[Eugene Volokh] Chicago ban on minors at gun ranges struck down under the Second Amendment

Chicago’s gun range regulations ban, among other things, anyone younger than 18 from going to a shooting range within city limits. Yesterday’s 7th Circuit opinion in Ezell v. City of Chicago, written by Judge Diane Sykes, joined by Judge Michael Kanne and largely agreed with by Judge Ilana Rovner, struck that down:

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 regulating 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 controlled 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.

To the contrary, Heller itself points in precisely the opposite direction. 554 U.S. at 617–18 (“[T]o bear arms implies something more than the mere keeping; it implies the learning 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 Mcintyre Cooley, A Treatise on the Constitutional 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 Abbott, Judge and Jury: A Popular Explanation of the Leading Topics in the Law of the Land 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, purchasing, or carrying firearms….

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 [deciding whether the restriction may nonetheless be upheld on the grounds that it’s adequately justified by the factual evidence — EV].

The City staked most of its case on the categorical argument 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, Commissioner Krimbel, the City’s own witness on this subject, 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 unsupervised.” 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 conceded 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 contai