Editor's note: This article has been revised from an earlier edition to correctly state a hearing before the Illinois Supreme Court concerning the Illinois PICA law will be May 16.
Illinois Attorney General Kwame Raoul has urged the U.S. Supreme Court to stay out of the court fight over the fate of the state’s ban on so-called “assault weapons,” at least for now.
But organizations backing gun owners and firearm shop owners say rulings from federal judges - and particularly a recent order from a federal appeals court judge in Chicago - allowing the state to continue enforcing its gun ban serve as proof that states and lower courts are all but defying recent Supreme Court rulings, and need to be sent a message.
U.S. Seventh Circuit Court of Appeals Judge Frank Easterbrook
On May 8, Raoul’s office, along with attorneys for the city of Naperville, filed motions before U.S. Supreme Court Justice Amy Coney Barrett, asking her to decline the petition of a Naperville gun shop owner and his co-plaintiffs for an order blocking the state from enforcing the constitutionally questionable gun ban while constitutional challenges play out in lower courts over the coming months and perhaps even years.
The emergency petition from Robert Bevis, owner of LAW Weapons & Supply, of Naperville, and the National Association for Gun Rights, asserts the high court must step in to address the alleged failure of lower courts to fully acknowledge and abide by the legal framework established by recent decisions from the U.S. Supreme Court to evaluate laws restricting Americans’ Second Amendment right to keep and bear arms.
The challenge from Bevis and the NAGR is one of a bevy of lawsuits filed earlier this year challenging Illinois’ so-called Protect Illinois Communities Act and local gun control ordinances, such as the “assault weapons” ban ordinance passed by the city of Naperville last year.
That law, signed by Gov. JB Pritzker in January, banned a long list of semiautomatic firearms the state designated as “dangerous” assault weapons, along with firearm accessories, including so-called “large capacity” ammunition magazines, capable of holding more than 10 rounds in a clip.
The state also required current owners of those weapons to register them with the state beginning this fall. Those in defiance of the law could face criminal charges, including steep fines and imprisonment.
The Illinois Supreme Court is scheduled to hear arguments on a state law-based challenge on May 16.
In the meantime, federal judges in Illinois have split on the question of whether the state can enforce the law while the courts decide whether the PICA actually is constitutional.
Gun owners assert the constitutional questions are strong enough that the state should not be allowed to deny them the right to buy the weaponry of their choice, and should not be allowed to endanger the livelihoods of gun shop owners by potentially putting them out of business while the lawsuits drag on for months or even years before the cases may reach their conclusion before the U.S. Supreme Court.
Two federal judges in Chicago denied requests from plaintiffs in two different cases for an injunction barring the state from enforcing the law. In those decisions, U.S. District Judges Lindsay Jenkins and Virginia Kendall sided with the state, declaring the state was free to ban any weapons it believes are “particularly dangerous,” even if those weapons are owned by millions for lawful purposes.
Kendall’s ruling came in the case brought by Bevis and the NAGR.
The Seventh Circuit then denied Bevis’ motion to toss out Kendall’s ruling and impose the injunction statewide. That ruling came without explanation or further guidance for lower courts still hearing the constitutional challenges.
The Seventh Circuit’s refusal to act then led Bevis and the NAGR to take the unusual step of seeking emergency intervention from the U.S. Supreme Court. Justice Barrett is considering that request as the justice assigned to hear such petitions from the states of Illinois, Indiana and Wisconsin, which make up the Seventh Circuit.
In the meantime, U.S. District Judge Stephen McGlynn, in the Southern District of Illinois, granted the injunction sought by a group of plaintiffs challenging the law in four consolidated cases.
In that ruling, McGlynn backed the assertions of gun owners and firearm shop owners that the state law falls far short of being constitutional, particularly in light of the 2022 U.S. Supreme Court decision in New York State Pistol & Rifle Association v Bruen.
However, after one weekend in place, that injunction was itself put on hold by Seventh Circuit Judge Frank Easterbrook at the request of the state. Easterbrook did not give the challengers the opportunity to reply to the state’s request before issuing the order.
However, the judge gave them until May 9 to challenge the stay, and to argue over whether prior Seventh Circuit decisions permitting the city of Highland Park and Cook County to each enforce “assault weapons” bans – local ordinances very similar to the state’s new law - don’t hold up under recent Supreme Court decisions.
While the challenges continue in the lower courts, Bevis and his fellow challengers are hoping Barrett and the high court will recognize what they have said are the failures of the lower court to abide by the Supreme Court’s direction.
In response, Raoul’s office returned to familiar legal territory, again arguing the Second Amendment’s protections don’t extend to the right of people to own “dangerous” weapons, which the state asserts should be left solely to the military and law enforcement.
Further, the state argues the Second Amendment provides no protection at all to “large capacity magazines,” because they are not “arms,” but rather merely devices to hold ammunition.
In the brief, Raoul points to a list of lower court decisions backing that proposition, which he said shows the courts believe states have the authority to ban any weapons they wish, so long as they deem them to be too dangerous or better suited for committing massacres, rather than self-defense.
Challengers have asserted those decisions merely show the lower courts are all but defying the Supreme Court’s rulings limiting the ability of governments at all levels to restrict Second Amendment rights.
They assert the Supreme Court should not wait perhaps years for these decisions to come before them, before sending a message to states like Illinois and others who are moving aggressively to impinge the rights of Americans and in the process, potentially drive firearm shops out of business while court challenges drag out.
In briefs filed in support of Bevis’ request, other plaintiffs challenging the Illinois law pointed to Easterbrook’s haste in blocking McGlynn’s ruling as proof of courts all but ignoring the Bruen ruling, and continuing to apply now-forbidden methods of interpreting the Second Amendment.
“It is evident that, while many courts got the message after Bruen, other courts still harbor an entrenched recalcitrance to recognize and protect Second Amendment rights,” wrote attorneys for a group of organizations representing Illinois gun owners, including the Federal Firearms Licensees of Illinois, Guns Save Life, Gun Owners of America, and the Gun Owners Foundation.
They also filed a brief before Barrett on May 8.
Their brief came three days after attorneys Paul Clement and Erin Murphy, who had successfully argued the Bruen case before the Supreme Court, filed a brief before Barrett, on behalf of the National Shooting Sports Foundation.
They and their allies at FFL of Illinois and Guns Save Life had been among the challengers that secured the ruling from McGlynn in April.
Clement and Murphy urged Barrett and her colleagues on the high court to not delay stepping in to defend the constitutional rights of millions of Americans, which they said are under assault by Illinois and other state and local governments across the country under the guise of promoting public safety, in alleged defiance of the Supreme Court.
And “worse still,” they said, is the order from Easterbrook, which they said indicates that he and potentially other judges on the Seventh Circuit “apparently continue to believe” that the decisions they issued upholding the local “assault weapons” bans in Illinois “remain good law,” despite potentially conflicting with the Bruen decision.
They repeatedly referenced the unusual nature of the order from Easterbrook, which they said flouted federal appeals court procedural rules.
“That is an untenable state of affairs,” they wrote, and one which should lead the Supreme Court to take the unusual step of intervening to block the state of Illinois from enforcing its bans.
“… The desire of a state to impose new restrictions on commonly held firearms in defiance of a recent and emphatic decision of this Court should not be given effect unless and until this Court has considered and upheld the law on the merits,” Clement and Murphy wrote.
Barrett has not yet indicated when she may rule on the petition.