Gowder v. City Of Chicago et al

Filing 66

MEMORANDUM Opinion Signed by the Honorable Samuel Der-Yeghiayan on 6/19/2012.(mr, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

SHAWN GOWDER,

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Plaintiff,
v.
CITY OF CHICAGO, et al.,
Defendants.

No. 11 C 1304

MEMORANDUM OPINION
SAMUEL DER-YEGHIAYAN, District Judge
This matter is before the court on Plaintiff Shawn Gowder’s (Gowder) motion
for summary judgment. Gowder challenges Section 8-20-110(b)(3)(iii) of the
Municipal Code of Chicago, hereinafter referred to as Section (b)(3)(iii) of the
Chicago Firearm Ordinance. For the reasons stated below, the motion for summary
judgment is granted. This court finds that Section (b)(3)(iii) of the Chicago Firearm
Ordinance is unconstitutionally void for vagueness. In addition, this court finds that
Section (b)(3)(iii) of the Chicago Firearm Ordinance violates Gowder’s right to keep
and bear arms under the Second Amendment of the United States Constitution.

1

BACKGROUND
On August 21, 1995, Gowder was convicted in Illinois of the offense of
unlawful use of a weapon under 720 ILCS 5/24-1(a)(10) based upon his possession
of a weapon, and Gowder was sentenced to twelve months probation. At the time of
Gowder’s conviction, a violation of 720 ILCS 5/24-1(a)(10) was unconstitutionally
classified as a Class 4 Felony. In 1999, the Illinois Supreme Court in People v.
Cervantes, 723 N.E.2d 265, 267 (Ill. 1999), struck down the Safe Neighborhood Act,
also known as Public Act 88-680, which had classified simple possession of a
firearm as a felony. The Illinois Supreme Court found the Safe Neighborhood Act
unconstitutional, and therefore Gowder’s conviction for first time possession of a
firearm was considered a misdemeanor under 720 ILCS 5/24-1(b) by operation of
law. Id.; see also People v. Lindsey, 753 N.E.2d 1270, 1278 (Ill. App. Ct.
2001)(mandating reduction from a felony to a misdemeanor). Pursuant to the
decision in Lindsey, on April 21, 2003, the Circuit Court of Cook County entered an
order reducing Gowder’s conviction for “unlawful use of a weapon” from a felony to
a misdemeanor.
The City of Chicago requires persons living within the city limits of Chicago
to obtain a Chicago Firearm Permit in order to possess firearms in their homes.
Chicago Municipal Code 8-20-110(a). In 2010, Gowder applied for a Chicago
Firearm Permit (Application). The City of Chicago denied the Application, citing
Section (b)(3)(iii) of the Chicago Firearm Ordinance, which provides that “[n]o
[Chicago Firearm Permit] application shall be approved unless the applicant . . . has
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not been convicted by a court in any jurisdiction of . . . an unlawful use of a weapon
that is a firearm.” Chicago Municipal Code 8-20-110(b)(3)(iii). Gowder appealed
the denial of the Application to the City of Chicago Department of Administrative
Hearings, and the administrative law judge affirmed the denial of the Application on
December 8, 2010. The court notes that, interestingly, Gowder was issued an Illinois
Firearm Owner’s Identification (FOID) card pursuant to 430 ILCS 65/1 et seq., and
thus Gowder is not among the “persons who are not qualified to acquire or possess
firearms . . . within the State of Illinois. . . .” Id. Gowder is entitled to a FOID card
under the laws of the State of Illinois because “[h]e . . . has not been convicted of a
felony. . . .” 430 ILCS 65/4(a)(2)(ii).
Gowder subsequently brought the instant action, and includes in his amended
complaint a claim seeking judicial review of an administrative decision under the
Illinois Administrative Review Law, 735 ILCS 5/3-101 et seq. (Count I), a
declaratory and injunctive relief claim seeking a declaration that Section (b)(3)(iii) of
the Chicago Firearm Ordinance is unconstitutional under the United States
Constitution (Count II), and a declaratory and injunctive relief claim seeking a
declaration that Section (b)(3)(iii) of the Chicago Firearm Ordinance is
unconstitutional under the Illinois Constitution (Count III). Gowder has now filed a
motion for summary judgment on all counts. The Illinois State Rifle Association has
filed an amicus brief in this matter.
LEGAL STANDARD
Summary judgment is appropriate when the record, viewed in the light most
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favorable to the non-moving party, reveals that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56; Smith v. Hope School, 560 F.3d 694, 699 (7th Cir. 2009). A
“genuine issue” of material fact in the context of a motion for summary judgment is
not simply a “metaphysical doubt as to the material facts.” Matsushita Elec. Indus.
Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, a genuine issue
of material fact exists when “the evidence is such that a reasonable jury could return
a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986); Insolia v. Philip Morris, Inc., 216 F.3d 596, 599 (7th Cir. 2000). In
ruling on a motion for summary judgment, the court must consider the record as a
whole, in the light most favorable to the nonmoving party. Anderson, 477 U.S. at
255; Bay v. Cassens Transport Co., 212 F.3d 969, 972 (7th Cir. 2000).

DISCUSSION
The City of Chicago’s ordinance regarding Permits for and Registration of
Firearms has triggered this lawsuit. While other provisions of the Chicago Firearm
Ordinance may be subject to and may not survive constitutional challenge, this court
addresses only the constitutionality of Section (b)(3)(iii) of the Chicago Firearm
Ordinance, which bars individuals convicted of even non-violent misdemeanor
offenses from possessing firearms in their homes for self-defense. Gowder, in the
first instance, challenges the language in Section (b)(3)(iii) of the Chicago Firearm
Ordinance, basically arguing that the language is vague. In addition, Gowder argues
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that Section (b)(3)(iii) of the Chicago Firearm Ordinance, which bars Gowder from
obtaining a Chicago Firearm Permit based on his status as a non-violent
misdemeanant, violates his constitutional right to keep and bear arms under the
Second Amendment of the United States Constitution.

I. Unconstitutionally Void For Vagueness
The first question this court addresses is whether the language of Section
(b)(3)(iii) of the Chicago Firearm Ordinance is unconstitutionally vague. Section
(b)(3)(iii) of the Chicago Firearm Ordinance provides that “[n]o [Chicago Firearm
Permit] application shall be approved unless the applicant . . . has not been convicted
by a court in any jurisdiction of . . . an unlawful use of a weapon that is a firearm.”
Chicago Municipal Code 8-20-110(b)(3)(iii). Gowder, in essence, argues that
Section (b)(3)(iii) of the Chicago Firearm Ordinance is unconstitutionally vague
because it does not define the term “unlawful use of a weapon.” An ordinance may
be found to be unconstitutionally vague if (1) the ordinance “does not provide a
person of ordinary intelligence a reasonable opportunity to know what is prohibited,”
or (2) the ordinance “fails to provide explicit standards to prevent arbitrary and
discriminatory enforcement by those enforcing the [ordinance].” United States v.
Lim, 444 F.3d 910, 915 (7th Cir. 2006); see also Papachristou v. City of
Jacksonville, 405 U.S. 156, 162 (1972)(indicating that an ordinance is
unconstitutionally vague if it “fails to give a person of ordinary intelligence fair
notice that his contemplated conduct is forbidden by the statute, . . . and because it
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encourages arbitrary and erratic arrests and convictions”)(citation omitted)(internal
quotations omitted); Skilling v. United States, 130 S.Ct. 2896, 2927-28 (2010)(stating
that “[t]o satisfy due process, a penal statute [must] define the criminal offense [1]
with sufficient definiteness that ordinary people can understand what conduct is
prohibited and [2] in a manner that does not encourage arbitrary and discriminatory
enforcement”)(quoting in part Kolender v. Lawson, 461 U.S. 352, 357 (1983))(and
stating that “[t]he void-for-vagueness doctrine embraces these requirements”);
Hegwood v. City of Eau Claire, 676 F.3d 600, 603 (7th Cir. 2012)(stating that a
statute is unconstitutionally vague “‘if it fails to define the offense with sufficient
definiteness that ordinary people can understand what conduct is prohibited and it
fails to establish standards to permit enforcement in a nonarbitrary,
nondiscriminatory manner’”)(quoting Fuller ex rel. Fuller v. Decatur Public School
Bd. of Educ. Sch. Dist. 61, 251 F.3d 662, 666 (7th Cir. 2001)).
Section (b)(3)(iii) of the Chicago Firearm Ordinance bars a person from
obtaining a Chicago Firearm 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). In this case, the court first looks to see if Section (b)(3)(iii)
of the Chicago Firearm Ordinance implicates constitutionally protected conduct.
Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494-95
(1982)(stating that “[i]n a facial challenge to the overbreadth and vagueness of a law,
a court’s first task is to determine whether the enactment reaches a substantial
amount of constitutionally protected conduct” and if it does “[t]he court should then
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examine the facial vagueness challenge and, assuming the enactment implicates no
constitutionally protected conduct, should uphold the challenge only if the enactment
is impermissibly vague in all of its applications”). In the instant case, the first
inquiry under Hoffman Estates is satisfied, in that Section (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. Thus, the only further inquiry under Hoffman Estates
is to examine the facial vagueness challenge to the ordinance.
Section (b)(3)(iii) of the Chicago Firearm Ordinance does not provide a person
of ordinary intelligence a reasonable opportunity to know what is prohibited, in that
it does not define the term “unlawful use of a weapon.”1 It appears that the City of
Chicago merely borrowed from an Illinois criminal statute the term “unlawful use of
a weapon,” which sounds extremely serious on its face, but in reality can include
simple unlawful possession. 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

1

As stated by Socrates: “The beginning of wisdom is a definition of terms.”

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statutory term must be given its plain and ordinary meaning.” Village of Northfield
v. BP America, Inc., 933 N.E.2d 413, 419 (Ill. App. Ct. 2010); see also Cleveland v.
United States, 531 U.S. 12, 25 (2000)(indicating that “ambiguity concerning the
ambit of criminal statutes should be resolved in favor of lenity”)(quoting Rewis v.
United States, 401 U.S. 808, 812 (1971)). Thus, under the language of Section
(b)(3)(iii) of the Chicago Firearm Ordinance, a person of ordinary intelligence would
not know that mere unlawful possession of a firearm would forever preclude him
from obtaining a Chicago Firearm Permit, thus barring him from exercising his
Second Amendment constitutional right.
In addition, 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, since some administrative law judges might find that
unlawful use of a weapon includes unlawful possession, and others may find that it
does not. Such a result is especially likely since different jurisdictions define the
offense of “unlawful use of a weapon” to mean different things. For example, the
offense of “unlawful use of a weapon” in the state of Illinois includes mere
possession of a firearm, without any intent or attempt to use a firearm against
another, in that Illinois law prohibits a person from “[c]arr[ying] or possess[ing] on
or about his person, upon any public street, alley, or other public lands within the
corporate limits of a city, village or incorporated town . . . any pistol, revolver, stun
gun or taser or other firearm.” 720 ILCS 5/24-1(a)(10). In contrast, the offense of

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“unlawful use of a weapon” in the state of Oregon does not include mere possession,
but prohibits “carr[ying] or possess[ing] with intent to use unlawfully against
another, any dangerous or deadly weapon. . . .” O.R.S. § 166.220(1)(a). In addition,
other states’ statutes that prohibit possession or carrying of a weapon, such as New
Jersey and Massachusetts, are not titled “unlawful use of a weapon,” leaving room
for individual interpretations as to whether a conviction for mere possession in
another jurisdiction would constitute a conviction for “unlawful use of a weapon,” as
that undefined term appears in Section (b)(3)(iii) of the Chicago Firearm Ordinance.
See, e.g., N.J.S.A. 2C:39-5; M.G.L.A. 269 § 10. Further, cities and municipalities
may have their own different definitions of the offense of “unlawful use of a
weapon” that do not include mere possession, but include “intent to use” or “use of”
a weapon against another individual. See, e.g., Lenexa City (Kansas) Code, Article
3-9-I-1 (defining the offense of unlawful use of a weapon as including “possessing
with intent to use the [weapon] unlawfully against another”). Since different
jurisdictions define the offense of “unlawful use of a weapon” differently, Section
(b)(3)(iii) of the Chicago Firearm Ordinance does not provide explicit guidelines “to
prevent arbitrary and discriminatory enforcement by those enforcing the statute.”
Lim, 444 F.3d at 915. Therefore, based on the above, this court finds that Section
(b)(3)(iii) of the Chicago Firearm Ordinance is unconstitutionally void for vagueness.

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II. Constitutionality of the Ordinance under the Second Amendment
Generally, once the court finds an ordinance unconstitutionally vague, the
court need not consider whether the ordinance withstands Second Amendment
scrutiny. See, e.g., Milavetz, Gallop & Milavetz, P.A. v. United States, 130 S.Ct.
1324, 1339 (2010). However, in the instant case, even if Section (b)(3)(iii) of the
Chicago Firearm Ordinance is not unconstitutionally vague or was somehow applied
properly to Gowder, since Gowder also challenges the constitutionality of the
ordinance on Second Amendment grounds, the court will consider whether the
ordinance is constitutional under the Second Amendment.

A. Historical Overview of the Ordinance
On June 26, 2008, in District of Columbia v. Heller, 554 U.S. 570 (2008)
(Heller I), the Supreme Court of the United States held that a “ban on handgun
possession in the home violates the Second Amendment, as does [the] prohibition
against rendering any lawful firearm in the home operable for the purpose of
immediate self-defense.” Id. at 635. On June 28, 2010, in McDonald v. City of
Chicago, 130 S.Ct. 3020 (2010), the Supreme Court held that “the Due Process
Clause of the Fourteenth Amendment incorporates the Second Amendment right
recognized in Heller [I],” and that the Second Amendment right to keep and bear
arms is therefore “fully applicable to the States.” Id. at 3026, 3050. On July 2, 2010,
subsequent to the Supreme Court’s decision in McDonald, the City of Chicago
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amended the Chicago Municipal Code as it pertains to firearms.
Section 8-20-110 of the Chicago Municipal Code, in relevant part, makes it
unlawful for any person to possess a firearm without a Chicago Firearm Permit.
Chicago Municipal Code 8-20-110. The Chicago Firearm Ordinance also provides,
in relevant part, that “[n]o [Chicago Firearm Permit] application shall be approved
unless the applicant . . . has not been convicted by a court in any jurisdiction of . . .
an unlawful use of a weapon that is a firearm.” Chicago Municipal Code 8-20110(b)(3)(iii). For the purposes of this action, and under the facts of this case, the
Chicago Firearm Ordinance basically provides that anyone convicted of a nonviolent misdemeanor offense relating to a firearm is forever barred from exercising
his constitutional right to possess a firearm in his own home for self-defense. In
Count II, the court is presented with a question of first impression as to whether the
City of Chicago can bar a person who has been convicted of a non-violent
misdemeanor offense from exercising his Second Amendment constitutional right.
Gowder argues that Section (b)(3)(iii) of the Chicago Firearm Ordinance is
unconstitutional under the Second Amendment. The City of Chicago argues that
Section (b)(3)(iii) of the Chicago Firearm Ordinance is constitutional.

B. Second Amendment Right to Bear Arms
The Second Amendment states: “A well regulated Militia, being necessary to
the security of a free state, the right of the people to keep and bear Arms, shall not be
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infringed.” U.S. Const. amend. II. This court begins its analysis on the
constitutionality of Section (b)(3)(iii) of the Chicago Firearm Ordinance by
observing that in Heller I, Justice Scalia stated: “Undoubtedly some think that the
Second Amendment is outmoded in a society where our standing army is the pride of
our Nation, where well-trained police forces provide personal security, and where
gun violence is a serious problem. That is perhaps debatable, but what is not
debatable is that it is not the role of this Court to pronounce the Second Amendment
extinct.” Heller I, 554 U.S. at 636. In this case, this court is called upon to review
the constitutionality of Section (b)(3)(iii) of the Chicago Firearm Ordinance,
applying Heller I and other precedential decisions, including decisions that followed
Heller I.

C. Proper Approach in Analyzing the Constitutionality of the Ordinance
This court must first determine the proper approach in reviewing the challenge
to Section (b)(3)(iii) of the Chicago Firearm Ordinance. The Supreme Court
indicated in Heller I that the core right under the Second Amendment to possess a
firearm in one’s own home for self-defense is not absolute, and it can be restricted as
to certain individuals, such as felons. Heller I, 554 U.S. at 626-27. The issue is
whether the text, history, and tradition of the Second Amendment should control in
reviewing Section (b)(3)(iii) of the Chicago Firearm Ordinance, which takes away a
core constitutional right, or whether the court should apply a balancing test such as
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strict scrutiny or even intermediate scrutiny.2
As indicated above, in Heller I, the Supreme Court addressed the scope of
Second Amendment constitutional protections in the context of analyzing the
constitutionality of a handgun ban. The Court in Heller I held that the Second
Amendment “guarantee[s] the individual right to possess and carry weapons in case
of confrontation.” Heller I, 554 U.S. at 592. The Court in Heller I arrived at its
holding after examining “the historical background of the Second Amendment.” Id.
The Court explained that “it has always been widely understood that the Second
Amendment, like the First and Fourth Amendments, codified a pre-existing right.”
Id. (emphasis original). The Court in Heller I also concluded based upon “both text
and history, that the Second Amendment conferred an individual right to keep and
bear arms.” Id. at 595. The Court in Heller I also specifically recognized that the
Second Amendment “elevates above all other interests the right of law-abiding,
responsible citizens to use arms in defense of hearth and home.” Id. at 635; see also
McDonald, 130 S.Ct. at 3044 (indicating that the “central holding” in Heller I was
“that the Second Amendment protects a personal right to keep and bear arms for
lawful purposes, most notably for self-defense within the home”).
This “inherent right of self-defense” articulated by the Court in Heller I, which

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This court notes that some Circuits have used different approaches when addressing Second Amendment claims.
For example, the Fourth Circuit has applied a sliding scale approach, and has applied a level of scrutiny based on the
context of the restriction upon Second Amendment rights. United States v. Masciandaro, 638 F.3d 458, 470 (4th
Cir. 2011). The Second Circuit has required a showing that the regulation “operate[s] as a substantial burden on the
ability of law-abiding citizens to possess and use a firearm for self-defense (or for other lawful purposes),” before a
heightened scrutiny is triggered. United States v. Decastro, 2012 WL 1959072, at *5 (2nd Cir. 2012).

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is central to the Second Amendment right of citizens, is also articulated by Justice
Alito in his majority opinion in McDonald, stating that individual “[s]elf-defense is a
basic right . . . that is the central component of the Second Amendment right,” and
that “this right is deeply rooted in this Nation’s history and tradition.”3 McDonald,
130 S.Ct. at 3036 (internal quotations omitted); see also Ezell v. City of Chicago, 651
F.3d 684, 704 (7th Cir. 2011)(recognizing the Supreme Court’s holding that the
“‘central component’ of the Second Amendment is the right to keep and bear arms
for defense of self, family, and home”). In addition, in the concurring opinion in
McDonald, Justice Scalia explained the value of a text, history, and tradition
approach, stating that unlike the conventional balancing tests “it is much less
subjective, and intrudes much less upon the democratic process.” McDonald, 130
S.Ct. at 3058.
In addition, in Heller I, the Court did not indicate which of the “traditionally
expressed” levels of scrutiny, if any, should be applied to Second Amendment
restrictions, but explicitly rejected a “judge empowering ‘interest-balancing
inquiry.’” Heller I, 554 at 628-29, 634-35. In so doing, the Court observed that
“[c]onstitutional rights are enshrined with the scope they were understood to have
when the people adopted them, whether or not future legislatures or (yes) even future
3

Although the Second Amendment does not specifically reference the right to personal self-defense, it was a right
that was commonly understood to be a natural right at the time of the ratification of the Second Amendment. See,
e.g., Thomas Jefferson, Legal Commonplace Book (stating that “Laws that forbid the carrying of arms . . . disarm
only those who are neither inclined nor determined to commit crimes . . . ; Such laws make things worse for the
assaulted and better for the assailants.”)(quoting 18th century criminologist Cesare Beccaria). John Adams
specifically referenced self-defense, stating that “Arms in the hands of citizens [may] be used at individual discretion
. . . in private self defense.”

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judges think that scope too broad.” Id. at 634-35. The Court also advised that there
would be “time enough to expound upon the historical justifications for the
exceptions [to the right to keep and bear arms that the Court] . . . mentioned if and
when those exceptions c[a]me before [the Court].” Id. at 635.
After the Supreme Court’s analyses in Heller I and McDonald, Judge
Kavanaugh, in Heller v. Dist. of Columbia, 670 F.3d 1244 (D.C. Cir. 2011)(Heller
II) opined in extensive detail that, based upon Heller I and McDonald, there is “little
doubt that courts are to assess gun bans and regulations based on text, history, and
tradition, not by a balancing test such as strict or intermediate scrutiny.” Heller II,
670 F.3d at 1271 (Kavanaugh, J., dissenting); see also United States v. Skoien, 614
F.3d 638, 641 (7th Cir. 2010)(recognizing “the Supreme Court’s entitlement to speak
through its opinions as well as through its technical holdings”)(citing United States v.
Bloom, 149 F.3d 649, 653 (7th Cir. 1998)).
The City of Chicago has pointed to certain studies to justify Section (b)(3)(iii)
of the Chicago Firearm Ordinance. However, pointing to certain studies as a
justification to restrict a core constitutional right creates exactly the type of problem
identified by Justice Scalia in Heller I, since when reviewing the constitutionality of
an ordinance under a balancing test, as opposed to under a text, history, and tradition
approach, for every study, there can be a credible or convincing rebuttal study. For
example, the amicus brief submitted by the Illinois State Rifle Association has
pointed to different credible studies and statistics than those relied on by the City of

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Chicago. As Justice Scalia explained in McDonald, a text, history, and tradition
approach “is less subjective because it depends upon a body of evidence susceptible
of reasoned analysis rather than a variety of vague ethico-political First Principles
whose combined conclusion can be found to point in any direction the judges favor.”
McDonald, 130 S.Ct. at 3058. Thus, this court concludes that the constitutionality of
Section (b)(3)(iii) of the Chicago Firearm Ordinance should be analyzed under a text,
history, and tradition approach. In addition, as discussed in more detail below, even
under a balancing test,4 and more specifically, under a strict scrutiny test, or even an
intermediate scrutiny test, Section (b)(3)(iii) of the Chicago Firearm Ordinance does
not pass constitutional muster.

1. Text, History, and Tradition Analysis
Under a text, history, and tradition analysis, the court must assess whether “a
challenged firearms law regulates activity falling outside the scope of the Second
Amendment right as it was understood at the relevant historical moment—1791 or
1868 . . . .” Ezell, 651 F.3d at 702-03; see also Heller I, 554 U.S. at 576 (stating that
the Court is “guided by the principle that “[t]he Constitution was written to be
4

The court notes in regard to the rational-basis test that the Supreme Court has indicated that excluding individuals
from exercising their Second Amendment rights requires a substantial showing, not merely a rational connection
between the law and the stated objective. Heller, 554 U.S. at 629 n.27 (stating that “[i]f 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 prohibitions on irrational laws, and would have no effect”). The Seventh Circuit in Skoien,
614 F.3d 638 (7th Cir. 2010), citing Heller I, stated that a categorical limit on the possession of firearms analyzed
under a rational-based test, “which deems a law valid if any justification for it may be imagined,” would not be
appropriate, since “if a rational basis were enough, the Second Amendment would not do anything . . . because a
rational basis is essential for legislation in general.” Id. at 641.

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understood by the voters; its words and phrases were used in their normal and
ordinary as distinguished from technical meaning” and that “[n]ormal meaning may
of course include an idiomatic meaning, but it excludes secret or technical meanings
that would not have been known to ordinary citizens in the founding generation”)
(internal quotation omitted)(quoting in part United States v. Sprague, 282 U.S. 716,
731 (1931)). In other words, “when state or local government action is challenged,
the focus of the original-meaning inquiry is carried forward in time; the Second
Amendment scope as a limitation on the States depends on how the right was
understood when the Fourteenth Amendment was ratified.” Ezell, 651 F.3d at 702.
With respect to the time period during which the Bill of Rights was drafted and
ratified, the Court in Heller I confirmed the “historical reality that the Second
Amendment was not intended to lay down a novel principl[e] but rather codified a
right inherited from our English ancestors . . . .” Heller I, 554 U.S. at 599 (internal
quotations omitted)(quoting Robertson v. Baldwin, 165 U.S. 275, 281 (1897)). The
Court in Heller I also rejected the argument that “only those arms in existence in the
18th century are protected by the Second Amendment” and held that the “Second
Amendment extends, prima facie, to all instruments that constitute bearable arms,
even those that were not in existence at the time of the founding.” Heller I, 554 U.S.
at 582. With respect to the time period leading up to and during which the
Fourteenth Amendment was drafted and ratified, the Court in McDonald indicated
that “[b]y the 1850’s, the perceived threat that had prompted the inclusion of the
Second Amendment in the Bill of Rights—the fear that the National Government
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would disarm the universal militia—had largely faded as a popular concern, but the
right to keep and bear arms was highly valued for purposes of self-defense.”
McDonald, 130 S.Ct. at 3038. After providing a lengthy historical discussion, the
Court concluded that “it is clear that the Framers and ratifiers of the Fourteenth
Amendment counted the right to keep and bear arms among those fundamental rights
necessary to our system of ordered liberty.” Id. at 3042.
Gowder argues that Section (b)(3)(iii) of the Chicago Firearm Ordinance is
unconstitutional based upon the text, history, and tradition surrounding the Second
Amendment. In applying a text, history, and tradition analysis to the ordinance in
question, the Seventh Circuit’s decision in Skoien is instructive with regard to
Second Amendment restrictions upon violent versus non-violent individuals. In
Skoien, the Seventh Circuit addressed the constitutionality of a statute that limits
certain individuals who have engaged in violent conduct from exercising their rights
under the Second Amendment, and held that a federal statute barring individuals
from the possession of firearms based on a misdemeanor conviction of domestic
violence was not unconstitutional.5 Skoien, 614 F.3d at 641-42. While the facts in
Skoien are distinguishable from the facts of this case, since both Skoien and the
instant case relate to misdemeanants, the Seventh Circuit’s holding in Skoien is
valuable to shed light on the historical difference between violent and non-violent
misdemeanants, and whether a non-violent misdemeanant’s Second Amendment
5

18 U.S.C. § 922(g)(9) disqualifies those convicted of a “misdemeanor crime of domestic violence” from carrying
firearms in or affecting interstate commerce.

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constitutional right can be taken away based upon the text, history, and tradition of
the Second Amendment.6
In Skoien, the Seventh Circuit focused on the fact that Congress passed 18
U.S.C. § 922(g)(9) because the nature of domestic violence crimes pointed to the fact
that “many people who engage in serious spousal or child abuse ultimately are not
charged with or convicted of felonies.” Id. (stating that “Congress ‘sought to close
this dangerous loophole’ with § 922(g)(9)”). Id. at 643. The court in Skoien
explained three factors that support the notion that a ban on misdemeanants
convicted of domestic violence can be analogized to a ban on felons: (1) “that
domestic abusers often commit acts that would be charged as felonies if the victim
was a stranger, but that are misdemeanors because the victim is a relative (implying
that the perpetrators are as dangerous as felons),” (2) “that firearms are deadly in
domestic strife,” and (3) “that persons convicted of domestic violence are likely to
offend again, so that keeping the most lethal weapon out of their hands is vital to the
safety of their relatives.” Id. (stating that “[d]ata support all three of these
propositions”); see also United States v. Yancey, 621 F.3d 681, 683-84, 686 (7th Cir.
2010)(recognizing the “connection between drug use and violent crime,” and holding
that prohibiting firearm possession by unlawful users of any controlled substance or
those addicted to any controlled substance helps meet the broad goal of minimizing
armed violence and keeping firearms “out of the hands of presumptively ‘risky
6

In Heller I, the Supreme Court indicated that its ruling did not extend to prohibitions on the possession of firearms
by felons and that issue is not before this court in this case. 554 U.S. at 626.

19

people’”).
In addition, the Seventh Circuit in Skoien pointed out that “violence (actual or
attempted) is an element” of the crime of domestic violence; “it is not enough that a
risky act happens to cause injury.” Skoien, 614 F.3d at 642. The Seventh Circuit in
Skoien also found that domestic violence crimes depend heavily on the identity of the
victim and his/her relationship with the offender. Id. For example, if a perpetrator in
a domestic violence case was a stranger to the victim, he would be charged as a
felon. Id. at 643. However, in order to get a family member to cooperate in a
domestic violence case, prosecutors opt to charge the alleged offender with a
misdemeanor rather than a felony. Id. Thus, someone convicted for a domestic
violence misdemeanor is analogous to a felon, a category of individuals who
traditionally are prohibited from obtaining a firearm. Additionally, the recidivism
rate for individuals convicted of domestic violence is very high, further justifying
imposing Second Amendment restrictions on such individuals in the interest of
public safety. Id. at 644. Based on such considerations, restricting the Second
Amendment rights of individuals convicted of crimes of violence, whether felony or
misdemeanor, has been found to be constitutional.
As indicated previously, Section (b)(3)(iii) of the Chicago Firearm Ordinance
contains vague language as to the term “unlawful use of a weapon.” Chicago
Municipal Code 8-20-110(b)(3)(iii). The term “unlawful use of a weapon,” as
contained in Section (b)(3)(iii) of the Chicago Firearm Ordinance, does not

20

necessarily implicate any violent or dangerous act, since a person can be convicted in
certain jurisdictions of the offense of “unlawful use of a weapon” for merely
possessing a firearm without any violence associated with it. In contrast, as
discussed above, a misdemeanor crime of domestic violence does directly implicate a
violent and dangerous act. Also, unlike the phrase “unlawful use of a weapon” at
issue in the instant action, the phrase “misdemeanor crime of domestic violence”
addressed in Skoien was defined by the statute at issue itself. The phrase
“misdemeanor crime of domestic violence” was specifically defined, in part, as an
offense having “as an element, the use or attempted use of physical force, or the
threatened use of a deadly weapon . . . .” Skoien, 614 F.3d at 642 (citing 18 U.S.C. §
921(a)(33)).
In contrast to the plaintiff in Skoien, the plaintiff in the instant action does not
fit the description of the type of individuals from which Congress sought to protect
the public. Gowder was convicted of a misdemeanor crime that involved no violence
or direct threat to the safety of the public. A non-violent misdemeanant, such as
Gowder, stands apart from the risky or violent misdemeanants, like those plaintiffs in
Skoien or Yancey, in that there is not evidence in this case showing that Gowder falls
into the category of a risky person or embodies the type of violent citizen falling
outside the group of individuals entitled to exercise their constitutional right to bear
arms under the Second Amendment. The element of violence is a distinguishing
factor between a domestic violence misdemeanor offense and a misdemeanor offense

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for merely possessing a weapon.
In other words, Section (b)(3)(iii) of the Chicago Firearm Ordinance does not
differentiate between those who have been convicted of a felony or a misdemeanor,
or between those who have been convicted of a violent or non-violent crime, and
thus the denial of a Chicago Firearm Permit to Gowder does not find a valid foothold
in statutory history. To the contrary, Section (b)(3)(iii) of the Chicago Firearm
Ordinance lumps together non-violent misdemeanants, violent misdemeanants, and
felons. While the Supreme Court has historically allowed prohibitions as to certain
individuals, including felons and those convicted of violent crimes, at the time the
Second Amendment was passed and at the time the Fourteenth Amendment was
ratified, it was not intended to apply to non-violent misdemeanants, nor has this
group of individuals traditionally been barred from exercising their inherent Second
Amendment rights.
The 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 own homes, including, for example, a person convicted forty
years ago of simply possessing a firearm (and not unlawfully using it against
another). The Chicago Firearm Ordinance regulates a person’s core Second
Amendment right to possess a gun for self-defense by requiring that person to obtain
a Chicago Firearm Permit before he can possess a firearm in his own home. This is
not a case where a person is applying for a Chicago Firearm Permit in order to carry

22

a firearm in public. This is a case where a person is required by the City of Chicago
to apply for a Chicago Firearm Permit in order to legally possess a firearm at home
for self-defense, which is a core Second Amendment constitutional right. There is
something incongruent about a non-violent person, who is not a felon, but who is
convicted of a misdemeanor offense of simple possession of a firearm, being forever
barred from exercising his constitutional right to defend himself in his own home in
Chicago against felons or violent criminals. The same Constitution that protects
people’s right to bear arms prohibits this type of indiscriminate and arbitrary
governmental regulation. It is the opinion of this court that any attempt to dilute or
restrict a core constitutional right with justifications that do not have a basis in
history and tradition is inherently suspect. Section (b)(3)(iii) of the Chicago Firearm
Ordinance, lacking textual, historical, or traditional justification, infringes upon a
core right afforded by the Second Amendment. Therefore, under a text, history, and
tradition analysis, Section (b)(3)(iii) of the Chicago Firearm Ordinance violates
Gowder’s Second Amendment Constitutional right.

2. Strict Scrutiny Test
This court has found that the text, history, and tradition approach is the proper
approach in analyzing the constitutionality of Section (b)(3)(iii) of the Chicago
Firearm Ordinance. However, if a text, history, and tradition analysis was found not
to be the appropriate approach, then based upon the discussions regarding Second
23

Amendment rights by Justice Scalia in Heller I and McDonald and by Judge
Kavanaugh in Heller II, this court finds that the strict scrutiny balancing test would
be the most appropriate test to apply in the instant case, since “the right to possess
guns is a core enumerated constitutional right” and Section (b)(3)(iii) of the Chicago
Firearm Ordinance completely restricts that right. Heller II, 670 F.3d at 1284
(Kavanaugh, dissenting); see also Ezell, 651 F.3d at 703 (stating that “laws imposing
severe burdens get strict scrutiny”). Both Heller I and McDonald confirm that the
right to keep and bear arms is a fundamental right under the Constitution. Heller I,
554 U.S. at 593-94; McDonald, 130 S.Ct. at 3036. It is also well-established that the
strict scrutiny test is generally “applied when government action impinges upon a
fundamental right protected by the Constitution.” Perry Educ. Ass’n v. Perry Local
Educators’ Ass’n, 460 U.S. 37, 54 (1983); see also Doe v. Heck, 327 F.3d 492, 519
(7th Cir. 2003)(stating that “[i]t is well established that when a fundamental
constitutional right is at stake, courts are to employ the exacting strict scrutiny test”).
In Ezell, which is controlling precedent for this court, the Seventh Circuit
reviewed the constitutionality of a local ordinance that prohibited firing ranges
within the City of Chicago. Ezell, 651 F.3d at 689-90. At the time Ezell was
decided, the City of Chicago had a prerequisite of firing range training before people
could exercise their core constitutional right to possess guns in their own home for
self-defense, and the City of Chicago had, at the same time, prohibited firing ranges
within the city limits. Id. In reviewing the City of Chicago’s firing range ban, the

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Seventh Circuit indicated that the ban was “a serious encroachment on the right to
maintain proficiency in firearm use, an important corollary to the meaningful
exercise of the core right to possess firearms for self-defense.” Id. at 708. The
Seventh Circuit further indicated that “the City[’s] condition[ing] [of] gun possession
on range training is an additional reason to closely scrutinize the range ban.” Id.
Based on such factors, the Seventh Circuit indicated that “a more rigorous showing
than that applied in Skoien [(intermediate scrutiny)] should be required, if not quite
‘strict scrutiny.’” Id. According to the Seventh Circuit in Ezell, intermediate
scrutiny would only apply to “laws restricting activity lying closer to the margins of
the Second Amendment right, laws that merely regulate rather than restrict, and
modest burdens on the right” to bear arms. Id. Thus, in Ezell, the Seventh Circuit
stated that “a severe burden on the core Second Amendment right of armed selfdefense will require an extremely strong public-interest justification and a close fit
between the government’s means and its end.” Id. The Seventh Circuit concluded in
Ezell that the City of Chicago had not shown an extremely strong public-interest
justification or a close fit between the government’s means and its ends, and thus
granted the plaintiffs’ request for a preliminary injunction.
In the case before this court, Section (b)(3)(iii) of the Chicago Firearm
Ordinance directly restricts the core Second Amendment right of armed self-defense
in one’s home. If a regulation restricting a corollary to this core Second Amendment
right is subject to a more heightened level of scrutiny than intermediate scrutiny,

25

even if not quite strict scrutiny, then a regulation restricting the core Second
Amendment right to keep arms for self-defense within the home, such as Section
(b)(3)(iii) of the Chicago Firearm Ordinance, must be reviewed under a text, history,
or tradition approach, or at least under strict scrutiny, as discussed above. In the
instant case, unlike in Ezell, the ordinance in question completely and directly bars
certain citizens, including non-violent misdemeanants, from exercising their Second
Amendment right to protect themselves in their homes. Under Section (b)(3)(iii) of
the Chicago Firearm Ordinance, any individual who has ever been convicted of a
misdemeanor of simple possession of a gun is forever barred from possessing a gun
in his own home for self-defense because his Chicago Firearm Permit Application,
which is a prerequisite to possessing a firearm in the home, will necessarily be
denied under Section(b)(3)(iii) of the Chicago Firearm Ordinance. Thus, as
compared to the regulation at issue in Ezell, Section (b)(3)(iii) of the Chicago
Firearm Ordinance is much closer to the type of “absolute prohibition of handguns
held and used for self-defense in the home,” which was found unconstitutional in
Heller I. Heller I, 554 U.S. at 636. Therefore, a strict scrutiny test would be the
most appropriate in reviewing the constitutionality of Section (b)(3)(iii) of the
Chicago Firearm Ordinance.
Under a strict scrutiny test, “the law [at issue] must be narrowly tailored to
serve a compelling governmental interest.” Ezell, 651 F.3d at 707. While the stated
purpose of Chicago’s gun regulations is “protecting the public from the potentially

26

deadly consequences of gun violence,” strict scrutiny requires the City of Chicago to
show that Section (b)(3)(iii) of the Chicago Firearm Ordinance is narrowly tailored
to serve a compelling governmental interest. (R SAF Par. 1); Ezell, 651 F.3d at 707.
The City of Chicago argues that the City of Chicago has a high murder and nonnegligent manslaughter rate relating to gun violence. Even though the City of
Chicago provides some general data and studies, the City of Chicago fails to provide
a sufficiently detailed and proper analysis specifically addressing non-violent
misdemeanants, such as Gowder. While this court does not question the good faith
intentions of the City of Chicago to curtail gun violence, the City of Chicago has not
shown that Section (b)(3)(iii) of the Chicago Firearm Ordinance is the least
restrictive means to do so. Therefore, based upon the above, this court finds Section
(b)(3)(iii) of the Chicago Firearm Ordinance to be unconstitutional under a strict
scrutiny test.

3. Intermediate Scrutiny Test
Under an intermediate scrutiny test, regulations concerning Second
Amendment rights are valid only if they are “substantially related to an important
government objective.” Skoien, 614 F.3d at 641. To satisfy an intermediate scrutiny
test, the government’s “showing must be strong.” Skoien 614 F.3d at 641; see also
City of Los Angeles v. Alameda Books, Inc., 535 U.S. 426, 438 (2002)(stating that the
government cannot “get away with shoddy data or reasoning”). This court
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recognizes that some courts have applied an intermediate scrutiny test with regard to
certain statutes and regulations restricting firearms possession by individuals who
pose a risk of violence.7 For the same reasons discussed above relating to strict
scrutiny, and under Ezell, an intermediate scrutiny test would not be appropriate in
reviewing Section (b)(3)(iii) of the Chicago Firearm Ordinance.
However, even under an intermediate scrutiny test, which this court does not
find to be the proper test in analyzing the constitutionality of Section (b)(3)(iii) of the
Chicago Firearm Ordinance, the City of Chicago has not pointed to sufficiently
detailed evidence to show an increased likelihood of future gun violence by those
convicted of non-violent misdemeanor firearm offenses. (SAF Ex. 6). The evidence
presented by the City of Chicago does not rise to the level of evidence presented in
Skoien about predispositions to violence. In addition, the evidence presented by the
City of Chicago does not properly make a distinction between misdemeanants
convicted of firearm violations that involve violence and misdemeanants convicted
of firearm violations that do not involve violence, such as those convicted for mere
possession. Nor is there any indication that Section (b)(3)(iii) of the Chicago
Firearm Ordinance is somehow closing a dangerous loophole where non-violent
misdemeanants, like Gowder, would otherwise be convicted of felonies but for some
7

For example, in United States v. Chester, 628 F.3d 673, 678 (4th Cir. 2010), the Fourth Circuit reviewed the
constitutionality of 18 U.S.C. § 922(g)(9), which bans possession of a firearm by those convicted of a misdemeanor
crime of domestic violence, and in United States v. Reese, 627 F.3d 792, 802 (10th Cir. 2010), the Tenth Circuit
reviewed the constitutionality of 18 U.S.C. §922(g)(8), which bans possession of a firearm by those subject to a
domestic protection order. Chester, 628 F.3d at 678; Reese, 627 F.3d at 802. Chester and Reese both addressed the
constitutionality of federal statutes that applied to violent criminals, and in each case, the circuit courts applied an
intermediate scrutiny test.

28

unique aspect of the offense. Additionally, as discussed above, violence, physical
force, or the threatened use of a deadly weapon are not necessarily components of a
misdemeanor conviction for unlawful use of a weapon. In fact, Municipal Code of
Chicago Section 8-20-110(b)(3)(i), as opposed to Section 8-20-110(b)(3)(iii),
separately bars a person convicted of “a violent crime” from receiving a Chicago
Firearm Permit, thus barring such a person from exercising his constitutional right
under the Second Amendment. Municipal Code of Chicago Section 8-20110(b)(3)(i). Even one of the studies relied upon by the City of Chicago indicates
that those convicted of misdemeanors involving violence are at greatest risk for
committing future violent offenses. (SAF Ex. 6). Based on the record before this
court, the City of Chicago has not made a strong showing under an intermediate
scrutiny test that Section (b)(3)(iii) is substantially related to an important
government objective.
Due to the significant lack of evidence indicating that a non-violent
misdemeanant, like Gowder, poses a risk to society analogous to that of a felon or a
violent misdemeanant, Section (b)(3)(iii) of the Chicago Firearm Ordinance violates
Gowder’s constitutional rights under the Second Amendment under an intermediate
scrutiny test. Although this court has found that the intermediate scrutiny test is not
the proper test to apply in reviewing the constitutionality of Section (b)(3)(iii) of the
Chicago Firearm Ordinance, this court finds that Section (b)(3)(iii) of the Chicago
Firearm Ordinance does not pass constitutional muster even under an intermediate

29

scrutiny test. Based on the above, the court grants Gowder’s motion for summary
judgment on Count II.

CONCLUSION
Based on the foregoing analysis, Gowder’s motion for summary judgment is
granted and the court finds that Section (b)(3)(iii) of the Chicago Firearm Ordinance
is unconstitutionally void for vagueness and is unconstitutional for violating
Gowder’s Second Amendment constitutional right to keep and bear arms. As to
Gowder’s request for injunctive relief, the City of Chicago is barred from denying
Gowder’s application for a Chicago Firearm Permit based upon his misdemeanor
conviction that is the subject of this action. In light of this court’s holding that
Section (b)(3)(iii) of the Chicago Firearm Ordinance is unconstitutional under the
Second Amendment of the United States Constitution, Gowder’s claims in Counts I
and III are stricken as moot.

___________________________________
Samuel Der-Yeghiayan
United States District Court Judge
Dated: June 19, 2012

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