on Second
Amendment grounds. See, e.g., Tyler v. Hillsdale Cty. Sheriff’s
Dep’t, 837 F.3d 678, 685–86 (6th Cir. 2016) (en banc); Jackson v.
City & County of San Francisco, 746 F.3d 953, 961 (9th Cir.
2014); Nat’l Rifle Ass’n of Am., Inc. v. Bureau of Alcohol, Tobac-
co, Firearms & Explosives, 700 F.3d 185, 194 (5th Cir. 2012);
Heller v. District of Columbia, 670 F.3d 1244, 1252 (D.C. Cir.
2011); United States v. Chester, 628 F.3d 673, 680 (4th Cir.
2010); United States v. Reese, 627 F.3d 792, 800–01 (10th Cir.
2010); United States v. Marzzarella, 614 F.3d 85, 89 (3d Cir.
2010). We see no reason to retreat from our settled approach
and now repeat what we said in Ezell I: If the challenged law
regulates activity protected by the Second Amendment, the
government “bears the burden of justifying its action[s]
under some heightened standard of judicial review.” 651 F.3d
at 706.

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10 Nos. 14-3312 & 14-3322
B. New Regulations, New Challenges
1. Zoning restrictions
This new round of litigation is somewhat different, how-
ever; this time we’re reviewing a set of zoning restrictions,
not an outright ban on shooting ranges throughout the city.
Still, the record reflects that the zoning regulations at issue
here severely limit where shooting ranges may locate. The
combined effect of the manufacturing-district classification
and the distancing restriction leaves only about 2.2% of the
city’s total acreage even theoretically available to site a
shooting range (10.6% of the total acreage currently zoned
for business, commercial, and manufacturing use). It’s
unclear how many of these parcels are commercially suitable
for siting a shooting range catering to the general public.
The plaintiffs presented evidence—including the testi-
mony of two experts—showing that in other jurisdictions
shooting ranges are treated as commercial uses and are often
attached to gun retailers, and that banishing them to a tiny
subset of the land zoned for manufacturing reduces their
commercial viability based on traffic patterns, lack of arterial
roads, and other impediments. Tellingly, years after Ezell I
no publicly accessible shooting range yet exists in Chicago.
We therefore agree with the district judge that the chal-
lenged zoning regulations, though not on their face an
outright prohibition of gun ranges, nonetheless severely
restrict the right of Chicagoans to train in firearm use at a
range.
We also agree with the judge’s decision to require the
City to establish a close fit between the challenged zoning
regulations and the actual public benefits they serve—and to

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Nos. 14-3312 & 14-3322 11
do so with actual evidence, not just assertions. 70 F. Supp. 3d
at 883. The judge’s analysis went offtrack, however, when
she examined the two zoning regulations separately and
summarily upheld the 500-foot distancing requirement as a
“sensitive place” restriction, essentially immune from chal-
lenge under Heller.
There are two problems with this approach. First, the
manufacturing-district and distancing restrictions stand or
fall together. The two zoning requirements work in tandem
to limit where shooting ranges may locate. The impact of the
distancing rule cannot be measured “standing alone,” as the
district judge thought; to meaningfully evaluate the effect of
the buffer-zone requirement, we need to know which zoning
districts are open to firing ranges. The manufacturing-
district classification now stands enjoined, and to that extent
we agree with the judge’s decision, for reasons we’ll explain
in a moment. That puts the ball squarely in the City’s court
to decide which districts it will now open to firing ranges
and on what terms. A different combination of zoning
rules—say, a more permissive zoning classification and a
less restrictive buffer-zone rule—may well be justified, if
carefully drafted to serve actual public interests while at the
same time making commercial firing ranges practicable in
the city. But the two zoning restrictions—the manufacturing-
district classification and the distancing requirement—are a
single regulatory package for purposes of Second Amend-
ment scrutiny. We can’t evaluate the degree to which these
zoning regulations, standing alone, encumber Second
Amendment rights and are responsible for the absence of
commercial shooting ranges in the city. They must be evalu-
ated as a package.

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12 Nos. 14-3312 & 14-3322
Second, the judge summarily upheld the distancing re-
strictions based on the enigmatic passage in Heller in which
the Court cautioned that its opinion should not be read as
casting doubt on “longstanding prohibitions on the carrying
of firearms … in sensitive places” like schools and govern-
ment buildings. 554 U.S. at 626–27. The judge apparently
thought this language effectively immunized the buffer-zone
rule from constitutional review. Ezell II, 70 F. Supp. 3d at
884–85.
We’re not sure that’s the correct way to understand the
Court’s “sensitive places” passage, but we don’t need to
resolve the matter in order to decide this case. The distanc-
ing requirement is not a limitation on where firearms may be
carried, so it doesn’t fall within the ambit of this language.
Moreover, any suggestion that firearms are categorically
incompatible with residential areas—recall that residential
districts are included in the City’s buffer-zone rule—is flatly
inconsistent with Heller, which was explicit that possession
of firearms in the home for self-defense is the core Second
Amendment right. Heller, 554 U.S. at 635–36. So the manu-
facturing-district classification and the distancing require-
ment must be reviewed together.
With that point explained, we return to the City’s prof-
fered justification for regulating firing ranges in this way.
The City claims that confining firing ranges to manufactur-
ing districts and keeping them away from other ranges,
residential districts, schools, places of worship, and myriad
other uses serves important public health and safety inter-
ests. Specifically, the City cites three concerns: firing ranges
attract gun thieves, cause airborne lead contamination, and
carry a risk of fire.

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Nos. 14-3312 & 14-3322 13
The City has provided no evidentiary support for these
claims, nor has it established that limiting shooting ranges to
manufacturing districts and distancing them from the multi-
ple and various uses listed in the buffer-zone rule has any
connection to reducing these risks. We certainly accept the
general proposition that preventing crime, protecting the
environment, and preventing fire are important public
concerns. But the City continues to assume, as it did in
Ezell I, that it can invoke these interests as a general matter
and call it a day. It simply asserts, without evidence, that
shooting ranges generate increased crime, cause airborne
lead contamination in the adjacent neighborhood, and carry
a greater risk of fire than other uses.
The City’s own witnesses testified to the lack of eviden-
tiary support for these assertions. They repeatedly admitted
that they knew of no data or empirical evidence to support
any of these claims. Indeed, Patricia Scudiero, the City’s
zoning administrator, conceded that neither she nor anyone
else in her department made any effort to review how other
cities zone firing ranges. She conducted no investigation,
visited no firing ranges in other jurisdictions, consulted no
expert, and essentially did no research at all.
To shore up its weak defense of the two zoning re-
strictions, the City submitted a list of 16 thefts from gun
stores and shooting ranges around the country since 2010.
Only two of these incidents involved thefts from shooting
ranges, and no evidence suggests that these thefts caused a
spike in crime in the surrounding neighborhood.
The City’s assertions about environmental and fire risks
are likewise unsupported by actual evidence. In its briefs the
City relies on a study by the National Institute for Occupa-

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14 Nos. 14-3312 & 14-3322
tional Safety and Health explaining that improperly venti-
lated shooting ranges can release lead-contaminated air into
the surrounding environment. But the report goes on to
describe appropriate filtering techniques that prevent this
danger entirely. As for the concern about fire, the City
provided no evidence to suggest that a properly constructed
and responsibly operated commercial shooting range pre-
sents a greater risk of spontaneous combustion than other
commercial uses.
Moreover, and importantly, Chicago has promulgated a
host of regulations to guard against environmental and fire
hazards and otherwise ensure that shooting ranges will be
properly constructed, maintained, and operated. These
regulations were for the most part upheld, Ezell II, 70 F.
Supp. 3d at 884–93, and the judge’s rulings are unchallenged
on appeal.
And if more were needed, the City concedes (as it must)
that law-enforcement and private-security ranges operate in
commercial districts throughout Chicago near schools,
churches, parks, and stores; the City acknowledges that they
operate quite safely in these locations. Common sense
suggests that law-enforcement ranges probably do not
attract many thieves, but the City’s theft-protection rationale
for these zoning rules is so woefully unsupported that the
distinction between law-enforcement and commercial ranges
doesn’t carry much weight. The City doesn’t even try to
argue that commercial ranges create greater fire or environ-
mental risks than law-enforcement ranges.
We explained in Ezell I that the City cannot defend its
regulatory scheme “with shoddy data or reasoning. The
municipality’s evidence must fairly support the municipali-

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Nos. 14-3312 & 14-3322 15
ty’s rationale for its ordinance.” 651 F.3d at 709 (quoting City
of Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 438 (2002)).
To borrow from the free-speech context, “there must be
evidence” to support the City’s rationale for the challenged
regulations; “lawyers’ talk is insufficient.” Annex Books, Inc.
v. City of Indianapolis, 581 F.3d 460, 463 (7th Cir. 2009). Here,
as in Ezell I, the City’s defense of the challenged zoning rules
rests on sheer “speculation about accidents and theft.”
651 F.3d at 709. That’s not nearly enough to satisfy its bur-
den. The manufacturing-district and distancing restrictions
are unconstitutional.
2. Age restriction
The City’s primary defense of the age-18 limitation is to
argue that minors have no Second Amendment rights at all.
To support this sweeping claim, the City points to some
nineteenth-century state laws prohibiting firearm possession
by minors and prohibiting firearm sales to minors. Laws of
this nature might properly inform the question whether
minors have a general right, protected by the Second
Amendment, to purchase or possess firearms. But they have
little relevance to the issue at hand.
The plaintiffs do not question the permissibility of regu-
lating the purchase and possession of firearms by minors.
They challenge only the extraordinary breadth of the City’s
age restriction. Banning anyone under age 18 from entering a
firing range prevents older adolescents and teens from
accessing adult-supervised firearm instruction in the con-
trolled setting of a range. There’s zero historical evidence
that firearm training for this age group is categorically
unprotected. At least the City hasn’t identified any, and
we’ve found none ourselves.

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16 Nos. 14-3312 & 14-3322
To the contrary, Heller itself points in precisely the oppo-
site direction. 554 U.S. at 617–18 (“[T]o bear arms implies
something more than the mere keeping; it implies the learn-
ing to handle and use them … ; it implies the right to meet
for voluntary discipline in arms, observing in doing so the
laws of public order.” (quoting THOMAS M C I NTYRE C OOLEY ,
A TREATISE ON THE C ONSTITUTIONAL LIMITATIONS 271 (1868)));
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
A BBOTT, JUDGE AND J URY : A POPULAR EXPLANATION OF THE
LEADING T OPICS IN THE LAW OF THE L AND 333 (1880))).
For the same reason, the City’s reliance on contemporary
caselaw is entirely misplaced. The few cases it identifies all
address laws prohibiting minors from possessing, purchas-
ing, or carrying firearms. See, e.g., Nat’l Rifle Ass’n of Am., Inc.
v. McCraw, 719 F.3d 338 (5th Cir. 2013) (upholding a state
law banning 18- to 20-year-olds from carrying handguns in
public); Nat’l Rifle Ass’n of Am., Inc. v. Bureau of Alcohol,
Tobacco, Firearms & Explosives, 700 F.3d 185 (5th Cir. 2012)
(upholding a federal law prohibiting 18- to 21-year olds from
purchasing a handgun); United States v. Rene E., 583 F.3d 8
(1st Cir. 2009) (upholding a federal law prohibiting juvenile
handgun possession); People v. Mosley, 33 N.E.3d 137 (Ill.
2015) (upholding a state law banning 18- to 20-year-olds
from carrying handguns outside the home); People v. Aguilar,
2 N.E.3d 321, 329 (Ill. 2013) (upholding a state law prohibit-
ing those under age 18 from possessing concealable fire-
arms); State v. Sieyes, 225 P.3d 995 (Wash. 2010) (upholding a
state law prohibiting those under age 18 from possessing
firearms).

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Nos. 14-3312 & 14-3322 17
Nor can the City find help from our decision in Horsley v.
Trame, 808 F.3d 1126 (7th Cir. 2015). Horsley was not, strictly
speaking, a claim about the Second Amendment rights of
minors; the case addressed an Illinois law that requires 18- to
21-year-olds to provide written parental consent to obtain a
so-called “FOID card,” a prerequisite to lawful ownership of
a firearm. Horsley discussed but expressly did not decide
whether minors are categorically excluded from the Second
Amendment right. Id. at 1131 (“We need not decide today
whether 18-, 19-, and 20-year-olds are within the scope of the
Second Amendment.”). The panel opted instead to apply
heightened scrutiny to the Illinois law at step two of the
Ezell I framework and under that standard upheld the
parental-consent requirement. Id. at 1132–34. Horsley, like the
other cases cited by the City, does not speak to the issue
before us here.
In short, no case has yet addressed a claim comparable to
this one: A challenge to an age restriction that extinguishes
even the right of older adolescents and teens to receive
adult-supervised firearm instruction in the controlled setting
of a firing range. Because the City has not met its burden to
establish that no person under the age of 18 enjoys this right,
we proceed to Ezell I’s second step.
The City staked most of its case on the categorical argu-
ment and made little effort to justify prohibiting older
adolescents and teens from engaging in supervised target
practice at a range. Its rationale rests largely on an argument
from “common sense” about public safety and the safety of
children. Yet even common sense does not lie with the City.
In what must have come as a surprise to the City, Com-
missioner Krimbel, the City’s own witness on this subject,

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18 Nos. 14-3312 & 14-3322
actually agreed with the plaintiffs’ attorney that banning
anyone under 18 from entering a shooting range goes too far
and extends beyond legitimate safety concerns. Here’s a
taste: “I will give you this: I believe [the age restriction] is
inartfully drafted because it seem[s] clear to me that the
purpose of it is to not have kids running around unsuper-
vised.” And this: “[Y]ou might want to draft that a little bit
differently” because shooting ranges are a “good place” to
teach a youngster “how to fire a rifle.” And this: “In fact, my
own son took a shooting class when he was 12, so I’m well
aware of the fact it’s okay to teach a young person how to
shoot a gun properly.” Commissioner Krimbel also conced-
ed that the City lacked any data or empirical evidence to
justify its blanket no-one-under-18 rule.
The City is left to rely on generalized assertions about the
developmental immaturity of children, the risk of lead
poisoning by inhalation or ingestion, and a handful of tort
cases involving the negligent supervision of children who
were left to their own devices with loaded firearms. No one
can disagree—and we certainly do not—that firearms in the
hands of young children or unsupervised youth are fraught
with serious risks to safety. Nor do we question the aim of
protecting children against lead poisoning. We accept as
well that the presence of young children at a firing range can
be a risky distraction during target practice, even for a
skilled marksman.
But the City has specific regulations aimed at containing
the environmental risks, as we’ve already noted. And the
remaining public-safety interests can be addressed by a
more closely tailored age restriction—one that does not
completely extinguish the right of older adolescents and teens

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Nos. 14-3312 & 14-3322 19
in Chicago to learn how to shoot in an appropriately super-
vised setting at a firing range. As presently written, howev-
er, the City has failed to adequately justify its broad age
restriction.3
III. Conclusion
As we said in Ezell I, Chicago has room to regulate the
construction and operation of firing ranges to address
genuine risks to public health and safety. 651 F.3d at 711.
This includes setting rules about where firing ranges may
locate and the terms on which minors may enter. But the
City has not justified the three contested regulations. Ac-
cordingly, the judge was right to enjoin the manufacturing-
district restriction, and to that extent the judgment is af-
firmed. The distancing and age restrictions are likewise
invalid; to that extent the judgment is reversed and the case
is remanded with instructions to modify the injunction
consistent with this opinion.
A FFIRMED IN PART, R EVERSED
IN PART, AND R EMANDED WITH
INSTRUCTIONS.
3 The plaintiffs also mounted a First Amendment challenge to the age
restriction. We do not address this alternative argument.

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20 Nos. 14‐3312 & 14‐3322
R OVNER , Circuit Judge, dissenting in part and concurring
in part.
It is no secret that the City of Chicago would prefer to re‐
duce the number of guns in Chicago. The City faces enor‐
mous public and political pressure to reduce its gun violence
problem (4,638 shootings in 2016) 1 , while at the same time
upholding the Second Amendment rights of its citizens as
set forth in the case law emerging from District of Columbia v.
Heller, 554 U.S. 579 (2008) and McDonald v. City of Chicago,
561 U.S. 742 (2010). Correctly or not, the City reasoned that
reducing the number of guns travelling to and from firing
ranges, reducing the concentration of guns in one area, and
reducing the amount of gunfire in general could help reduce
crime and shootings in Chicago. In my concurrence in the
first appearance of this case before this court, I expressed
sympathy for the City’s difficult path between this Scylla
and Charybdis, but noted that the City had to “come to
terms with th[e] reality” imposed by Heller and McDonald.
And indeed it has. Whether it has come far enough is the
subject of today’s majority and my separate opinion.
The majority opinion reaches conclusions on three mat‐
ters, the constitutionality of limiting firing ranges to manu‐
facturing districts (the zoning regulation), the constitutional‐
ity of requiring firing ranges to be located more than a cer‐
tain distance from other specific uses (the distancing regula‐
tion), and the constitutionality of a ban on minors at firing
ranges. The majority finds all three to be unconstitutional.
Although I agree that the City failed to present sufficient ev‐
1 Chicago Tribune, Chicago shooting victims, http://crime.chica gotrib‐
une.com/chicago/shootings/, Last updated Jan. 11, 2017.

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Nos. 14‐3312 & 14‐3322 21
idence to support its manufacturing district requirement, I
do not agree that the distancing requirement fails as well. I
also write separately to note that although a total ban on mi‐
nors at firing ranges does not withstand a constitutional
challenge on this record, the City has a strong interest, and
therefore wide latitude, to enact regulations that will protect
children from, as the majority states, “serious risks to safety”
from the inherent dangers of firearms.
As the majority describes, the test that this circuit has
elucidated for Second Amendment cases is a means‐ends
test in which a court must evaluate the regulatory means the
government has chosen to regulate firearms and the public‐
benefit end the regulation seeks to achieve. Ezell v. City of
Chicago, 651 F.3d 684, 703 (2011) (“Ezell I”). It is a sliding
scale test—the greater the burden, the greater the justifica‐
tion needed. Or, as the majority panel described more com‐
pletely in Ezell I,
a severe burden on the core Second Amend‐
ment 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 ac‐
tivity lying closer to the margins of the Second
Amendment right, laws that merely regulate
rather than restrict, and modest burdens on the
right may be more easily justified. How much
more easily depends on the relative severity of
the burden and its proximity to the core of the
right.
Ezell I, 651 F.3d at 708.

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22 Nos. 14‐3312 & 14‐3322
In Ezell I, the majority described the right at issue here—
the right to participate in range training—as “an important
corollary to the meaningful exercise of the core right to pos‐
sess firearms for self‐defense.” Id. In my concurrence in Ezell
I, I described it as “an area ancillary to a core right.” Id. at
713 (Rovner, J., concurring). For the moment we can ignore
whether there is a difference in these two descriptions and
assume that the right is an important one; although not part
and parcel of the core right, close to but subordinate to it.
How far subordinate is yet unknown. It carried much import
in Ezell I, in part, because the City required all gun owners to
obtain training that included one hour of live‐range instruc‐
tion, and then banned all live ranges within the City limits.
In Ezell I, the majority held that the outright ban on firing
ranges in the City imposed a severe encroachment and re‐
quired an exacting test. Id. at 708–09. In other words, in Ezell
I, range training unlocked access to the core right. I con‐
ceived of the requirement as a ban on only one type of train‐
ing and therefore did not believe that the regulation required
as rigorous a showing as the majority required. Id. at 713.
The majority construction prevailed, of course. In the case
before us now, however, the majority and I agree, that “[t]his
new round of litigation is somewhat different; … this time
we’re reviewing a set of zoning restrictions, not an outright
ban on shooting ranges throughout the city.” Ante at 10. In
other words, we are reviewing the City’s regulation of
where, when, and how firing ranges may operate.2 As the
2 I could refer to it as a “time, place, and manner” regulation but that
term is heavily loaded with attachments to a particular level of scrutiny
under First Amendment jurisprudence—a quagmire better to avoid in
this case. See, e.g., U.S. v. Skoien, 614 F.3d 638, 641 –42 (7th Cir. 2010).

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Nos. 14‐3312 & 14‐3322 23
district court noted, “[b]ecause some of the provisions entail
a greater burden on Second Amendment rights than others,
[a] Court [should] not apply a uniform level of scrutiny
across the board.” Ezell v. City of Chicago, 70 F. Supp. 3d 871,
882 (N.D. Ill. 2014). I agree.
The majority opinion combines the zoning and distanc‐
ing regulations together and states, without any rationale,
that the manufacturing and distancing restrictions stand or
fall together. 3 In this case they both fall—in my colleagues’
view. I disagree. These are two separate regulations with
two separate government rationales and two separate effects
on the public interest of Chicago citizens. The zoning regula‐
tion makes a categorical assessment of where a particular
land use belongs based on the character of the area and
broad similarities and distinctions with other uses. The dis‐
tancing regulation makes a much more focused determina‐
tion of how close a particular use (which may have unique
impacts) may be to other uses that have vulnerabilities for
one reason or another. Under the sliding‐scale standard,
they must be evaluated separately. This is all the more true
when we take into account the fact that it is our obligation to
evaluate legislation, when possible, in a manner which
avoids substantial constitutional questions. United States v.
X‐Citement Video, Inc., 513 U.S. 64, 69 (1994). There is no ba‐
3 I adopt the vernacular of the majority and refer to M.C.C. § 17‐5‐0207,
which relegates all firing ranges to manufacturing districts in the City, as
the “zoning regulation” and M.C.C. § 17‐9‐0120, which requires firing
ranges to be built more than 500 feet from hospitals, places of worship
and places where children routinely gather; and 100 feet from other fir‐
ing ranges, as the “distancing regulation.”

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24 Nos. 14‐3312 & 14‐3322
sis, therefore, for the two regulations to survive or falter as
one.
To see why, I will briefly explore why the City failed in
its proof on the means‐end test vis‐à‐vis the zoning regula‐
tion. Then I will demonstrate the substantial differences be‐
tween the means (the government regulation and its pur‐
pose) and the end (the public interest benefit it seeks to pro‐
tect) in the zoning regulation versus the distancing regula‐
tion.
I turn first to the zoning regulation and its purpose.
Manufacturing districts within the City of Chicago are “in‐
tended to accommodate manufacturing, warehousing,
wholesale and industrial uses outside the Central Area. The
district regulations are intended to: (A) promote the econom‐
ic viability of manufacturing and industrial uses; (B) encour‐
age employment growth; and (C) limit the encroachment of
unplanned residential and other non‐industrial development
within industrial corridors.” M.C.C. §17‐5‐0101. Residential
districts, on the other hand, are “intended to create, maintain
and promote a variety of housing opportunities for individ‐
ual households and to maintain the desired physical charac‐
ter of the city’s existing neighborhoods.” Id. at 17‐2‐0101.
Business and Commercial districts are “intended to accom‐
modate retail, service and commercial uses and to ensure
that business and commercial‐zoned areas are compatible
with the character of existing neighborhoods.” Id. at § 17‐3‐
0101. They are divided into further categories depending on
the character and use of the surrounding area. Id. at 17‐3‐
0100.
The City’s representative testified before the district court
that its purposes for the zoning regulations were as follows:

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Nos. 14‐3312 & 14‐3322 25
the City imposes zoning restrictions because
the transportation and use of guns and ammu‐
nition could have an impact on the health, safe‐
ty, and welfare of individuals surrounding a
gun range. (Def. 56.1 St. ¶ 16). As a result, the
City considers firing ranges to be “high im‐
pact,” and restricting range locales to manufac‐
turing districts offers “a distance away from
the residential communities in most areas of
the city.”
Ezell, 70 F. Supp. 3d at 877. The parties agreed that firing
ranges are compatible with industrial use, but the plaintiffs
argued that the ranges were compatible with commercial use
as well. Id.
Before the district court, the City further explained that it
had restricted firing ranges to manufacturing districts, as
opposed to allowing them in some commercial use zoning
districts, to avoid two secondary effects associated with the
health, safety, and general welfare of Chicago residents—
thefts targeting firearms and lead contamination. Id. at 883.
The district court concluded that the City had not sufficient‐
ly substantiated a connection between these interests and the
ordinance. Id. The City did not present data or other empiri‐
cal evidence that the presence of a firing range would in‐
crease crime or that the problem would be diminished by
limiting firing ranges to manufacturing districts. The City
did provide a list of sixteen thefts (involving the theft of 482
firearms) from gun stores and firing ranges around the coun‐
try since 2010, but did not provide any rationale for why lo‐
cating the ranges only in manufacturing zones would reduce
theft or other criminal activity. No one from the City re‐

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26 Nos. 14‐3312 & 14‐3322
searched zoning ordinances on firing ranges in other cities.
Id. at 884.
Likewise, the City did not supply robust, reliable evi‐
dence to support its claim that lead contamination from the
firing range with sufficient ventilation systems, as the ordi‐
nance requires, would cause environmental effects that
make the ranges suitable only for manufacturing districts.
The City did supply a report from the National Institute for
Occupational Safety and Health entitled ”Preventing Occu‐
pational Exposures to Lead and Noise at Indoor Firing
Range.” 4 That document informs workers, including federal
law enforcement officers, that they might be exposed to haz‐
ardous lead concentrations at firing ranges, but did not help
the court evaluate what the environmental impact of lead
would be in a range with the ventilation requirements im‐
posed by the City in this ordinance.5 Of course, it is beyond
4 The National Institute for Occupational Safety and Health, CDC, Dept.
of Health and Human Serv’s., “Preventing Occupational Exposures to
Lead and Noise at Indoor Firing Range.” (2009).
https://www.cdc.gov/niosh/ docs/2009‐136/pdfs/2009‐136.pdf. Last visit‐
ed January 16, 2017. R. 227‐3, Def.’s Rule 56.1 Statement of Material
Facts, Ex. 24 PageID 3731 –3762.
The National Institute for Occupational Safety and Health is part of the
United States Centers for Disease Control and Prevention within the De‐
partment of Health and Human Services. https://www.cdc.gov/
niosh/about/default.html. Last visited January 16, 2017.
5 There is no doubt that lead exposure is a known and continuing issue
for firing ranges. See Beaucham, Catherine, “Indoor Firing Ranges and
Elevated Blood Lead Levels—United States, 2002 –2013,” Center for Dis‐
ease Control, Morbidity and Mortality Weekly Report, April 25, 2014 /
63(16); 347 –351.

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Nos. 14‐3312 & 14‐3322 27
question that the City must ardently regulate any possible
lead contamination of its citizens; the story of Flint, Michi‐
gan, among others, teaches us that. And the Municipal Code
of Chicago is chock full of regulations pertaining to lead. See,
e.g., M.C.C. § 7‐4‐010 through 7‐4‐160. But as the majority
notes, when laws stand to encroach upon Second Amend‐
ment rights, a rational basis for the law is no longer suffi‐
cient support for the law. The City needed more evidence
that its regulations would not be sufficient to prevent lead
contamination and came up short.
The district court concluded that the City’s generalized
propositions that firing ranges pose a danger—in terms of
both crime and environmental impact—did not justify re‐
stricting them to manufacturing districts only, as opposed to
other industrial zones. And, like the majority opinion, on
this record, I must agree.
The distancing requirement, as I noted above, however,
is different. The zoning and distancing regulations together
reduced the land available in the City to about 10.6% of
available parcels. The distancing rule alone has a much less‐
er effect. We do not know the precise number because the
City’s expert created its map of available parcels using the
combined criteria from both regulations. See Def.’s Rule 56.1
Statement of Material Facts, Ex. 19, R. 227‐1, PageID 3567,
and attached as an exhibit to this opinion. Nevertheless,
from the map it is clear that an expansion into business dis‐
tricts would increase the availability of sites for firing ranges
appreciably. See Id. The distancing requirement therefore
imposes a significantly lighter burden on the placement of
firing ranges. And as Ezell I’s sliding scale dictates, a lighter
burden requires a lesser justification. Ezell I, 651 F.3d at 708.

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28 Nos. 14‐3312 & 14‐3322
Although the zoning regulation is a blanket prohibition
against firing ranges in all but the manufacturing areas of
the City, the distancing regulation is a precise and targeted
approach to protecting particular populations and activities
that the City routinely singles out for protections—places
where children and the sick are gathered, for example. It is
the difference between a carpet bomb and a surgical strike.
And the factors that enter into an evaluation of the public
benefit of prohibiting firing ranges from business and com‐
mercial districts are not the same as the factors that enter in‐
to an evaluation of the benefit of keeping shooting ranges
away from schools, day care facilities, hospitals and the like.
Not only do the regulations not stand or fall together, but
the evaluation of the two is dissimilar on both sides of the
means‐end analysis.
Moreover, the distancing requirements focus on protec‐
tions for a category of “sensitive places” that the Supreme
Court tells us have been subject to longstanding historical
protections from firearm dangers. As the Court stated in Hel‐
ler,
The Court’s opinion should not be taken to cast
doubt on longstanding prohibitions on the
possession of firearms by felons and the men‐
tally ill, or laws forbidding the carrying of
firearms in sensitive places such as schools
and government buildings, or laws imposing
conditions and qualifications on the commer‐
cial sale of arms.
Heller, 554 U.S. at 626–27 (emphasis supplied). This language
could be construed as removing from Second Amendment
protection prohibitions on the possession of firearms by fel‐

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Nos. 14‐3312 & 14‐3322 29
ons and the mentally ill, in sensitive places and the like just
as we have noted that “[t]he Court has long recognized that
certain ‘well‐defined and narrowly limited classes of
speech’—e.g., obscenity, defamation, fraud, incitement—are
categorically ‘outside the reach’ of the First Amendment.”
Ezell, 651 F.3d at 702. I leave that for another day. For now, it
is enough to note that if the Supreme Court has declared that
the need to protect sensitive places is an important enough
need to allow for an outright prohibition on the carrying of
firearms within them, then it is certainly a sufficiently strong
public interest to justify regulations distancing similar places
from firing ranges. The burden here is not severe (without
the zoning regulation, many more parcels are available), the
public interest is great, and the rules do not implicate the
heart of a core right, but rather, at the very most, “an im‐
portant corollary to the meaningful exercise of the core right
to possess firearms for self‐defense.” Ezell I, 651 F.3d at 708.
The majority asserts that firearms could not possibly be
incompatible with residential uses because the main premise
of the Heller decision, from which the “sensitive places” lan‐
guage comes, was to allow law abiding citizens to keep fire‐
arms in their residences for self‐defense. Ante at 12. But own‐
ing, keeping or even carrying a firearm for self‐defense pos‐
es a substantially different risk than does creating a public
accommodation where large numbers of people will gather
with firearms loaded with lead‐contaminated, explosive‐
filled ammunition and fire them. Firing a gun poses signifi‐
cantly greater risks than the mere keeping or carrying of a
gun, in terms of potential accidents, attractiveness to crimi‐
nals, and environmental lead exposure. From a practical
standpoint, Illinois state law all but rules out the possibility
of legally firing a gun in a residential area of the City of Chi‐

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30 Nos. 14‐3312 & 14‐3322
cago. 720 ILCS §§ 5/24‐1.2, 5/24‐1.2‐5, 5/24‐1.5. And so the
risks associated with legal firearm discharge will arise al‐
most always at firing ranges. Moreover, firing ranges can
become attractive nuisances, beckoning to thieves looking
for large caches of firearms, or places where people will be
coming and going while carrying weapons. In short, the
City’s interests in preventing gun theft and other crime, and
reducing lead contamination cast a heavy weight on the
public interest side of the scale.
As I noted above, the lower burden and the significant
public interest decrease the City’s burden to justify the regu‐
lation. The majority borrows from the free‐speech context
and asserts that “there must be evidence” to support the
City’s rationale for the challenged regulations. Ante at 15,
citing Annex Books, Inc. v. City of Indianapolis, 581 F.3d 460,
463 (7th Cir. 2009) (emphasis in original). In the First
Amendment context, however, the Supreme Court has re‐
jected the idea that the government must always prove
“with empirical data, that its ordinance will successfully
lower crime.” City of Los Angeles v. Alameda Books, Inc., 535
U.S. 425, 439, (2002). As the City points out, studies showing
the effect of crime in the surrounding community are partic‐
ularly helpful to the courts in First Amendment cases be‐
cause it is not readily apparent that the sale of adult books
and media have the ability to endanger the surrounding
community. Guns, on the other hand, are inherently danger‐
ous. See Loitz v. Remington Arms Co., 563 N.E.2d 397, 404
(1990) (“Guns are inherently dangerous instrumentalities,
and the mere occurrence of other explosions does not, with‐
out more, establish outrageous misconduct or some other
basis sufficient to warrant the imposition of punitive dam‐
ages.”). The amount and type of evidence needed to demon‐

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Nos. 14‐3312 & 14‐3322 31
strate a danger, therefore, must be less. The City’s evidence
was sufficient to justify its rationale for the distancing regu‐
lations.
It is not at all uncommon within the Chicago municipal
code to create a buffer zone between businesses that have a
high impact on their surroundings and facilities that might
serve children or other vulnerable populations such as hos‐
pitals, day care facilities, schools, and churches. See e.g.,
M.C.C. § 4‐224‐011 (“No machine shops shall be conducted
or operated on any lot or plot of ground of which any por‐
tion shall be within 200 feet of any lot occupied by a public
or parochial school, hospital or church.”); M.C.C. § 4‐232‐120
(“No person shall construct, conduct or operate any motor
vehicle salesroom within 200 feet of any building used as a
hospital, church, or public or parochial school, or the
grounds thereof.”); M.C.C. § 15‐28‐900 (“It shall be unlawful
for any person to store or manufacture nitrocellulose prod‐
ucts in any building which is situated within 100 feet of any
building occupied as a school building, hospital, institution‐
al [sic], or any other place of public assembly”); M.C.C. § 17‐
9‐0119 (“No retail food establishment that sells live poultry
or other live fowl at retail, or that slaughters or causes to
be slaughtered for sale live poultry or other fowl at retail,
shall be located within 200 feet from any place or structure:
… (2) is used for residential purposes; or (3) is used as a
place of religious assembly, primary or secondary school,
library, hospital, public park or public playground”); M.C.C.
§ 10‐36‐400 (b)(10) (“no person shall operate any small un‐
manned aircraft in city airspace: … (10) over any open air
assembly unit, school, school yard, hospital, place of wor‐
ship, prison or police station, without the property owner’s
consent, and subject to any restrictions that the property

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32 Nos. 14‐3312 & 14‐3322
owner may place on such operation”). Of course none of
these restrictions impose on Second Amendment rights, and
therefore they require no more than a rational basis, but the
vast number of these laws (I have singled out only a very
few) support the City’s argument that its purpose in passing
the legislation was to protect these sensitive areas, as it does
in so many other contexts.
In short, the distancing regulations do not rise or fall
along with the zoning regulations. And when separated
from them, given the lighter burden imposed by the distanc‐
ing regulations, the strong public interest in protecting resi‐
dential areas and sensitive areas from the risks associated
with firing ranges, these regulations pass constitutional mus‐
ter.
As for the ban on minors at firing ranges, I do not disa‐
gree with the majority that the City has failed to come forth
with evidence to support the exclusion of all minors from
firing ranges in all circumstances. To the extent that McDon‐
ald and its progeny allow for firearm ownership within the
City of Chicago, the practical argument that parents who
have guns within the City limits might also wish to teach
gun safety to their children is not without merit. (Although,
as I noted in my concurrence in Ezell I, “[t]here is no ban on
training with a simulator and several realistic simulators are
commercially available, complete with guns that mimic the
recoil of firearms discharging live ammunition. It is possible
that, with simulated training, technology will obviate the
need for live‐range training.” Ezell I, 651 F.3d at 712 (internal
citations omitted)). And the legal argument that the outright
ban is unconstitutional has merit as well.

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Nos. 14‐3312 & 14‐3322 33
I write separately on this point to note the limited rights
of minors under the Second Amendment. Importing the
concepts from First Amendment jurisprudence into this Sec‐
ond Amendment context, as courts have come to do (see Id.
at 706–07), it is worth noting that the First Amendment
rights of minors are limited—in some contexts far more than
others. Although minors do not “‘shed their constitutional
rights to freedom of speech or expression at the schoolhouse
gate’ … the First Amendment rights of students in the public
schools are ‘not automatically coextensive with the rights of
adults in other settings.’” Hazelwood Sch. Dist. v. Kuhlmeier,
484 U.S. 260, 266 (1988), citing Bethel Sch. Dist. No. 403 v. Fra‐
ser, 478 U.S. 675, 682 (1986). And First Amendment rights are
particularly limited when the interest balanced on the other
side is the health and safety of minors. See Morse v. Frederick,
551 U.S. 393, 407 (2007) (upholding school’s discipline of
student who displayed pro‐drug banner noting that deter‐
ring drug use by schoolchildren is an “important—indeed,
perhaps compelling interest” given the potential severe and
permanent damage to the health and well‐being of young
people); Erznoznik v. City of Jacksonville, 422 U.S. 205, 212
(1975) (“[i]t is well settled that a State or municipality can
adopt more stringent controls on communicative materials
available to youths than on those available to adults.”); Gins‐
berg v. State of N. Y., 390 U.S. 629, 637 (1968) (government can
prohibit sale to minors of sexually explicit material that
would be available to adults).
Outside of the First Amendment context, it goes without
saying that the government may restrict the rights of minors
for purposes of protecting their health and welfare. A state’s
interest in the welfare of its young citizens justifies a variety
of protective measures. Every jurisdiction in the country pro‐

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34 Nos. 14‐3312 & 14‐3322
tects the health, safety, and welfare of minors by prohibiting
them from purchasing alcohol and cigarettes, by restricting
at what age they may drive and with what limitations, when
they may enlist in the military and work, when they may
marry, when they may gamble, how long they must attend
school, and when they can enter into binding contracts.
Some of these regulations, like those surrounding marriage
and pregnancy, burden fundamental rights and yet have
been upheld regardless of the increased scrutiny given to
such laws. See, e.g., Planned Parenthood of Cent. Mo. v.
Danforth, 428 U.S. 52, 74 (1976).
In addition to the general protections noted above, states
and municipalities impose laws and regulations that protect
the health and safety of children in myriad specific ways,
many of which interfere fairly significantly with the funda‐
mental right of parents to make decisions concerning the
care, custody, and control of their children. Troxel v. Gran‐
ville, 530 U.S. 57, 66 (2000) (“we have recognized the funda‐
mental right of parents to make decisions concerning the
care, custody, and control of their children.”); see also Prince
v. Massachusetts, 321 U.S. 158, 166 (1944) (“Acting to guard
the general interest in youth’s well being, the state as parens
patriae may restrict the parent’s control by requiring school
attendance, regulating or prohibiting the child’s labor, and
in many other ways.”).
For example, Illinois law requires adults to secure chil‐
dren under the age of eight in an approved child safety re‐
straint while riding in vehicles. 625 ILCS § 25/4. It prohibits
children under the age of fourteen from being left without
supervision for “an unreasonable period of time without re‐
gard for the mental or physical health, safety, or welfare of

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Nos. 14‐3312 & 14‐3322 35
that minor.” 705 ILCS § 405/2‐3. The Illinois Administrative
Code even prohibits a day care facility from placing a baby
to sleep in any position other than on her back, regardless of
the parent’s request. Ill. Admin. Code § 407.350(i)(1)‐(3).
Sometimes the encroachments can be severe even when
the risk is low. Parents have been charged with neglect for
allowing their children to walk to a park, 6 or walk to school, 7
or play unsupervised in a back yard.8 This is true despite the
fact that the rate of occurrence of the main concern, stranger
abduction, is quite low (approximately 60–100 per year) and
continually declining. 9
In short, statutes, regulations, law enforcement and social
services resources are employed to protect children from
harm even where the risk of harm is slight or negligible. And
as the majority states, “No one can disagree—and we cer‐
tainly do not—that firearms in the hands of young children
or unsupervised youth are fraught with serious risks to safe‐
ty.” Ante at 18. I would add that firearms even in the hands
6 http://abcnews.go.com/Lifestyle/free‐range‐parents‐found‐responsible‐
child‐neglect‐allowing/story?id=29363859. Last visited January 16, 2017.
7 http://www.timesfreepress.com/news/local/story/2016/apr/01/ mother‐
charged‐neglect‐making‐children‐walk‐s/358210/. Last visited January
16, 2017.
8 http://insider.foxnews.com/2015/06/14/florida‐parents‐charged‐felony‐
neglect‐after‐11‐year‐old‐son‐plays‐backyard‐90‐minutes. Last visited
January 16, 2017.
9 David Finkelhor, Heather Hammer, and Andrea J. Sedlak, “Nonfamily
Abducted Children: National Estimates and Characteristics, ”United
States Department of Justice, Office of Justice Programs, Office of Juve‐
nile Justice and Delinquency Prevention, October 2002.

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36 Nos. 14‐3312 & 14‐3322
of older children, even while they are supervised by trained
instructors, can have deadly consequences. In one highly
publicized incident on an Arizona shooting range, a nine‐
year‐old girl accidentally killed her instructor, Charles Vacca,
when the Uzi she was firing became too difficult for her to
control, jumping out of her hand and firing a bullet into the
brain of her instructor. 10 But other recent shootings by and of
children on ranges have slipped by without as much atten‐
tion. In many cases the accidents did not involve high pow‐
ered weapons or even a child as the shooter. In some inci‐
dents, the child at the range was killed by an adult. 11
10 http://www.cnn.com/2014/08/26/us/arizona‐girl‐fatal‐shooting‐
accident/
11 The following are incidents of shootings at firing ranges since 2012
found through a review of news stories and may not be a complete list:
October 2016, North Dakota, 14‐year‐old girl killed at shooting range
http://www.kbzk.com/story/33418822/north‐dakota‐teen‐killed‐in‐
accidental‐shooting‐at‐gun‐range. Last visited January 16, 2017.
August 2016, Iowa, 10‐year‐old shot at shooting range
http://nbc4i.com/2016/08/19/boy‐10‐dies‐after‐being‐shot‐at‐shooting‐
range/. Last visited January 16, 2017.
July 2016, Florida, Father kills 14‐year‐old son at shooting range
http://www.cnn.com/2016/07/04/us/florida‐father‐shoots‐son/
March, 2016, Florida, 21‐year‐old at shooting range misfires and hits four
children ages 8, 10, 14 and 15 http://wfla.com/2016/03/12/four‐children‐
two‐adults‐injured‐in‐gun‐range‐accident‐in‐ocala/. Last visited January
16, 2017.

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Nos. 14‐3312 & 14‐3322 37
February 2016, Idaho, 12‐year shot at shooting range (non‐fatal)
http://www.foxnews.com/us/2016/02/25/girl‐12‐accidentally‐shot‐at‐
idaho‐gun‐range.html. Last visited January 16, 2017.
December 2015, Indiana, 12‐year‐old shot (non‐fatal) at shooting range
http://cbs4indy.com/2015/12/26/shooting‐range‐accident‐injures‐12‐year‐
old/. Last visited January 16, 2017.
December 2015, Arizona, 13‐year‐old girl shot by adult at shooting range
http://www.azcentral.com/story/news/local/pinal/2015/12/01/gun‐range‐
accident‐serves‐safety‐reminder/76610904/. Last visited January 16, 2017.
December 2014, Ohio, 14‐year‐old shot by adult at shooting range
http://www.wlwt.com/article/teen‐wounded‐in‐accidental‐shooting‐at‐
gun‐range/3550107. Last visited January 16, 2017.
December 2014, California, 12‐year‐old shoots man in leg at shooting
range (non‐fatal) http://www.eastcountymagazine.org/man‐injured‐
shooting‐range‐accident. Last visited January 16, 2017.
August 2014, Arizona, 9‐year‐old kills instructor with Uzi at firing range
https://www.washingtonpost.com/news/post‐nation/wp/2016/08/26/two‐
years‐after‐9‐year‐olds‐fatal‐uzi‐shooting‐instructors‐family‐files‐
wrongful‐death‐suit/?utm_term=.7072f20994eb. Last visited January 16,
2017.
January 2014, Florida, 14‐year‐old shoots herself in leg at shooting range
(non‐fatal) http://www.wesh.com/article/girl‐14‐accidentally‐shot‐at‐
gun‐range‐in‐merritt‐island/4430493. Last visited January 16, 2017.
November, 2012, Tennessee, 13‐year‐old shot by adult at firing range
http://www.wsmv.com/story/20177364/13‐year‐old‐shot‐at‐gun‐range‐
cheatham‐county. Last visited January 16, 2017.
October, 30, 2012, Iowa, 8‐year‐old shot by 5‐year‐old sister at shooting
range http://www.kwwl.com/story/19956702/accidental‐shooting‐of‐8‐
year‐old‐brings‐safety‐reminder. Last visited January 16, 2017.

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38 Nos. 14‐3312 & 14‐3322
In sum, while I concur that the outright ban on all chil‐
dren under the age of eighteen entering a firing range is im‐
permissible, I suspect that, given our long history of protect‐
ing minors, even where fundamental rights are in play,
stringent regulations for minors in firing ranges will with‐
stand much scrutiny when supported by appropriate evi‐
dence.
For the reasons above, I dissent from the conclusion that
the zoning regulation is unconstitutional, and concur with
the majority regarding its conclusions as to the distancing
regulation and the ban on minors. The City’s gun violence
problem requires urgent, well‐researched, and comprehen‐
sive action. But those actions must be taken within the evolv‐
ing parameters of Second Amendment jurisprudence.

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Case l:10-cv-05135 Document 227-1 Filed 12/05/13 Page 49 of 146 PagelD 3567
Case; 14-3312 Document: 11-14 Filed: 11/17/2014 Pages: 327
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