In recent days, there has been a flurry of legal action aimed at a new assault weapons ban signed by Illinois Gov. JB Pritzker on Jan. 10.
The law prohibits the manufacture, possession and sale of dozens of types of semiautomatic firearms and high-capacity ammunition cartridges. It also requires current owners of such weapons to register them with the Illinois State Police by January 2024.
Here’s a summary of the legal activity by opponents and supporters of the ban, and analysis of the litigation by two experts:
What is the status of the ban?
A judge in downstate Effingham County on Jan. 20 issued a temporary restraining order on the enforcement of the law. Several days later, Illinois Attorney General Kwame Raoul asked a state appellate court to dismiss the order. There will be a hearing on that order in Effingham County on Feb.1.
What was the judge deciding?
Effingham County Circuit Judge Joshua Morrison ruled on a lawsuit filed by downstate attorney Tom DeVore on behalf of more than 800 gun owners and firearms dealers. The suit does not invoke the U.S. Constitution’s Second Amendment and the right to bear arms. Instead, it argues that Illinois lawmakers violated the state constitution and their own rules by the way they approved the measure.
Morrison cited the speedy manner in which the bill was passed as a reason for granting the order, writing “the effect to protected classes could not have been considered.” The judge’s order halted enforcement of the law against the plaintiffs in DeVore’s suit.
Are there other lawsuits in the courts?
Gun rights advocates have filed multiple lawsuits naming top Democratic officials, the state police and law enforcement personnel as defendants. Two of those are federal suits filed in the U.S. District Court for the Southern District of Illinois: one by the Illinois Rifle Association and another by various parties with backing from the National Rifle Association.
Some of these complaints argue the law violates the Second Amendment, particularly the right to keep and bear arms in self-defense.
What are supporters of the ban saying about the litigation?
Pritzker released a statement calling Judge Morrison’s order disappointing, but said it is “only the first step in defending this important legislation.”
“I remain confident that the courts will uphold the constitutionality of Illinois’ law, which aligns with the eight other states with similar laws and was written in collaboration with lawmakers, advocates and legal experts,” Pritzker’s statement said.
Raoul issued a response to Morrison’s decision saying: “Over the last few years, my office has become accustomed to facing a barrage of challenges to newly-enacted state statutes and executive orders. As we have done previously, we are prepared to defend the Protect Illinois Communities Act in courtrooms around Illinois.”
Illinois is the latest state to enact an assault weapons ban. How have legal challenges elsewhere played out?
Robert Spitzer, political scientist and author of the book The Politics of Gun Control told WBEZ: “The state laws have been challenged consistently in the courts over these many years, but they have consistently withstood legal challenges. But, last summer the U.S. Supreme Court’s [New York Rifle & Pistol Association v.] Bruen decision suggested pretty strongly that laws like assault weapons bans might be viewed skeptically by the conservative majority on the Supreme Court.”
How does the Supreme Court’s decision affect what might happen in Illinois?
UCLA law professor and Second Amendment expert Adam Winkler: “[The court] specifically only struck down New York’s restrictions on concealed carry. The court also articulated a new test to apply to all gun laws under the Second Amendment. The test requires that gun laws today be consistent with the gun laws of the 17- and 1800s in order to survive constitutional scrutiny. However, there were no bans on assault weapons back in the 17- and 1800s. In part, because civilians generally did not own military-style assault weapons.
“So, the test that the court has articulated is a difficult one to apply. I don’t think that the final fate of the Illinois assault weapons ban will be decided for several years.”
In some of the lawsuits, plaintiffs argue banning assault weapons infringes on the right to bear arms in self-defense. How solid is this argument?
Spitzer: “You cannot make a coherent argument that you need more than 10 rounds to defend yourself with a gun. And most gun owners know that and understand that. There are a literal handful of examples where people were defending themselves and fired off more than 10 rounds. Mostly that’s because that’s how many rounds were in the gun. Not because they necessarily needed 10 shots to fight someone off.
“And the idea that an assault weapon is particularly suited for self defense, I think, is doubly weak, partly because it’s a long gun. I mean, the main reason people buy handguns is personal self-defense.”
The Effingham County judge’s order only applies to the plaintiffs in the case in his court. What does this mean?
Winkler: “The idea is that courts like to maintain the status quo before deciding the constitutionality of something. It would be unusual for courts to say that the government can enforce a law against everyone else except these people. [So], the law is likely to be enjoined against all enforcement in the coming days or weeks.”
Why have opponents filed their lawsuits in downstate courts?
Winkler: “This is a commonplace strategy. Gun rights advocates strategically choose which court to file in, picking courts that have a judge known to be hostile to gun safety laws. In California, gun advocates typically sue in a San Diego federal court where one particular judge who has thrown out several gun laws sits.”
Where are these legal battles headed?
Spitzer: “Well, I think the newly, more conservative Supreme Court has made it fairly clear that they are bound and determined to expand the definition of ‘gun rights.’ And they clearly took that major step in the Bruen decision this past summer, where they ruled that there was now a constitutional right to carry a gun with you out in society for personal self-protection. They certainly didn’t say that applies specifically to assault weapons, but, presumably, to a standard handgun, if people wanted to do that [they] could do so legally. That by itself was a major step, and I think there’s more to come in that respect.”
What is the outlook for the gun control movement?
Winkler: “Gun rights advocates see that the ground is fertile for striking down gun laws. But at the same time, the gun safety movement has really never been stronger in America and succeeding in getting laws passed in a number of states. But those laws are definitely going to be, and have been, challenged in courts.
“Really, Newtown [the 2012 mass shooting at Sandy Hook Elementary School] was a turning point for gun violence prevention efforts. After Newtown, even though there were no new federal laws passed, we did see new gun safety organizations emerge, and a lot more money going into gun safety reform efforts.”