Illinois’ assault weapons ban: Why experts say it might not hold up in court

Illinois’ new assault weapons ban is only a few days old, but it’s already on shaky legal ground.

So say Republican lawmakers and gun shop owners. But also constitutional law researchers.

Illinois Democrats who drafted the legislation — which took effect Tuesday and was passed in response to a mass shooting at a Fourth of July parade in Highland Park that killed seven people — say they have balanced safety concerns with Second Amendment arguments over the right of individuals to bear arms.

But a U.S. Supreme Court ruling last year could change the new law and other gun restrictions elsewhere, legal scholars say.

In that ruling, the justices said lower court judges can no longer rule on the constitutionality of gun laws based on modern public safety concerns.

“The Supreme Court has completely transformed the way Second Amendment cases are decided,” said Eric Ruben, an assistant professor of law at Southern Methodist University who focuses on gun issues.

Illinois is the ninth state to pass a law banning assault weapons.

Legal challenges to the bans in California and Maryland are pending before federal appeals courts and would be the most likely to be heard by the Supreme Court, according to Andrew Willinger, executive director of the Duke Center for Firearms Law.

Willinger said he thinks a Supreme Court vote on the constitutionality of assault weapons bans would be “a close vote.”

“It seems very likely that there will be justices inclined to strike down” an assault weapons ban, Ruben said. “Whether there are five”—the number needed for the necessary majority—”is another question.”

In a Jan. 6 article in The Washington Post, Adam Winkler, a professor at the University of California, Los Angeles School of Law, said, “There is at least a good chance that [Illinois] the law will be abolished.

Eric Ruben, an assistant professor of law at Southern Methodist University.

Southern Methodist University

The recent Supreme Court decision that changed the landscape for the Second Amendment is known as New York State Rifle and Pistol Association, Inc. against Bruen. The Supreme Court’s 6-3 decision in that case last June 23 said justices must rely on the text of the Second Amendment and the history of gun regulation to decide the constitutionality of gun laws — not on the strength of intent. public safety of those laws.

The ruling struck down New York’s restrictions on concealed handgun permits.

In the majority opinion, conservative Justice Clarence Thomas wrote: “Relying on history to inform the meaning of the constitutional text is more legitimate and manageable than asking judges to ‘make difficult empirical judgments’ about the ‘costs and benefits of firearms restrictions. ‘”

In support of this position, Thomas referred to the Supreme Court’s 2008 decision in a case known as District of Columbia v. Heller, which found that the Second Amendment guarantees the right to “keep and bear arms in case of confrontation.” . This decision overturned a gun ban in Washington, DC

The Heller decision said that weapons in “common use at the time” are constitutionally protected, but it maintained the “historical tradition of prohibiting the possession of “dangerous and unusual” weapons.

He also said that the right to bear arms is not unlimited. The government, for example, could ban felons from possessing firearms and ban them from government buildings and schools, the ruling said.

Because of the Heller and Bruen decisions, Willinger said a key question in any challenge to the assault weapons ban will now be whether those firearms are “dangerous and unusual” or “in common use.”

“Right now, there’s a lot of confusion” about how to resolve gun issues in light of the Bruen decision, Ruben said.

Federal Court of Appeal Judge Frank Easterbrook.

In 2015 — seven years after the Heller decision and seven years before Bruen — Highland Park’s assault weapons ban was upheld by the Seventh U.S. Circuit Court of Appeals, but the case did not reach the Supreme Court.

Public safety concerns — which can no longer be considered in court rulings on guns because of the Bruen ruling — were central to federal appeals judge Frank Easterbrook’s decision to uphold the Highland Park ban.

“Banning assault weapons will not eliminate gun violence in Highland Park, but it may reduce the overall seriousness of the crime that does occur,” Easterbrook wrote. “If banning semiautomatic weapons and high-capacity magazines reduces the perceived risk of mass shootings and makes the public feel safer as a result, that’s a substantial benefit.”

Easterbrook also wrote: “Highland Park acknowledges the uncertainty of whether prohibited weapons are commonly owned. If they are (or were before the ordinance passed), then they are not unusual. Data shows that perhaps 9% of the nation’s firearms owners own assault weapons, but that line that separates ‘ordinary’ from ‘unusual’ ownership is something that [lower] the court did not say.”

In addition to the assault weapons ban, the new Illinois law limits magazine capacity to 10 rounds for long guns and 15 for handguns.

Ruben said other states also have bans on magazine capacity — and some of those laws are under court review.

Shortly after the Bruen decision, the Supreme Court overturned lower court decisions that upheld bans on high-capacity magazines in New Jersey and California. These issues were remanded to the judges in those cases to reconsider their decisions in light of Bruen.

Lawmakers who sponsored the assault weapons ban in Illinois say they are confident it will survive.

“Constitutional interpretation of the Second Amendment, of course, loomed large in the drafting of this legislation,” said Rep. Bob Morgan, D-Deerfield, at Gov. JB Pritzker’s bill signing ceremony Tuesday night.

“Both chambers took this very seriously,” Morgan said. “We need to make sure we’re passing laws that will stand up to scrutiny. So we took these things into consideration. And, of course, there are a lot of legal threats that came in and we look forward to being able to take our arguments to court.”

Rep. State Rep. Bob Morgan, D-Deerfield, at a House committee meeting in December on state assault weapons legislation.

State Sen. Terry Bryant, R-Murphysboro, opposed the legislation.

“I believe the courts will look at it and say this is something regular citizens can have,” he said.

State Sen. Chapin Rose, R-Mahomet, said: “If you read the applicable case law of the U.S. Supreme Court, I have every confidence that this will be thrown out very quickly in federal court as well.”

In a written statement, Richard Pearson, executive director of the Illinois State Rifle Association, said his group will work to repeal the assault weapons ban in the upcoming General Assembly session “as well as consider a court case over what many believe is constitutional. defective bill.”

In a December appearance before an Illinois House panel considering what was then a proposed assault weapons ban, former National Rifle Association lobbyist Todd Vandermyde said, “You guys pass all the garbage you want and we will see you in court.”

Todd Vandermyde, retired lobbyist for the National Rifle Association, testifies Dec. 20 against the state’s proposed assault weapons ban during a meeting of the Illinois House Judiciary Criminal Committee in the Loop.

He said he didn’t think many law enforcement agencies would enforce the ban.

On Wednesday, 14 of the 102 sheriffs in Illinois, including those in Kankakee, Grundy and McHenry counties, posted messages on social media saying they would not arrest citizens for violating the ban.

“I would assume that someone will soon file a lawsuit against the state of Illinois, alleging that this law violates the 2nd Amendment to the US Constitution, similar to the passage of the SAFE-T Act, and it will “is sent to the Supreme Court to rule on the constitutionality of the new law,” wrote Greene County Sheriff Robert McMillen.

“Until that happens and the question of constitutionality is decided, I will follow my morals, beliefs and obligations regarding protecting the rights of the citizens of Greene County,” McMillen said.

Ruben said there has been a similar response elsewhere. When New York banned assault weapons in 2013, sheriffs staged a revolt against the law, he said.

“Constitutionality is one thing,” Ruben said. “Law enforcement, in many ways, is going to be an even bigger issue here.”