This Challenge To Illinois’ Gun Law Tees Up SCOTUS To Finally Nuke ‘Assault Weapons’ Bans
Illinois’ recently enacted ban on most semi-automatic rifles and so-called “high-capacity” magazines violates the Second Amendment, according to a lawsuit filed on Tuesday in a federal district court. The case, Harrel v. Raoul, represents one of the first challenges to so-called “assault-weapons” bans since the 2022 Supreme Court decision in New York State Rifle v. Bruen made clear that the right to bear arms is not “a second-class right.”
Here’s what you need to know about the case and current Second Amendment jurisprudence.
On Jan. 10, 2023, Illinois enacted a ban on the manufacturing, delivery, sale, purchase, or possession of so-called “assault weapons,” which is defined by statute to include any semi-automatic rifle “with the capacity to accept a magazine holding more than ten rounds of ammunition,” if the rifle possesses any one of several features, such as “a pistol grip or thumbhole stock,” a “folding, telescoping, thumbhole, or detachable stock,” or a “flash suppressor.” The Illinois statute also identifies dozens of rifles expressly banned as “assault weapons,” including all AK-type rifles, all AR-type rifles, several Barrett and Bushmaster rifles, along with a catalog of other guns.
Illinois’ recently enacted statute also makes it a crime to “manufacture, deliver, sell, purchase,” or “possess” magazines branded by the state as “large capacity ammunition” devices and referred to colloquially as “large-capacity magazines.” The statute categorizes magazines as “large capacity” if they can hold more than “10 rounds of ammunition for long guns and more than 15 rounds of ammunition for handguns.”
A group of individuals, gun businesses, and private organizations, including the Second Amendment Foundation, the Illinois State Rifle Association, and the Firearms Policy Coalition, filed suit on Tuesday against the Illinois attorney general, as well as several state prosecutors and law enforcement agents, arguing the statute violates the Second Amendment. On Wednesday, the case was assigned to federal Judge Stephen P. McGlynn, a Donald Trump appointee.
The lead attorney for the plaintiffs, David G. Sigale, told The Federalist he anticipates seeking a temporary restraining order or preliminary injunction “very soon,” noting that the statute has been in force since the governor signed the law on Jan. 10.
In seeking a temporary restraining order or a preliminary injunction, the plaintiffs will need to establish they have “a likelihood of success on the merits,” meaning they will likely prevail on their claim that the Illinois law violates the Second Amendment.
Back to the Founding
While several federal appellate courts have held that similar bans on so-called assault weapons are constitutional, in June of 2022, the U.S. Supreme Court in Bruen held that in judging whether a challenged statute violates the Second Amendment, the appellate courts have been applying an incorrect legal standard. The Supreme Court then declared that the proper test for assessing whether a law impermissibly infringes on an individual’s Second Amendment right is whether the government can “affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.”
Then, noting that modern firearm technology differs from that available at the founding, the Supreme Court in Bruen directed the lower courts, when faced with cases “implicating unprecedented societal concerns or dramatic technological changes” to follow “a more nuanced approach” and “conduct … reasoning by analogy” to determine whether a modern firearm regulation would be “unimaginable at the founding.” The Supreme Court added that “whether modern and historical regulations impose a comparable burden on the right of armed self-defense and whether that burden is comparably justified are ‘central’ considerations when engaging in an analogical inquiry.”
In other words, under Bruen, the government must prove that, as a matter of history, a similar ban or regulation was viewed as constitutional. At issue in Bruen was New York’s ban on carrying a firearm in public, absent “proper-cause.” The Supreme Court held that the proper-cause requirement prevented “law-abiding citizens with ordinary self-defense needs from exercising their right to keep and bear arms,” and was therefore unconstitutional based on history and tradition.
While Bruen did not address the constitutionality of so-called assault weapons and large-capacity magazine bans, by holding that the lower courts had been applying the wrong legal standard to judge the constitutionality of such laws, the Supreme Court, in essence, rendered precedent upholding such bans invalid. Thus, the Seventh Circuit’s decisions in Wilson v. Cook County and Friedman v. City of Highland Park, which held that “assault weapons” bans are constitutional, is no longer good law. Accordingly, Judge McGlynn will be writing on a clean slate when he addresses the constitutionality of Illinois’ statute and will need only apply the proper standard set forth in Bruen.
Under the Bruen standard, the district court and later the Seventh Circuit and Supreme Court are likely to find Illinois’ ban on so-called assault weapons unconstitutional because the statute bans “types of firearms commonly used for a lawful purpose.” And in determining whether firearms are protected by the Second Amendment, the Supreme Court previously set forth that as the historical question for courts to answer.
What About Magazines?
Whether the ban on large-capacity magazines will also fail is a closer question. The plaintiffs’ complaint alleges that the “large-capacity” descriptor is a misnomer because magazines holding more than 10 or 15 rounds is the “norm.” However, two federal courts have already upheld similar “large-capacity” bans applying the Bruen standard. One court held magazines are not “arms” within the meaning of the Second Amendment. The second court held that while mass murderers often fire more than 10 rounds from their semi-automatic rifles, but when used in self-defense, gun owners do not typically fire more than 10 rounds, such magazines do not qualify as arms “commonly used for a lawful purpose.”
The proper question, though, under Bruen, is whether Illinois can point to a historical analog that establishes the state’s right to limit the possession and use of magazines that hold more than 10 or 15 rounds. The state will have an opportunity to do so when it responds to the plaintiffs’ forthcoming motion for a temporary restraining order or an injunction. Expect, as well, a flurry of amicus curiae, or friend of the court, briefs to present arguments in support of, or in opposition to, the Illinois ban.
No matter how Judge McGlynn rules, however, this case seems destined for the United States Supreme Court, which has sidestepped the constitutionality of “assault weapons” and “large-capacity” magazine bans for years. So stay tuned.
Margot Cleveland is The Federalist’s senior legal correspondent. She is also a contributor to National Review Online, the Washington Examiner, Aleteia, and Townhall.com, and has been published in the Wall Street Journal and USA Today. Cleveland is a lawyer and a graduate of the Notre Dame Law School, where she earned the Hoynes Prize—the law school’s highest honor. She later served for nearly 25 years as a permanent law clerk for a federal appellate judge on the Seventh Circuit Court of Appeals. Cleveland is a former full-time university faculty member and now teaches as an adjunct from time to time. As a stay-at-home homeschooling mom of a young son with cystic fibrosis, Cleveland frequently writes on cultural issues related to parenting and special-needs children. Cleveland is on Twitter at @ProfMJCleveland. The views expressed here are those of Cleveland in her private capacity.
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