With the effective date of Illinois' "assault weapons" registration deadline looming in less than a month, a U.S. Supreme Court justice has ordered Illinois Attorney General Kwame Raoul and attorneys for the city of Naperville to tell the country's top court why the Supreme Court should not put Illinois' ban on so-called "assault weapons" on hold for at least the next few weeks.
Naperville gun shop owner Robert Bevis and the National Association for Gun Rights filed an emergency petition before U.S. Supreme Court Justice Amy Coney Barrett, asking for the high court to step into the fight over whether hundreds of thousands of Illinois residents should be forced to comply with the new state "assault weapons" ban and firearms registrations rules, even as they challenge a law that they and many others believe to be unconstitutional.
Barrett is the Supreme Court justice assigned to hear such emergency petitions arising from legal disputes with the U.S. Seventh Judicial Circuit, which includes the federal courts in Illinois, Indiana and Wisconsin.
The petition asks Barrett to issue an injunction blocking the state from continuing to enforce the law titled the Protect Illinois Communities Act, while various appeals continue to work their way through the U.S. Seventh Circuit Court of Appeals in Chicago.
Specifically, the petition seeks to persuade Barrett and potentially her colleagues on the Supreme Court that the Seventh Circuit and federal judges in Chicago have all but ignored the high court's recent decisions strengthening Americans' Second Amendment rights, as the judges have crafted decisions that would allow Gov. JB Pritzker and his legislative allies in Democrat-dominated Springfield to ban a long list of semiautomatic firearms and related accessories, designated by the state as especially dangerous "assault weapons."
The petition came about three weeks after a split three-judge panel of the Seventh Circuit court became the latest Chicago federal court to side with Pritzker and Raoul, and reject the request from gun owners, gun shop owners and firearms owners' rights organizations for an injunction blocking the state from enforcing its gun ban.
Signed by Pritzker in January, the law is set to take full effect on Jan. 1, including a provision requiring current owners of the otherwise-banned weapons to register their weapons with the state. The registration period began in October. To date, only a small fraction of the state's gun owners have complied with the registration demand.
Those in defiance of the law after 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 reduce the risk of future mass shootings, such as the massacre carried out by a lone gunman possessing an "assault rifle" at the 2022 Fourth of July parade in Highland Park.
The law, however, has been the subject of lawsuits for most of 2023, which generally assert the law tramples Illinoisans' rights under the Second Amendment, 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 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.
Most recently, however, was the decision of the Seventh Circuit panel. In that 2-1 ruling, Seventh Circuit Judges Frank Easterbrook and Diane P. Wood - who have ruled in the past to uphold "assault weapons" bans in other cases - said they believed the state was within its power to ban the guns, because they are "especially dangerous" "militaristic" weapons.
Since courts have consistently held that the federal government is within its constitutional authority to ban civilians from owning certain kinds of "military-grade" firearms, the judges said the state is also free to ban civilian ownership of other weapons, if it believes them to be too similar to those other "military-grade" firearms.
In their ruling, Easterbrook and Wood declared that any weapons the state believes are particularly dangerous are stripped of Second Amendment protection, because they cannot be considered bearable arms, as defined by the Second Amendment.
In the petition to Justice Barrett, the challengers, through attorney Barry Arrington, of Wheat Ridge, Colorado, took aim at the Seventh Circuit's reasoning, saying it flies in the face of the Supreme Court's recent Second Amendment decisions and would render those rulings all but meaningless.
The challengers noted that, in Heller, the Supreme Court already declared that "all firearms constitute 'arms'" within the meaning ascribed to such weapons at the time the Second Amendment was written.
"... Just as the scope of protection afforded by other constitutional rights extends to modern variants, so too the Second Amendment 'extends ... to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding,'" the challengers wrote. "Thus, the banned firearms are obviously 'arms' covered by the plain text and therefore prima facia protected."
Further, the petition assailed the reasoning of Easterbrook and Wood concerning the ability of states to ban "militaristic weapons."
Bevis and the NAGR cited Heller, which "held that weapons in common use brought to militia service by members of the militia are protected by the Second Amendment."
"What do militia members do with those weapons when they bring them to militia service? They fight wars," the challengers wrote in their Supreme Court petition. "It would be extremely anomalous, therefore, if Heller were interpreted to mean simultaneously that (1) weapons brought by militia members for military service are protected by the Second Amendment, and (2) all weapons used for military service are not protected by the Second Amendment.
"This is obviously not the law."
The petition notes that the challengers to Illinois' gun ban have already asked the full Seventh Circuit Court to review and overturn the decision from Easterbrook and Wood.
However, the petition notes that as they await further action from the Seventh Circuit court, the Illinois gun ban law is both destroying businesses, like Bevis' Naperville shop, and threatening to turn Illinois gun owners into felons, beginning Jan. 1.
So, they urged Barrett to take action now to protect Illinoisans from what they believe to be the state's unconstitutional actions.
Justice Barrett has not yet taken action on the petition.
However, on Nov. 30, Barrett ordered Raoul, on behalf of Pritzker and the other Illinois defendants, and the city of Naperville to file a response to the petition by Dec. 6.
Barrett's order was labeled a win by the NAGR.
In a prepared statement following Barrett's order, Hannah Hill, executive director of the National Foundation for Gun Rights, which is the legal arm of the NAGR, said: "“The 7th Circuit just said that (AR-15s) are not guns entitled to Second Amendment protection. It doesn’t get much more outrageous than that – and Justice Amy Coney Barrett appears to agree. She just sent a huge signal that lower-court defiance of Bruen and Heller will not be tolerated."
NAGR President Dudley Brown added: "We look forward to reading Illinois’ attempts to explain why gun bans are consistent with the Second Amendment, and we are confident that this unconstitutional law won’t fly with Justice Barrett."