Another challenge seeking to overturn Illinois’ ban on so-called “assault weapons” is headed to a federal appeals court, after another Chicago federal judge ruled the Second Amendment’s protection of the right to keep and bear arms doesn’t apply to weapons the state may designate as “particularly dangerous.”
On April 25, U.S. District Judge Lindsay C. Jenkins rejected a request for a temporary restraining order blocking the state of Illinois from enforcing its ban on selling and acquiring “assault weapons” and so-called “large capacity magazines.”
“The challenged restrictions on semiautomatic weapons and large-capacity magazines in the (Chicago) City Code, (Cook) County Code, and Illinois Act are consistent with ‘the Nation’s historical tradition of firearm regulation,’ namely the history and tradition of regulating particularly ‘dangerous’ weapons,” Jenkins wrote in the decision.
On April 26, attorneys for the lead plaintiff in the case filed a notice of appeal, indicating they intended to ask the U.S. Seventh Circuit Court of Appeals to overturn Jenkins’ ruling.
In the case, named plaintiff Javier Herrera is challenging bans on “assault weapons” under a Chicago city ordinance, Cook County ordinance and the Illinois state law known as the “Protect Illinois Communities Act.”
Herrera is identified in court documents 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.”
He said the bans jeopardize his ability to transport his semiautomatic rifles and train with them, to maintain the proficiency needed to serve with SWAT teams.
Herrera is represented in the case bv attorneys from the America First Legal Foundation, of Washington, D.C.; and the firms of Consovoy McCarthy, of Arlington, Virginia, and Knabe & Bedell, of Chicago.
Herrera’s lawsuit is one of many filed in courts in northern and southern Illinois this winter in response to the swift enactment of the state’s gun ban law by Gov. JB Pritzker and the Democratic supermajority in the Illinois General Assembly.
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.
Supporters of the law say it is needed to reduce the use of "assault weapons" commonly used in mass shootings, such as the July 4th massacre in Highland Park in 2022.
Lawsuits have been filed in both state and federal courts, asserting the law violates both the U.S. Constitution and the Illinois state constitution.
The Illinois Supreme Court is set to hear arguments on May 12 in one of the challenges to the law brought under the Illinois state constitution.
Notably, in that case, the state’s two newest Democratic Supreme Court justices, Elizabeth Rochford and Mary K. O’Brien, have refused to recuse themselves from hearing the case. Plaintiffs in the case have said Rochford and O’Brien can’t be seen as unbiased judges because they each accepted $1 million in campaign donations from Pritzker, and also secured prominent endorsements from gun control activist organizations, which typically demand candidates accepting their endorsements pledge to ban “assault weapons.”
Their refusal could ultimately tee up a petition to the U.S. Supreme Court on the grounds that their decisions violate plaintiffs’ constitutional right to a fair hearing. In 2009, the U.S. Supreme Court 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 cases challenging the “assault weapons” ban law.
The Illinois law, however, may be more likely to land before the U.S. Supreme Court under a group of cases challenging the law as a violation of the Second Amendment’s 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.
Plaintiffs in a group of four of those cases are awaiting a decision from U.S. District Judge Stephen McGlynn in the Southern District of Illinois on a request for an injunction barring the state from enforcing the law while the constitutional challenges play out.
In recent weeks, two other federal judges – Jenkins and U.S. District Judge Virginia Kendall – refused to grant such orders pausing the “assault weapons” ban.
In both of those rulings, Kendall and Jenkins said they believed Illinois’ sweeping ban can still hold up under Bruen and its most recent pro-Second Amendment decision in District of Columbia v Heller. The judges said the historical record is replete with examples of the government legally banning other kinds of weapons determined by lawmakers to be “particularly dangerous.”
They said, therefore, the state need only slap such a label on the prohibited weapons to justify the ban, even though plaintiffs note the weapons are commonly owned in Illinois and the country.
Robert Bevis, the owner of a Naperville gun shop, has already appealed Kendall’s decision to the U.S. Seventh Circuit Court of Appeals.
However, the Seventh Circuit denied, without explanation, Bevis’ request for an injunction barring enforcement of the law while his case continues to play out.
Herrera’s legal team could make a similar request when their case lands before the Seventh Circuit.
They will likely be soon joined by other cases, regardless of the outcome of the proceedings in challenges to the gun ban before Judge McGlynn or other Illinois judges, as the cases wind their way to the Seventh Circuit and perhaps to the U.S. Supreme Court.
McGlynn was appointed to the Southern Illinois federal bench in East St. Louis in 2020 by former President Donald Trump.
Kendall, appointed by former President George W. Bush, has served on Chicago’s federal bench since 2006.
Jenkins has been on the federal bench in Chicago since March. She was appointed by President Joe Biden.
Despite her short time on the bench, Jenkins’ ruling in the “assault weapons” ban challenge is not her first ruling in a case involving hot-button issues that were assigned to her by the court’s leadership after her arrival on the bench.
Recently, Jenkins also denied a Florida father’s effort to block a DuPage County school district from helping his child to transition genders against his will and wishes as a parent. In that case, Jenkins ruled parents’ otherwise-fundamental right to direct their children’s upbringing ends at the door to the public schools, if the parent's wishes conflict with the schools’ public policy and educational goals.