Unless the U.S. Supreme Court or the Illinois Supreme Court steps in, Illinois’ ban on so-called “assault weapons” will remain in force for at least the next two months, though likely longer than that, as constitutional challenges to the gun ban play out in court.
On May 12, a panel of three judges at the U.S. Seventh Circuit Court of Appeals indicated they would not lift a stay order issued by on the members of the panel, putting a hold on a federal judge’s injunction that had for one weekend blocked Illinois state officials from enforcing the ban.
In the May 12 order, the panel set the schedule for briefings, arguments and hearings over the question of whether the law should remain in effect over the coming months and perhaps even years of hearings and appeals over the constitutionality of the Illinois law known as the Protect Illinois Communities Act.
Seventh Circuit Judge Diane Wood
| ballotpedia.org
In the May 12 order, the Seventh Circuit panel set a firm hearing date for Thursday, June 29. They said the hearing will last for 90 minutes, with 45 minutes allotted to the state and other local governments involved in the challenges, and 45 minutes given to the gun owners and Second Amendment rights advocacy groups challenging the law, to state their cases.
The panel said no requests for extensions of time or for late briefings would be permitted.
Of particular note, however, the panel said the stay order issued by Seventh Circuit Judge Frank Easterbrook would remain in effect until the Seventh Circuit panel can issue a ruling on appeals brought by both sides over the question of whether an injunction blocking the law should be granted.
“This court already has denied a motion for an injunction pending appeal (in one of the cases),” the judges said. “… Based on our review of the parties’ submissions, the breadth of the litigation, and the differing conclusions reached by different district judges, we conclude that the stay of the district court’s order already entered will remain in effect until these appeals have been resolved and the court’s mandate has issued.”
The Seventh Circuit panel appears to be led by Easterbrook, who notably has authored decisions in the past upholding local “assault weapons” bans in Highland Park and Cook County. He is joined on the panel Circuit Judge Diane P. Wood and Circuit Judge Michael B. Brennan.
Easterbrook was appointed to the court by former President Ronald Reagan. Wood was appointed by former President Bill Clinton. And Brennan was appointed by former President Donald Trump.
The cases landed before the Seventh Circuit in April, after two federal judges in Chicago in northern Illinois federal district court, and a judge in East St. Louis in southern Illinois district court, reached differing conclusions on whether the courts should intervene on behalf of firearms owners and gun show owners to prohibit the state from enforcing 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 Democrat-dominated Illinois Supreme Court is scheduled to hear arguments on May 16 in a state law-based case out of Macon County. In that case, two of the state’s newest justices, Elizabeth Rochford and Mary K. O’Brien, have refused to recuse themselves in the case, despite receiving $1 million each in campaign donations from Pritzker, the gun ban’s most prominent backer.
In the meantime, Chicago federal judges Lindsay Jenkins and Virginia Kendall each refused requests to block enforcement of the gun ban. In their rulings, they each backed the state’s position that it should be free to ban any weapons it wishes, so long as the state believes the weapons to be “particularly dangerous” or overly lethal.
They further agreed with the state that banning “assault weapons” doesn’t violate the Second Amendment because Illinoisans still have access to handguns and shotguns, which lawyers for the state argue are better options for self-defense.
The Seventh Circuit, without explanation, denied a request from a Naperville gun shop owner for an injunction in an appeal of the decision from Kendall.
In southern Illinois, however, U.S. District Judge Stephen McGlynn issued an injunction blocking the law. In his ruling, McGlynn said the the state law, which bans entire categories of weapons, falls far out of the bounds set by the U.S. Supreme Court in recent decisions upholding the right to keep and bear arms.
However, after only one weekend in place, that injunction was stayed by Judge Easterbrook, when Illinois Attorney General Kwame Raoul sought an emergency order from the Seventh Circuit.
In issuing the order, Easterbrook gave no opportunity for the plaintiffs to respond to Raoul’s petition. Further, plaintiffs have noted Easterbrook’s decision came even though they say Raoul violated federal appellate court procedural rules by running to the Seventh Circuit, even before McGlynn had an opportunity to rule on the state’s own motion to stay the injunction.
In the meantime, the U.S. Supreme Court could yet also step in. After the Seventh Circuit unceremoniously rebuffed the injunction petition from Naperville gun shop owner Robert Bevis and his co-plaintiffs, the National Association for Gun Rights, Bevis and the NAGR took the unusual step of asking the Supreme Court to intervene and issue an injunction the local courts will not.
In briefs submitted to Supreme Court Justice Amy Coney Barrett, attorneys for Bevis and nearly every other challenger to the PICA law urged the high court to step in to deliver a message to lower courts who they say are defying the Supreme Court’s decisions concerning the Second Amendment.
They assert the Supreme Court should not wait through years of appeals in the lower courts for these cases to come before them, before taking action against states like Illinois who are moving aggressively to impinge Second Amendment rights and in the process, potentially drive firearm shops out of business while court challenges drag out.
In response, the state has reasserted its position that the “assault weapons” are too dangerous, so they fall outside the protection of the Second Amendment. Further, Raoul says the lower courts’ choice to largely defer to allowing such gun bans, despite the Supreme Court’s recent decisions, indicates the ban should be allowed to remain in place until courts – and perhaps the full Supreme Court – can determine if it is constitutional.
Barrett, as the justice assigned to handle such emergency appeals from the Seventh Circuit states of Illinois, Indiana and Wisconsin, is considering Bevis’ petition and the counterarguments from the state.
She can also opt to take the question to the rest of her colleagues on the Supreme Court.
Barrett has not yet indicated how she or the full court may rule on the petition.
If neither the U.S. Supreme Court nor the Illinois Supreme Court take action before June 29, the Illinois gun ban most likely will remain in effect until the Seventh Circuit decides otherwise. A ruling could come weeks or even months after the June 29 hearing.