White County Circuit Judge Scott Webb granted a temporary restraining order (TRO) for roughly 1,690 gun owners and gun shops, mirroring the Fifth District Appellate Court’s finding that the Illinois weapons ban violates the Equal Protection clause of the Illinois Constitution.
Webb’s order was filed on Feb. 2 - two days after the appellate court affirmed a previous TRO out of Effingham County.
Plaintiff attorneys Tom DeVore and Bryan Drew sought a restraining order from Public Act 102-1116, also known as the Protect Illinois Communities Act, which was created when Gov. J.B. Pritzker signed House Bill 5471 into law on Jan. 10. The law makes it illegal to manufacture, deliver, sell, import, purchase or possess certain handguns, shotguns, rifles and firearm accessories.
The motion was filed in a lawsuit led by state Sen. Darren Bailey. Reps. Adam Niemerg (R-Dieterich) and Blaine Wilhour (R-Bleecher City) are also included among the long list of plaintiffs in White County. DeVore previously secured the Effingham County TRO on behalf of approximately 800 plaintiffs.
Webb granted the White County TRO based on the DeVore’s argument that the “assault weapons” ban violates the equal protection clause for the right to keep and bear arms because it provides an exemption for several groups.
“Defendants posit that the plaintiffs have not demonstrated that they are similarly situated with the exempted class of the Act. That becomes an almost impossible task because the legislature gave no reasoning as to why they chose to exempt the groups of people they exempted. Without knowing the basis for the classifications, plaintiffs are left in the dark to determine whether they are similarly situated or not,” Webb wrote.
The order states that speculation suggests that the exempted groups were selected based upon firearms training. However, Webb wrote that there is no legislative history or debate to aid in the foundational basis for the exemptions.
Additionally, the plaintiffs pointed out during the hearing that it is unclear if some groups, such as prison wardens, are required to undergo any firearms training. The Act also exempts active-duty military members but not veterans
“One would think that veterans would be as qualified and trained in firearms safety as active-duty military members,” Webb wrote.
Webb also rejected the defendants’ argument that the right to bear arms is not a fundamental right under the Illinois Constitution.
“It simply cannot be the case that the Illinois Constitution offers less protection to its citizenry from government intrusion than the Federal Constitution. It is well settled in American jurisprudence that a state may not impose greater restrictions on individual rights than the federal constitutional law.”
Webb concluded that the plaintiffs have established a protectable right and are likely to succeed on the merits. He also wrote that there is no adequate remedy at law, and the equities balance in favor of the plaintiffs.
“Additionally, since this involves an ongoing violation of a fundamental constitutional right, this court also finds that the plaintiffs will suffer irreparable harm if injunctive relief is not granted,” he wrote.
Webb also noted “procedural defects” in the law’s legislative history, calling them “most concerning.”
“The fact that the original text of the Act was introduced as HB 5855 is disconcerting at best,” Webb wrote. “It is apparent that the legislative knew that it would not have time to follow the correct procedures, i.e., three readings, and pass the bill,” he wrote.
“In what seems to be a clear attempt to avoid debate and ensure lightning-like passage, they gutted the original contents of HB 5471 (insurance regulation) and replaced it with the contents of HB 5855,” he added.
Webb called the legislative actions a “blatant violation” of the three-readings requirement of the Illinois Constitution.
However, because the appellate court concluded that the Illinois Supreme Court has the authority to address “repeated ethical lapses associated with gut and replace legislation,” Webb denied the plaintiff’s request based upon that argument.
He also denied relief based upon the alleged single subject rule and due process violations, which is in line with what the Fifth District concluded.