Federal appeals court weighs constitutionality of Illinois’ assault
weapons ban
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[June 30, 2023]
By PETER HANCOCK &
ANDREW ADAMS
Capitol News Illinois
phancock@capitolnewsillinois.com
aadams@capitolnewsillinois.com
CHICAGO – A three-judge panel of a federal appeals court is now deciding
whether state and local bans on assault weapons and high-capacity
magazines are constitutional.
In a case that is being closely watched throughout the country – and one
many believe is almost certain to end up before the U.S. Supreme Court –
the judges on the Seventh Circuit Court of Appeals are being asked to
decide whether Illinois’ recently enacted assault weapons ban violates
the Second Amendment’s right to bear arms.
In April, a district court judge in East St. Louis sided with gun rights
groups in ruling that it does and issued injunction blocking the state
from enforcing the law. But the Seventh Circuit Court of Appeals quickly
halted that order. Meanwhile, two different district court judges in
Chicago have reached the opposite conclusion and declined to grant
injunctions blocking enforcement of the law.
Now, the Seventh Circuit is hearing a consolidated appeal of all those
cases, which also include challenges to similar assault weapon bans
enacted locally in Chicago, Naperville, and Cook County.
Kris Brown, president of Brady, a gun control advocacy group that filed
a friend-of-the-court brief in the case, said in an interview Thursday
that a lot is at stake in the outcome of the case.
“A reasonable public safety-oriented interpretation of the Second
Amendment is certainly at stake,” she said. "And specifically,
obviously, a movement that Brady has long been a part of, to facilitate
states and localities from enacting public safety measures, including
assault weapons bans. And that’s particularly what’s at stake here, not
just for Illinois but for other states as well.”
Thursday’s oral arguments came just days ahead of the one-year
anniversary of the mass shooting at an Independence Day parade in
Highland Park that left seven people dead and dozens more injured or
traumatized. That was the event that prompted the city of Naperville and
the state of Illinois to enact their bans.
Last year’s mass shooting in Highland Park, however, occurred just a few
days after the U.S. Supreme Court struck down a New York state law
restricting the right to carry concealed firearms, holding that such
restrictions must be consistent with the nation’s “historical tradition”
of firearm regulations.
While the standards laid out in that case were often referenced in
Thursday’s arguments, Judge Frank Easterbrook, one of the three judges
overseeing these cases, quickly dispelled any notion that the Supreme
Court’s decision in New York State Rifle & Pistol Association v. Bruen
settled the question of banning “assault weapons.”
“Bruen confronted the question in Bruen, which had nothing to do with
arms like the AR-15,” Easterbrook said. “...We’ve got a hard question
and I don’t think we can duck it.”
In briefs filed with the court, attorneys challenging the assault
weapons restrictions argued that the ruling in the New York case should
apply because the weapons banned under the laws are owned by “literally
millions of law-abiding citizens for lawful purposes.”
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The Dirksen Federal Courthouse in
Chicago, where a three-judge panel on Thursday heard oral arguments
in a group of cases challenging the constitutionality of Illinois'
and other local governments' ban on the sale of assault weapons and
high-capacity magazines. (Capitol News Illinois photo by Hannah
Meisel)
They also argued that there is no historical precedent dating back to
the founding of the Constitution for an absolute ban on an entire
category of such weapons.
But Attorney General Kwame Raoul’s office, which is defending both the
state and local laws, argued that the types of weapons banned for sale
under Illinois’ law are not in “common use.” The deputy solicitor
general arguing the case cited statistics showing only 6.4 million
Americans – or less than 2 percent of all Americans – own AR-style
rifles and that the 24 million AR-style rifles in circulation account
for only 5 percent of all firearms in circulation.
Both sides’ reliance on a weapon's “common use” was questioned by judges
during oral arguments.
“It’s very troublesome to have a popularity contest determine a
constitutional principle,” Judge Diane Wood said.
Easterbrook also called relying on a weapons’ historical availability or
popularity an “anachronism,” saying that a weapon being banned or not
banned creates a “self-fulfilling prophecy” for common use.
The state argued in its briefs that there couldn’t be a direct
historical precedent for an assault weapon ban because those weapons did
not exist at the time the Constitution was drafted. But it said there is
a tradition that predates the founding of the Constitution in which the
government steps in to regulate new categories of weapons that cause
escalating or novel forms of violence.
Judges also questioned lawyers about the potential constitutionality of
bans on other types of weapons, such as rocket launchers, machine guns,
repeating rifles and grenades. Differentiating between similar arms –
such as semi-automatic weapons like the AR-15 and the closely related,
but fully automatic, M16 – was a central point of the back and forth
between judges and lawyers.
“We have a sorting job where nuclear weapons are on one side of the sort
and handguns are on the other side of the sort,” Wood said.
The Democratically controlled General Assembly passed the statewide ban
during its lame duck session in January, making Illinois the ninth state
to enact such a ban. A few months later, Washington state became the
10th.
So far, none of those laws has been overturned, but the challenges to
the Illinois laws are being closely watched around the country. National
gun rights organizations as well as gun control advocates have filed
friend-of-the-court briefs, as did Republican attorneys general from 22
states.
Capitol News Illinois is a nonprofit, nonpartisan news
service covering state government. It is distributed to hundreds of
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TV stations statewide. It is funded primarily by the Illinois Press
Foundation and the Robert R. McCormick Foundation, along with major
contributions from the Illinois Broadcasters Foundation and Southern
Illinois Editorial Association.
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