The Illinois Supreme Court will soon weigh in on whether they believe Illinois’ so-called “assault weapons” ban violates Illinoisans’ rights.
But after a hearing, the court’s justices appear divided and unsure on key legal and constitutional questions surrounding the case before them, including whether the Second Amendment matters in the case at all.
On May 16, attorneys for Illinois state officials and attorneys for a group of gun owners and sellers from downstate Macon County squared off before the Illinois Supreme Court in Springfield. Each side presented their cases on whether the court should agree with a Decatur judge and other downstate judges that Illinois lawmakers and Gov. JB Pritzker violated the Illinois state constitution when they enacted the so-called Protect Illinois Communities Act (PICA).
Illinois Supreme Court Chief Justice Mary Jane Theis
| Illinoiscourts.gov
During that hearing, the justices appeared to argue among themselves as to how to address the legal and constitutional questions surrounding the gun ban and underpinning a certain group of challenges to the law.
The case landed before the high court after Illinois Attorney General Kwame Raoul filed a direct appeal from the decision of Macon County Judge Rodney S. Forbes. That judge had declared the PICA law unconstitutional, finding in favor of a group of gun owners and others from Macon County, led by State Rep. Dan Caulkins, R-Decatur.
Caulkins' lawsuit was among a group of challenges to the “assault weapons” ban brought in Illinois state courts under the Illinois state constitution, rather than directly under the Second Amendment to the U.S. Constitution. Other lawsuits brought under state law included challenges filed by hundreds of firearms owners and gun stores from across the state represented by attorney Tom DeVore, the most recent Republican nominee for the office of Illinois Attorney General.
DeVore had also secured restraining orders from other downstate judges on behalf of his clients, forbidding the state from enforcing the PICA law against them while the lawsuits remained pending.
The Caulkins and DeVore suits, however, have been just part of a larger wave of challenges to the PICA law.
Headed to SCOTUS?
The U.S. Seventh Circuit Court of Appeals is scheduled to hear an appeal on June 29 for a group of lawsuits filed in federal court. Those lawsuits directly assert the Illinois gun ban law violates the Second Amendment, as interpreted by recent U.S. Supreme Court decisions, notably including New York State Pistol & Rifle Association v Bruen.
In that 2022 decision, which built on earlier rulings rebuking the erosion of Second Amendment rights, the U.S. Supreme Court determined states and other governments cannot restrict the ownership and use of firearms unless they can demonstrate the weapons are both dangerous and unusual, and the restrictions don’t conflict with the nation’s historical tradition of firearm ownership and regulation under the Second Amendment.
In the appeals, the Seventh Circuit will take on the question of whether Illinois state officials should be forbidden from enforcing the PICA law while the challenges play out in court.
At the same time, a Naperville gun shop owner, with the support of some of the biggest Second Amendment rights advocacy groups in Illinois and the country, has also petitioned the U.S. Supreme Court to step in and issue an injunction blocking the law from being enforced. That petition remains pending.
All of those actions, however, could be rendered redundant, should the Illinois Supreme Court agree with Judge Forbes and other downstate judges, including a state appeals panel in southern Illinois, that the gun ban is unconstitutional.
Against that backdrop, Caulkins and his co-plaintiffs also sought the removal of the state high court’s two newest elected Democratic justices, Elizabeth Rochford, of Lake County, and Mary K. O’Brien, of Grundy County, from hearing the case. In a petition for recusal, attorneys Jerrold H. Stocks and Brian D. Eck, of the firm of Featherstun Gaumer Stocks Flynn & Eck, of Decatur, argued Rochford and O’Brien should be disqualified, because their election campaigns were aided by $1 million each in campaign donations from Pritzker.
They pointed to a 2009 decision from the U.S. Supreme Court, in which that court had thrown out a judgment in a West Virginia case because just one justice had refused to recuse himself, despite receiving campaign help from a prominent businessman facing a $50 million judgment. The U.S. Supreme Court in that decision ruled that state Supreme Court rulings could be imperiled if there was only a “serious risk of actual bias” from campaign contributions.
Rochford and O’Brien refused to recuse themselves from the case, and both sat on the court for the May 16 hearing.
Equal protection vs Fundamental rights
During the hearing, several justices questioned both sides over the standards they should use in evaluating the questions raised in the case.
On one side, Illinois Assistant Attorney General Leigh Jahnig argued the case isn’t really about firearm ownership, because the plaintiffs chose not to raise those claims or join in the federal lawsuits.
In this instance, she said, the only claims properly before the court center on the question of whether the Illinois law violates Illinoisans’ rights to equal protection.
In their lawsuit, the plaintiffs have asserted the law unconstitutionally creates different groups of potential gun owners. The PICA law generally forbidding Illinoisans from purchasing or acquiring any of a long list of semiautomatic firearms that the state has designated as “assault weapons,” or certain related accessories, including so-called “large capacity magazines,” or ammunition cartridges capable of holding more than 10 rounds per clip.
The law, however, carves out exemptions for several groups of people, including police officers and other designated law enforcement officers, active duty military and security guards, among others. The law also “grandfathers” in millions of firearms already owned by Illinois residents, so long as they register those weapons with the Illinois State Police beginning this fall.
Anyone who violates the law could face steep fines or imprisonment.
In the lawsuit, the Caulkins-led plaintiffs assert this violates the equal protection rights of Illinoisans, by allowing those exempted individuals to continue owning and using their weapons, while denying the same Second Amendment rights to keep and bear arms to everyone else.
Stocks agreed the equal protection claims lie at the center of the case before the state high court.
But he said the equal protection claims are rooted in the state’s decision to discriminate against otherwise lawful gun owners, allegedly denying them their Second Amendment rights to acquire and sell certain kinds of firearms, while giving large numbers of government workers and members of other favored groups special exemptions.
Stocks said this cannot be allowed to stand under the U.S. Supreme Court’s holdings in Bruen and other cases.
“The state doesn’t have the power to decide if you have Second Amendment rights,” Stocks said.
Jahnig, however, asserted the claims in the Caulkins case should be decided solely on the basis of equal protection.
While claims under the Second Amendment center on a fundamental right, claims of equal protection pose an easier constitutional test for the state to pass. In this instance, Jahnig said, the state doesn’t need to prove its law isn’t restricting a constitutional right; the state needs only to show its reasons for doing so are “rational.”
In this instance, she told the court, the purpose of the law is to “freeze” the number of “assault weapons” and “large capacity magazines” in legal circulation, to reduce the possibility of future mass shootings.
“The plaintiffs did not plead a Second Amendment claim,” Jahnig said. “They cannot use an equal protection claim to bypass the Second Amendment test.”
In response, Stocks said state officials were the ones attempting to use the equal protection claims to bypass the underlying fundamental Second Amendment claims.
He said the equal protection claims can’t be properly evaluated unless the court begins by answering the question of what right is being denied, that would trigger the equal protection claims.
“The state would like to avoid confronting the issues head on,” Stocks said.
'Why are we even talking about the Second Amendment?'
Throughout the hearing, the justices centered their inquiries on the different possible mechanisms for either deciding the case on the merits or ending it on a question of law.
Justices Joy V. Cunningham, a Chicago Democrat, and Rochford repeatedly questioned the lawyers on whether the equal protection claims had been properly evaluated by lower courts before the PICA law was declared unconstitutional, and sent to the state Supreme Court.
Jahnig noted her office had argued it was not sufficiently addressed in the lower court’s rulings, which she said means those orders should be reversed.
On the other side, Justice Lisa Holder White, a Republican, of Springfield, sharply questioned Jahnig on the state's position that equal protection claims must always be evaluated on a rational basis. Holder White noted other cases addressing the so-called “fundamental right” to an education under the Illinois state constitution have used the more exacting standard, known as strict scrutiny, more typically applied to fundamental rights, when evaluating equal protection claims of discrimination for the state’s public school students.
Holder White questioned why a lesser standard of review should be applied to equal protection claims that are based in the alleged denial of a fundamental right under the Second Amendment.
Jahnig, however, said the lesser standard should be appropriate in this case, because the plaintiffs can still press their claims under the Second Amendment in federal court.
“Second Amendment rights have their own protections in the Constitution,” Jahnig said, whereas the right to an education is not recognized under the U.S. Constitution.
Chief Justice Mary Jane Theis, a Cook County Democrat, exhibited hostility to the challengers’ position.
She repeatedly wondered why the arguments continued to return to the Second Amendment, when the lawsuit was not based on a direct Second Amendment claim.
She cast doubt on the plaintiffs’ attempts to argue their equal protection claims should be treated similarly to a claim under the Second Amendment.
Theis further questioned whether the Illinois or U.S. constitutions grant a “constitutional right to keep and bear ‘assault weapons,’” and questioned if U.S. Supreme Court decisions on the Second Amendment, like Bruen, had anything to do with the plaintiffs’ state constitution equal protection claims.
Nearly echoing Jahnig, Theis asserted that if plaintiffs wished to press a Second Amendment claim, they “could’ve joined the federal cases.”
“Why are we even talking about the Second Amendment at all?” Theis said. “That’s not what they pled.”
The Illinois Supreme Court did not yet issue a decision in the case, which could come weeks or even months from the hearing date.