Saying the law would force him to unconstitutionally prosecute otherwise law-abiding citizens for simply owning, selling, or transporting a gun, McHenry County State’s Attorney Patrick Kenneally has become the latest to sign his name to a lawsuit seeking to strike down Illinois’ new so-called “assault weapons” ban.
In the lawsuit, Kenneally also asks the court to enter an order barring the state from attempting to enforce the measure throughout Illinois.
Kenneally, who serves as McHenry County’s chief prosecutor, filed the suit on Jan. 26 in McHenry County Circuit Court.
The law, which he asserts is a “clear violation of the Second Amendment to the United States Constitution” and also of the Illinois state constitution, “places (Kenneally and other prosecutors) in an impossible ethical quandary of enforcing new, unconstitutional criminal offenses against citizens who are lawfully exercising their constitutional rights.”
Kenneally’s suit becomes the seventh such suit filed in Illinois, asking the courts to strike down the new state law which bans a long list of rifles, pistols and other firearms, as well as so-called “large capacity” ammunition magazines, which the law defines as magazines holding more than 10 rounds.
It is the first lawsuit filed in a court in northern Illinois against the law, known as HB5471, which was enacted rapidly by the Democrat-dominated Illinois General Assembly earlier this month, and was immediately signed into law by Democrat Gov. JB Pritzker. The law’s prohibition on the sale and new ownership of the weapons took effect immediately, sparking quick court challenges and proclamations from nearly all of the state’s county sheriffs and other law enforcement that they would not enforce the law, which they considered to be unconstitutional on its face.
While Pritzker and his allies have proclaimed their belief that the law is constitutional, the storm of new lawsuits argue the law and its supporters have chosen to enact the law in defiance of recent U.S. Supreme Court decisions repeatedly striking down state and local government restrictions on firearm ownership and use.
Four such lawsuits are currently pending in federal court in southern Illinois. One of the lawsuits is being backed by the National Rifle Association, and includes as counsel two lawyers, former U.S. Solicitor General Paul Clement and his associate, appellate lawyer, Erin Murphy, who successfully argued the case that led to a 2022 landmark Supreme Court decision.
Known as New York State Rifle & Pistol Association v Bruen, that decision struck down a New York state gun regulation regime. In the ruling, the court notably declared that states cannot simply ban firearms without demonstrating how their new law fits within the tradition of constitutional firearm regulation historically allowed under the Second Amendment’s right to keep and bear arms.
Nearly all of the lawsuits filed to date rely heavily on the Bruen decision, as well as other recent Supreme Court decisions upholding and expanding Second Amendment rights.
Illinois Attorney General Kwame Raoul has filed a motion to consolidate those lawsuits in southern Illinois federal court into one combined action. They have sought to consolidate the suits with the first such lawsuit to be filed.
That action, which was filed by attorney Tom Maag, of Wood River, in Crawford County court in southern Illinois, was removed to the federal court by Raoul’s office. It has been assigned to U.S. District Judge Nancy Rosenstengel, an appointee of former President Barack Obama.
If Raoul’s motion is granted, it could mean all of the cases pending in southern Illinois federal court could be heard together by Judge Rosenstengel.
Should Raoul also remove Kenneally’s lawsuit to federal court, it would be sent to the U.S. District Court for the Northern District of Illinois, which has courthouses in Chicago and Rockford. It is not known if Kenneally’s lawsuit could also be combined with the southern Illinois cases.
Just as the other federal court cases, Kenneally’s lawsuit asserts the Illinois weapons ban law does not measure up against the Supreme Court’s rulings. As in the other lawsuits, Kenneally asserts the weapons banned by the law – which are some of the most commonly owned handguns in the U.S. - are and have been considered by the courts to be in “common use,” for legitimate lawful purposes, such as self and home defense. Therefore, ownership of those weapons is protected by the Second Amendment, Kenneally argues.
“Contrary to (Bruen), (HB5471) prohibits an individual’s conduct that the Constitution presumptively protects,” Kenneally said. “Defendants cannot justify its regulation by demonstrating that it is consistent with America’s historical tradition of firearm regulation.”
Further, Kenneally asserts the law will do next to nothing to achieve the goals stated by supporters, to reduce acts of criminal handgun violence and mass shootings.
“It will not be difficult for criminals to acquire them through illegal means,” Kenneally said.
According to a docket posted on the McHenry County Circuit Clerk’s website, a hearing is scheduled for Jan. 30 on Kenneally’s request for a temporary restraining order.