Illinois state officials have asked a federal appeals court to block a southern Illinois federal judge’s order barring the state from enforcing its ban on so-called “assault weapons,” saying the judge’s ruling puts the state at increased risk of mass shootings because would-be mass murderers can again purchase the firearms and accessories prohibited by the state’s new law.
On May 2, Illinois Attorney General Kwame Raoul filed a motion in the U.S. Seventh Circuit Court of Appeals in Chicago, to stay the ruling of U.S. District Judge Stephen McGlynn.
In that motion, Raoul argues McGlynn’s decision was legally deficient, because McGlynn ruled that AR-15 semiautomatic rifles and others like them should be considered “bearable arms” and thus subject to the protections of the Second Amendment, which guarantees Americans the right to “keep and bear arms.”
The motion makes repeated references to the use of such “uniquely lethal” weapons in mass shooting incidents, notably including the July 4, 2022, massacre at the Highland Park Independence Day parade. But while noting such shooters may have born the arms they used to wreak death and destruction, Raoul argues those same weapons cannot be used commonly by others for “lawful self-defense,” which the attorney general asserts is the standard to determine whether ownership of a weapon should be protected by the Second Amendment.
Raoul argues gun owners still have access to a range of weaponry not prohibited by the “assault weapons” ban, including handguns and shotguns, which he said courts should deem to be the only firearms that should be allowed under the Second Amendment.
Raoul further asserts McGlynn’s ruling should be blocked, and the gun ban reinstated, because McGlynn’s ruling conflicts with other courts’ findings. Raoul points to rulings by McGlynn’s judicial colleagues, U.S. District Judges Lindsay Jenkins and Virginia Kendall, of the Northern District of Illinois court, who ruled the state’s “assault weapons” ban should be permitted because the weapons it bans are “particularly dangerous.”
Further, Raoul argues McGlynn’s ruling did not account for a decision from the Seventh Circuit itself, which declined to deny a request from a Naperville gun shop owner for an injunction blocking enforcement of the Illinois “assault weapons” ban. That order from the Seventh Circuit, however, was unsigned, and contained no explanation or rationale to support the denial, or directions for other courts to follow when considering similar requests, even though the motion for injunction remained pending before McGlynn at the time.
In his ruling, McGlynn did not directly address the contrary rulings. However, McGlynn said the state’s reasoning falls far short under recent U.S. Supreme Court decisions, and particularly the ruling in the case known as New York State Rifle and Pistol Association v Bruen. In that decision, McGlynn noted the Supreme Court declared state’s may not simply ban weapons or the use of weapons, without demonstrating that the weapons being banned are considered both dangerous and unusual.
In this instance, McGlynn said the state cannot prove the weapons being banned are unusual, as some of the prohibited firearms are among the most popular firearms sold and owned in America and Illinois. The judge questioned whether Gov. JB Prtizker and the Democrat-dominated Illinois General Assembly had considered either the Second Amendment or the Bruen decision when the state enacted its new law, the so-called Protect Illinois Communities Act.
Raoul, however, said McGlynn's reasoning is flawed. The Attorney General argued courts can't determine if a firearm is "unusual" on the basis of whether it it is owned by millions of people.
Raoul said American history is replete with instances in which governments allowed certain kinds of dangerous weapons to proliferate, such as fully automatic machine guns, until such time as they were then banned in the name of public safety. He said those historical corollaries should allow Illinois to ban entire categories of commonly owned firearms now.
Raoul also argued McGlynn’s injunction against the full law, means the state is unable to ban the sale and acquisition of any number of weapons, including those Raoul said both sides agreed and the Supreme Court has ruled aren’t protected by the Second Amendment.
Raoul said this leaves Illinois in greater danger from mass shooters wielding weapons similar to those used in Highland Park and other mass casualty events, including recent incidents in Nashville, Tennessee; Alabama; and Texas.
Raoul further asserted the economic harm that will come to gun shops, including the risk of going out of business, should carry no weight in the discussion of whether to allow the ban to remain in place while the court challenges to the law continue.
“Continued access to assault weapons … in the civilian market increases the likelihood that additional mass shootings will occur in Illinois,” Raoul wrote.
The state’s motion comes at the same time U.S. Supreme Court Justice Amy Coney Barrett is considering a petition from Naperville gun shop owner Robert Bevis for an injunction blocking enforcement of the law, as the courts deal with the constitutional questions. Such an order from the high court would be unusual.
But in that petition, Bevis said he and other gun shop owners and firearm owners cannot entrust their economic livelihood and personal safety to the whims of different judges issuing differing rulings, as the cases make their way, perhaps, to the U.S. Supreme Court.
On May 2, Barrett issued an order directing the government defendants in the Bevis case, including the city of Naperville, to reply to Bevis’ petition by May 8.