Case to center on Second Amendment in Southern District
By PETER HANCOCK
Capitol News Illinois
The Illinois State Rifle Association has joined forces with other gun rights advocates in filing a federal lawsuit challenging the state’s new ban on the sale and manufacture of semiautomatic weapons and high-capacity magazines.
It’s the latest legal challenge to the law, which went into effect upon Gov. JB Pritzker’s signature on Jan. 10, and the first filed in federal court.
The case, which will be heard in the Southern District of Illinois, was filed within a week of a similar case being filed in state court in Crawford County. Additionally, Thomas DeVore, a private attorney and unsuccessful candidate for attorney general in 2022, has filed suit in Effingham County and is seeking an emergency injunction to block the new law’s enforcement.
“Gov. Pritzker and the legislators who voted for this law did this for self-serving political purposes and are not upholding the United States Constitution,” Richard Pearson, executive director of the ISRA, said in a statement. “The Second Amendment is fundamentally about self-defense, and the 14th Amendment is about not having our rights infringed. This new law makes criminals out of law-abiding citizens.”
The law bans the sale and manufacture of a long list of firearms – including certain rifles, shotguns and handguns – that it categorizes as “assault weapons.” It also requires people who currently own such weapons to register them with the Illinois State Police by Jan. 1, 2024.
It also bans the sale and manufacture of magazines capable of holding more than 10 rounds of ammunition for a long gun or 15 rounds for a handgun. Those who already possess such devices would be able to keep and possess them on private property, on a gun range, at a licensed gun shop to undergo a repair, or while traveling to one of those locations, provided the magazine is unloaded and kept in a case.
The assault weapons ban also prohibits the use, sale and possession of devices – including items known as “switches” and “bump stocks” – that increase the rate at which a gun fires by either converting it into a fully automatic weapon or making it fire like one. A fully automatic weapon continues firing as long as the user squeezes the trigger, while a semiautomatic weapon fires only one round for each trigger pull.
But plaintiffs in the federal lawsuit argue that the weapons banned under the law are commonly used in the United States, that they have been traditionally accepted as lawful firearms, and that they are, in fact, among the most popular weapons among gun owners, accounting for approximately 20 percent of all firearms sold in recent years.
They also challenge the use of the term “assault weapon,” arguing that it was coined by “anti-gun publicists” and that the weapons covered by the law are vastly different from those used in the military.
The suit alleges that the law violates the plaintiffs’ constitutional rights under the Second and 14th Amendments to the U.S. Constitution.
The law was prompted in large part by the July 4 mass shooting at an Independence Day parade in Highland Park that left seven people dead and dozens more injured or traumatized.
The alleged shooter in that case used a Smith & Wesson M&P 15 rifle with three magazines of 30 rounds each, items that are included within the scope of the new law.
That weapon is similar to AR-style rifles that have been used in numerous mass shootings in the U.S. But the plaintiffs in the lawsuit argue that those weapons actually account for only a small percentage of overall gun crimes in the country.
When Pritzker signed the legislation, Illinois became the ninth state in the nation to enact some form of assault weapons ban. But those laws are now under scrutiny amid shifting legal and political opinions about the meaning of the Second Amendment, which reads: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
As far back as 1938, the U.S. Supreme Court upheld indictments against a pair of Oklahoma bank robbers charged with transporting a sawed-off double-barrel shotgun across state lines, holding that such weapons had no reasonable relationship to a well-regulated militia and thus were not protected by the Second Amendment.
Seventy years later, however, the court struck down a Washington, D.C., ordinance banning the possession of handguns in the district, holding that the Second Amendment does guarantee an individual’s right to keep and bear arms. That ruling held that the clause referring to well-regulated militias was only “prefatory” in nature and does not limit or expand the “operational” clause that guarantees a right to keep and bear arms.
Even in that case, however, former Justice Antonin Scalia wrote that the Second Amendment is not absolute and that it does not guarantee a right to keep and carry any type of weapon for any purpose.
“We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons,’” he wrote.
But then last year, in a case striking down the state of New York’s requirement that people had to demonstrate “proper cause” for a concealed carry permit, the court said the Second Amendment protects the right to keep and bear arms that are “in common use,” and that restrictions violate the amendment if they are not “consistent with the Nation’s historical tradition of firearm regulation.”
As of Wednesday [Jan. 18, 2023], the federal court in the Southern District had not yet set a schedule for hearing the case.
Capitol News Illinois is a nonprofit, nonpartisan news service covering state government. It is distributed to more than 400 newspapers statewide, as well as hundreds of radio and TV stations. It is funded primarily by the Illinois Press Foundation and the Robert R. McCormick Foundation.