Join Date: June 29, 2000
Location: Rupert, Idaho
While we are waiting for Judge Virginia M. Kendall on the Motion for Preliminary Injunction, Chicago has filed a Motion to Dismiss. You're going to get a kick out of this (this is item #67 on the docket)! I originally was only going to include of couple of the most hilarious statements by Chicago, until I found myself laughing all the way through it. It's very short as these things usually go, so enjoy... The laugh is on me tonight!!
Plaintiffs’ Claims Fail As A Matter of Law
A. Plaintiffs Have Failed to State a First Amendment Claim.
5. Plaintiffs allege that, “by banning gun ranges open to the public, and by effectively banning the loan, rental, and borrowing of functional firearms at ranges open to the public,” the City is violating their First Amendment rights to free speech. Compl., ¶ 49.B. The Organizational Plaintiffs Cannot State Any Second Amendment Violation.
6. The only activities prohibited by the range ban is the operation of or shooting of guns at a gun range. Those activities are not encompassed by the First Amendment.
7. No court has ever held that firing a gun or using a shooting range is conduct protected by the First Amendment. And, in Northern Indiana Gun & Outdoor Shows, Inc., 104 F. Supp.2d 1009, 1013-14 (N.D. Ind. 2000), the court held that bringing guns to a gun show to show them off, have them repaired, or sell them did not convey a particular message or contain an expressive component, and thus fell outside the scope of the First Amendment. Therefore, the First Amendment claim should be dismissed as a matter of law as against all Plaintiffs.
8. Plaintiffs Action Target, SAF, and ISRA do not possess any right protected by the Second Amendment, and thus cannot state any cognizable Second Amendment claim.C. Plaintiffs’ Claim that the Second Amendment Protects the Right to Shoot Guns at a Range Fails as a Matter of Law.
9. The only right under the Second Amendment recognized by the Supreme Court is an individual right to keep and bear arms for purposes of self-defense. See District of Columbia v. Heller, 128 S. Ct. 2783, 2799 (2008); McDonald v. City of Chicago, 130 S. Ct. 3020, 3050 (2010) (plurality opinion). Organizations do not possess the rights of individuals.
10. Accordingly, the Second Amendment claims brought by Action Target, SAF, and ISRA should be dismissed as a matter of law.
11. Plaintiffs allege that the Ordinance violates their Second Amendment rights because the Second Amendment “secures the right to operate firearms at a range, for purposes of learning about firearms, gaining proficiency with firearms, obtaining any training required as a condition of firearms ownership, recreation, and competition; and the right to own an operate a range for these purposes.” Compl., ¶ 45.WHEREFORE, for the above reasons, Defendant City of Chicago respectfully requests that the Court dismiss Plaintiffs’ Complaint on the grounds set forth above and enter a briefing schedule.
12. Plaintiffs have failed to state a claim that the Ordinance’s prohibition on shooting ranges violates their Second Amendment rights because there is no Second Amendment right to operate or shoot at a gun range.
13. The only right recognized under the Second Amendment is the right to possess handguns in the home for purposes of self-defense. Heller, 128 S. Ct. at 2799; McDonald, 130 S. Ct. at 3050 (2010) (plurality opinion). See also United States v. Skoien, --- F.3d --- , 2010 WL 2735747, at *1 (7th Cir. July 13, 2010) (en banc) (Heller recognized right to “keep operable handguns at home for self-defense”).
14. Heller warned readers “not to treat [it] as containing broader holdings than the Court set out to establish.” Skoien, 2010 WL 2735747, at *1 (quoting Heller, 128 S. Ct. at 2816-17 & n.26 (cautioning that opinion should not be read to “cast doubt” on various “presumptively lawful” restrictions on arms use)).
15. Nothing in the analysis of the Heller Court, whose task it was to discern the “original understanding” of the Second Amendment at the time of its ratification in 1791, Heller, 128 S. Ct. at 2816, suggests or indicates that the Second Amendment encompasses operating or shooting at gun ranges.
16. Moreover, although the Ordinance requires training as a condition to gun ownership, that requirement does not bring the operation of or shooting at gun ranges within the scope of the Second Amendment. Municipal ordinances cannot alter the meaning and scope of the United States Constitution.
17. Accordingly, there is no cognizable right under the Second Amendment to operate or shoot at a gun range, and Plaintiffs’ claim based on this theory should be dismissed.
18. The City intends to file a memorandum in support of this motion, which it is in the process of preparing. Therefore, the City requests that the Court enter a briefing schedule on this motion.
Now I realize that I am not an attorney in any shape or form, but if this is the best Chicago can do... I find it the weakest thing I've ever seen filed in a case like this.
Alan Gura should have a virtual field day with his response.