As Second Amendment rights advocates and Illinois state officials alike await word from the U.S. Supreme Court on the possible fate of Illinois' ban on so-called "assault weapons," Cook County's government is headed to a showdown before a federal appeals panel over whether its "assault weapons" ban ordinance can survive under the Second Amendment and prior Supreme Court rulings.
On June 24, the Firearms Policy Coalition, on behalf of three Cook County gun owners, filed their opening brief before the U.S. Seventh Circuit Court of Appeals in Chicago, seeking a ruling that would declare Cook County's ban unconstitutional.
"As our brief makes clear, Cook County’s authoritarian ban on protected arms is totally unconstitutional,” said FPC President Brandon Combs in a statement released at the time the brief was filed. “We will continue to fight forward until this ban and all others like it are eliminated.”
In keeping with prior court filings over "assault weapons" bans in Illinois, the local gun owners and the FPC argued the ordinance cannot stand against recent U.S. Supreme Court decisions upholding gun owners' rights under the Second Amendment.
But the authors of the brief also urged Seventh Circuit judges to reject the reasoning of an earlier 2-1 decision in which two Seventh Circuit judges refused to block Illinois officials from enforcing the state's gun ban law.
That decision, in the action docketed as Bevis v Naperville, judges Frank Easterbrook and Diane Wood introduced new legal reasoning on the question of whether governments can ban commonly owned semiautomatic weapons, asserting that, so long as the weapon is similar to those used by the U.S. Armed Forces, they are not protected by the Second Amendment and governments are free to ban them, if they wish.
The decision has drawn heavy criticism and was particularly pilloried in briefs filed by the FPC and others before the U.S. Supreme Court, where challengers to the Illinois gun ban asserted the decision openly defies and twists two landmark Second Amendment rights decisions, known as District of Columbia v Heller and New York State Rifle and Pistol Association v Bruen.
The U.S. Supreme Court has yet to decide how to handle the appeals from the Bevis decision.
But in the meantime, various federal courts in Illinois have continued to handle legal challenges to the state law and local ordinances that would criminalize selling, acquiring or, in some instances, owning a long list of commonly owned semiautomatic rifles, handguns and various firearms accessories, including so-called "large capacity magazines," or ammunition magazines that hold more than 10 rounds.
In Cook County, named plaintiffs Cutberto Viramontes and Christopher Kaya, together with the FPC and the Second Amendment Foundation, have continued with their legal action seeking an end to Cook County's ban on "assault weapons."
The lawsuit was filed in Chicago federal court in 2021, before Gov. JB Pritzker and his allies in Illinois' Democratic supermajority in the General Assembly enacted the state's "assault weapons" ban.
The Cook County lawsuit took aim at the county's ordinance, in place since 2006. The ordinance bans possession, sale and transfer of firearms, classified by the county as unusually dangerous "assault weapons."
First time offenders under the ordinance face a fine of $10,000 and six months in prison.
The lawsuit and the resulting court arguments have centered heavily on one particular kind of firearm: the AR-15 rifle and those similar to it.
In the lawsuit, the gun owners and Second Amendment advocacy groups argued the ordinance violated the Second Amendment rights of Cook County residents to keep and bear commonly owned and used weapons for self defense, particularly as defined in the Heller and Bruen decisions.
Those rulings require states and local governments seeking to ban certain firearms and other weapons to prove that the weapons are both "dangerous and unusual," and further require them to demonstrate the regulations are in keeping the U.S. history and tradition.
Cook County and state officials, however, have said the weapons can still be banned, despite the Supreme Court decision, because they are allegedly unusually dangerous and have been used in multiple mass shootings in Illinois and around the country, including the massacre at the 4th of July parade in suburban Highland Park in 2022.
Before the Cook County case could move to a ruling on the competing claims, Easterbrook and Wood - judges who have regularly upheld gun restrictions in the past - ruled in the Bevis case, setting a new legal standard for judges in the Seventh Circuit, which includes the states of Illinois, Wisconsin and Indiana.
In that decision, Pallmeyer said it made no difference that the challengers could prove the banned weapons aren't actually used by the military, nor that the AR-15 and other banned firearms cannot produce the kind of sustained rates of fire produced by fully automatic weapons currently or formerly used by the U.S. military.
The FPC and their co-plaintiffs appealed then to the Seventh Circuit, and filed their opening brief.
They argued both Pallmeyer's ruling and the Bevis decision on which it was based were both wrongly decided, and directly conflict with the Supreme Court's holdings in Heller and Bruen.
"The principles established by Heller and confirmed by Bruen should make this a straightforward case," the FPC wrote in its brief, noting that the AR-15, in particular, remains "one of the most popular firearms in the United States," according to information published by the federal Bureau of Alcohol Tobacco and Firearms.
"And Cook County has offered nothing to distinguish the AR-15 from other types of semiautomatic rifles it bans. Under Heller and Bruen, therefore, Cook County’s ban is unconstitutional. This Court’s inquiry should end there."
However, the plaintiffs said the Bevis decision has forced the continued litigation by introducing a line between "civilian firearms" and "military firearms" which the Supreme Court itself has rejected and America's history illustrates is legally questionable, at best.
They noted the Second Amendment was created to ensure Americans were not only able to use firearms to defend themselves individually, but to also ensure they were armed and ready to be called into service as part of the militia, using commonly owned and used weapons of the time.
They further noted one of the prime factual bases of the Bevis decision - the supposed similarities in firing rate between the semiautomatic AR-15 and its military-grade cousin, the fully automatic M-16 rifle - were recently undercut by liberal Supreme Court Justice Sonia Sotomayor.
In the Supreme Court decision known as Garland v Cargill, which addressed the power of the ATF to issue rules banning so-called "bump stocks," an accessory which increases the firing rate of the AR-15 and other semiautomatic rifles, Sotomayor noted in her dissent that the AR-15 is capable of a firing rate of 60 rounds per minute, limited because the weapon is able to fire just one round for each squeeze of the trigger.
By contrast, M-16s can fire hundreds of rounds per minute, with just one pull of the trigger. Such rates of fire far exceed the offensive capabilities of the AR-15 and similar weapons, which plaintiffs said supporters of "assault weapons" bans have greatly exaggerated.
Further, the plaintiffs note that the Bevis court also rested their decision on the faulty presumption that semiautomatic rifles are more likely to be used in crime. Rather, they said, crime statistics and commonsense demonstrate that criminals much prefer handguns, which are more easily concealed and transported than long rifles, like the AR-15.
"While AR-15s and similar rifles are in common use for lawful purposes, there is one thing they very rarely are used for: violent crime," they said, noting that statistics show that such rifles were used in less than 0.01% of all murders in the U.S. in the past 10 years.
By contrast, handguns are 20 times more likely to be used to commit murder, the FPC noted.
So, the FPC argued, even if the Bevis decision can somehow hold up under Heller and Bruen, the Cook County ordinance should still be declared unconstitutional for violating gun owners' Second Amendment rights to arm and defend themselves with commonly owned weapons used for lawful purposes, because the county's basis for the ban - to promote public safety and reduce gun violence - is betrayed by such facts.
And the FPC noted the recent Supreme Court rulings in Cargill and the case known as United States v Rahimi did nothing to upset the reasoning in Heller and Bruen, but rather "reaffirmed ... that Heller's mode of analysis - a review of the plain text of the Second Amendment followed by analogizing modern restrictions to historically grounded ones—governs all Second Amendment challenges."
The firearms banned by Cook County and Illinois "are well-suited (and commonly chosen) for self-defense, are rarely used in crimes of any sort, and have features that make them at least as attractive to civilians as they are to the military," the FPC wrote in its brief. "As such, the question in this case becomes: can Cook County show that the ban is nevertheless constitutional based on historical laws that restricted the right in similar ways and for similar reasons?
"It cannot do so."
Cook County has not yet filed a reply, and has until July 24 to do so.
Any oral arguments would not come until at least late August or later, according to court documents.
It is not yet known which three of the Seventh Circuit's roster of judges, potentially including Easterbrook and Wood, will handle the appeal in the Cook County case.
FPC and their co-plaintiffs are represented in the action by attorneys David H. Thompson, Peter A. Patterson and William V. Bergstrom, of the firm of Cooper & Kirk PLLC, of Washington, D.C.