“[7th Circuit Court of Appeals] Judge [Diane] Sykes offers a exemplar of how to perform meaningful constitutional scrutiny–something absolutely devoid in most Second Amendment caselaw. Rather than imposing the burden on the person asserting the right, or even worse, assisting the government by providing arguments that were never advanced in court, Judge Sykes asks the City to provide actual evidence to support its purported interest in public safety,” notes law professor Josh Blackman in his blog post entitled “Judge Sykes Illustrates How To Perform Meaningful Constitutional Scrutiny By Requiring Actual Evidence.” (Read the full post at JoshBlackman.com.)


The Ezell II decision –authored by Judge Sykes and issued just 2 days ago, on January 18 – held that:

We explained in Ezell I that the City cannot defend its regulatory scheme “with shoddy data or reasoning. The municipality’s evidence must fairly support the municipality’s rationale for its ordinance.” 651 F.3d at 709 (quoting City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 438 (2002)). To borrow from the free-speech context, “there must be evidence” to support the City’s rationale for the challenged regulations; “lawyers’ talk is insufficient.” Annex Books, Inc. v. City of Indianapolis, 581 F.3d 460, 463 (7th Cir. 2009). Here, as in Ezell I, the City’s defense of the challenged zoning rules rests on sheer “speculation about accidents and theft.” 651 F.3d at 709. That’s not nearly enough to satisfy its bur-den. The manufacturing-district and distancing restrictions are unconstitutional.

The 7th Circuit’s Ezell I decision was also authored by Judge Sykes.

As Blackman accurately points out in his post:

In other areas of law, courts are perfectly capable of striking down laws that are not based on actual evidence. In Whole Women’s Health, for example, the Court even rejected evidence provided by Texas, claiming that it was pretextual, and not really about health and safety concerns. If the courts applied Whole Women’s Health scrutiny to the Second Amendment–which is actually an enumerated right, rather than an emanation from the Due Process Clause–very few gun laws would survive. With the exception of laws barring violent felons from owning arms, or other regulations that consider a person’s propensity to harm others, most gun control measures have only the weakest evidentiary nexus with public safety, and are designed to stigmatize gun owners for exercising their civil rights.

Judge Sykes is on President Donald Trump’s “short list” of potential nominees to fill the seat on the Supreme Court vacated upon the tragic loss of Justice Antonin Scalia last year.

Yesterday, this decision was cited in a letter to the 9th Circuit by attorney Donald Kilmer in the federal Second Amendment lawsuit Teixeira v. County of Alameda, which is challenging the County’s de facto ban on gun stores. The 9th Circuit’s panel decision in Teixeirasimilarly held that a “distance”-based ban on gun dealers could be unconstitutional. However, the Court voted to vacate that panel decision and re-hear the case en banc (before a “full court”) in March.

Your Firearms Policy Coalition has filed important briefing in that case supporting a pro-gun outcome to protect the right to keep and bear arms from being “zoned out” by state and local regulations.