U.S. District Judge Stephen McGlynn, of the Southern District of Illinois, ordered state officials to “provide illustrative examples of each and every item banned” under the so-called Protect Illinois Communities Act in their response to a motion for statewide preliminary injunction.
McGlynn ordered the detailed response on Feb. 13 after the defendants sought additional time to respond to the motion seeking to enjoin them from enforcing a ban on semi-automatic firearms and “high capacity” magazines.
The defendants separately sought additional time to respond to the motion, and McGlynn originally granted them until March 1. Then on Feb. 17, they filed a motion for a March 2 deadline to file a consolidated response and a March 16 deadline to answer the complaints.
Assistant Chief Deputy Attorney General of Illinois Laura Bautista wrote that the plaintiffs agree with the filing schedule.
In their motion for an extension of time, Illinois Attorney General Kwame Raoul and Illinois State Police Director Brendan Kelly argued that they needed more time to retain experts and prepare expert declarations “demonstrating that the assault weapons and large capacity magazines regulated by the Act are not ‘arms’ within the meaning of the Second Amendment because they are not commonly used for self-defense and they are ‘dangerous and unusual.’”
They also argue that the weapons banned by the law are “consistent with the nation’s historical tradition of firearm regulation.”
Additionally, the defendants asked to file an overlength brief of about 50 pages. They argue that they need additional pages to address “irreparable harm, the public interest and the balance of the equities.”
“This case involves important constitutional questions and a preliminary injunction would have far-reaching safety implications. It is important that defendants are able to fully address the issues raised in plaintiffs’ preliminary injunction motion,” Bautista wrote. .
Plaintiff attorney David Sigale - who represents Illinois State Rifle Association, Firearms Policy Coalition Inc., Second Amendment Foundation, Marengo Guns Inc., C4 Gun Store LLC and St. Clair County veteran Dane Harrel - filed a response in opposition to the defendants’ motion for more time on Feb. 3.
Sigale, of Wheaton, argued that the “assault weapons” ban enacts irreparable and ongoing constitutional harm.
“That is in addition to the very real harm that would occur if someone is unable to defend themselves against a violent attack because their preferred method of self-defense has been banned,” Sigale wrote.
Sigale argues that at least three Illinois courts have addressed how the state legislature “rushed HB 5471 to the finish line by gutting a bill about insurance regulations and filling it with the subject firearm restrictions at the last minute.” Gov. J.B. Pritzker signed the bill into law on Jan. 10, creating Public Act 102-1116.
“When the state passes legislation that severely restricts a fundamental right of its residents, it is incumbent that the state do its homework before restricting the right,” Sigale wrote.
He added that the state should have known that the law would be immediately challenged and should have been prepared to defend its constitutionality.
“[I]t is obvious from its motion that the state passed the firearms ban and the magazine ban just as fast as it could, in the hopes it could find legal justification after litigation ensued,” Sigale wrote.
“Not only does the state not know the basis for the constitutionality of its law, it does not even know who might be able to formulate such a basis. This court should not countenance this attempt to withhold rights first and seek to justify it later,” he added.
Bautista filed a reply to the plaintiffs’ response on Feb. 5 on behalf of Raoul and Kelly. She argued that Harrel is the only individual plaintiff in the case, and he currently owns newly regulated semi-automatic firearms and magazines.
“While Harrel states that he wants to acquire more of these items, the Act does not currently prevent him from owning or using the assault weapons he already has for self-defense, because the Act permits him to continue to possess those weapons,” she wrote.
Bautista argued that the gun store plaintiffs “do not (and cannot) allege that they are unable to defend themselves as a result of the Act” or that “they are at imminent risk of going out of business within the next three weeks.” Therefore, she wrote that an extension of time would not cause irreparable harm.
However, Sigale doesn’t just seek preliminary injunction for the named plaintiffs in the suit. According to his motion filed Jan. 25, he seeks statewide relief. He also asks McGlynn to advance a trial on the merits or, in the alternative, construe the motion as one for summary judgment.
“In this case, none of the material facts can be reasonably disputed. The firearms at issue are in common use and so the Illinois Firearm Ban and Magazine Ban are unconstitutional, full stop,” Sigale wrote. “Because the issues in this case are purely legal, there is no reason to delay and final judgment should be entered in plaintiffs’ favor.”
Citing the Supreme Court’s decision in New York State Rifle & Pistol Association v Bruen, Sigale argues that the complaint is likely to succeed on the merits. He wrote that the Second Amendment ‘elevates above all other interests the right of law abiding, responsible citizens to use arms for self-defense” and that the traditions of the American people “demands our unqualified deference.”
Sigale argues that Bruen established that there is no tradition of banning commonly possessed firearms.
“In this case, Illinois has passed a new law that is irreconcilable with the traditions of the American people,” Sigale wrote. “The law, which bans common firearms and ammunition magazines, is unconstitutional and its enforcement be enjoined.”
Specifically, the law bans some of the most commonly owned firearms in the country, many of which utilize “high capacity” magazines holding more than 10 rounds.
“There are tens of millions of banned firearms and hundreds of millions of banned magazines in circulation in the United States today. As such, there is no possible justification for Illinois’ unconstitutional ban,” he wrote.
Sigale also argues that the magazine ban is unconstitutional under Bruen. He wrote that firearm accessories, such as magazines, are covered on the same footing as firearms themselves.
“Just as the First Amendment would not allow the government to ban the ink used to print newspapers, the Second Amendment does not permit it to ban triggers, barrels, magazines, or any other component integral to an operable firearm,” he wrote.
Sigale adds that both the Supreme Court and the Seventh Circuit have likened Second Amendment claims to those brought under the First Amendment, arguing that it is not a “second-class right.”
Plaintiffs in three other federal lawsuits challenging the gun ban have joined Sigale’s motion for preliminary injunction. The cases were consolidated on Jan. 30.