In federal court, Illinois to defend law plaintiffs say bans firearms in ‘common use’

[April 12, 2023]  By Greg Bishop | The Center Square

(The Center Square) – Illinois’ ban on certain semi-automatic firearms and magazines is set for a hearing in an East St. Louis federal court Wednesday afternoon.

Gov. J.B. Pritzker signed the Protect Illinois Communities Act on Jan. 10. The measure bans all sales of more than 170 semi-automatic rifles, shotguns and handguns, and bans the sale of magazines over 10 rounds for rifles and 15 rounds for handguns. All grandfathered firearms legally purchased before the ban are required to register with Illinois State Police by the beginning of next year.

Illinois has about 2.4 million Firearm Owner ID card holders, a requirement to buy and own firearms in Illinois. Active and retired police officer and others in the law enforcement and security sectors are exempt from the weapons ban.

Last week, Gov. J.B. Pritzker said there are limits to the Second Amendment. Monday, speaking at Harvard University, Pritzker praised the law he enacted.

“We ought to be doing all that nationally,” Pritzker said. “But, we just did that in January, and by the way it’s all tied up in courts right now. We’ll see, it could end up at the [U.S. Supreme Court], but eight other states have passed automatic weapons bans.”

Attorney Thomas Maag was the first to file suit a week after the law was enacted in January. That was filed in Crawford County state court but was then transferred to federal court. Maag’s case challenges the law on Second Amendment grounds, but also on the grounds that requiring registration violates Fifth Amendment rights against self incrimination.

“In order to speed this particular motion hearing [for a preliminary injunction] through, we agreed to delay our Fifth Amendment argument and another argument at a later date if it becomes necessary to argue those as well,” Maag told The Center Square.

Maag’s case will be argued Wednesday in East St. Louis alongside three other lawsuits brought by plaintiffs groups.

Part of a separate plaintiffs group, Illinois State Rifle Association's Richard Pearson predicts a statewide injunction blocking the law from being enforced with appeals all the way to the U.S. Supreme Court. He said last summer the supreme court changed the standard courts are to use in Second Amendment cases.

“That said, you have to have stricter scrutiny and you have to make sure that the firearms that they are trying to ban are not in common use and there’s hardly any firearms more in common use than semi-automatic rifles and handguns,” Pearson said.

Gov. J.B. Pritzker amid legislative leaders before signing a bill to ban certain guns and magazines.
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In one argument, the state contends modern firearms were not in common use when the Second Amendment was ratified in 1788, and the state’s law looks to address “dramatic technological changes” that created weapons beyond self defense.

“Plaintiffs cannot meet their burden of showing assault weapons and large capacity magazines are ‘arms’ protected by the text of the Second Amendment,” the state said last month. “Large capacity magazines are accessories, not ‘arms,’ and they are neither independently capable of nor necessary for self defense. They augment the lethality of firearms by reducing the frequency of re-loading in battle – or during the episodic massacres that now punctuate modern American life.”

Todd Vandermyde is consulting another plaintiffs group in the Southern District case with the Federal Firearms Licensees of Illinois. He summoned past court precedent that said per the Second Amendment, laws can’t restrict commonly owned firearms.

“Some have made the argument, bordering on the frivolously, only those arms in existence in the 18th Century are to be protected and we do not view constitutional rights that way,” Vandermyde told The Center Square.

Judge Stephen McGlynn Wednesday could take under advisement the motion for a preliminary injunction halting the law statewide. He’s already acknowledged however the case goes, it’s expected to go up on appeal to the Seventh District Court of Appeals.

In state-level challenges, the case out of Macon County doesn’t have a hearing until mid-May in front of the Illinois Supreme Court. A temporary restraining order keeping only named plaintiffs safe from enforcement was issued in that case. Temporary restraining orders also impact thousands of other named plaintiffs in three other cases continuing in Effingham County led by attorney Thomas DeVore.

Monday, a provision of the law kicked in that levels criminal penalties against those who are found in violation. By Oct. 1, Illinois State Police are expected to open up the registration portal with a deadline to register impacted firearms by Jan. 1, 2024, or criminal penalties could apply.

“People are very confused, it is a very poorly written law at best, but it affects the wrong people,” Pearson said. “Please prosecute the criminals and a lot of this misuse will go down.”

Greg Bishop reports on Illinois government and other issues for The Center Square. Bishop has years of award-winning broadcast experience and hosts the WMAY Morning Newsfeed out of Springfield.