Saying Illinois lawmakers pushed through the ban on so-called “assault weapons” in a manner that may have unconstitutionally left no opportunity for “even a moment of debate” on the controversial law, a divided Illinois appeals panel has ruled an Effingham County judge’s order slapping the law on hold for more than 800 Illinois gun owners and gun shops should remain in effect, for now.
In the 2-1 decision, a three-justice panel of the Illinois Fifth District Appellate Court in Mount Vernon in southern Illinois ruled plaintiffs challenging the gun ban have demonstrated a good chance of success on their arguments that the state violated fundamental rights protected by the Illinois state constitution in a “frenzied ‘gut and replace’” lawmaking process “that failed to comply with our state’s constitution.”
“Here, we find it extremely relevant that no opportunity for discourse was provided to the citizens of this state that would allow for recognition of the competing interests in accomplishing what we believe is likely a common goal (to reduce gun deaths in Illinois),” the majority wrote in the decision issued Jan. 31.
“Nor does it appear that the legislative process allowed for even a moment of debate between the lawmakers to ensure that the enactment of this law was ‘narrowly tailored’ to effectuate the Act’s purpose in any manner that would allow a larger exempted group to retain their fundamental rights.”
The Fifth District panel found that the state’s new weapons ban violates the equal protection clause for the right to keep and bear arms under the Illinois Constitution, affirming a temporary restraining order (TRO) and banning the state from enforcing the controversial law against more than 800 gun owners and gun shops who are represented in one action by attorney Tom DeVore.
DeVore has since filed a second, nearly identical claim on behalf of 1,690 more people and shops, and plans to bring a third such lawsuit in coming days.
DeVore, the former Republican candidate for Illinois Attorney General, responded to the decision in a Facebook Live video, explaining that the TRO is not a statewide ruling. It only applies to the plaintiffs named in the case, but the order could be relied upon by circuit courts in similar cases.
“It doesn’t apply to you automatically if you aren’t a plaintiff,” he said. “But if someone chooses to seek relief, the court will look at this case.”
In an opinion filed Jan. 31, the Fifth District court concluded that Effingham County Judge Joshua Morrison appropriately issued the restraining order for count IV of DeVore’s initial complaint.
In regards to the TRO as it applies to counts I, II and III of the complaint, the appellate court held that the circuit court “erred when it found that a fair question existed as to whether plaintiffs would be entitled to the relief sought under counts I, II and III, if the evidence presented at a trial were sufficient to sustain the party’s factual allegations.” Counts I, II and III allege that the legislative procedure of Public Act 102-1116, or the Protect Illinois Communities Act, violated the Illinois Constitution and denied the plaintiffs due process of law.
However, the appellate court urged the Illinois Supreme Court to revisit the enrolled-bill doctrine, which includes a three-readings rule. The court noted that the legislature has engaged in “repeated ethical lapses associated with gut and replace legislation” and stated that the Illinois Supreme Court is the ruling authority on such issues.
The opinion was delivered by Justice Barry Vaughan. Justice Mark Boie concurred. Justice Randy Moore concurred with the reversal on counts I, II and III but dissented with the majority’s conclusion on the equal protection clause violation. He opined that the TRO ruling should have been reversed in its entirety because it does not seek protection under the U.S. Constitution.
The so-called “assault weapons” ban was created when Gov. JB Pritzker signed House Bill 5471 on Jan. 10. The law makes it illegal to manufacture, deliver, sell, import, purchase or possess certain handguns, shotguns, rifles and firearm accessories.
DeVore filed a five-count complaint against Pritzker, Attorney General Kwame Raoul, House Speaker Emanuel Christopher Welch and Senate President Don Harmon on Jan. 17. He sought declaratory judgment and injunctive relief, but only under the Illinois state constitution.
He did not press any claims under the Second Amendment or other rights guaranteed within the U.S. Constitution.
According to DeVore’s complaint, HB 5471 was first introduced in the Illinois House on Jan. 28, 2022. It was originally nine pages and sought to amend provisions of the Illinois Insurance Code. It was eventually amended on Jan. 8, 2023, which was a Sunday afternoon, to become a 111-page weapons ban.
DeVore argues that Harmon filed the amendment, which “completely stripped the insurance provision of the bill, which were being considered by the legislature all the way up until this time, and completely replaced them with new substantive proposed changes governing weapons, human, and drug trafficking.”
The bill passed the Senate on Jan. 9 and was sent back to the House on Jan. 10. HB 5471 was allegedly not read three times before the House voted to approve the amendments.
DeVore also sought a TRO for counts I-IV. Morrison presided over a TRO hearing on Jan. 18 and granted the request on Jan. 20. Raoul and Pritzker appealed.
Count I of DeVore’s complaint alleged the law violates the single subject rule and should be declared unconstitutional. The appellate court disagreed.
DeVore argued that the title of the law does not mention firearm regulation and the description of the bill while it was being argued in the legislature was “INS CODE-PUBLIC ADJUSTERS.”
“The record confirms that the legislation’s description throughout the legislative process, and continuing through today, fails to address, in any way, the regulation of firearms,” Vaughan wrote.
“One could presume such dichotomy between the description and the actual legislation could result in ‘surprise in the enactment of legislation’ if a member of the legislature read only the title before voting on the legislation,” he added.
While the appellate court noted the “problematic” description of the bill, it concluded that there is no evidence that the “erroneous description would affect whether the Act was constrained to the single subject rule dictated by the Illinois Constitution.”
Further, the law includes provisions on human trafficking and illegal drug trafficking. The appellate court held that those issues could be “naturally and logically connected to the investigation of firearm trafficking.”
“It would defy reason to conclude that illegal firearms trafficking is never connected to human trafficking or illegal drug trafficking to such an extent that such investigations might overlap. Thus, in light of the test before the court, and the liberal construction afforded to the single subject rule, we cannot conclude that inclusion of these clarifications offends the subject matter so much as to violate the single subject rule,” Vaughan wrote.
The appellate court also held that the Act’s additional provisions regarding firearms fall under the regulation of firearms and do not violate the single subject rule.
Count II alleges the law violates the three-readings rule and should be declared unconstitutional.
The appellate court held that while the Illinois Supreme Court has promised to revisit the issue, neither the circuit court nor the appellate court has the authority to decide if or when it should be addressed.
“That said, we are not unsympathetic to the serious concerns raised by plaintiffs with regard to the issue raised in count II,” Vaughan wrote. “Unfortunately, the Illinois Supreme Court’s warnings regarding past legislative nonconformance with constitutional boundaries appear to have gone unheeded and instead are now interpreted as the judiciary’s acceptance of, or the judiciary’s acquiescence in, the legislature’s continued failure to adhere to constitutional procedures when enacting legislation.”
The appellate court questioned the continued adherence to Illinois Supreme Court precedent in light of the legislature’s actions.
“The three-reading requirement ensures that the legislature is fully aware of the contents of the bills upon which they will vote and allows the lawmakers to debate the legislation,” Vaughan wrote. “Equally relevant to the three-reading rule is the opportunity for the public to view and read a bill prior to its passage thereby allowing the public an opportunity to communicate either their concern or support for proposed legislation with their elected representatives and senators. Taken together, two foundations of the bedrock of democracy are decimated by failing to require the lawmakers to adhere to the constitutional principle.”
The appellate court noted that other states have also “endured repeated ethical lapses associated with gut and replace legislation,” but they have addressed the issue and demanded compliance with state constitutional mandates.
The appellate court offered hope on the issue, stating that its ruling offers an opportunity for plaintiffs to present the issue to “the one court with authority to determine if now is the appropriate time to revisit this: the Illinois Supreme Court itself.”
Count III alleges the passage of the law violated due process and should be declared unconstitutional.
The appellate court found that because there is no likelihood of success on the merits for counts I and II, they must conclude the same for count III “because by its plain language it is contingent upon the existence of potentially meritorious claims on counts I and II.”
Count IV alleges the law violates the equal protection clause of the Illinois Constitution, so it should be declared unconstitutional. Specifically, the law provides exemptions for seven groups of people, which DeVore called “irrational and completely lacking anything approaching common sense.”
The appellate court agreed, noting that in recent cases the Illinois Supreme Court “specifically pronounced that the right to bear arms was a fundamental right under the second amendment of the United States Constitution.”
“As such, we find that plaintiffs’ allegation that the Act infringes on their rights as Illinois citizens to keep and bear arms is a sufficiently alleged right in need of protection. Here, plaintiffs’ complaint alleged that the legislation’s exemption of seven categories of persons … had no basis and therefore violated equal protection guarantees,” Vaughan wrote.
The defendants argued that the purpose of the law was to reduce firearm deaths and mass shooting casualties. Exempted categories were apparently based on employment and/or training. The appellate court disagreed, stating that the closest the law comes to such a purpose is in its name: the Protect Illinois Communities Act.
The appellate court also weighed the benefits of granting the TRO against the potential injuries to the defendants and its effect on the public interest.
“Here, weighing a fundamental right against potentially bruised egos or political pride is no contest,” Vaughan wrote.
“However, the effect on public interest is more challenging as we grapple with a fundamental right to bear and keep arms that allows plaintiffs to defend themselves or their families against a desire to protect the citizens of this state from the random atrocities associated with mass shootings,” he added.
“We hold no crystal ball allowing us to determine the likelihood of potential harm if the TRO is granted, but we temper our lack of prescience with recognition that both interests - whether through the regulation of firearms or through the fundamental right to keep and bear arms - are based on the increased desire to protect and defend loved ones in light of these horrifying and devastating shootings,” he continued.
Moore dissented with the majority’s conclusion as it relates to count IV, arguing that “no issues related to the second amendment of the United States Constitution are before us, as they were not pleaded and were notably disclaimed by counsel for the plaintiffs.”
“... I believe our ruling on the grant of the TRO should in no way be interpreted as instruction or guidance as to any issues that may in the future be raised under the second amendment of the United States Constitution,” Moore wrote.
He added that the provisions of the Illinois Constitution are “markedly different” than the provisions of the United States Constitution and the recent state Supreme Court rulings should not nullify previous rulings.
Moore referenced a 1984 Illinois Supreme Court ruling in Kalodimos v Village of Morton Grove, in which it concluded that the right to bear arms in Illinois was not a fundamental right. Since then, the Illinois Supreme Court has released decisions finding the opposite - that the right to bear arms is a fundamental right.
“The Illinois Constitution - unless or until Kalodimos is overruled - offers a weaker level of protection, because the right to bear arms has not been declared to be a fundamental right,” Moore wrote.
“That said, I hasten to add that I, too, am not unsympathetic to the plaintiffs’ position with regard to this question,” he added.” In fact, if we were reversing the circuit court entirely, as I believe we are compelled by the law to do, I would encourage the plaintiffs to appeal our decision and ask the Illinois Supreme Court to revisit this issue in light of the changing landscape of federal jurisprudence referenced by the plaintiffs, and the potential impact that evolving jurisprudence might have on the court’s view of whether the right to bear arms is a fundamental right under the Illinois Constitution.”
He also argues that the plaintiffs fail to allege how they are similarly situated to the exempted groups.
Count V seeks an injunction permanently enjoining the state from enforcing the weapons ban. The appellate court did not examine Count V because it seeks a permanent injunction, and they were tasked with reviewing the TRO.
Jonathan Bilyk contributed to this report