Amid flurry of gun ban challenges, federal appeals court considers Cook County assault weapon law

[November 13, 2024]  By Andrew Adams,Amalia Hout-Marchand

CHICAGO – A panel of federal judges is weighing whether to overturn a Cook County ban on semiautomatic weapons in a case that could upend other local bans and call into question the statewide prohibition on the controversial class of firearms.

But the appeal under consideration at the federal 7th Circuit Court of Appeals faces potentially long odds of success. The constitutionality of local bans on “assault weapons,” the phrase used in such laws, has been upheld by the 7th Circuit three times in the past 10 years, including once in 2023.

The same court also reversed an injunction on a statewide ban on assault weapons last year, leaving the law in place. That case, which relied on similar arguments to this one, is likely heading back to the 7th Circuit now that a lower court judge has struck down the law on constitutional grounds.

On Tuesday, the panel of justices heard arguments from lawyers representing Cook County and from the man at the center of the appeal, Cutberto Viramontes. In August 2021, Viramontes, joined other individuals and gun rights groups in filing a complaint against Cook County arguing the ordinance was unconstitutional. A lower court judge granted summary judgment in favor of Cook County in March.

The ban originated in the 1990s and was strengthened in 2006 and again in 2013. It is now known as the Blair Holt Assault Weapons Ban, named after a Chicago teen who was killed in a 2007 shooting while protecting a high school classmate.

Viramontes’ lawyers argued in court documents that the Second Amendment protected his right to own a semiautomatic rifle and that the court should overrule its own precedent to recognize that right.

But the Cook County State’s Attorney’s office, in its own brief, called the argument for overruling precedent a “stunning equivalent of legal misinformation based upon alternative facts.”

While judges are typically reserved while questioning attorneys, those on the 7th Circuit seemed to agree with the county on several key points Tuesday.

Judge Amy St. Eve said multiple times she was “troubled” by the fact that Viramontes’ attorneys were relying on evidence that was seemingly absent in arguments presented to the lower court.

“I have a list of articles and surveys you provided here that you did not provide in summary judgment briefing,” St. Eves said.

Pete Patterson, representing Viramontes, denied that characterization and noted that the type of evidence in this case is the “same type of material” that was used in the landmark 2008 Supreme Court case, District of Columbia v. Heller, which overruled a ban on handguns in the capital district.

Assistant Cook County State’s Attorney Jessica Scheller said the local assault weapons ban followed a long tradition of regulating certain classes of weapons stretching back to 14th century England.

A federal appeals court is considering a challenge to a Cook County assault weapons ban that regulates guns like the one pictured. (Capitol News Illinois photo by Andrew Campbell)

Establishing a history of regulation has become a critical part of Second Amendment cases in the wake of 2022’s Supreme Court decision in New York State Rifle & Pistol Association Inc. v. Bruen. The opinion in that case requires courts to consider the traditional text of the Second Amendment and historical precedents concerning weapon regulation to preserve the American tradition of the right to bear arms.

Scheller also argued that relying on evidence in the appeal about firearm prevalence and characteristics without having a chance to refute that evidence at the district court level was improper.

When she began going down that line of argument, Judge Diane Sykes interrupted her.

“That position is also especially dangerous in this new world we’re living in under Bruen,” Sykes said.

“We agree,” Scheller later replied.

The judges took the arguments under advisement and will consider them before issuing an opinion in the case.

In the meantime, the 7th Circuit may soon hear arguments in another case concerning the state’s ban on assault weapons.

Gov. JB Pritzker signed the Protect Illinois Communities Act in January 2023 as a statewide measure in the wake of a mass shooting in Highland Park. After hearing similar arguments to those made in Cook County, a judge in East St. Louis struck the law down as unconstitutional on Nov. 8. Illinois Attorney General Kwame Raoul filed notice of appeal the same day.

In the first seven months of 2024 alone, dozens of states passed gun safety measures, according to Giffords, an organization that advocates for stricter gun control. Consequently, there has been a surge of challenges to weapon regulations in Illinois and around the country.

In September, a federal judge blocked, for the third time, attempts to overturn a Washington state law banning the sale of assault weapons. In August, a federal appeals court upheld Maryland’s law banning military-style weapons implemented after the Sandy Hook Elementary School shooting in Connecticut. Plaintiffs are waiting to see whether the Supreme Court takes up this case, which could have a sweeping effect on assault weapons bans across the nation.

Capitol News Illinois is a nonprofit, nonpartisan news service that distributes state government coverage to hundreds of news outlets statewide. It is funded primarily by the Illinois Press Foundation and the Robert R. McCormick Foundation.