The U.S. Supreme Court could decide whether to hear legal challenges to Illinois' so-called "assault weapons" ban as early as the middle of May.
The high court has distributed for a May 16 conference the briefs filed by firearms owners, sellers and Second Amendment rights advocates and by the Illinois Attorney General's office, as challengers seek to persuade the Supreme Court to step in now, rather than wait months or years to address an "absurd" ruling from a federal appeals panel that upheld the law, but which challengers say would allow Illinois and perhaps other states to stand in direct defiance of recent Supreme Court rulings seeking to broaden Americans' rights to keep and bear arms.
Challengers argue allowing the Illinois law to stand at this juncture would embolden other Democrat-dominated states and lower courts to ignore the Supreme Court's Second Amendment rulings perhaps for a decade or more, rendering the Second Amendment rights of people living in those states "illusory," at best.
"... Far too many states and courts have already returned to business as usual, embracing any argument in service of upholding firearms restrictions, no matter how strained," wrote attorneys the National Sports Shooting Foundation and others challenging Illinois' law.
"... Protecting constitutional rights should not be a game of whack-a-mole."
The briefs by both sides were filed in April in response to petitions filed by numerous challengers earlier this year, all asking the Supreme Court to take review of the decision by two judges on the U.S. Seventh Circuit Court of Appeal upholding Illinois' gun ban law.
The plaintiffs said the Supreme Court needs to step in now to end the "defiance" of Gov. JB Pritzker, his Democratic allies in Springfield and Chicago, judges in Illinois and elsewhere who they say have all but thumbed their noses at recent Supreme Court rulings in enacting Illinois' stringent "assault weapons" ban law.
The petitions take aim at the split decision from a three-judge Seventh Circuit panel. In that decision, issued November 2023, two judges well known for their support for other laws banning "assault weapons," tossed out a Southern Illinois federal judge's injunction, which would have blocked Illinois from enforcing the so-called Protect Illinois Communities Act (PICA).
The PICA was signed into law by Pritzker in January 2023, and took effect Jan. 1, 2024.
The law includes several provisions banning a long list of semiautomatic firearms and so-called "large capacity magazines," which the state defined as ammunition magazines which can hold more than 10 rounds.
Those in defiance of the law could face steep fines or prison time.
Pritzker and other supporters of the law say it is needed to reduce future mass shootings, such as the massacre carried out by a lone gunman possessing an "assault rifle" at the 2022 Fourth of July parade in suburban Highland Park.
Challengers, however, say the law is a blatant violation of the Second Amendment, particularly as interpreted by the U.S. Supreme Court in recent decisions known as District of Columbia v Heller and New York State Rifle and Pistol Association v Bruen.
In those decision, striking down gun registration and firearms carry restrictions, the Supreme Court created tests for states and courts to use when evaluating if such restrictions are constitutional. Those tests require courts and lawmakers to evaluate if the weapons being banned are both dangerous and unusual, and if the restrictions are in keeping with U.S. history and tradition dating back to the ratification of the Second Amendment in 1791 and the Fourteenth Amendment in 1868.
Attempts to block the law have failed to this point, as federal judges in Chicago have rejected petitions for injunctions, and Seventh Circuit judges Frank Easterbrook and Diane Wood have agreed that they do not believe the law violates the Second Amendment.
In that Seventh Circuit decision, Easterbrook and Wood notably said they do not believe the Second Amendment protects the banned weapons at all, because they are too dangerous and too closely resemble "military-grade" weapons. They notably compared the semiautomatic AR-15 rifle to its fully automatic "military-grade" cousin, the M-16. They reasoned that since federal law prohibits ownership of such fully automatic rifles, then states should be free to ban any semiautomatic firearms they deem too similar.
Semiautomatic weapons fire one round for each time the trigger is pulled. Fully automatic weapons can spray numerous bullets each time the trigger is squeezed.
In filings with the Supreme Court, attorneys for Illinois Attorney General Kwame Raoul's office say the Seventh Circuit got the question right, and urged the Supreme Court to allow the challenges to continue to play out in federal courts in Chicago and East St. Louis.
They have noted, for instance, that all of the federal appeals circuit courts to consider challenges to similar gun ban laws have also rejected attempts to use the Supreme Court's reasoning in Bruen and Heller to block those laws, as well.
Challengers, however, assert such "circuit splits," which normally trigger Supreme Court review, aren't happening because the states banning the guns are playing with a home field advantage before friendly courts, and those courts are using judicial maneuvering to keep the challenges bottled up for years or even decades.
Should the Supreme Court refuse to step in now, challengers say the lower courts will only continue to defy the high court, while leaving Americans subject to the threat of criminal prosecution under allegedly unconstitutional laws.
Indeed, they note, the Seventh Circuit's reasoning, if allowed to stand, would have prohibited colonial era militia members from owning muskets, the standard military weapon of that day. And if that reasoning were to be applied today, it would permit states to ban all manner of handguns, stopping short only of a total ban on gun ownership.
"If Illinois’s ban is valid, then it is hard to see how any firearm ban other than a flat ban on handguns would violate the Second Amendment," wrote attorneys for the Firearms Policy Coalition and a group of Illinois gun owners. "That is no minor 'methodological difference.'
"Indeed, the Seventh Circuit would not even concede that 'semiautomatic weapons' are at all protected by the Second Amendment, potentially limiting constitutional protection to revolvers."
Challengers said the Seventh Circuit's decision offers the perfect opportunity for the Supreme Court to deliver a message to the lower courts that its decisions cannot be ignored or revised at will, simply because judges and state lawmakers believe the decisions make it too difficult for them to restrict gun ownership.
"... The Seventh Circuit's radical conclusions - that tens of millions of the most commonly owned firearms in the nation are not 'arms' deserving even presumptive Second Amendment protection - flies in the face of this Court's repeated promise that 'the Second Amendment extends, prima facie, to all instruments that constitute bearable arms...'" attorneys for the Gun Owners of America wrote in their brief, filed in support of their petition for review.
"... The Seventh Circuit, once again, has 'failed to protect' the Second Amendment, and this Court should act now, lest this tumor of recalcitrance metastasize," they said.
The brief filed by the National Association for Gun Rights in support of its petition added: "The State insists that it has the power to decide which weapons it will deign to allow the people to use for self-defense. But Heller says the State has it exactly backwards. The government does not tell the people which arms they can have for self-defense. That matter is definitively determined by the collective choices of the American people."
The Supreme Court has not yet ruled on the petitions for review.
Challengers are represented by attorneys Paul D. Clement, Erin E. Murphy, Matthew D. Rowen and Mariel A. Brookins, of the firm of Clement & Murphy, of Alexandria, Virginia; and Gary C. Pinter, of Martin Swanson & Bell, of Edwardsville, on behalf of the NSSF;
Attorney Barry K. Arrington, of the Arrington Law Firm, of Wheat Ridge, Colorado, on behalf of The National Association for Gun Rights;
Attorneys David H. Thompson, Peter A. Patterson and William V. Bergstrom, of the firm of Cooper & Kirk PLLC, of Washington, D.C.; and attorney David Sigale, of Lombard, for the Firearms Policy Coalition; and
For the Gun Owners of America, attorneys Stephen D. Stamboulieh, of Stamboulieh Law PLLC, of Olive Branch, Mississippi; Oliver M. Krawczyk, of Ambler Law Offices, of Carlisle, Pennsylvania; and Robert J. Olson, William J. Olson and Jeremiah L. Morgan, of William J. Olson P.C., of Vienna, Virginia.