Attorneys for gun rights supporters seeking to overturn Illinois’ sweeping gun ban faced tough questioning Thursday from a pair of federal appellate judges in Chicago.
The half-dozen challenges being heard in a consolidated case before a three-judge panel of the 7th U.S. Circuit Court of Appeals all hinge on whether the individual right to bear arms under the Second Amendment extends to the more than 100 types of guns that are subject to the state ban, including the popular AR-15 rifle, and to the high-capacity magazines that also are subject to the ban.
For those challenging the law, the answer is simple, particularly in light of a U.S. Supreme Court ruling last year that struck down New York state’s concealed carry law and established that restrictions on firearm ownership must be consistent with the country’s historical traditions of regulation.
“Millions of law-abiding Americans possess the semi-automatic rifles, pistols and shotguns that Illinois has newly banned, and millions more own the magazines that Illinois has now declared illegal,” Erin Murphy, an attorney for the National Shooting Sports Foundation, told the judges.
The Supreme Court’s decision in New York State Rifle & Pistol Association v. Bruen “forecloses state’s effort to prohibit them because the case “teaches that our historical tradition is one of protecting arms that are in common use today,” Murphy said.
That argument was met with skepticism from Judge Frank Easterbrook, questioned the idea that the Constitution precludes the government from ever enacting restrictions on a specific weapon if it doesn’t act before the gun in question reaches widespread use.
“One of the problems that I, at least, have with your presentation is that it makes the constitutionality of a law depend on where it was enacted, when it was enacted relative to sales,” Easterbrook, who was appointed to the 7th Circuit by President Ronald Reagan, said to Murphy.
“If there had been a statute in the 1950s when the AR-15 is invented, it would have been sustained on your analysis because, by then, they are not in common use,” Easterbrook said. “But if the state legislature waits 20 years, then the statute can’t be sustained. All of that is totally extrinsic to either the language of the Constitution or the history of the Constitution.”
Easterbrook also noted that someone could have made the same arguments against the federal ban on the Tommy gun in the 1930s. Murphy responded that the submachine gun wasn’t nearly as common as the AR-15 of today.
“They were especially common in Chicago,” Easterbrook noted.
Likewise, Judge Diane Wood, appointed by President Bill Clinton, said she found it “very troublesome to have a popularity contest determine a constitutional principle.”
The state law banning a long list of high-powered semi-automatic weapons, along with high-capacity ammunition magazines, that was enacted in January was swiftly met with a number of legal challenges, some of which also objected to local bans in Chicago, Cook County and Naperville.
The state ban remains in effect after the 7th Circuit earlier this year overturned an order from a federal court in southern Illinois that blocked it.
Lawyers for the state at Thursday’s hearing stressed that recent Supreme Court decisions, while limiting the government’s ability to restrict access to firearms, have left the door open to prohibiting “dangerous and unusual weapons.”
Despite their popularity, the firearms Illinois has banned “are not in common use for self-defense,” said Deputy Solicitor General Sarah Hunger of the Illinois attorney general’s office.
Banning them is “consistent with the historical tradition,” Hunger said.
She argued that the state has an interest in prohibiting them in part due to their ability to kill a large number of people with great speed.
“These mass shooters are using them in offensive ways because that is what they were designed for,” Hunger said.
But Easterbrook noted that the Supreme Court’s Bruen decision established that the “ends” of preventing gun violence shouldn’t be used as a “means” to justify limitations on Second Amendment rights.
“You’re asking us to consider something through the backdoor that Bruen bars through the front door,” Easterbrook said.
After roughly an hour and a half of arguments, Easterbrook said the cases at hand present “an extremely difficult problem.” The court did not give an indication of when it would rule.
In addition to four cases out of the Southern District of Illinois, the three-judge panel also is weighing arguments from a Naperville gun shop owner challenging a local ordinance along with the state law. The plaintiffs in that case, Robert Bevis and the National Association for Gun Rights, previously asked the U.S. Supreme Court to block the state and local bans while the case is adjudicated, but the high court declined in May in an unsigned order.
Also part of the consolidated case is a challenge brought against the state, the city of Chicago and Cook County by Chicago emergency room physician Javier Herrera, who argues state and local bans violate his Second Amendment rights. He appealed to the 7th Circuit after a district court judge in Chicago declined to issue an injunction.
Depending on the outcome of the appellate panel’s ruling, the losing parties could appeal to either the full 7th Circuit or the U.S. Supreme Court.
After Thursday’s hearing, Attorney General Kwame Raoul said that while he wouldn’t speculate on the potential outcome, “the questions asked by the court, particularly Wood and Easterbrook, indicate the problems with the plaintiffs’ arguments.”
Thursday’s hearing came just days before the anniversary of the mass shooting at the Highland Park Fourth of July parade that spurred the ban. Outside the courthouse, about 60 people rallied against any efforts to overturn the weapons ban, some holding signs that read “PROTECT KIDS NOT GUNS” and chanting “This is what democracy looks like!”
After the event, Maria Pike, who does anti-violence advocacy work and whose son was fatally shot in 2012, motioned toward the Dirksen U.S. Courthouse across the street as an acknowledgment of what’s at stake for people like her who’ve fought for better gun control measures.
“I cannot say I’m at peace. I am hopeful. I cannot give up. I cannot give up,” she said. “Because so much depends on this decision right now. I think that there are times where you have to stand up and protect what is important to you.”
Chicago Tribune’s Jeremy Gorner contributed
dpetrella@chicagotribune.com
