Illinois has became the ninth state to pass a law banning so-called assault weapons, amid sweeping new firearms restrictions taking aim at what supporters of the law call "weapons of war."
But the law, which gun owners' rights groups have called unconstitutional overreach by the state's Democrat-dominated government, will face a strong test when it undoubtedly lands in front of federal judges, and potentially the U.S. Supreme Court in coming weeks and months.
House Bill 5471, signed into law by Gov. Pritzker Tuesday, bans the purchase, sale and manufacture of a long list of semi-automatic weapons, .50-caliber rifles and ammunition and so-called large capacity magazines.
Andrew Willinger
| Duke Law
The law doesn't require legal owners of the now-prohibited weapons to surrender their firearms. But the law does require owners of the otherwise-banned guns to register their weapons within the next 12 months.
Andrew Willinger, executive director for the Duke University Center for Firearms Law in North Carolina, said he said does not see a major constitutional issue with the new Illinois law's gun registry demands.
But he said the law's ban on so-called assault weapons could provide federal courts an opportunity to address a key, longstanding question on whether such assault weapons bans are actually constitutional. He noted that question has not been addressed in any of its recent landmark Second Amendment decisions, including District of Columbia v Heller in 2008, which guaranteed a person’s right to possess firearms independent of service in a state militia and to use firearms for traditionally lawful purposes, and New York State Rifle and Pistol Association v Bruen in June 2022, which struck down state laws requiring people to provide a good reason for wanting a concealed carry weapon permit.
"That’s an area where we haven’t seen the Supreme Court weigh in directly on that question ever," Willinger said. "But there were some cases between Heller and Bruen that went out to the court and, although the court denied certiorari, there were certain justices who wrote very impassioned dissents saying these are important cases, we need to take them and, I think, clearly signaling that they thought assault weapons bans were likely unconstitutional under the Second Amendment.”
U.S. Supreme Court’s holding in Bruen struck down a New York gun law that placed restrictions on carrying a concealed handgun outside the home. The June ruling, authored by Justice Clarence Thomas, said the state’s licensing regime violated the Constitution, since the state issued public-carry licenses only when an applicant demonstrated a special need for self defense.
In Bruen, Thomas instructed the lower courts to determine if gun restrictions are “consistent with the nation’s historical tradition of firearm regulation."
Following Bruen, more development is needed on this textual question, Willinger said, and then to figure out how courts are going to do that analysis.
“If a court determines these weapons are commonly used for self defense for lawful purposes then, under Bruen, the next step is: Can Illinois point to historical analog, similar historic laws that are regulated in the same way and were justified in the same way?” he said.
"That’s really challenging when you’re talking about technological advancement. Weapons that didn’t exist at the time of the (U.S.) founding, or if there were weapons at the time of the Founding that could fire multiple rounds in a certain period of time, they were very rare and they weren’t commonly owned, so you wouldn’t expect to see laws regarding those weapons,"Willinger said.
John Boch, executive director of Guns Save Life, said the Bruen decision will strengthen the pro-gun group’s fight in court. Guns Save Life and others, including the Illinois State Rifle Association and downstate attorney Tom DeVore, the most recent Republican nominee for Illinois Attorney General, have promised lawsuits, potentially very swiftly, as they seek to bar the state from ever enforcing the new law.
Guns Save Life has indicated since December that it intended to partner with other groups, including the Second Amendment Foundation and the Federal Firearms Licensees of Illinois to quickly challenge any kind of assault weapons ban enacted by Illinois state lawmakers. The group says litigation could come as early as the week of Jan. 15.
Boch said the law is unconstitutional and disarms victims, not criminals. His organization will seek a temporary restraining order from the federal district court, he said, and will appeal the matter as far as the U.S. Supreme Court, if necessary
"Between the precedent and the Bruen case and decision itself, yeah, I am 1,000 percent confident this isn’t going to stick,” he said. "This is all symbolism over substance.”
Sean Holihan, state legislative director for gun control advovacy group Giffords: Courage to Fight Gun Violence, said his organization was involved in drafting the bill and feels the bill is strong. Holihan said he is hopeful it will hold up in court.
"Previous to Bruen, federal courts overwhelming upheld assault weapons, high capacity magazines and similar restrictions. We’re obviously in somewhat new territory here after Bruen. We don’t know what the Supreme Court is going to do,” Holihan said. "We certainly expect a lot of legal challenges, but if the courts don’t overturn their own precedents, we believe these restrictions will hold."
Holihan said the Giffords group supports the Second Amendment and does not believe banning these kinds of weapons, which he said are used for combat and mass killing, limits a person’s self defense abilities.
The Supreme Court has repeatedly recognized the nation’s clear “historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons'" for the purpose of protecting public safety, according to a Giffords statement. Giffords said legal precedents predating Heller and Bruen indicate that bans on dangerous and unusual “weapons that are most useful in military service” are “presumptively lawful regulatory measures."
"...Courts (have) routinely explained that the Second Amendment right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose," Giffords said in their statement.
Willinger said those wishing to can an inkling of what might happen in Illinois should watch cases emerging from California and Maryland, in particular. He said we will likely see decisions from appeals courts there, which will likely go to the U.S. Supreme Court.
The Bruen case, he said, did not change the initial inquiry of whether the Second Amendment was implicated by a certain law. Willinger said the question of whether so-called assault weapons can be banned under the Second Amendment is similar to the question of the kinds of speech that are protected under the First Amendment. He noted there are certain kinds of speech that fall outside the otherwise broad protections of the First Amendment, such as defamation.
"Similarly, the court has said in the Heller case in 2008 and has reaffirmed, that there needs to be an initial inquiry that just looks at the text of the amendment and determines whether the law actually regulates conduct that even implicates Second Amendment rights at all,” he said.
Prior to Bruen, courts tended not to do this analysis, Willinger said, or at least not as closely. Under the prior test, courts could weigh whether a certain law could be effective in reducing gun violence, which the courts have said is a legitimate government and public interest. There was an assumption that prohibited weapons were protected by the Second Amendment. But judges could decide the case by determining if there was empirical evidence supporting the restrictions.
"What we’re starting to see now with some decisions coming out — we haven’t really seen any with assault weapons specifically — but there have been a couple challenges to large capacity magazine bans in other states," Willinger said. "Courts are starting to focus a lot more on this initial textual inquiry. Are these weapons protected? Are they in common use for lawful purposes? That’s the standard the Supreme Court has articulated for when a weapon is within the scope of the Second Amendment. It’s not yet clear how courts are really going to do that.”
Unlike the assault weapons ban, there has been more case law, including some very recent, in challenges to so-called large capacity magazine restrictions. A federal judge upheld a Rhode Island law and, in Oregon, decisions have gone different ways, Willinger said, with a federal case that upheld the law and a state case pending a trial.
"It’s kind of a similar issue in the large magazine context. Some of these courts have looked very closely now at the question of: Are magazines even arms within the meaning of the Second Amendment? The Rhode Island cases decided, no, they’re not arms,” he said. The judges there ruled that gun owners "don’t need a magazine of a certain capacity to use a gun for self defense," Willinger said.
In coming cases, Willinger said courts may look closely at the text and at dictionaries from the era of the country's founding and drafting of the Second Amendment. For instance, they may ask: What did “arms" mean in 1791? What kind of accessories may it have included?
"My sense is it's not a big sample size, but my sense is that the weight so far is on holding these types of laws,” Willinger said. “I imagine we'll see these laws go up to appellate level in the coming months."