A judge in downstate Effingham County has issued an order barring the state from attempting to enforce its new law banning so-called assault weapons against more than 800 people and gun shops, who signed on to one of the first lawsuits filed to challenge the constitutionality of the law championed by Gov. JB Pritzker.
Effingham County Judge Joshua Morrison issued the temporary restraining order in the early evening hours on Friday, Jan. 20 in the lawsuit led by attorney Tom DeVore, a former Republican candidate for Illinois Attorney General.
Pritzker and Illinois Attorney General Kwame Raoul immediately vowed to seek to overturn Morrison’s ruling on appeal.
In the ruling, Morrison said he believed DeVore and his clients were likely to prevail on their claims that the new weapons ban violated their rights under the Illinois state constitution to keep and bear arms, and their rights under the state constitution to equal protection and due process.
“Although the changes to the statute give ample time to register Plaintiffs’ firearms with State Police, the changes to the requirements for transfer, sale, purchase, and importation began on effective date of the bill, January 10, 2023, resulting in the loss of fundamental rights as per that date,” Morrison wrote.
He further found the plaintiffs were likely to prevail on their claims that the state’s Democratic supermajority unconstitutionally rushed the legislation through the Illinois General Assembly during a lame duck session, providing virtually no opportunity for lawmakers or Illinois citizens to debate or discuss the bill and its potential constitutional implications.
“In oral arguments, the Defendants (Pritzker and other state officials) stated that the only procedural right which Plaintiffs are afforded is the right to raise their arguments in Court after legislation has been passed,” Morrison wrote. “This argument is particularly concerning to the Court, implying that the Legislature has the right to pass any law that it deems fit without regard for the Constitutionality or the procedural process.
“This gives confers (sic) the responsibility of assessing the Constitutionality of the law to the citizens and their attorneys.”
Further, the judge noted lawyers for the state offered no evidence in their arguments in support of the law concerning how it might achieve the goal set out by supporters, to “reduce firearms deaths and mass shooting casualties.”
The judge said the state defendants “offered no evidence” that a “newly created class” of police, active duty military, prison wardens, correctional officers and others who would still be allowed to possess the banned weapons “were any more or less likely to commit these crimes, nor did they provide evidence that the individuals excluded from this class were more likely to commit crimes.”
The judge said he believes this distinction under the law may violate the state constitution’s guarantee of equal protection under the law, and may not withstand scrutiny in light of recent U.S. Supreme Court decisions concerning striking down laws restricting firearms ownership and use.
The case had landed before Judge Morrison this week, after DeVore requested an emergency hearing on his request for a temporary restraining order against the law. He filed that motion for TRO in conjunction with an overall complaint, seeking a court order declaring the law unconstitutional.
DeVore’s lawsuit is one of three such lawsuits challenging the weapons ban now pending in court.
On the same day DeVore filed suit, attorney Thomas Maag, of Wood River, filed suit in downstate Crawford County.
And those lawsuits were followed by a challenge filed by the Illinois State Rifle Association in federal court in Southern Illinois.
The lawsuits all challenge a controversial new state law, docketed in the General Assembly as House Bill 5471. The legislation, which was immediately signed into law by Pritzker on Jan. 10, bans 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.
The law would further 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.
Unlike the other two lawsuits that have been filed, DeVore’s lawsuit included no claims under the U.S. Constitution.
Rather, his claims were based entirely on the Illinois state constitution, which means the lawsuit cannot be transferred to federal court and could eventually land before the Illinois Supreme Court. Democrats dominate that court, holding five of the seven seats.
The TRO would mean the state cannot enforce the new law against the more than 800 plaintiffs named in DeVore’s lawsuit, while the lawsuit plays out.
DeVore’s suit challenged virtually every aspect of the law, from the way in which it was enacted to the ways in which the law allegedly violates the rights of Illinoisans.
The complaint asserts Democrats bulldozed the law through the General Assembly, using procedures DeVore asserted violated provisions of the Illinois state constitution, which require new laws to be limited to a single subject and which require legislators to give every new bill at least three readings in each chamber of the General Assembly to ensure ample time for debate and consideration.
The complaint particularly accused Illinois House Speaker Emanuel “Chris” Welch and State Senate President Don Harmon, D-Oak Park, of abusing a process allowed by the state courts, under which a law is deemed to have met the so-called Three Readings Requirement, so long as the House Speaker and Senate President say they did.
In his ruling, Morrison said he believed DeVore could prevail on those claims.
“This Court finds that the Defendants unequivocally and egregiously violated the Three Readings Rule of the Illinois Constitution in order to circumvent the Constitutional requirements and avoid public discourse,” Morrison wrote. “This Court fins that due to the strict scrutiny standard required when fundamental rights are restricted and because abuse of Supreme Court rules is so pervasive, the time to revisit this practice is now.”
In statements issued following the ruling, Pritzker, Harmon and Welch all stated their belief that the law is needed and will pass constitutional tests. Pritzker and Welch also cast aspersions on Judge Morrison and the Effingham court.
In his statement, Pritzker said the decision was “not surprising” as it was similar to other decisions against the state on behalf of "plaintiffs whose goal is to advance ideology over public safety.”
Welch derided the Effingham court as DeVore’s “preferred court.”