With a deadline looming in just over a month for all Illinoisans to register their so-called "assault weapons" with the state, a federal appeals court in Chicago has been asked to take another look at a controversial decision from two judges on that court, that plaintiffs said relied on a new and "remarkable proposition" that would allow the state to "aggressively strip" Illinoisans of their Second Amendment rights and "turn millions of people into criminals," in defiance of the U.S. Supreme Court.
From Nov. 13-17, attorneys for a coalition of gun owners, firearms shop owners and Second Amendment rights organizations filed briefs with the U.S. Seventh Circuit Court of Appeals, asking the full court to review an earlier decision from a split three-judge appellate panel that would Illinois to begin enforcing its ban on so-called "assault weapons."
The briefs were authored by attorneys Erin E. Murphy, of the firm of Clement & Murphy, of Alexandria, Virginia; C.D. Michel, of Michel & Associates, of Long Beach, California; David G. Sigale, of Wheaton; Barry K. Arrington, of Wheat Ridge, Colorado; Jason R. Craddock, of Oak Brook; and Gilbert C. Dickey, of Consovoy McCarthy, of Arlington, Virginia.
From left: Seventh Circuit judges Michael Brennan and Frank Easterbrook
| U.S. Seventh Circuit Court of Appeals
"It is ... difficult to overstate the practical importance of this case," wrote Murphy, Michel and Sigale in their brief, on behalf of a group of challengers, led by the National Shooting Sports Foundation. "Not only has Illinois banned virtually every modern rifle on the market, but within a matter of weeks, (that law) will turn millions of people into criminals unless they get rid of their lawfully acquired (and constitutionally protected) arms or register them en masse.
"When the stakes are this high, and the panel opinion this wrong, the path forward should be clear."
The request for reconsideration en banc was filed about six weeks before Illinois State Police and other law enforcement agencies could begin enforcing the state's ban on so-called "assault weapons" under the so-called "Protect Illinois Communities Act."
Signed by Democratic Illinois Gov. JB Pritzker in January, the law banned a long list of semiautomatic firearms state lawmakers deemed to be overly dangerous "assault weapons," along with various firearm accessories. That included so-called "large capacity" ammunition magazines, which are capable of holding more than 10 rounds in a clip.
The state also would require current owners of those weapons to register their weapons with the state. The registration period began in October.
Those in defiance of the law, which takes effect Jan. 1, could face criminal charges, which could subject them to 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.
The law, however, has been hit with a volley of lawsuits throughout 2023 from gun owners and pro-Second Amendment groups, who assert the law tramples Illinoisans' Second Amendment rights to keep and bear arms, particularly as defined under recent U.S. Supreme Court decisions in the cases known as District of Columbia v Heller and New York State Rifle and Pistol Association v Bruen.
Those rulings require states that want to ban certain guns to prove that the weapons being banned are both dangerous and unusual, and require lawmakers to demonstrate the regulations are in keeping with the United States' history and tradition dating back to ratification of the Second Amendment in 1791 and the Fourteenth Amendment in 1868.
Some lawsuits were also filed in Illinois state court, where challengers said the law also violated the Illinois state constitution. The Illinois Supreme Court upheld the gun ban law. However, plaintiffs in that case have asked the U.S. Supreme Court to step in, saying the decision was the result of improper influence over certain state high court justices from Gov. JB Pritzker and other prominent Illinois Democrats, who supported the gun ban and who donated millions of dollars to the justices' election campaigns in 2022. That recent petition is pending.
At the same time, federal courts have also weighed in on the law.
Most recently, a divided three-judge panel of the Seventh Circuit court also refused to block the law from taking effect, as sought by a different group of challengers who directly assailed the gun ban as a violation of the Second Amendment and the Heller and Bruen rulings.
Since federal courts have interpreted the Second Amendment to allow the federal government to ban civilians from owning machine guns and other "military-grade weaponry," the two judges ruled the state should be free to ban any weapons it believes are too similar to those "military-grade" firearms - even if neither the U.S military nor any other military in the world actually use such weapons.
In dissent, Circuit Judge Michael B. Brennan said that reasoning flies in the face of the U.S. Supreme Court's decisions, and creates a "military veto" that would allow the federal government, through the U.S. Armed Forces, to "decide what 'Arms' are protected under the Second Amendment," potentially including widely owned pistols, which are commonly used for self defense.
In response to the ruling, the challengers asked the full Seventh Circuit to review and overturn Easterbrook and Wood.
They asserted the two judges - noted defenders of other gun bans in the past - had "distorted ... at every turn" the Supreme Court's instructions for evaluating the constitutionality of gun restrictions, using "head-scratching" reasoning that openly derided and defied the Supreme Court.
"... Rather than meaningfully engage with the textual and historical analysis Bruen laid out, the panel majority embraced the remarkable proposition that Illinois’ ban does not even implicate the Second Amendment, on the theory that none of the newly outlawed rifles, pistols, shotguns, and feeding devices are 'arms' at all," Murphy, Michel and Sigale wrote.
"... In short, the panel opinion thumbs its nose at Supreme Court precedent at every turn, in service of largely nullifying a fundamental constitutional right. That more than suffices to justify review by the full Court."
In their brief, Arrington and Craddock took aim at Easterbrook's and Wood's legal analysis also upholding the ban on so-called "large capacity" ammunition magazines, or magazines capable of holding more than 10 rounds.
In that decision, Easterbrook and Wood said the state was free to ban the magazines, because Illinoisans could still buy magazines holding 10 rounds.
"The Court might wonder what else the panel said to justify its decision to uphold the magazine ban," Arrington and Craddock wrote. "But that’s it, one paragraph. This is not judicial analysis. This is judicial fiat."
The briefs further noted the decision was far out of step with other courts' reasoning on such questions, including the U.S. Ninth Circuit Court of Appeals in California, which said, under Bruen, it does not matter if a weapon has "military value," but only if it "fits the general definition of arms."
Quoting from Brennan's dissent, Murphy, Michel and Sigale noted that the decision from Easterbrook and Wood marked the first such appellate ruling since Bruen "to uphold a categorical ban on semiautomatic weapons and certain magazines."
"That alone should give the full Court pause. In the year-plus since Bruen, no other circuit has so aggressively stripped its citizens of the fundamental right Bruen vindicated," the challengers wrote.
The list of challengers signing onto the petition authored by Murphy, Michel and Sigale included: the National Shooting Sports Foundation; Firearms Policy Coalition; Second Amendment Foundation; Illinois State Rifle Association; Guns Save Life; Gun Owners of America; and Gun Owners Foundation, as well as several individual gun owners and firearms stores operating within Illinois.
Arrington and Craddock filed on behalf of the National Association of Gun Rights and Naperville gun shop owner Robert Bevis.
Dickey filed on behalf of plaintiff Javier Herrera.