Assault Weapon Ban Temporary Restraining Order Upheld By Appeals Court

SPRINGFIELD, IL — A divided Illinois appellate panel reviewing a challenge to the state's recently enacted ban on military-style weapons and large-capacity magazines has permitted a temporary restraining order to remain in effect.

In a 2-1 decision issued Tuesday, the 5th District Appellate Court upheld the portion of Effingham County Circuit Judge Joshua Morrison's Jan. 20 decision finding that House Bill 5471 violates the equal protection clause of the Illinois Constitution.

The ruling applies only to the plaintiffs in the Accuracy Firearms et al v. Pritzker et al — more than 860 people and four gun dealers represented by Greenville attorney Tom DeVore, Republican nominee for attorney general in last year's election.

HB 5471, the Protect Illinois Communities Act, defines and restricts the purchase and possession of "assault weapons" and "large capacity feeding devices."

It calls for owners of assault weapons to register them with the state starting next year or face criminal charges. Possession of ammunition magazines that can carry more than 10 rounds for a long gun or 15 rounds for a handgun can lead to fines.

Seven classes of people are explicitly exempted from the ban: peace officers; current and retired law enforcement officers; purchasers for government agencies; prison and jail officials; members of the U.S. military or national guard while traveling to or taking part in official duties; armed security guards at nuclear facilities and their employers; and private security contractors with firearm control cards.

"Why is a retired cop's constitutional rights more important than yours?" DeVore said Wednesday in a social media video. "They're exempt from this law forever, but if you're retired military, you're not exempt. ... Retired military's not trained enough, according to Pritzker and his people."

The office of Illinois Attorney General Kwame Raoul had argued the exempted groups were appropriate and "supported by a rational basis because the covered professionals have greater training and experience with firearms than the public at large."

The law also includes exceptions for nonresidents passing through the state, guns used in officially sanctioned shooting competitions, prop guns and guns used for hunting. The law calls for state police to draw up rules by October for which guns count as hunting weapons.

Appellate Justice Barry Vaughn, writing on behalf of the majority, agreed with the gun owners' assertion that HB 5471 exemptions create arbitrary, untenable and unconstitutional classifications.

"In response, [lawyers for the state] claimed the purpose of the Act was to reduce firearm deaths and mass shooting casualties and the exempted categories were based on employment and/or training," Vaughn said. "We note, however, that no such purpose or basis for the exempted categories is found in the record. The closest this record comes is the naming of the Act as the Protect Illinois Communities Act."

In a dissent, Appellate Justice James Moore said he would have reversed the temporary restraining order in its entirety because the plaintiffs in the case had not shown them selves to be "similarly situated" to those in a comparison group, which is a requirement of equal protection challenges.

Vaughn disagreed, noting in the majority opinion that state officials had not offered any justification for the listed exemptions before DeVore filed suit.

"As such, any allegation regarding similarity would be speculative, at best," Vaughn said.

"Based on the common facts, the legislative process consisted of a frenzied 'gut and replace' that failed to comply with our state’s constitution," he continued. "As the basis for the exempted classification was unavailable, it is undeniable that a specific allegation as to how any 36 plaintiff might be similarly situated to one of the exempted classes would be pure conjecture, beyond the fact that each plaintiff and all those now in an exempted class were similarly situated, and indeed possessed the same rights, prior to January 23, 2023."

While Moore dissented on the equal protection count, all three judges on the appellate panel agreed that the temporary restraining order should not have been issued on the basis of the complaint's other three counts, which allege lawmakers violated procedural requirements of the constitution.

The Protect Illinois Communities Act bill was drafted by a group of House Democrats in the wake of the Highland Park mass shooting, in which a gunman armed with a legally acquired AR-15 and several 30-round magazines opened fire from a rooftop overlooking the city's 4th of July parade and was able to shoot more than 50 people before escaping and leading authorities on an hourslong manhunt.

The law's chief sponsor, State Rep. Bob Morgan, a Deerfield Democrat who attended last year's Highland Park Independence Day parade and helped attendees evacuate following the massacre, said lawmakers intended to pass a bill that would hold up under judicial review.

"We have to make sure we're passing laws that will withstand scrutiny, so we took those things into account," Morgan said after the bill's signing. "Of course, there were a lot of legal threats that came, and we look forward to being able to make our arguments in court."

The attorney general's office plans to appeal the 5th District ruling and will ask the Illinois Supreme Court to hear it on an expedited schedule, a spokesperson told reporters in a statement.

"The Protect Illinois Communities Act is an important tool in what must be a comprehensive approach to addressing gun violence throughout Illinois," it said, "and we remain committed to defending the statute’s constitutionality."

DeVore, who has filed a second state court challenge to the gun ban and, as of Wednesday, was soliciting clients for a third for a fee of $200, described Tuesday's decision from the appeals court as a victory.

Earlier: Judge Blocks Enforcement Of Illinois Assault Weapons Ban On Over 850 People