Illinois’ sweeping firearms ban certain to end up in court, and some experts doubt it will stand

In his closing remarks before a vote on a sweeping firearms ban, Illinois Senate President Don Harmon pushed back at critics who contended the prohibitions would violate the Second Amendment of the U.S. Constitution.

The Oak Park Democrat concluded with a message for Republican lawmakers and other opponents of the measure, which was passed in response to the deadly mass shooting at Highland Park’s Fourth of July parade: “We’ll see you in court.”

When Democratic Gov. J.B. Pritzker signed the measure into law Tuesday after the Democratic-controlled House gave its approval, Illinois became the ninth state to ban so-called assault weapons, winning praise from President Joe Biden. It also set up inevitable legal challenges from gun rights advocates that could take years for the courts to resolve.

In a letter Tuesday to Pritzker, Harmon and House Speaker Emanuel “Chris” Welch of Hillside, Richard Pearson, executive director of the Illinois State Rifle Association, responded directly to the Senate president’s remarks, writing: “Challenge accepted.”

While no lawsuit has yet been filed, experts on gun legislation and constitutional law said the new restrictions face a murky legal future, particularly in light of the U.S. Supreme Court’s June decision striking down New York state’s concealed carry law.

“It’s clear that the courts are becoming more hostile to gun safety regulations,” said Adam Winkler, a UCLA School of Law professor and author of the book “Gun Fight: The Battle Over the Right to Bear Arms in America.” “The law (in Illinois) is going to be challenged, and there is a good chance it will be overturned.”

Pritzker, who noted he’s also a lawyer, said he was “very confident” the law would withstand legal scrutiny.

“The law here that we now have enacted is constitutional,” Pritzker told reporters after signing the measure late Tuesday. “There was a lot of thought that went into it to make sure that it would be.”

The law immediately bans the delivery, sale, import and purchase of “assault weapons” and .50-caliber rifles. It offers a lengthy definition of the guns that fall under the ban, listing more than 60 specific models and entire categories such as “all AR types.” The ban covers semi-automatic rifles that can employ a detachable magazine and have a pistol grip, as well as a number of handguns and shotguns.

People who owned such guns before the ban took effect will have to register them, with a serial number, by Jan. 1, facing a misdemeanor for a first offense and a felony for subsequent offenses.

The law also immediately bans the delivery, sale or purchase of ammunition magazines of more than 10 rounds for long guns and more than 15 rounds for handguns. Also banned are devices that increase the firing rates of a gun, known as “switches.”

Eugene Kontorovich, a law professor at George Mason University’s Antonin Scalia Law School, said the bill contained several provisions that were “clearly unconstitutional” on their face.

Among the issues, Kontorovich said, is the provision limiting the number of rounds an ammunition magazine can contain. Magazines exceeding those limits are available for civilian-owned handguns and the restrictions could be construed as an infringement on a citizen’s right to self-defense.

Like Winkler, Kontorovich said the U.S. Supreme Court ruling in the New York case last year will make it much more difficult for states to place restrictions on gun ownership going forward, particularly when it comes to guns purchased for home- or self-protection.

The high court’s 6-3 ruling in New York Rifle & Pistol Association v. Bruen found that the “plain text” of the Second Amendment protected the right of the plaintiffs to carry firearms for self-defense.

One gun rights group said that the June decision could “wipe out every unconstitutional law that stands in the way” of someone’s Second Amendment rights. The ruling was cited last month by gun rights proponents in a pending federal appeals court case over whether Maryland’s assault weapon ban should be overturned.

Winkler said while courts in other states had upheld gun bans like Illinois’ in the past, the Bruen ruling greatly expanded Second Amendment protections by imposing a new constitutional test requiring gun laws to be “historically” consistent with laws on the books in the 17th and 18th centuries.

That test has already led to some “mainstream, widely accepted” gun safety regulations being overturned in other states, Winkler said, including bans on people with pending domestic-violence restraining orders from having a firearm, provisions limiting guns at summer camps and churches, and even a law requiring guns to have serial numbers.

David Sigale, a Wheaton-based attorney who has filed a number lawsuits on behalf of clients who believe their Second Amendment rights were violated, agreed that the new law won’t hold up if the Bruen case decision is applied.

“The Second Amendment says the people have the right to keep and bear arms for self-defense purposes. That right is not limited to arms that just existed back in 1791 and it’s not the government’s place basically to say what firearms someone needs or should have or should want for those self-defense or other lawful purposes,” Sigale said.

“Those claims have to be analyzed under a historical tradition test, and when that test is applied I don’t think that these restrictions are going to hold up as passing muster,” he said.

Portions of the Illinois law, including which firearms fall under the nebulous definition of “assault weapons,” are similar to a law passed in Delaware last year that has already prompted legal challenges.

The term “assault weapon” alone is often nonspecific and controversial. Gun rights advocates say it is a manufactured term used by gun control groups to overdramatize certain guns as weapons of war, even though some firearms that bear the ominous designation are commonplace for recreational use.

One national gun control group on its website defines assault weapons as “typically semi-automatic versions of weapons created for deadly battlefield purposes.”

“They are designed and equipped with features that enable mass killing, including sustained, high-volume rapid fire shooting at large numbers of people in a short period of time,” according to the Giffords Law Center to Prevent Gun Violence.

The Illinois law defines such weapons as having several characteristics, including “any feature capable of functioning as a protruding grip that can be held by the non-trigger hand.”

The Smith & Wesson M&P 15 rifle, which was used in the Highland Park shooting, is among the more than 60 types of guns listed in the proposal that are categorized as assault weapons.

Aside from Delaware, the Giffords Law Center noted that seven states — California, Connecticut, Hawaii, Maryland, Massachusetts, New Jersey and New York — and the District of Columbia have enacted laws banning so-called assault weapons.

Those laws in many cases are similar, the law center said, but vary in terms of what firearms are defined as “assault weapons,” what exemptions apply to these guns owned before the ban went into effect, whether the laws require owners to register their assault weapons with law enforcement if they owned them before the ban, and other guidelines.

Three other states — Minnesota, Virginia and Washington — have adopted regulations for assault weapons but not outright bans.

In the Chicago area, Highland Park and about a dozen other suburbs moved to ban possession and ownership of the weapons in 2013 under a legislative compromise that gave municipalities a narrow window to do so as part of a measure that legalized concealed carry, which the state had been ordered to allow by a federal court. More recently, Naperville banned local sales of the weapons in the wake of the Highland Park shooting.

Cook County has had a ban in place since 1993 that closely mirrors the definition in the new state law, though the county prohibits magazines holding more than 10 rounds, while the state allows up to 15 for handguns.

The Cook County ban has survived legal challenges in recent years.

In 2019, the federal appeals court in Chicago upheld the dismissal of a lawsuit from two gun owners who challenged Cook County’s ban, claiming it violated the Second Amendment because it was written so ambiguously that it could broadly apply to nearly all semi-automatic weapons.

The nation’s highest court, though, has made landmark decisions throughout the years that have been a blow to gun control advocates.

In 2010, the court’s 5-4 decision in McDonald v. the City of Chicago struck down the city’s nearly three-decade-old handgun ban and allowed Chicagoans to fall in line with the rest of the country by keeping handguns at home for self-defense.

In 2008, the U.S. Supreme Court in District of Columbia v. Heller ruled for the first time that the Second Amendment establishes the right to own a handgun for personal self-defense — not merely as part of a state militia.

However, the ruling in Heller also held that “the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose,” a part of the decision that advocates are relying on to bolster bans like the one now in effect in Illinois.

The debate over the ban on the floors of both chambers of the Illinois General Assembly made clear the stark divide on the issue.

State Rep. Martin McLaughlin, a Republican from Barrington Hills, suggested the measure jeopardized someone’s right to defend themselves.

“If we wish to amend our constitution and the provisions and protections enumerated in the Second Amendment, as well within any of the other 26 amendments for our law-abiding citizens, we should be on the floor of Congress and not here on the floor of the state of Illinois, unfortunately,” he said. “We cannot improve the safety of the lives of the innocent law-abiding citizens by restricting the rights to self-defense.”

Democratic state Rep. Will Guzzardi argued there’s case law saying that the Second Amendment protected the use of guns that were in “common use” at the time the amendment was written in 1791, and that the types of guns being used to wreak havoc in today’s society were not common in the late 18th century.

“It is widely recognized, it is established jurisprudence, that the Second Amendment is not a regulatory blank check,” Guzzardi, of Chicago, said during floor debate. “These weapons have no place in civilian society, and I believe that everybody in this chamber in their heart knows that to be true.”

On Wednesday, the Supreme Court allowed a new law New York enacted in response to the Bruen ruling to remain in effect while a challenge continues in a lower court. The law places numerous restrictions on where concealed carry license holders can bring their weapons.

But conservative Justices Samuel Alito and Clarence Thomas issued a statement telling those challenging the law that they “should not be deterred by today’s order from again seeking relief” if the appeals court does not provide an explanation for its decision to leave the law in place or expedite its review of the case.

And in December, the Oregon Supreme Court blocked a ballot measure approved by voters during the November election to ban magazines capable of holding more than 10 bullets. The state’s high court is weighing the measure after a lower court ruled it violated Oregon’s right to bear arms under its state constitution.

Ari Freilich, state policy director for the Giffords Law Center, which helped craft the Illinois ban, acknowledged that the legal landscape has shifted somewhat in the wake of the Bruen ruling, with “rogue decisions from, largely, kind of rogue conservative judges” using the decision as justification to strike down numerous restrictions on gun ownership.

A federal judge in Texas, for example, used the Bruen ruling as the basis for finding unconstitutional a prohibition on possessing a weapon while subject to a domestic violence restraining order.

Still, given the U.S. Supreme Court’s previous opinions in rulings like the Heller case, Freilich said, “unless the Supreme Court kind of overturns its own precedent yet again … we expect that if the Supreme Court means what it says, these types of restrictions should stand.”

In his closing remarks on the Senate floor, Harmon, who’s pushed for many gun control measures during his two decades in Springfield, made clear why supporters feel it’s both necessary and within the bounds of the Constitution to ban high-powered weapons.

“The right of the people to keep and bear arms is intended to produce a secure state,” Harmon said. “We do not have a secure state. Too many people are dying from gun violence.”

Opponents of the ban have made equally clear that they see little room for compromise on a right they see as absolute.

“When you ask for a gun ban, there’s not a place where we can go, where we can go and negotiate that,” Ed Sullivan, a contract lobbyist for the Illinois State Rifle Association, told an Illinois House committee last month at a hearing on the gun ban. “There are certain red lines in the sand.”

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