Gun owners shouldn’t need to use their weapons regularly to shoot home invaders or others bent on causing harm to them or their loved ones, for the firearms they may own to be protected as “bearable arms” by the Constitution, say a group of Second Amendment rights organizations seeking court orders blocking enforcement of Illinois’ ban on so-called “assault weapons.”
This week, a flurry of legal briefs have been filed in both a federal appeals court in Chicago and at the U.S. Supreme Court, as Illinois gun owners wait to see if Illinois state officials will be allowed to continue enforcing the law during the months and potentially years of court proceedings that may lie ahead on the larger question of whether Illinois lawmakers and Gov. JB Pritzker violated the Second Amendment rights of Illinoisans to keep and bear arms when they enacted the new gun ban earlier this year.
On May 9, attorneys representing gun owners, firearms shop owners and gun rights’ groups, including the National Sports Shooting Foundation, the Illinois State Rifle Association, Guns Save Life and the Firearms Policy Coalition, each filed briefs in the U.S. Seventh Circuit Court of Appeals.
The filings argued Seventh Circuit Judge Frank Easterbrook, acting alone and without giving plaintiffs the chance to respond, was wrong to grant the request from Illinois Attorney General Kwame Raoul to put a hold on a Southern Illinois federal judge’s injunction blocking the state from enforcing the firearms sale and purchase restrictions in the so-called Protect Illinois Communities Act (PICA).
The Firearms Policy Coalition, for instance, noted Easterbrook’s order came despite the Attorney General’s apparent violation of federal court procedural rules in bringing the appeal to the Seventh Circuit on an emergency basis, simply because U.S. District Judge Stephen McGlynn would have given the plaintiffs a small window in which to respond to the state’s motion to stay McGlynn’s injunction.
That aside, the pro-Second Amendment rights plaintiffs argue the Seventh Circuit should reinstate McGlynn’s injunction, blocking the state from enforcing the gun ban, while court proceedings play out over the constitutionality of the PICA law.
For months, judges in both state and federal courts in Illinois have presided over challenges to the PICA law.
Signed by Pritzker in January, the law banned a long list of semiautomatic firearms the state designated as overly “dangerous” “assault weapons,” along with various firearm accessories, including so-called “large capacity” ammunition magazines, which are 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 May 16 in a state law-based case out of Macon County.
In the meantime, however, federal courts have split on the question of whether Illinois officials should be allowed to enforce the law while court challenges continue.
Two Chicago federal court judges denied requests for injunctions, ruling the Second Amendment provides no barrier to the state banning firearms, so long as it labels the prohibited weapons “particularly dangerous.”
Judge McGlynn, in East St. Louis, however, ruled the state law falls far out of the bounds set by the U.S. Supreme Court in recent decisions upholding the right to keep and bear arms. He blocked the state from enforcing its gun ban.
However, after only one weekend in place, that injunction was stayed by Judge Easterbrook, when Raoul sought an emergency order from the Seventh Circuit.
In the motion for the emergency stay, Raoul asserted that allowing people to buy and sell the otherwise prohibited weapons while the court challenges continue would place the state at increased risk of mass shootings, like the July 4, 2022, massacre at the Independence Day Parade in Highland Park.
In that and other briefs filed elsewhere, Raoul’s office has also argued the Illinois gun ban should be allowed, even under recent Supreme Court rulings, because the weapons the state seeks to ban shouldn’t be classified as “arms” under the Second Amendment because they are too dangerous and more difficult to use for self-defense in the home and elsewhere than are handguns or shotguns.
In support of that argument, the state asserts studies indicate few of the firearms it identifies as “assault weapons” are ever actually used for self-defense, which it asserts is the core right protected by the Second Amendment.
Further, the state has argued that accessories, like “large capacity magazines” also can’t be classified as constitutionally protected “arms.” In the case of magazines, the state posits that they are little more than boxes for storing ammunition.
In responding to the state’s briefs, the firearms owners’ rights groups assert the state’s arguments don’t hold up under constitutional scrutiny.
They note ammunition magazines are not mere accessories, but are essential components to the use of any semiautomatic weapon, whether or not the state designates them as “assault weapons.”
They note prior decisions from the Supreme Court and the Seventh Circuit have struck down laws that unconstitutionally infringed on the Second Amendment by effectively making legally owned firearms useless.
The firearms owners’ rights groups also took aim at the state’s assertions that firearms are only protected by the Second Amendment if the state believes they are useful or effective for self-defense.
The challengers assert this is unconstitutional nonsense.
“In the state’s view, ‘the people’ have no right to keep a firearm for self-defense unless they often shoot attackers with it, and they have no right to keep a magazine above a certain capacity unless they frequently fire that many rounds in self-defense,” wrote attorney Erin Murphy, on behalf of NSSF and its co-plaintiffs.
“By that logic, the state could seemingly ban arms entirely, as most people fortunately never have to fire their firearms for self-defense at all. Indeed, even people who confront a self-defense situation often manage to ward off the attack merely by brandishing a firearm.
“Unsurprisingly, that is not the law.”
Murphy noted the Supreme Court has ruled in its 2022 decision in New York State Pistol & Rifle Association v Bruen and elsewhere that Americans have the right to keep and bear arms “for the purpose … of being armed and ready for offensive or defensive action in a case of conflict with another person.”
“That fundamental right does not turn on how frequently people actually confront such situations or how many rounds they typically fire when they do,” Murphy wrote.
That approach was echoed in a brief filed before U.S. Supreme Court Justice Amy Coney Barrett by attorneys the National Association for Gun Rights and Naperville gun shop owner Robert Bevis.
The plaintiffs in that case are seeking an order from the Supreme Court blocking enforcement of the gun ban law. They say the Chicago federal judges were wrong to allow the state to continue enforcing the law, because the law could somehow hold up under the new Supreme Court rulings.
In briefs supporting that petition, the NSSF, Firearms Policy Coalition and Guns Save Life, among others, have all asserted the high court must step in to deliver a message to lower courts who they say continue to give too much deference to states and local governments wishing to restrict gun ownership and use rights.
In the new Bevis brief, filed May 10, plaintiffs said the state’s arguments are untenable under the Second Amendment, Bruen and other Supreme Court decisions.
Like the NSSF, the Bevis plaintiffs also took aim at the state’s assertion that “assault weapons” and “large capacity magazines” can be banned because they aren’t commonly used in self-defense or are “militaristic” or “weapons of war,” and therefore don’t qualify as “arms” under the Second Amendment.
The Bevis brief, written by attorney Barry Arrington, compared the Second Amendment right to keep and bear arms to the right to free speech guaranteed in the First Amendment. Arrington noted courts have allowed some limits on speech, such as prohibitions against libel.
Similarly, Arrington said, the Constitution does allow some limits on ownership of weapons. But he said that is limited only to “dangerous and unusual” weapons.
And just as no one could argue that libel is not speech, similarly the state and the two Chicago federal judges cannot determine that common semiautomatic firearms, owned peacefully and lawfully by millions for decades, don’t qualify as “arms.”
Similarly, they said, “large capacity magazines” also qualify as “arms” protected by the Second Amendment.
“… A modern magazine is not merely a box in which ammunition is stored,” Arrington wrote in his brief. “Magazines are dynamic and integral components of all semi-automatic firearms without which semi-automatic fire is impossible.
“Thus, to credit the State’s argument, the Court would have to implicitly hold that a ban on all semi-automatic fire would be constitutional. Obviously, such a holding would be radically inconsistent with (prior Supreme Court rulings.)”
Bevis and others challenging the law have each asked the Supreme Court to step in, asserting the actions of the Seventh Circuit, to this point, indicate they will refuse to adjust their legal reasoning and deference to the state, despite the new Supreme Court rulings.
“Old habits die hard, and despite (the Supreme Court’s) clear mandate in Bruen, lower courts continue to defer to the government when Second Amendment rights are abridged,” Arrington wrote. “The State believes this is a reason to deny the Application. Plaintiffs respectfully suggest that this is perhaps the best reason to grant it.”
Justice Barrett has been assigned to handle the emergency petition, as the Supreme Court justice designated to handle such appeals from the Seventh Circuit states of Illinois, Indiana and Wisconsin.
Barrett has not yet indicated when or how she may rule on the petition.