A federal judge could soon decide whether the McHenry County state's attorney has the right to sue Gov. JB Pritzker and other state officials for enacting the state’s new law banning the sale and purchase of so-called “assault weapons.”
While the decision would mark the conclusion of yet another round in a sprawling mass of constitutional challenges to the gun ban now pending in multiple Illinois courts, it could also further define state’s attorneys' ability under the law to decide which laws to enforce.
Earlier this spring, McHenry County State’s Attorney Patrick Kenneally filed suit in McHenry County court against Pritzker and other state officials, seeking a court order declaring the so-called “assault weapons” ban unconstitutional.
Pritzker had signed into law the so-called Protect Illinois Communities Act in January, immediately after it was approved by the Democratic supermajority in the Illinois General Assembly.
Under that law, the state banned the sale and acquisition of a long list of hundreds of semiautomatic rifles and other firearms, as well as related accessories, including so-called “large capacity” ammunition magazines.
The law did not require current owners of such weapons to surrender their firearms. However, the law required owners of the otherwise banned weapons to register them with the Illinois State Police.
Those who refuse to do so by the deadline early next year could face criminal charges, that could result in steep fines or imprisonment.
Supporters say the law is needed to help prevent further mass shootings that have plagued the U.S. in recent years. While the law represented the culmination of a longstanding left-wing progressive legislative goal, the passage of the law in early 2023 was catalyzed by the fresh memories of the July 4, 2022, massacre in Highland Park, committed by a lone gunman at the city’s Independence Day Parade.
The law, however, was immediately challenged by Second Amendment rights advocacy groups, gun shop owners and gun owners across Illinois. They argue the law violates their rights under both U.S. Constitution and the Illinois state constitution.
To date, those cases have met with mixed results. A federal judge in southern Illinois last week entered an order barring the state government from enforcing the gun ban while the constitutional challenges play out.
However, that decision came after two federal judges in Chicago reached opposite conclusions, refusing to approve such preliminary injunctions, because they said they believed the Second Amendment protections did not apply to this law. They said the state need only claim the weapons are “particularly dangerous” and it passes constitutional muster.
All three decisions have been appealed to the U.S. Seventh Circuit Court of Appeals. In a surprise move Thursday, appellate Judge Frank Easterbrook granted a request from Illinois Attorney General Kwame Raoul to put a hold on McGlynn's injunction.
Raoul had argued McGlynn's decision is overbroad, legally deficient and puts the state at risk of further mass shootings. Raoul repeated the state’s argument that the Second Amendment doesn’t protect such “dangerous” weapons, which he argued are not essential for self-defense.
At the same time, a separate injunction petition is pending before U.S. Supreme Court Justice Amy Coney Barrett. A Naperville gun shop owner has asked the Supreme Court to step in and issue an injunction against the Illinois gun ban, after the Seventh Circuit denied, without explanation, his earlier request for an injunction barring enforcement of the “assault weapons” ban.
Barrett and the high court have not yet responded to that petition.
Meanwhile, a federal judge in Rockford is also weighing whether to allow Kenneally to continue with his office’s challenge to the gun ban.
In the lawsuit, Kenneally argued the law violated the Second Amendment’s right of Americans to keep and bear arms. He argued he had the legal ability to bring the lawsuit because enactment of the law puts him in the untenable position of being required to enforce a law he believes to be unconstitutional.
In response, Raoul’s office, representing Pritzker and the other state officials, has sought dismissal. In large part, the Attorney General has argued Kenneally cannot press his lawsuit, because his office lacks legal standing to do so.
In addressing those arguments, the Rockford judge Iaian Johnston generated headlines in March by questioning whether Raoul’s team was arguing out of both sides of its mouth and playing procedural games with the case. He noted it was the state’s decision to transfer the case from McHenry County court to federal court. But then the state pivoted to arguing the federal court can’t hear the case, because Kenneally, as state’s attorney, lacks standing to sue.
“So what is it?” Johnston wrote on March 17. “… Pick one and be prepared to tell the Court why.”
The case, however, has continued, and the state has maintained its assertion that Kenneally lacks standing because he and his office have not suffered any harm from the enactment of the gun ban.
In a motion filed March 30, Illinois Assistant Attorney General Darren Kinkead argued Kenneally can’t sue the state to overturn the law because the Attorney General doesn't believe state’s attorneys have a constitutional obligation to enforce any law, including the provisions of the “assault weapons” ban.
Following passage of the gun ban in January, dozens of county sheriffs and state’s attorneys publicly announced they would not enforce that law against those in their counties.
Those public positions appeared to be contradicted by the state’s arguments in court.
“Despite the State’s Attorney’s claim that he finds himself ‘in an impossible ethical quandary of enforcing new, unconstitutional criminal offenses against citizens who are lawfully exercising their constitutional rights,’ in fact state’s attorneys in Illinois have exclusive and unreviewable discretion to initiate criminal prosecutions,” Kinkead wrote. “Thus, it is entirely up to the State’s Attorney whether he chooses to enforce the new sections of the Criminal Code of 2012 challenged here (the ‘assault weapons’ ban.)”
In a response filed May 1, Kenneally did not dispute the point about his office’s discretion in prosecuting crimes.
However, citing the Illinois Rules of Professional Conduct which govern attorney ethics, he said his job as state’s attorney goes beyond just prosecuting crimes, but to also “seek justice” and act as a “minister of justice.”
But he said the enactment of the law still places him and his fellow prosecutors in “an impossible ethical dilemma” of being compelled to either “ignore the passage of, or enforce, a law that is a clear violation of the Second Amendment to the United States Constitution.”
Further, Kenneally noted he has already been named as a defendant in a lawsuit brought against the state and his office by the owners of a gun shop in far northwest suburban Marengo. In that lawsuit, the Marengo gun shop owner is seeking a court order barring the state from enforcing the gun ban. That injunction would include Kenneally and the McHenry County State’s Attorney’s office, as the local prosecutors tasked with prosecuting any criminal charges brought under the law.
Should the gun shop owner prevail, Kenneally said, his office and McHenry County could be left to pay at least a portion of the gun shop’s attorney fees.
“… There is nothing abstract about the reality of the Lawsuit,” Kenneally said. “The fact that Plaintiff has been required to answer the Lawsuit, file a response to the request for an injunction, and send one of its Assistant State’s Attorneys to East St. Louis, Illinois, incurring actual travel expenses, are all separate examples of how real Plaintiff’s injuries are, in fact,” Kenneally said.
Kenneally said his risks are that much greater, as the enactment of the “assault weapons” ban has left him in the position of defending himself against a lawsuit challenging the validity of a law he already believes is unconstitutional.
Aside from the legal costs of defending a potentially unconstitutional law, Kenneally said it is his duty as the McHenry County State’s Attorney to litigate in the interests of the public.
Kenneally said he “submits that adherence to the Constitution by its law enforcement, court system, and other government officials and institutions is a matter of public interest.”
“The enactment and implementation of (the Protect Illinois Communities Act,) the terms of which must be observed, abided by, and enforced by McHenry County officials, impairs this interest because PICA is unconstitutional,” he said.
Judge Johnston has not yet ruled on the state’s motion to dismiss Kenneally’s lawsuit.