Attorney plans to challenge Illinois’ gun registry on Fifth Amendment grounds

[July 28, 2023]  By Greg Bishop | The Center Square

(The Center Square) – The argument Illinois’ gun ban and registry violates citizens' Fifth Amendment right against self incrimination is expected to be made in a new challenge to the law soon.

When Illinois Gov. J.B. Pritkzer enacted the gun and magazine ban earlier this year, the law included a requirement that those who owned the banned firearms before the law was enacted must register them with Illinois State Police or face criminal penalties.

The Fifth Amendment to the U.S. Constitution protects individuals from self-incrimination. Attorney Thomas Maag’s initial lawsuit against Illinois’ gun and magazine ban included that argument alongside claims the law violates the Second Amendment right to keep and bear arms and the 14th Amendment right of equal protection.

Maag’s Fifth Amendment arguments were put on hold when his case was consolidated with three other cases in the Southern District of Illinois to focus on the Second Amendment claims. After securing a preliminary injunction against the law, the state appealed to the Seventh Circuit Court of Appeals which issued a stay on the injunction.

Illinois State Police said firearms purchased during that six-day window when the state was enjoined from enforcing the ban are still illegal and won’t be eligible to register with their database once it’s open.

The Southern District cases were then consolidated with other Second Amendment cases from the Northern District with oral arguments heard last month. It’s unclear when the three-judge appeals court panel will release its ruling. It’s expected to go to the U.S. Supreme Court either way.

Separate from the consolidated cases before the appeals court, Maag expects to file the Fifth Amendment lawsuit in the weeks ahead.

Semi-automatic firearms behind a locked cabinet at a retailer in Springfield, Illinois, with a note to who can purchase such weapons - Greg Bishop / The Center Square

“When this whole registration period starts, if it’s not previously enjoined that with the vagueness, with a whole host of issues, that people will be incriminating themselves just as set forth in the U.S. Supreme Court case of 1968 U.S. v. Haynes,” Maag told The Center Square.

Per the Protect Illinois Communities Act, Illinois State Police are to open the registration portal for owners of grandfathered firearms beginning Oct. 1. If the law is upheld in the courts, residents face criminal penalties for not registering their firearms by Jan. 1, 2024.

“So we do intend to file papers on that in the coming couple of weeks addressing that issue before hopefully people are damaged by the registration requirement that’s set to start in October,” Maag said.

If upheld by the courts, the law also says after this October, and "every October 1 thereafter, the Illinois State Police shall, via rulemaking, identify, publish, and make available on its website, the list of assault weapons subject to an endorsement affidavit.”

“The list shall identify, but is not limited to, the copies, duplicates, variants, and altered facsimiles of the assault weapons … and shall be consistent with the definition of ‘assault weapon’ identified” in the law,” the law says.

There are more than 2.4 million Illinois Firearms Owner Identification card holders in the state. It’s unclear how many of them own variants of the banned firearms, or what kind of compliance rate there could be. In other states like California, gun registry compliance has been below 5%.