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Judge strikes down part of Chicago gun law as unconstitutional

U.S. District Judge Samuel Der-Yeghiayan | Al Podgorski~Sun-Times

U.S. District Judge Samuel Der-Yeghiayan | Al Podgorski~Sun-Times

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Updated: July 21, 2012 6:21AM

A federal judge in Chicago on Tuesday struck down a portion of the city’s firearm ordinance, calling it unconstitutional.

U.S. District Judge Samuel Der-Yeghiayan ruled in favor of a Chicago man who challenged a section of the city’s gun law after he was denied a permit because of a misdemeanor conviction.

Der-Yeghiayan, in a 30-page ruling, called that part of the Chicago Firearm Ordinance “unconstitutionally void for vagueness,” and said it violated Shawn Gowder’s right to keep and bear arms under the Second Amendment of the U.S. Constitution.

Gowder had filed a federal lawsuit challenging a portion of the ordinance that 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.” Under Chicago municipal code, it is unlawful for someone to possess a firearm without a Chicago firearm permit.

In Gowder’s case, he had been convicted in Illinois in 1995 with the unlawful use of a weapon. He was not accused of discharging a weapon illegally, however, but only with the possession of a firearm. At the time, the charge was a felony. But that law was challenged, according to the federal court opinion, and Gowder’s conviction was downgraded to a misdemeanor.

“The only thing that Mr. Gowder did was to own a firearm as he was entitled to do under the Second Amendment. As a result of that he was treated as a criminal by the City of Chicago when all he did was exercise his fundamental Second Amendment rights,” said his attorney, Stephen A. Kolodziej. “We think the City of Chicago’s actions in denying Mr. Gowder a firearm permit were punitive and draconian as well as violative of his Second Amendment right to keep and bear arms.”

Gowder does have an Illinois Firearm Owner’s Identification Card, but the City of Chicago denied a local permit, citing his conviction.

“There is something incongruent about a nonviolent 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,” Der-Yeghiayan wrote. “The same constitution that protects people’s right to bear arms prohibits this type of indiscriminate and arbitrary governmental regulation.”

In court filings, the city had urged Der-Yeghiayan to rule against Gowder, citing studies that indicated a greater likelihood that those convicted of misdemeanor crimes and who bought guns could be more trouble down the road.

“Handgun purchasers with at least one misdemeanor conviction had a 7.5 times higher risk for a later offense,” the city wrote, citing a study that Gowder’s lawyers said was flawed.

“The study importantly concluded that convicted misdemeanants like Plaintiff, who choose to own weapons — exactly what Plaintiff desired to do — are at an increased risk for committing future violent crimes,” the city countered.

The city’s ordinance on guns has long been contested, including in cases that went to the U.S. Supreme Court. In 2010, the U.S. Supreme Court struck down the city’s 28-year-old handgun ban.

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