A sharply divided Illinois Supreme Court has deadlocked on the question of whether the village of Deerfield can legally ban assault weapons, meaning the local ordinance will be allowed to stand, thanks to a narrow win for Deerfield at a lower state appeals court.
On Nov. 18, the Illinois Supreme Court announced it had split on the legal challenge to the north suburban community’s ordinance banning the possession of all weapons it defines as “assault weapons” within its boundaries.
While there are seven members of the court, the high court declared one justice had recused himself from the case. The order from the court indicated Justice Michael J. Burke took no part in the decision. The order does not indicate why Burke recused himself.
Under the state constitution, the state Supreme Court is required to have four members concur in a decision for the court to rule.
In this instance, the court indicated the remaining six justices were “divided so that it is not possible to secure the constitutionally required concurrence.”
Generally, the Illinois Supreme Court is considered to have four Democrats – Chief Justice Anne M. Burke and justices Mary Jane Theis, P. Scott Neville and Robert L. Carter - and three Republicans, including justices David L. Overstreet, Rita B. Garman and Michael Burke (no relation to the chief justice.)
The court did not indicate how it was divided on the question. No justices offered any opinions on the split.
However, the court’s lack of action on the decision means a decision by two justices of a state appeals court, in favor of the gun ban, will decide the outcome of the case.
The legal arguments have zeroed in on actions Deerfield took in recent years to tightly restrict who can own certain firearms within the village.
Deerfield first enacted an ordinance in 2013 regulating the transportation and storage of “assault weapons.”
In 2018, under former Deerfield Mayor Harriet Rosenthal, the village followed that up with tighter restrictions, citing a state law granting so-called home rule units of local government, the power to ban the possession of “assault weapons” and large capacity magazines, for anyone who was not a member of the military or law enforcement.
The 2018 ordinances prompted legal challenges from the Illinois State Rifle Association, together with Deerfield resident Daniel Easterday and the Second Amendment rights organization, Guns Save Life Inc.
Lake County Circuit Judge Luis Berrones ruled against the village, barring Deerfield from enforcing the bans.
But after Deerfield appealed, two justices on the Second District court said Deerfield should be allowed to enforce the ban on firearms it defined as assault weapons.
The decision was authored by Justice Kathryn Zenoff, with Justice Donald Hudson concurring. Justice Robert McLaren dissented.
According to Zenoff and Hudson, Deerfield’s initial gun regulation ordinance took effect eight days before Illinois lawmakers amended the state Concealed Carry Act and Firearm Owner Identification (FOID) Act, which generally prohibited home rule units of local government, like Deerfield, from restricting gun ownership locally.
However, Deerfield argued it enacted the assault weapons ban ordinance within a 10-day window the Illinois General Assembly specified for home rule units, permitting it to participate in a “unique, hybrid form of concurrent jurisdiction over assault weapons.”
In the majority decision, Zenoff wrote: “The Legislature intended that home rule units would be precluded from regulating assault weapons unless they took steps, within the prescribed timeframe, to regulate the possession or ownership of assault weapons in a manner that is inconsistent with the FOID Card Act.”
While the village’s ordinance is not consistent with the FOID Act, Zenoff said the village still “preserved its power to regulate assault weapons” by passing the ban within what she said was a state-approved time window.
In his dissent, McLaren said the 2018 regulations were improper because the new ordinance didn’t merely amend the 2013 ordinance, but amounted to new rules.
“Deerfield did not regulate ownership in 2013; its addition of ownership in the 2018 ordinance indicates an attempt to write new legislation, not to amend an ordinance that did not regulate ownership,” McLaren wrote.
The plaintiffs appealed to the Illinois Supreme Court. The state high court accepted the case, and heard arguments Sept. 22.
However, the justices could not muster up four justices on either side.
The plaintiffs were represented before the Supreme Court by attorneys Christian D. Ambler, of Stone & Johnson, of Chicago; and David H. Thompson, Peter A. Patterson and Brian W. Barnes, of Cooper & Kirk PLLC, of Washington, D.C.
Deerfield has been represented by attorneys Christopher B. Wilson, Kathleen A. Stesko and Kathryn A. Campbell of Perkins Coie LLP; and Steven M. Elrod and Hart M. Passman, of Elrod Friedman LLP, all of Chicago; and Jonathan E. Lowy, of the Brady Center to Prevent Gun Violence, of Washington, D.C.