Appellate court upholds restraining order on assault weapons ban

[February 01, 2023]  By PETER HANCOCK
Capitol News Illinois
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SPRINGFIELD – A temporary restraining order that partially blocks Illinois’ new assault weapons ban from being enforced will remain in place after a divided state appellate court panel’s ruling Tuesday.

The restraining order was issued Jan. 20 by Effingham County Circuit Judge Joshua Morrison, but it applies only to the 800 or so gun owners and firearms dealers named as plaintiffs in the suit. The case was filed by southern Illinois attorney Thomas DeVore, the unsuccessful Republican candidate for attorney general in 2022.

In a 2-1 ruling, the justices said plaintiffs in the case made a plausible argument that the law violates their rights to equal protection under the law. Under the law, some categories of people – active and retired law enforcement officers, correctional officers and military personnel on active duty, for example – may purchase and possess those weapons. Other groups, such as retired military personnel or those who are not on active duty, are barred from obtaining assault-style weapons after Jan. 1, 2024.

Attorneys for the state argued that it was reasonable to exempt certain groups of people who have extensive training in the use of such firearms. But the court majority rejected that argument, saying: “The fundamental rights at stake require lawmakers to ‘narrowly tailor’ legislation to effectuate its purpose.”

“Perhaps, as suggested during the circuit court hearing, some of the plaintiffs’ employment render them more or equally qualified to possess and purchase weapons than the qualifications required for the exempted classes,” the justices wrote. “Perhaps, some of the plaintiffs’ training is equal to, or superior to, that of the exempted classes.”

In accepting the argument that equal protection rights are at stake, the appellate court also rejected arguments that the General Assembly violated the Illinois Constitution’s requirements that bills deal with only one subject, that they be read three times on different days in both chambers, and the guarantee of due process.

Justice Barry L. Vaughn wrote the decision. Justice Mark M. Boie concurred in the opinion while Justice James R. Moore dissented in part, saying he would have overturned the circuit court entirely by rejecting the equal protection argument.

The 5th District Appellate Court allowed a temporary restraining order partially blocking a restraining order against a recently passed assault weapons ban to stay in place. (Source: Illinoiscourts.gov)

The law passed through the General Assembly during its lame duck session in January. Although a House Committee held extensive hearings on the bill in December, there was not enough time in the brief lame duck session to meet the constitution’s three-reading requirement.

In order to get around that requirement, they used a common procedure known as a “gut-and-replace,” in which the Senate stripped out the contents of a bill that had already passed the House. Language originally contained in House Bill 5855 was inserted into House Bill 5471, which originally dealt with insurance regulations. The Senate then sent the amended bill back to the House for its concurrence with the amendment.

The House voted to concur on Jan. 10, the final day of the lame duck session, and Gov. JB Pritzker signed it that evening.

The law bans the sale and purchase of a long list of semi-automatic weapons defined as “assault weapons,” .50 caliber rifles and large-capacity magazines, as well as various devices that effectively convert other weapons into something identical to one of the banned weapons.

It also allows people who already own such weapons to keep them, but it requires those owners to register them with the Illinois State Police by Jan. 1, 2024, while also restricting where they can be used or stored.

The law came in response to multiple mass shootings in the United States in which those types of weapons have been used, including the July 4, 2022, mass shooting at an Independence Day parade in Highland Park that left seven people dead and dozens more injured and traumatized.

The ruling means that the state is prevented from enforcing the law against the named plaintiffs in the case. The decision is expected to be appealed to the Illinois Supreme Court.