Saying she does not believe the Second Amendment’s protections don’t extend to “dangerous” firearms, a Chicago federal judge has refused to grant a temporary restraining order sought by a Naperville gun shop owner against a new Illinois law and a Naperville city ordinance banning the sale of so-called “assault weapons.”
U.S. District Judge Virginia M. Kendall issued her ruling on Friday evening, Feb. 17. The ruling marked the first federal ruling in a flurry of different cases, in which plaintiffs are all seeking a statewide order barring the state government from enforcing the new gun ban law.
In her ruling, Kendall declared she believed states and cities are free to ban some of the most common firearms in circulation, so long as they can demonstrate the weapons they ban as “assault weapons” are somehow more deadly or “dangerous” than other kinds of semiautomatic rifles or pistols, which the judge said she believed should be considered acceptable substitutes as weapons of self-defense in the home and in public.
In this case, she said, the state and Naperville did not trample Second Amendment rights by banning a long list of semiautomatic weapons and so-called “high capacity magazines,” capable of holding more than 10 rounds of ammunition, along with various firearm accessories.
Kendall notably declined to evaluate the case using so-called “strict scrutiny,” a judicial standard reserved for evaluating whether laws violate so-called “fundamental rights.” Instead, she opted for a standard called “intermediate scrutiny,” which she said allowed her to still weigh “alleged deprivation of a constitutional right” against the government’s “substantial or important interest” in claiming to protect public safety.
Kendall said her reasoning fits within the framework of recent U.S. Supreme Court decisions, which otherwise have greatly expanded gun ownership and carry rights throughout the country under the Second Amendment.
In her decision, Kendall pointed to historical examples of states and the federal government banning allegedly “dangerous” weapons which were “threats to the peace,” including Bowie knives, billie clubs and machine guns.
In this instance, she said homeowners and others would still have access to a range of firearms for self-defense, so the ban on “assault weapons” doesn’t infringe their rights to defend themselves.
“Because assault weapons are particularly dangerous weapons and high-capacity magazines are particularly dangerous weapon accessories, their regulation accords with history and tradition,” Kendall said.
“Naperville and Illinois lawfully exercised their authority to control their possession, transfer, sale, and manufacture by enacting a ban on commercial sales. That decision comports with the Second Amendment.”
Kendall was appointed to the federal bench by former President George W. Bush in 2006.
The decision was rendered in the lawsuit brought by Robert Bevis, the owner of Law Weapons and Supply, a firearms shop and gun training center in Naperville.
Bevis had sued the city of Naperville in 2022 after Illinois’ fourth largest city, in Chicago’s west suburbs, enacted an ordinance banning the sale of a range of so-called “assault weapons” and related accessories.
Bevis amended his lawsuit in January to also seek a court order barring the enforcement of the state’s gun ban, after Gov. JB Pritzker swiftly signed into law the so-called Protect Illinois Communities Act.
Bevis’ lawsuit is one of four currently pending in federal court in northern Illinois against that law.
A number of other lawsuits have also been filed elsewhere in the state against the gun ban, including several in the Southern District of Illinois and state court challenges now making their way to the Illinois Supreme Court.
Those state court challenges have resulted in four limited temporary restraining orders against enforcement of the law, restricted to several thousand plaintiffs listed on those complaints.
Plaintiffs in those challenges have all asserted the state gun ban infringes on constitutional rights under the reasoning of the precedent of 2022 U.S. Supreme Court opinion, New York State Rifle & Pistol Association v. Bruen because it bans a long list of commonly owned firearms. They argue this means the state ban runs afoul of the Supreme Court’s direction to states in Bruen not to enact novel bans that fall outside of the historical tradition of firearm regulation under the Second Amendment.
In Chicago federal court, several individual plaintiffs have moved for reassignment so their lawsuits can appear before a single judge.
The plaintiffs in these actions argue their strategy would reduce chances of multiple different rulings while expediting their requests for a preliminary injunction. Kendall’s ruling denying Bevis’ request for an injunction came despite the pending request for reassignment, which she was made aware of in notice of motion filed in her court on Feb. 16.
Attorneys for plaintiff Javier Herrera have spearheaded the effort to reassign the cases.
Herrera filed a Jan. 27 lawsuit challenging both the state law and Chicago and Cook County ordinances that place restrictions on certain guns and ammunition.
“These bans flout the Second Amendment,” Herrera alleged, identifying himself as “an emergency medicine doctor at a Chicago area public hospital” who “teaches tactical medicine at a public university.” Herrera further said he works as a medic on a “Chicagoland SWAT team” whose members carry AR-15 rifles on “high-risk missions in some of the Chicago area’s most dangerous neighborhoods.”
Although Herrera said he doesn’t carry that weapon, he uses it to train monthly to be sure he could use one if needed. He said he cannot now do so without “driving hours” to retrieve and return the AR-15s he owns, but doesn’t keep in his Chicago home, to comply with the laws he challenges. He also alleged he can’t keep, use or replace the standard magazine for his Glock 45. He alleged the state law’s gun registration requirements are an illegal imposition on his Second Amendment rights.
Herrera’s legal team includes the America First Legal Corporation, of Washington, D.C., and the Arlington, Virginia, firm of Consovoy McCarthy.
On Feb. 16, they asked to have the case docketed as Herrera v. Raoul, as the first named defendant is Illinois Attorney General Kwame Raoul, reassigned from U.S. District Judge Mary Rowland. They had hoped to have their case heard together with two other federal complaints: Susan Goldman’s lawsuit against the city of Highland Park, currently assigned to Judge Harry Leinenweber; and Bevis’ lawsuit.
The National Association for Gun Rights is also party to both the Goldman and Bevis complaints.
According to Herrera’s attorneys, Highland Park and Naperville filed motions to reassign their cases to Viramontes v. Cook County, a 2021 lawsuit pending before U.S. District Judge Rebecca Pallmeyer. Plaintiffs in the Viramontes case moved to stay the complaint, arguing the factors for reassignment are no longer met. The county ordinance in question bans purchase and sale of semi-automatic rifles.
“In light of that intervening request to stay and because the Viramontes plaintiffs have no pending request for preliminary injunction or summary judgment, the related plaintiffs request that reassignment be limited to cases seeking preliminary injunctions,” according to Herrera’s motion.
Goldman’s challenge to Highland Park’s ordinance, which bans possession and sale of AR-15s and magazines of 11 or more rounds, predates the General Assembly’s enactment of assault weapons restrictions in an early January lame duck session, but Goldman and NAGR moved to amend that complaint to also target the state law, as Bevis did in the Naperville case.
The reassignment request did not name a specific judge or venue, only “whichever court is able to hear them most expediently.”
It further asserts injunctions are warranted because the alleged constitutional violations cause irreparable harm. “
Herrera argued that Bruen suggests “the constitutionality of the challenged laws likely rises and falls together.”
It remains to be seen what Kendall’s decision to push out her ruling does to Herrera’s reassignment request. Other judges could yet deliver orders restraining the state from enforcing the law while constitutional challenges continue.
Bevis is also free now to appeal Kendall's ruling to the U.S. Seventh Circuit Court of Appeals in Chicago, which would be the next step potentially on the road to the U.S. Supreme Court.