Gov. JB Pritzker and Attorney General Kwame Raoul have officially asked the Illinois Supreme Court to toss out a restraining order barring the state from enforcing the ban on so-called “assault weapons.”
In the filing, the attorney general argues gun owners and sellers have no “fundamental right” to keep and bear arms under the Illinois state constitution, so courts erred in determining anyone was ever at real risk of being harmed by the new law.
Rather, they assert it is the state and public at dire risk from the restraining order, because it allows people to still buy the so-called “assault weapons” and potentially use them in further mass shootings or other acts of violence.
DeVore
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The law requires gun owners to register their weapons with Illinois State Police by Jan. 1 to keep their weapons, and Illinois gun shops are all but barred by the law from selling the banned weapons and accessories, which gun rights groups have argued in other proceedings are more commonly owned than Ford F150 pickup trucks.
But the state officials said “the possible injury inuring to the State and the public as a result of the temporary restraining order is not capable of measurement,” due to the risk of further mass shootings and gun violence.
“By contrast, any injury to plaintiffs absent a TRO is minimal,” the state defendants said.
Pritzker and Raoul filed a petition with the state high court on Feb. 24, seeking permission to appeal the decision of a panel of the Illinois Fifth District Appellate Court.
They also filed a motion asking the court to hurry that appeals process along, asserting the state is at dire risk of further mass shootings, unless the Supreme Court moves quickly to overturn the appellate decision and throw out its reasoning, which the state officials described as “riddled with legal errors.”
The petition seeks to appeal the Fifth District’s Jan. 31 decision upholding a temporary restraining order issued against the state by Effingham County Judge Joshua Morrison. That order applied to several hundred plaintiffs, including gun owners and at least four gun shops, represented by attorney Tom DeVore, former Republican candidate for Illinois attorney general.
Since then, other state courts have granted three additional restraining orders, extending protection from the gun ban law to thousands of others across the state who are represented in state court challenges brought by DeVore and a fourth case brought by a group led by State Rep. Dan Caulkins (R-Decatur).
These cases are separate and distinct from several other challenges to Illinois’ “assault weapons” ban pending in federal court. The cases in federal court have challenged the law based on assertions the law violates the Second Amendment and Fourteenth Amendment to the U.S. Constitution.
By contrast, the state court cases assert state lawmakers, in passing the “assault weapons” law, trampled Illinoisans’ rights under the state constitution, and also violated the state constitution’s rules governing how legislation must be approved.
Notably, those lawsuits assert lawmakers claim lawmakers did not abide by the requirement to publicly read the law at least three times – at least once on three different days – in both the State House and the State Senate before taking final votes on the law.
In the case of the “assault weapons” ban, the plaintiffs have argued the law was hastily rammed through, with quick votes on a massive bill introduced in the dead of night.
Judge Morrison and a 2-1 majority on the Fifth District court agreed that the legislators’ actions in approving the “assault weapons” ban defies the state constitution. However, the appellate court said it lacked the ability to do anything about that, because the Illinois Supreme Court has previously ruled that, under the so-called “enrolled bill doctrine,” the state’s legislative leaders can simply declare that the constitutional rules have been followed.
In their decision, the Fifth District court asked the Illinois Supreme Court to revisit its decision in light of lawmakers’ perceived frequent and flagrant abuse of the legislative rules and the Supreme Court’s prior permissive holdings.
However, the appeals panel said Morrison did not err in granting the TRO, because the law violates Illinoisans’ rights to keep and bear arms.
In their petition to the Supreme Court, the state officials said that finding is in error. They pointed to a 1984 Illinois Supreme Court decision, Kalodimos v Village of Morton Grove, in which the court ruled that Illinoisans do not have a “fundamental right” to own guns. The decision relied on the state constitution, which subjected the right to keep and bear arms to the state’s so-called “police power” to safeguard public safety.
So, the state Supreme Court said the state merely has to demonstrate a so-called “rational basis” to strip away gun rights.
In the case of the “assault weapons” ban, the state argued it should be enough that lawmakers are seeking to prevent mass shootings, such as the July 4, 2022, massacre in Highland Park.
However, in the appellate ruling, the Fifth District majority said the legal lay of the land has shifted significantly since 1984. They noted the U.S. Supreme Court has since declared the right to keep and bear arms is fundamental. That, in turn, has led the U.S. Supreme Court to declare that violations of that right should be conducted under the standard of “strict scrutiny,” which requires the government to prove their new laws don’t violate the rights, either on their face or as applied.
The Fifth District noted that the Illinois Supreme Court has, in turn, ruled several times that it accepted that definition, in striking down various local gun laws and regulations that plaintiffs claimed impinged their gun ownership and use rights.
Therefore, the Fifth District majority said the fundamental nature of the right to keep and bear arms should also require courts to apply strict scrutiny, rather than the “rational basis” standard.
In their petition, the state officials specifically called on the state Supreme Court to declare its 1984 decision should control in this case, and the Supreme Court should quickly vacate the appellate decision.
Further, they called on the state Supreme Court to reinforce its prior holdings allowing state lawmakers to police themselves in deciding if legislation has been constitutionally enacted.
Further, the state officials argued Judge Morrison and the Fifth District majority incorrectly concluded immediate enforcement of the ban would harm anyone other than gun sellers, “who at most will experience a reduction in lawful sales of assault weapons.”
The state officials further said those gun sellers could file suit to demand the state compensate them for decimating their sales.
In any event, the state officials argued no one is “irreparably harmed” by immediate enforcement of the law, while legal challenges play out.
“… When enacting the (law) and making it effective immediately, the General Assembly sought to limit the number of these dangerous weapons in circulation, while respecting the rights of existing legal owners,” the attorney general wrote.
“The continued proliferation of these weapons while the appellate court’s erroneous decision is allowed to stand not only undermines the (law’s) goals of preventing mass shootings and otherwise enhancing public safety, it squarely conflicts with the General Assembly’s careful balancing of public and private interests.”
Attorney DeVore will have an opportunity to respond on behalf of his gun owner and gun shop clients to Raoul and Pritzker's petition in coming days.