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Federal judge rules city ban on handgun sales unconstitutional

Chicago Police Supt. Garry McCarthy looks guns table threpresent whpolice officers are taking off streets Chicago Jan. 14 2013.

Chicago Police Supt. Garry McCarthy looks at guns on a table that represent what police officers are taking off the streets of Chicago on Jan. 14, 2013. I Sun-Times file photo

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Updated: February 8, 2014 6:29AM



Gun dealers can set up shop in Chicago, a federal judge has ruled — declaring the city’s ban on firearms sales unconstitutional.

U.S. District Court Judge Edmond E. Chang wrote in a 35-page opinion published Monday that Chicago’s 2010 ordinance banning gun sales within city limits “goes too far in outright banning legal buyers and legal dealers from engaging in lawful acquisitions and lawful sales of firearms.”

Though Chang stayed his ruling to give the city a chance to appeal — and said a less restrictive ordinance than the unconstitutional blanket ban could yet pass muster — lawyers for the Illinois Association of Firearm Retailers were quick to predict that neighborhood gun stores could now open before the end of 2014.

The ruling is the latest in a series of legal blows to the city’s efforts to restrict gun ownership since the Supreme Court in 2010 ruled Chicago’s handgun ban unconstitutional.

City Hall attorneys had argued that the gun sale ban makes it harder for criminals to get their hands on weapons.

Chang agreed the city had a “fundamental duty” to protect its citizens and acknowledged that “the stark reality facing the City each year is thousands of shooting victims and hundreds of murders committed with a gun.”

But he wrote that the Second Amendment right to keep and bear arms for self-defense “must also include the right to acquire a firearm.”

“If all cities and municipalities can prohibit gun sales and transfers within their own borders, then all gun sales and transfers may be banned across a wide swath of the country if this principle is carried forward to its natural conclusion,” he added.

The judge was unmoved by the city’s efforts to prove that the gun sale ban disproportionately affected “parochial” gang members who might find it hard to cross rival gang boundaries to travel to the suburbs, where many guns used in crime are currently purchased.

Though nearly all illegally used guns were originally sold by licensed dealers, “guns used in crimes generally pass through several hands before being acquired by the ultimate perpetrator,” the judge wrote.

He suggested that “straw purchasers” who use their clean criminal backgrounds to buy guns for criminals can be tackled by “more focused approaches, such as law enforcement operations that target dealers who would sell to straw purchasers.”

Nothing in his ruling stops Chicago Police from enforcing gun laws, or “prevents the City from considering other regulations — short of the complete ban — on sales and transfers of firearms to minimize the access of criminals to firearms and to track the ownership of firearms,” Chang wrote.

Any new ordinance could include zoning restrictions that limit the parts of the city in which the gun shops can do business, he suggested.

“The Mayor strongly disagrees with the Court’s decision and has instructed the City’s Corporation Counsel to consider all options to better regulate the sale of firearms within the city’s borders. Every year Chicago Police recover more illegal guns than officers in any city in the country, a factor of lax federal laws as well as lax laws in Illinois and surrounding states related to straw purchasing and the transfer of guns. We need stronger gun safety laws, not increased access to firearms within the city,” city law department spokesman Roderick Drewcity said in an emailed statement.

The plaintiffs in the lawsuit — a handful of Chicago residents who teamed up with firearms retailers — declared themselves thrilled with the ruling.

Rogers Park retiree and NRA member Kenneth Pacholski, 56, was among the gun owners who filed the lawsuit.

“This is a very good ruling for us — it’s all about being able to defend ourselves,” he said.

Pacholski said legal gun owners “watch who we sell guns to,” whereas criminals “are already easily buying guns that are not legal.”

“I think this will make the city safer,” he said.

And attorney Charles J. Cooper, who represented the plaintiffs, said, “The bottom line is that the law affords citizen of Chicago and the state of Illinois the right to possess firearms to defend themselves, so it follows that they have a right to legally purchase those firearms.”

Disappointed gun control advocates say they saw the decision coming.

“In a way it’s not surprising, because of the way the courts have been ruling,” said Mark Walsh, campaign director of the Illinois Council Against Handgun Violence.

Walsh said efforts to crack down on straw purchasers will be vital to prevent the problems activists have previously complained about at Chuck’s Guns in South Suburban Riverdale, where nearly one in five guns used in Chicago crimes between 2008 and 2012 were originally bought, according to police.

Email: kjanssen@suntimes.com

Twitter: @kimjnews



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