Illinois Assault Weapon Ban Challenges Filed In State, Federal Courts

CHICAGO — The first lawsuits challenging Illinois' recently adopted assault weapons ban were filed Tuesday in state and federal courts, less than a week after Gov. J.B. Pritzker signed it into law.

In the first complaint filed in federal court, the Illinois State Rifle Association, the Firearms Policy Coalition and the Second Amendment Foundation joined with two gun shops and a St. Clair County resident to sue Illinois' attorney general, state police director and the sheriff's and state's attorneys of three counties.

They argue the ban violates the Second Amendment, citing the landmark U.S. Supreme Court decisions in District of Colombia v. Heller, the 2008 case establishing the right to keep a gun in the home for self-defense, and New York State Rifle and Pistol Association v. Bruen, last year's decision extending the right to carry a gun for self-defense outside the home.

Although federal courts have previously upheld local assault weapons bans in response to challenges to ordinances in Highland Park and Cook County, Bruen held that the government must show gun regulations are consistent with historical tradition, which allows for the banning of weapons deemed "dangerous and unusual."

"Arms that are in common use—as the firearms and magazines Illinois has banned unquestionably are—cannot be unusual or dangerous. Therefore, they cannot be banned, and the Illinois laws challenged herein must be declared unconstitutional," the plaintiffs argue.

In addition to immediately banning the sale and manufacture of semiautomatic firearms defined as "assault weapons" — either due to being included on a list of banned guns on containing any one of a number of common features — the Protect Illinois Communities Act also restricts magazines that can hold more than 10 bullets for long guns or more than 15 for a handgun.

"The firearms and magazines at issue in this case are the sorts of bearable arms in common use for lawful purposes that law-abiding people possess at home by the millions," according to the 28-page complaint. "They are, therefore, neither dangerous nor unusual and they cannot be banned."

The Protect Illinois Communities Act was passed just over six months after the mass shooting at the Highland Park 4th of July parade, which left seven people dead and nearly 50 others wounded. Authorities said the gunman legally acquired five guns in the summer of 2020, including two semiautomatic rifles that would be banned under the law.

State Rep. Bob Morgan, the Deerfield Democrat who witnessed the aftermath of the shooting and sponsored the bill, said interpretations of the Second Amendment "loomed large" as lawmakers drafted the bill.

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

Richard Pearson, executive director of the state rifle association, said the lawmakers who voted for the law did so for "self-serving political reasons" in violation of the Constitution.

“The 2nd 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," Pearson said in a statement. “The real problem is that there are existing gun laws that do not work because they are not enforced. We would all be much safer if the police had the resources they need, and there were stronger consequences for the non-law-abiding citizens.”

The other two initial challenges to the law have come in state court.

Thomas Maag, a Wood River-based attorney, filed a 16-page suit last week in Crawford County on behalf of three firearm owners. It argues that the requirement that people who already own the banned guns to register them with the state is an unconstitutional violation of the Fifth Amendment and its restriction on magazine capacity is too vague to meet constitutional muster.

“State court is the court that’s closest to the people,” Maag said, according to Capitol News Illinois. “The people affected by this are people in the state of Illinois. We think state court can clean up the mess created by the governor and legislature of the state of Illinois.”

And on Tuesday, attorney Tom DeVore, who litigated numerous legal challenges to state regulations associated with the COVID-19 pandemic, filed suit in Effingham County on behalf of Accuracy Firearms, a local firearm dealer and shooting range, and citizens from 87 counties.

“No longer can the citizens sit idly by while bureaucrats destroy the very foundational fabric of our great Republic. It’s an honor of my lifetime to play a role in representing the People against tyranny," DeVore said in a statement. DeVore, last year's Republican nominee for Illinois attorney general, said an emergency hearing on his motion for a temporary restraining order was scheduled for Wednesday.

The governor's office issued a statement in response to the lawsuits, saying that Pritzker — currently attending the World Economic Forum in Davos, Switzerland — was confident that courts would uphold the constitutionality of the bill.

"Despite political grandstanding from those more beholden to the gun lobby than to the safety of their constituents, this law is in effect and protecting Illinoisans from the constant fear of being gunned down in a place of worship, at a parade, or on a street corner," it said.

But Adam Winkler, a law professor specializing in gun policy at the University of California at Los Angeles and the author of "Gun Fight: The Battle Over the Right to Bear Arms in America," believes backers of the ban may have trouble pointing to historic analogies for the ban.

“The law is going to be challenged, and there is a good chance it will be overturned,” Winkler told the Chicago Tribune.

The ban was passed in the final hours of the lame-duck session of the 102nd Illinois General Assembly. Backers described it as one of the strongest in the country.

The last-minute passage of a sweeping piece of legislation mirrors that of the 101st General Assembly, which approved the SAFE-T Act in the dying embers of its lame-duck session two years ago.

Portions of that law that abolished monetary bail in Illinois have been blocked from taking effect while the Illinois Supreme Court hears an appeal to a ruling from a Kankakee County judge that declared them unconstitutional.

Earlier: Sheriffs Refuse To Enforce Assault Weapon Ban, Opponents Plan To Sue