State, Cook County use similar arguments to defend assault weapon bans

[October 26, 2024]  By Peter Hancock

SPRINGFIELD – Attorneys in the offices of Attorney General Kwame Raoul and Cook County State’s Attorney Kim Foxx made similar arguments in recent court filings as both defend bans on assault weapons and large-capacity magazines against constitutional challenges.

In separate cases at different levels of the federal court system, both offices are trying to make the case that the laws under challenge – a state law enacted in 2023 and a county ordinance that dates to 1993 –fall within the bounds of the U.S. Supreme Court’s most recent interpretation of the Second Amendment right to keep and bear arms.

Raoul’s office filed its final written arguments Monday, Oct. 21, in the Southern District of Illinois, where an in-person trial was held in September on multiple challenges to the state’s Protect Illinois Communities Act. That’s the weapons ban state lawmakers passed in 2023 in the wake of a mass shooting at a Fourth of July parade the previous summer in Highland Park.

Foxx’s office made its argument in briefs filed with the 7th Circuit Court of Appeals, where a three-judge panel will hear oral arguments Nov. 12 in a challenge to the county’s assault weapons ban.

First adopted in 1993, that law 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.

Both cases are among the numerous challenges to assault weapons bans that have been filed in recent years in Illinois and elsewhere. Those cases come as state and local governments look for ways to control the proliferation of increasingly deadly weapons on their streets while a conservative majority on the U.S. Supreme Court takes an increasingly expansive view of the Second Amendment’s protection of gun rights.

The court’s current standards for judging Second Amendment cases are spelled out in the 2008 decision District of Columbia v. Heller, and the 2022 decision in New York State Rifle & Pistol Association v. Bruen.

The Heller case held the right to bear arms is an individual right, not a collective right, and that the Second Amendment protects an individual’s right to own and carry weapons such as handguns that are commonly used for self-defense and other lawful purposes.

In the Bruen decision, the court went further to say that for a gun control law to pass constitutional muster, the government must show that the law is consistent with the nation’s “historical tradition of firearms regulations.”

In both pending cases, attorneys for the plaintiffs argue the weapons banned under the laws are among the most popular firearms in America and are commonly used for self-defense and other legal activities such as hunting and target shooting.

Attorneys for the state and Cook County, however, argue the assault weapons covered under the laws are modern variations of guns first developed in Nazi Germany during World War II, the Sturmgewehr 44. That weapon’s design was later adapted and modified by the U.S. military into a weapon known as the AR-15, which was later “rebranded” as the M-16 rifle.

Briefs filed in both cases also offer graphic descriptions of mass shootings in which assault weapons have been used to illustrate how their lethal power is many times that of smaller weapons like a 9 mm handgun.

Cook County’s brief, for example, begins with a description of the 2022 mass shooting at Robb Elementary School, in Uvalde, Texas, where 19 children and two teachers were killed by a man wielding an AR-15.

“Afterward, a pediatrician observed that the children ‘had been pulverized by bullets fired at them, decapitated,’ their ‘flesh had been ripped apart’ to such an extent ‘that the only clue as to their identities was blood-spattered cartoon clothes still clinging to them,’” the county’s brief states.

Cook County State’s Attorney Kim Foxx (right) and Illinois Attorney General Kwame Raoul (left) are pictured at the Illinois Statehouse in 2019. They’re both defending state and county bans on assault weapons in federal court cases. (Capitol News Illinois photo by Peter Hancock)

Cook County’s brief also includes a list of 17 mass shootings in the United States involving assault weapons between 1984 and 2022, as well as the July 13, 2024, attempted assassination of former President Donald Trump.

The state’s brief begins with a description of the Highland Park mass shooting, noting that “(i)n less than 60 seconds, the shooter fired approximately 83 shots into the families and community members gathered to celebrate the nation’s birthday. Seven people died, and an additional 48 people were wounded.”

Both the state and county argue the military origins of assault weapons, combined with their lethal impact when used in mass shootings, place them in the category of “dangerous and unusual” weapons which, under the Heller decision, are outside the scope of Second Amendment protection.

Both the state and the county also argue there is a long, historical tradition of regulating weapons that posed particular threats to public safety. They both cite laws from the first half of the 19th century banning Bowie knives, as well as later laws regulating pistols, revolvers, and “Tommy guns.”

Plaintiffs in both cases, however, argue there is a fundamental difference between the assault weapons banned under the state and county laws and the type of weapons used in the military – namely, that the laws ban “semiautomatic” weapons, which fire only one round with each pull of the trigger, while the military uses weapons that can fire in either semiautomatic or fully automatic mode, meaning they fire continuously with a single pull of the trigger until the trigger is released or the ammunition is depleted.

In earlier proceedings, Judge Stephen P. McGlynn, who is presiding over the case in the Southern District of Illinois, issued a preliminary injunction blocking enforcement of the Protect Illinois Communities Act, saying the plaintiffs were likely to win on the merits of the case.

But the 7th Circuit Court of Appeals reversed that decision and the U.S. Supreme Court declined to review the case at this juncture, opting instead to remand it back to district court for full proceedings. The trial in that case ended Sept. 19, and McGlynn is expected to issue his ruling soon.

In the case challenging the Cook County ordinance, U.S. District Judge Rebecca R. Pallmeyer ruled March 1 in favor of the county, noting the 7th Circuit has ruled several times that assault weapons bans are constitutional, including an earlier challenge to the Cook County law. The plaintiffs are now appealing that decision. The appellate court will not release the names of the three judges assigned to hear the case until the morning of oral arguments Nov. 12.

Both lawsuits have backing from national gun rights organizations such as the Second Amendment Foundation, the Firearms Policy Coalition, Federal Firearms Licensees, and the National Shooting Sports Foundation.

National gun control advocates such as Everytown for Gun Safety and Giffords Law Center to Prevent Gun Violence have also filed briefs in support of the weapons bans.

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.