The first legal challenges seeking to overturn Illinois’ new restrictions on guns have arrived in court, with more sure to follow.
On Tuesday, Jan. 17, lawsuits were filed against state officials, including Gov. JB Pritzker, seeking court orders declaring unconstitutional the new Illinois ban on so-called “assault weapons” and so-called “high capacity magazines.”
The first lawsuit was filed in Crawford County in southeastern Illinois, by attorney Thomas G. Maag, of Wood River.
That was followed quickly by a lawsuit filed in Effingham County, also in southern Illinois, by attorney Tom DeVore, the former Republican candidate for Illinois Attorney General. DeVore has also asked the court to issue an order barring the state from enforcing the law while the lawsuit is pending.
A hearing on that restraining order request is scheduled for Jan. 18.
DeVore rose to fame for lawsuits he filed against Pritzker over the governor’s Covid-related lockdown orders and other Covid-related restrictions and mandates from 2020-2022.
DeVore was defeated in the 2022 election by Democrat incumbent Attorney General Kwame Raoul.
Both lawsuits are challenging a controversial new state law, docketed in the General Assembly as House Bill 5471. The law would ban the sale of a long list of semiautomatic firearms, including many commonly owned and operated by millions of people in Illinois. It also would require those currently in possession to register their firearms with the Illinois State Police by January 2024.
And the law would ban the sale and possession of ammunition magazines which can hold more than 10 rounds, among a litany of other restrictions on the sale and possession of firearms and accessories in the state.
Those found to be in possession of unregistered or otherwise prohibited weapons and related accessories could face felony charges under the law.
Before it was even passed, the law was met with scorn from gun owners and their advocates, who declared their intent to immediately sue to challenge the law, which they dubbed unconstitutional on its face. They asserted the provisions in the law violated the rights of Illinoisans to keep and bear arms under the Second Amendment, and rights to equal protection under the 14th Amendment, among other constitutional violations.
They particularly asserted Pritzker and his Democratic allies in Springfield intentionally and lawlessly ignored rulings from the U.S. Supreme Court, which opponents of the law said should be read to forbid the kinds of restrictions and penalties Democrats in Illinois seek to impose through the law on otherwise law-abiding gun owners.
Sheriffs and state’s attorneys across much of the state, including some in the suburbs, have publicly proclaimed they agree with that interpretation of the law and the U.S. Constitution. They have said they would refuse to enforce the law, until such time as the courts conclusively declare the Illinois gun bans constitutional.
The law took effect immediately after Pritzker signed it into law within minutes of its passage in the General Assembly last week.
More lawsuits are expected, perhaps later this week. The court fight likely will be long, potentially winding through the U.S. Seventh Circuit Court of Appeals and perhaps as high as the U.S. Supreme Court.
DeVore filed his lawsuit on behalf of dozens of Illinois gun owners and four firearms shops.
The lawsuit challenges virtually every aspect of the law, from the way in which it was enacted to the ways in which the law allegedly violates the constitutional rights of Illinoisans.
However, DeVore's lawsuit includes no challenges brought under the U.S. Constitution. Rather, it asserts the law violates the rights of Illinoisans under the Illinois state constitution.
The complaint asserts the law was approved in violation of the procedures laid out in the Illinois state constitution.
Further, the lawsuit asserts HB5471 violates the equal protection rights of Illinoisans under the state constitution by allowing active and retired police officers, active duty members of the military, and private security guards to possess the banned weapons, while denying those same rights and privileges to civilians.
The lawsuit asserts the right to bear arms under the state constitution is a “fundamental right,” and as such, cannot be doled out or restricted based on the whims of lawmakers.
“… There is no rational basis, let alone reasoning, which might withstand strict scrutiny, which justifies carving out large categories of citizens who are free to buy and possess (the otherwise banned firearms) without limitation based upon their employment status,” DeVore wrote in a footnote in his complaint. “How on earth (sic) can a citizens (sic) fundamental right to bear arms in furtherance of self-defense be categorized based upon where they work at a given moment in their life.
“For example, if a citizen is a jailer, he or she retains their rights, but at the moment he or she is no longer employed in that position, their rights expire. It’s an absolute absurdity.”
DeVore further indicates his belief that such exceptions to the law were included merely to satisfy the desires of “very powerful lobbies” in Springfield, such as public employee unions, representing police officers and correctional officers.
“What legitimate purpose can be gleaned from allowing for example a county jailer to be able to purchase, transfer, etc., a .50 caliber rifle at will when the rest of the citizens of the state are prohibited,” DeVore wrote in a separate footnote. “It defies common sense and reeks of political patronage.”
In addition to his lawsuit, DeVore has also asked the judge to issue an injunction and a temporary restraining order, prohibiting the state from attempting to enforce the law while the lawsuit is pending.
Maag’s lawsuit does not request such an emergency order.
However, his lawsuit takes aim at HB5471 under the U.S. Constitution.
The Maag lawsuit asserts the new state law violates the longstanding historical regime of firearm ownership protections long granted to U.S. citizens by the Constitution. The lawsuit notes the law does not ban unusual or uncommon “weapons of war,” but rather seeks to prohibit ownership of nearly all firearms currently owned in the U.S.
The Maag lawsuit asserts these gun and firearm accessories ban defy the U.S. Supreme Court’s ruling in New York State Pistol & Rifle Association v. Bruen, which requires governments to show their gun ownership and carriage restrictions are based on “the historical tradition that delimits the outer bounds of the right to keep and bear arms.”
“… Applying the narrow, well-defined historical tradition of this nation, the firearms ban at issue simply cannot stand, as all challenged firearms are of the type and kind traditionally owned for lawful purposes,” Maag wrote.
Further, the lawsuit claims the new state law directly violates American rights guaranteed under the Second and 14th Amendments to keep and bear arms for self-defense.
“…While the state may prohibit the carriage of arms in certain narrow sensitive places, the challenged prohibition flips this on its head, not merely prohibiting carriage in certain sensitive places (which is already prohibited by other law), but totally prohibiting the carriage of those arms, such to only minimally listed areas, and even those are limited to basically wealthy landowners…,” the Maag lawsuit states.
And Maag’s lawsuit asserts the law’s firearm registration requirements violate Illinoisans constitutional protections against self-incrimination. It notes the law requires Illinois gun owners to provide information about themselves to Illinois State Police, which could later be used against them in court.
No hearing date has yet been set for Maag’s lawsuit.
Meanwhile, other lawsuits appear to be soon incoming.
The Illinois State Rifle Association announced it would be filing suit in federal court, likely within days.