Saturday, March 14, 2020

Champaign (Ill.) Emergency Order Doesn't Ban Guns, But Does Authorize (Likely Unconstitutional) Emergency Gun Bans

By Eugene Volokh - March 14, 2020 at 01:17PM

Thursday, the mayor of Champaign (Ill.) declared an emergency, based on the coronavirus epidemic, and Friday the city council approved the declaration. This in turn triggered a 2006 ordinance that authorized the mayor to do many things, including

(2) Order a general curfew …;

(4) Order the discontinuance of the sale of alcoholic liquor by any wholesaler or retailer;

(5) Order the discontinuance of selling, distributing, or giving away gasoline or other liquid flammable or combustible products in any container other than a gasoline tank properly affixed to a motor vehicle;

(6) Order the discontinuance of selling, distributing, dispensing or giving away of explosives or explosive agents, firearms or ammunition of any character whatsoever;

(7) Order the control, restriction and regulation within the City by rationing, issuing quotas, fixing or freezing prices, allocating the use, sale or distribution of food, fuel, clothing and other commodities, materials, goods or services or the necessities of life;

(8)(a) Order City employees or agents, on behalf of the City, to take possession of any real or personal property of any person …;

(b) In the event any real or personal property is utilized by the City, the City shall be liable to the owner thereof for the reasonable value of the use or for just compensation as the case may be …;

The list goes on, but recall that this is the general grab-bag authorization from the ordinance; it's not a specific choice to include any of the provisions in this particular emergency declaration. I've seen no indication that the mayor has any plans related to blocking sales of alcohol or guns or ammunition or anything else (or for that matter seizing guns or ammunition, as part of the authorization for seizing property generally). The City Attorney specifically said "the city doesn't plan to use" these particular provisions. (The ordinance, by the way, is patterned on an Illinois statute, which dates back at least to 1988, that provides for similar emergency powers on the Governor's part, though the ordinance mentions ammunition and the statute doesn't.)

I thus think that it's a mistake to describe this—as some headlines ("Champaign Illinois First Locality To Cite 'Emergency Powers' To Ban Gun Transfers") seem to do—as a ban on gun sales, just as we wouldn't call it a ban on alcohol sales. I expect that both kinds of sales are proceeding at their normal pace, or perhaps even more than normal, notwithstanding the ordinance. The ordinance is an authorization of such bans, should the mayor conclude that an emergency requires it, and one can disapprove of that; but it's not actually a ban itself.

Now any broad order actually forbidding gun and ammunition sales and transfers (which would cover a friend seeing a bag of hundreds of rounds in his closet from the last target-shooting trip, and sharing it with relatives or friends) may well be unconstitutional. Bateman v. Perdue, a 2012 federal district court case from North Carolina struck down certain North Carolina statutes related to guns in emergencies:

The first statute, North Carolina General Statute § 14-288.7, makes it a Class 1 misdemeanor "for any person to transport or possess off his own premises any dangerous weapon or substance in any area" in which a state of emergency has been declared. The other statutes at issue in this case authorize government officials to impose further "prohibitions and restrictions[]… [u]pon the possession, transportation, sale, purchase, storage, and use of dangerous weapons and substances" during a state of emergency.

The court concluded that the Second Amendment protects guns outside the home as well as inside (a matter on which federal courts are in disagreement, though the Seventh Circuit seems to lean in the same direction as did the North Carolina federal court); and it held—correctly, I think—that both prohibitions were unconstitutional:

North Carolina General Statute § 14-288.7 prohibits the transportation or possession of both "deadly weapons" and ammunition off one's own premises. This prohibition applies equally to all individuals and to all classes of firearms, not just handguns. It is not limited to a certain manner of carrying weapons or to particular times of the day. Most significantly, it prohibits law abiding citizens from purchasing and transporting to their homes firearms and ammunition needed for self-defense….

While the bans imposed pursuant to these statutes may be limited in duration, it cannot be overlooked that the statutes strip peaceable, law abiding citizens of the right to arm themselves in defense of hearth and home, striking at the very core of the Second Amendment. As such, these laws, much like those involved in Heller, are at the "far end of the spectrum of infringement on protected Second Amendment rights."

That being the case, the emergency declaration statutes are presumed invalid, and defendants bear the burden of rebutting that presumption by showing that the laws are narrowly tailored to serve a compelling government interest. This defendants have failed to do.

There is no dispute that defendants have a compelling interest in public safety and general crime prevention. "'[P]rotecting the community from crime' by keeping guns out of the hands of dangerous persons is an important governmental interest."

The problem here is that the emergency declaration statutes, are not narrowly tailored to serve the government's interest in public safety. They do not target dangerous individuals or dangerous conduct. Nor do they seek to impose reasonable time, place and manner restrictions by, for example, imposing a curfew to allow the exercise of Second Amendment rights during circumscribed times.

Rather, the statutes here excessively intrude upon plaintiffs' Second Amendment rights by effectively banning them (and the public at large) from engaging in conduct that is at the very core of the Second Amendment at a time when the need for self-defense may be at its very greatest. See D.C. v. Heller ("[A]mericans understood the 'right of self-preservation' as permitting a citizen to 'repe[l] force by force' when 'the intervention of society in his behalf, may be too late to prevent an injury.'" (quoting Blackstone's Commentaries)). Consequently, the emergency declaration laws are invalid as applied to plaintiffs.

Gun restrictions imposed under the Champaign ordinance would thus be unconstitutional, unless perhaps they were somehow particularly "narrowly tailored" to "target[ing] dangerous individuals" or "dangerous conduct" (as opposed to merely acquiring guns or ammunition).

Nonetheless, while it's certainly worth noting that the ordinance authorizes something that's likely unconstitutional (and certainly quite burdensome on people's ability to defend themselves), there has so far been no attempt to exercise this power, and no indication that the mayor has any plans to exercise the power. We're talking about an authorization of a ban—and perhaps one that wasn't specifically intended by the Mayor and City Council right now, though it had been intended by the drafters of the ordinance and the statute on which it was based—not a ban as such.


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