Gunowners across Illinois and state officials like Gov. JB Pritzker are awaiting a ruling from a federal judge in East St. Louis on the question of whether the state can move forward with enforcement of its ban on so-called assault weapons.
In the meantime, opponents of the law are also taking the fight to a federal appeals court, filing briefs in advance of one of the next key legal battles over the fate of the sweeping ban on the sale of many of the most common firearms in circulation – a law that the southern Illinois federal judge openly worried could quickly turn many otherwise law-abiding citizens in Illinois into felons.
The list of those filing arguments before the U.S. Seventh Circuit Court of Appeals in Chicago, include former U.S. Solicitor General Paul Clement and his law partner Erin Murphy, who together were on the winning legal team that secured the most recent big win in favor of Second Amendment rights before the U.S. Supreme Court.
The filings come as the Seventh Circuit prepares to hear arguments in an appeal brought by a Naperville gun store owner, asking the federal appeals court to toss out a decision from a Chicago federal judge in favor of the “assault weapons” ban.
In March, Robert Bevis and his shop, Law Weapons & Supply, along with the National Association for Gun Rights, filed a motion asking the Seventh Circuit to slap an injunction on the state, forbidding police and other state agencies from enforcing the ban on a long list of semiautomatic firearms, which the state has labeled dangerous “assault weapons” and the so-called “large capacity” ammunition magazines those firearms use.
The law, known as the Protect Illinois Communities Act, was enacted by Pritzker and his Democratic supermajority in the Illinois General Assembly in January. The law generally prohibits Illinois residents and store owners from selling the prohibited firearms and accessories, and requires Illinois residents who currently own the otherwise-prohibited weapons to register them with the Illinois State Police.
Illinoisans who don’t comply with the law could face fines or imprisonment.
A number of lawsuits have been filed in response, asking federal or state judges to declare the law violates the U.S. Constitution and the Illinois state constitution.
The Illinois Supreme Court is set to hear arguments in May on one of those state law constitutional challenges, in a case led by State Rep. Dan Caulkins, of Decatur.
Plaintiffs in that case have notably asked two of the state’s newest Democratic justices to recuse themselves from hearing the case. The plaintiffs say those justices, Elizabeth Rochford and Mary K. O’Brien, can’t be seen as unbiased judges after they accepted $1 million each in campaign donations from Pritzker and accepted the endorsement of anti-gun progressive groups who publicly state they require candidates to pledge to support “assault weapons” bans.
The justices have not yet indicated how they will respond to that motion. However, if they choose to hear the case anyway, it could tee up a potential appeal to the U.S. Supreme Court, which in 2009 famously threw out a West Virginia Supreme Court decision after one justice on that state’s high court refused to recuse himself over concerns that he had received millions of dollars in support from one of the litigants involved in that case.
Pritzker is named as a defendant in all of the challenges to the Illinois gun ban law.
In the meantime, federal judges in district courts in East St. Louis and Chicago have taken up cases directly challenging the law under the Second Amendment to the U.S. Constitution, which generally prohibits governments from denying Americans the right to keep and bear arms.
Those challenges are couched in the language of the high court’s two most recent decisions demolishing state and local governments’ attempts to restrict their residents’ rights to firearm ownership and use.
Most recently, the U.S. Supreme Court ruled in New York State Rifle & Pistol Association v Bruen, that states cannot defend gun bans simply by claiming the law promotes public safety or some other “important interest.”
Further, the Supreme Court required governments to defend their attempts to restrict firearms against the backdrop of America’s historical, constitutional and legal traditions concerning regulations under the Second Amendment.
In the federal court legal challenges to the Illinois law, the plaintiffs assert the law falls far short under Bruen. They have all requested injunctions barring enforcement of the law statewide while they seek final judgments striking down the new gun rules as unconstitutional.
To date, however, courts have not yet issued any such clear statewide injunctions.
Rather, in the only federal ruling entered to date, U.S. District Judge Virginia Kendall, in Illinois Northern District Court, denied the injunction request sought by Bevis in the Naperville case. In that ruling, she agreed with lawyers for the state that the Illinois gun ban should be allowed under the Second Amendment because she believes the Second Amendment’s protections don’t extend to the ownership and use of particularly “dangerous weapons.”
Kendall agreed the state’s need to act in the name of preventing mass shootings outweigh the constitutional rights of gun owners.
In filings since the ruling, the state has largely stuck to the reasoning expressed by Kendall in defending its gun ban.
On appeal, however, the Naperville plaintiffs argued Kendall’s reasoning misses badly in its attempt to thread a legal needle that would allow the Illinois gun ban to hold up under the Bruen decision.
In the weeks since the Naperville plaintiffs filed their appeal, other groups and individuals challenging the “assault weapons” ban have filed arguments before the Seventh Circuit. They have similarly asked the Seventh Circuit to step in and issue the injunction sought by the Naperville plaintiffs, in anticipation of their cases also ultimately landing before the appeals court in coming weeks, perhaps on the way to the U.S. Supreme Court.
The filings include a brief submitted on behalf of the National Shooting Sports Foundation, the trade association representing America’s gun makers. That brief was authored by Clement and Murphy, of the firm of Clement & Murphy, of Alexandria, Virginia. Clement and Murphy were among the attorneys who won the Bruen decision.
Murphy was among the lawyers who argued on April 12 in Southern Illinois District Court before District Judge Steven McGlynn. At that hearing, McGlynn engaged with lawyers for the state of Illinois and for a group of plaintiffs from four consolidated federal court challenges in the Southern Illinois District Court.
During that hearing, McGlynn questioned both the arguments of both sides, but appeared to particularly press the Illinois Attorney General’s chosen counsel. The judge particularly noted he was troubled by the potential for the law to punish otherwise law-abiding gun owners. And he repeatedly questioned how the law can hold up under Bruen by banning firearms that are, in some instances, more commonly owned than Ford pickup trucks.
As of Thursday, April 13, McGlynn had not yet ruled on the injunction request.
At the same time, however, Murphy and Clement continued to assail the state’s gun ban before the Seventh Circuit, arguing the ban cannot hold up under Bruen or the Supreme Court’s earlier pro-Second Amendment rights decision, District of Columbia v Heller.
“… It is not open to lower courts to withhold constitutional protection based on the relative ‘dangerousness’ of arms when used for unlawful purposes,” Clement and Murphy argued in their new brief. “The question under binding Supreme Court precedent is whether law-abiding citizens typically possess and use the arms at issue for law-abiding purposes.
“And when it comes to the exceedingly broad range of arms that Illinois has banned, the answer is plainly yes.”
A similar brief has also been filed by attorney Joseph G.S. Greenlee, of the FPC Action Foundation, representing the Firearms Policy Coalition. The FPC is representing plaintiffs also challenging the Illinois law before McGlynn in southern Illinois federal court, and challenging Cook County’s “assault weapons” ban in Chicago federal court, as well.
In their brief, the FPC similarly asserts the Illinois gun ban law cannot hold up in light of the Supreme Court’s recent holdings regarding the limits by the Second Amendment on the ability of state and local governments to restrict guns, including, in these cases, so-called “repeating” or semiautomatic arms.
Their brief outlined the history of “repeating arms,” dating back hundreds of years, and noting they have been commonly owned in America from its founding.
“Repeating arms have existed for half a millennium, and predate the Second Amendment by nearly three centuries,” the FPC wrote. “Repeating arms with a capacity greater than 10-rounds existed by 1580, and predate the Second Amendment by over two centuries.
“Despite continuous technological advancements over hundreds of years and widespread popularity once they became affordable, traditionally, repeating arms - including those with greater than 10-round capacities - were never banned in America. Therefore, the challenged bans are inconsistent with the nation’s tradition of firearm regulation and violate the Second Amendment.”
The state, represented by Illinois Attorney General Kwame Raoul, has formally opposed the request for injunction, arguing, as before, that the Second Amendment should not be read to protect the rights to own particularly “dangerous” weapons, like the banned semiautomatic firearms. As in all other cases to this point, the state argued the law still allows Illinoisans to own a variety of guns, including “handguns, shotguns, or other weapons for self-defense.”