Saying the law does not unconstitutionally discriminate against the vast majority of Illinoisans by denying their constitutional rights to buy and keep certain kinds of constitutionally protected firearms, a divided Illinois Supreme Court has upheld, for now, Illinois’ sweeping restrictions on the sale and ownership of so-called “assault weapons.”
In the decision, however, the court’s majority specifically declined to address whether the gun ban enthusiastically supported by Gov. JB Pritzker and progressive Democrats throughout the state may ultimately violate the U.S. Constitution’s Second Amendment.
The court’s majority walled off that argument, by noting the plaintiffs in the case went to lengths to avoid such a direct challenge to the law under the Second Amendment, to ensure the case remained centered on different legal and constitutional claims.
Rep. Dan Caulkins
| repcaulkins.com
Thus, this case remained legally distinct from a host of legal challenges now pending in federal court, which seek to strike the law down as a clear violation of Illinoisans’ Second Amendment rights to keep and bear arms.
In this case, the majority determined Illinois’ ban on the sale and acquisition of a long list of semiautomatic firearms and related accessories, all lumped under the moniker of “assault weapons,” did not run afoul of the guarantees to equal protection under the U.S. and Illinois constitutions.
The majority also brushed aside claims the Democratic supermajority in the Illinois General Assembly violated the Illinois state constitution in other ways. The majority said a procedural error on the part of the plaintiffs in the case did not allow the high court to consider if state lawmakers had all but ignored clear constitutional legislative rules when bulldozing the law through the legislature in a matter of days.
And the majority said it did not believe the law violated the state constitution’s prohibition on so-called “special legislation” by essentially carving out special gun ownership rights for certain classes of Illinois residents, while denying those rights to nearly all others.
The decision appears to put an end to a challenge brought against the gun ban by a group of gun owners from downstate Macon County, notably led by State Rep. Dan Caulkins, R-Decatur.
Not a 'Second Amendment' challenge
The law, titled the Protect Illinois Communities Act, was enacted by Pritzker and his legislative allies in the General Assembly in January. Generally, the law bans the sale or purchase of a long list of semiautomatic firearms, which the state has labeled dangerous and especially lethal “assault weapons” and so-called “large capacity” ammunition magazines typically employed when using such weapons, as well as other accessories.
The law also requires the current owners of such weapons to register them with the Illinois State Police. Anyone who doesn’t comply with the law could face steep fines or imprisonment.
Pritzker and other supporters of the law say it is needed to restrict the ability of people to acquire the “assault weapons” and reduce the risk of future mass shootings, such as the massacre carried out by a lone gunman possessing an “assault rifle” at the Fourth of July parade in Highland Park in 2022.
With millions of Illinoisans potentially facing felony charges under the law for exercising what they believed were their Second Amendment gun ownership rights, lawsuits came quickly across the state challenging the law as unconstitutional.
Most of the lawsuits challenged the law on the basis that it violates the Second Amendment, particularly as that amendment has been interpreted in recent U.S. Supreme Court decisions.
The U.S. Seventh Circuit Court of Appeals is expected to soon issue a decision on whether the state should be blocked from enforcing that law while the larger constitutional challenges play out. Arguments were heard on that matter in late June.
At the same time, other lawsuits were filed in Illinois state court, challenging the law solely as unconstitutional under the Illinois state constitution. Particularly, those lawsuits have asserted the law violates Illinois gun owners’ and sellers’ rights to equal protection.
The Macon County case was the first such lawsuit to land before the Illinois Supreme Court, after a Macon County judge sided with the gun owners and declared the law unconstitutional.
Pritzker and Illinois Attorney General Kwame Raoul then appealed that decision to the state high court, and arguments were held in May, leading to the Aug. 11 decision.
'Trained professionals' vs everyone else
The majority decision was authored by Justice Elizabeth Rochford, a former Lake County judge who was one of two Democratic justices newly elected to the court in 2022. Rochford was one of two justices whose election campaigns received $1 million in financial support from Pritzker-affiliated organizations, as well as strong endorsements from anti-gun rights organizations which typically require candidates to pledge their support for “assault weapons” bans to receive such campaign support.
Rochford was joined in the majority opinion by three other Democratic justices, including Chief Justice Mary Jane Theis and justices P. Scott Neville and Joy V. Cunningham.
In that majority decision, Rochford said the plaintiffs’ equal protection claims fail.
The gun owners agured the law unconstitutionally creates different groups of potential gun owners. They asserted the law carves out exemptions for several groups of people, including police officers and other designated law enforcement officers, active duty military and private 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.
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.
“The state doesn’t have the power to decide if you have Second Amendment rights,” said attorney Jerry Stocks during arguments before the Supreme Court in May.
Rochford and the court majority, however, said those exemptions should be allowed.
Police officers and others in the group of people allowed to continue acquiring the otherwise banned weapons are different from regular Illinoisans, because officers and others in the exempted groups are “trained professionals” who must submit to “specialized firearms training” and other state regulated requirements to maintain their ability to acquire, own and use “assault weapons.”
Rochford and the majority further rejected claims the law’s “grandfather” provision illegally violates constitutional gun ownership rights by creating a protected class of existing gun owners, while denying gun ownership rights to those who may wish to acquire the banned weapons now and in the future.
“To the extent plaintiffs allege they already possess restricted items, plaintiffs may retain them but may not acquire more, which matches the restrictions placed on those who are grandfathered under the Act,” Rochford wrote. “The statutes treat plaintiffs who already possess assault weapons and LCMs (large capacity magazines) the same as the grandfathered individuals.”
Rochford further specifically rejected efforts by the plaintiffs to use equal protection claims to indirectly inject claims the law violates the Second Amendment.
The majority decision notes repeatedly that the plaintiffs intentionally chose not to bring a direct claim under the Second Amendment, to ensure their cases remained in Illinois state court, rather than being forced to join the other cases now pending in federal court.
“Plaintiffs essentially contend the restrictions infringe plaintiffs’ second amendment rights, while the exemptions protect the grandfathered individuals’ second amendment rights,” Rochford wrote. “This is tantamount to arguing the restrictions violate the second amendment,” a course of argument that Rochford said “lacks merit.”
Recusal ramifications
Justice Mary K. O’Brien was among the dissenting justices.
Along with Rochford, O’Brien, a Democrat, also was recently elected to the court and also received $1 million in Pritzker campaign cash. She and Rochford also rejected calls by attorneys for the plaintiffs against the “assault weapons” ban to recuse themselves from hearing the case, given the support they received from Pritzker and the gun control activist groups.
In her dissent, O’Brien did not disagree with the majority’s reasoning related to the equal protection claims or the Second Amendment.
Instead, O’Brien believed the law violated the state constitution’s “special legislation” rule, by allowing police officers – and particularly retired police officers – to continue acquiring the otherwise banned firearms and gun accessories, while prohibiting such rights to nearly all other Illinois residents.
“For example, retired peace officers may continue to purchase and possess assault weapons despite that they no longer have any peacekeeping responsibilities or obligations,” O’Brien wrote. “They are no different from private citizens who hold Firearm Owner’s Identification cards, like the plaintiffs in this case, but are granted special treatment. Our constitution’s prohibition against special legislation does not allow a law to afford special treatment to one group of citizens without a rational basis to do so.”
Essentially, O’Brien argued the ban should have also included others from the exempted “trained professionals” from acquiring the prohibited weaponry.
Because of the 5-2 Democratic supermajority on the state high court, O’Brien’s dissent did not affect the outcome of the decision.
However, her dissent could complicate any potential effort by the plaintiff gun owners to appeal the decision to the U.S. Supreme Court on the grounds that the refusal by Rochford and O’Brien to recuse themselves amounts to a violation of their constitutional rights to a fair and impartial hearing.
In their recusal motion, the Macon County gun owners pointed to the U.S. Supreme Court’s 2009 decision in Caperton v Massey.
In that case, the nation’s highest court determined a West Virginia Supreme Court justice had violated the due process rights of litigants before that court when he refused to step aside from hearing a case, despite having received big campaign support from a businessman involved in the case.
In that decision, the U.S. Supreme Court said no one needed to prove “actual bias.” Rather, it was enough, they said, that there was a “serious risk of actual bias – based on objective and reasonable perceptions – when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge’s election campaign when the case was pending or imminent.”
In this case, the Macon County gun owners said Pritzker’s campaign donations amounted to a similar problem: They could not receive a fair hearing from a court on which two justices had received big campaign support from the governor, who is also one of the top defendants in the case.
However, while one of those two Pritzker-backed justices – Rochford - authored the majority decision, the other justice, O’Brien, entered a dissent, that asserted the gun ban law could be unconstitutional, but only because it did not go far enough.
It remains to be seen how that may affect any attempt by the plaintiffs to ask the U.S. Supreme Court to step in.
'Turning a blind eye'
The high court’s two Republican justices, Lisa Holder White and David K. Overstreet, joined in a different dissent, asserting lawmakers unconstitutionally approved the legislation by violating the state constitution’s so-called Three Readings Rule.
They said the court’s repeated refusal to address this question essentially means the state high court has neutered itself, delegating the power granted to the court to enforce constitutional rules to the General Assembly’s two most powerful Democrats, Illinois House Speaker Emanuel “Chris” Welch and state Senate President Don Harmon, who also hold nearly unchecked authority under General Assembly rules to determine which legislation receives a vote, as well as the time and place for those votes.
Under the state constitution, lawmakers are specifically required to give all legislation at least three separate readings – one each on three different days – in each chamber of the Illinois General Assembly before voting on any new laws.
However, under a judicial holding known as the “enrolled bill doctrine,” the Illinois Supreme Court allows Illinois’ House Speaker and Senate President to simply sign a certification that the three readings rule and other constitutional rules were followed.
This “enrolled bill doctrine” then requires courts to accept that certification and reject challenges to laws based on the three readings rule, no matter any amount of evidence to the contrary.
In this case, the court’s Republicans said the court should not have decided the case at all, because the law had clearly not been legally enacted.
In their dissent, Holder White and Overstreet chided their colleagues for once again turning a blind eye to clear and plentiful evidence that Democratic lawmakers violated the state constitution when enacting the “assault weapons” ban.
“This court cannot cede the constitutionality of a statute to the Speaker of the House of Representatives and the President of the Senate,” Holder White wrote. “To turn a blind eye to repeated violations of the constitution suggests ‘that the courts must perpetually remain in ignorance of what everybody else in the state knows.’
“… Article IV, section 8, of the Illinois Constitution requires a bill be read by title on three different days in each house. Three different days in each house is all it would have taken for the legislators to consider the firearms bill before passage and thereby comply with the procedural requirements of the constitution,” Holder White wrote.
“And three different days in each house is all it would take for the House and Senate to conduct the legislative process again if this court were to find a violation of the three readings rule and declare the Act unconstitutional.
“When, as in this case, the work of the legislature directly impacts a fundamental right, which this court has said the right to keep and bear arms is, the people of Illinois deserve nothing less than the procedural requirements of the constitution be followed by their elected representatives and senators.”