Gowder v. Chicago

A

Al Norris

Moderator Emeritus
The case is Gowder v. City of Chicago, et al. The case was filed a little over a year ago and has been speedily concluded... At this stage. I fully expect that Chicago will appeal and motion for a stay at the same time.

The amended complaint may be read here: http://www.archive.org/download/gov.uscourts.ilnd.252864/gov.uscourts.ilnd.252864.13.0.pdf

The opinion of the court is here: http://www.archive.org/download/gov.uscourts.ilnd.252864/gov.uscourts.ilnd.252864.66.0.pdf

A look at the docket (http://www.archive.org/download/gov.uscourts.ilnd.252864/gov.uscourts.ilnd.252864.docket.html) will show you what has happened.

What is interesting about this case, other than it was completely under the radar, is what the Judge has done. In finding for the plaintiff, the judge made 4 separate findings. 1) The ordinance in question was unconstitutionally void for vagueness. 2) The ordinance was unconstitutional as it violated Gowder's 2A rights when analyzed under text, history and tradition. 3) Using Strict Scrutiny, the ordinance unconstitutionally violated Gowder's 2A rights. 4)Using Intermediate Scrutiny, the ordinance unconstitutionally violated Gowder's 2A rights.

Pick one. The Judge covered all his bases.

It goes even further, as like Judge Legg in Woolard, Judge Der-Yeghiayan cited just about every 7th circuit precedent that went to his points. In order to overturn this decision, the circuit would have to overturn both Skoien and Ezell. That's just not going to happen.

Unlike Ezell, Chicago is not going to be able to get a quick fix in the wording, as the Judge made it very plain that the City cannot void the rights of non-violent misdemeanants.
 
Now that is a ruling!

Granted, the scope of this particular case is relatively narrow (possession for non-violent misdemeanants). I'll take a convincing win anytime!

Now, to broader questions...
1) How strong would the RTKBA be under the chosen method of review, compared to strict or intermediate scrutiny?
2) How likely is it that higher courts will use the method chosen here?
3) How will this case affect the precedents and interpretations used by other courts, especially given the relatively narrow scope and "under-the-radar-ness?"
 
As you know, I am not an attorney, but here are my views, as a layperson.

1) How strong would the RTKBA be under the chosen method of review, compared to strict or intermediate scrutiny?
The Court in Heller used the Text of the amendment, its History and the associated Traditions (TH&T) to find that the right enumerated was a personal right. That right, at its core, was the right to self preservation (self defense). The Court observed that the laws in question, did not meet any means-end scrutiny (another name for "interest balancing) that the Court had used in evaluating core enumerated rights and struct them down as unconstitutionally infringing the core right to keep and bear arms.

The Court in McDonald used the same method to incorporate the 2A within the meaning of the 14th amendment and held that the States (and by direct implication, the local governments) could not infringe the core right of self defense. The Chicago gun laws were stricken as they pertained to banning firearms in the home.

The 7th Circuit in Skoien, opined the same thing. But because the matter in front of the panel dealt not with a law-abiding citizen, but a criminal convicted of domestic violence, this court found that a means-end scrutiny was warranted. The court went on to say that a different approach might be used, if the firearms were those that were protected for the core purpose of self defense, instead of the claimed hunting purpose of the appellant.

This was at least two steps away from the core of the right and means-end scrutiny was applied - In this case, Intermediate.

The 4th Circuit said the same thing in Chester. As did the 1st Circuit in Rehlander.


The 7th Circuit in Ezell used TH&T reasoning to arrive at the conclusion that training was a small step away from the core right and therefore banning gun ranges within the City when the city required range time to be unlawful. Again, because this was a step away (even if rather small) from the core, a means-end scrutiny was applied - Not quite Strict Scrutiny.

What this means is that a new test has been adopted by the Supreme Court that can (and has) avoid(ed) any issue(s) of scrutiny. This is a standard that is elevated above any broad (or narrow) issues of balancing the interests of the State against that of the citizen.​
2) How likely is it that higher courts will use the method chosen here?
As explained in the above detailed answer, it is already being used.​
3) How will this case affect the precedents and interpretations used by other courts, especially given the relatively narrow scope and "under-the-radar-ness?"
Lower court decisions are not precedent. They are not binding upon any other court, even those in the same district.

To become "precedent," a case must be appealed and the appeal must uphold the lower courts decision. However, even this is only "precedent" within that specific circuit. Other circuits can take notice, as this becomes "persuasive precedent."

That does not mean that this decision is without any merit. It can be cited as an authority. As more lower courts decide in our favor, it tends to gather steam and other district court judges will begin to take real notice.

The fact that this case was below the radar to us, means nothing. It merely means that those of us watching for this stuff, did not "see" it.​
4) How will this affect those barred from owning firearms for misdemeanor domestic violence convictions/restraining orders?
It is going to have a place. How much of a place remains to be seen.

What we have to remember is that Gowder was not a violent criminal, whereas Lautenberg Amendment by its very wording was aimed at violent acts. We are really going to have to see what Donald Kilmer does with this, in his appeal with the Enos case.

My personal opinion? This is not going to have as much effect in either Enos or Schrader. The underlying facts are much different. But we shall see.

What I think we will begin to see is that the elevation of TH&T over strict scrutiny, in 2A cases, will be a good thing overall.​
 
4) How will this affect those barred from owning firearms for misdemeanor domestic violence convictions/restraining orders?
Click to expand...
It may not affect them at all. There's a Federal law covering that, and the applicable Federal law isn't the subject of this lawsuit.

Plus, a conviction for domestic violence by definition isn't a conviction for a non-violent misdemeanor.
 
Gowder wasn't convicted of domestic battery or an assault or anything like that. He didn't have misdemeanor domestic violence convictions/restraining orders.

In almost anyplace in the country if a person strikes someone - whether it be your spouse at home or a stranger in a bar, it's recognized as a crime.

What Gowder did is not a crime in many places in the country, he simply had a firearm in his possession.

If this hadn't been overturned, it would have allowed previous infractions of an unconstitutional law to ban purchase or possession of firearms in the future.
 
One slightly dissapointing thing...

“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 said.
Click to expand...

I wish he would have left "In the Home" out his remarks, it seems to reference the erroneous "in the home" principle that the lower courts have been promulgating.
 
Can't hardly fault the Judge for using that term, when the case was all about Mr. Gowder getting his Chicago handgun permit so he could have his gun, in his home.
 
I was doing some research on Shawn Gowder and he has a pretty interesting story.

He lived in a crime ridden neighborhood and 16 years ago, he stopped for cigarettes at a gas station near his home one night, when he went in to get his cigarettes gun fire erupted outside and his minivan was shot full of holes.

As far as anyone can tell he wasn't targeted or anything it was just a random act of violence. He drove around in that van for years, refusing to have it repaired, so that others would know the extent of the dangers he and his neighbors faced daily.

Can you imagine that as a conversation starter? What a great segway to talk about RTKBA !

I believe he started carrying after that - although I don't know the details of the story.

He also became involved with the Illinois Rifle Association and gun rights.
 
Ginny Simone interviews Shawn Gowder on NRA News

I can't link directly to it, you have to go to the NRA news page:

http://nranews.com/#/nranews/guide/ipg

The story is titled "Shawn Gowder"

I found out from the interview that Chicago offered to give Gowder his permit if he'd drop the case, and he refused.

This guy is a champ.

Also a follow-on interview with Todd Vandermyde their NRA lobbyist in IL. That story is called "Todd Vandermyde".
 
The significant part of the ruling is that it states that an individual right is superior to government's authority. Simply approaching the law based on interesting balancing tilts the balance in favor of socialism. The government will always rule in favor of the government, just ask Justice Roberts. I was stunned by the judge's rejection of interest balancing as struck down in Heller. It is long overdue. :)
 
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