Illinois state officials have responded in opposition to motions for preliminary injunction from the Protect Illinois Communities Act in southern district court, arguing that semi-automatic weapons and high-capacity magazines are not protected as “arms” under the Second Amendment.
Specifically, they argue that while the weapons regulated by the law are widely owned, they claim the weapons are not used for self-defense but are commonly used in mass shootings.
The 72-page opposition was filed in district Judge Stephen McGlynn’s court on March 2 by Christopher Wells and Kathryn Hunt Muse on behalf of Kwame Raoul, Gov. J.B. Pritzker and Illinois State Police Director Brendan Kelly.
The defendants argue that the Protect Illinois Communities Act was signed into law on Jan. 10 by Pritzker in response to the Highland Park shooting, which took place at the community’s July 4th parade. Suspect Robert E. Crimo III killed seven people and wounded 48 others by firing into crowds with a semi-automatic weapon. Crimo allegedly fired 83 rounds in less than 60 seconds.
The opposition states that Highland Park had banned the sale of semi-automatic weapons and large capacity magazines since 2013. They claim Crimo purchased his weapon elsewhere in Illinois.
“The shooting brought renewed urgency to enact legislation in Illinois when the General Assembly reconvened,” the opposition states.
The defendants acknowledge that the gun ban legislation was heard by the legislature under various bill titles in a complicated procedural method, but claim the measure was properly heard when three public hearings were held for testimony. However, those hearings were not held for House Bill 5471, which is the one that was ultimately passed into law.
In their opposition to the plaintiffs’ motions for injunctive relief, the state defendants’ arguments mirror those made before a Chicago federal judge, who refused to grant a temporary restraining order for a Naperville gun shop on Feb. 17.
In her ruling, Judge Virginia Kendall declared she believed states and cities are free to ban some of the most common firearms in circulation, so long as they can demonstrate the weapons they ban as “assault weapons” are somehow more deadly or “dangerous” than other kinds of semiautomatic rifles or pistols, which the judge said she believed should be considered acceptable substitutes as weapons of self-defense in the home and in public.
In response to the southern district lawsuits, the state defendants claim the plaintiffs are unlikely to succeed on the merits.
The defendants argue that the Second Amendment, as interpreted by the U.S. Supreme Court in New York State Rifle & Pistol Association Inc. v Bruen, does not give Illinois citizens the right to buy and sell semi-automatic weapons.
When determining the 2022 Bruen decision, the court relied on the 2008 decision in District of Columbia v Heller, which held that military rifles like the M-16 can be banned while weapons commonly used for self-defense cannot.
“The Act regulates weapons and accessories like those categorically marked as unprotected in Heller,” the opposition states. “That is why it does not infringe the Second Amendment.”
“The most commercially successful weapons restricted by the Act, AR-15 rifles, are M-16s in every way except one: the ability to toggle between semi-automatic and automatic fire,” it continues. “That distinction is not constitutionally determinative, nor has it stopped mass shooters from using the AR-15 time and again to inflict battle-level casualty numbers in American schools and streets.”
The defendants claim Bruen “did not wipe out” previous appellate and district court rulings on the Second Amendment, including those that upheld local ordinances in Illinois that banned the sale and possession of “assault weapons” and “large capacity magazines.”
“While Bruen clarified the analytical framework courts should be using, it did not say the ultimate conclusions of those courts were wrong,” the opposition states. “They were not.”
The state defendants argue that Bruen clarified the two steps courts should use to analyze Second Amendment claims: the plaintiffs must demonstrate that the “plain text” covers the conduct, and the government may demonstrate that the regulation is “relevantly similar” to analogous historical regulations.
“Large capacity magazines are accessories, not ‘arms,’ and they are neither independently capable of nor necessary for self-defense,” the opposition states. “They augment the lethality of firearms by reducing the frequency of re-loading in battle - or during the episodic massacres that now punctuate modern American life.”
The state defendants go on arguing that the remaining weapons and accessories regulated by the Act are not commonly used for self-defense and are not protected as “arms” under the Second Amendment.
“Although some courts have held that accessories may be protected in certain circumstances, this ancillary right has been extended only to accessories necessary to operate firearms for self-defense,” the opposition states.
“All firearms that can accept a detachable large capacity magazine can also accept a magazine that holds fewer rounds and work just as well,” it continues.
The state defendants argue that a majority of law enforcement officers fired fewer than 10 rounds, and “large capacity magazines in the civilian market puts police officers carrying a standard-duty weapon at risk of being outgunned.”
The defendants claim rifle magazines holding more than 10 rounds is “a recent phenomenon, and this emerging trend has little to do with lawful self-defense.” They argue that the spike in AR-15 sales with 30-round magazines was “driven by anticipation of a potential ban” following mass shootings.
They add that a high level of sales and ownership of the regulated weapons do not show commonality or use.
They also argue that the weapons restricted by the law are not commonly used for self-defense, claiming the large-capacity magazines are excessive.
“Assault weapons similarly enable a degree of lethality appropriate for the battlefield, but unnecessary for individual self-defense,” the opposition states.
They add that the “historical tradition” of regulation protected under Bruen “is not a ‘regulatory straightjacket,’ and the government may use ‘analogical reasoning’ to show that a modern firearms regulation is relevantly similar to historical regulations.”
“This is exactly such a case: the Act responds to an utterly modern concern borne of dramatic technological change - mass shootings perpetrated by lone individuals armed with assault weapons and large capacity magazines capable of carnage at a level inconceivable to the Framers of either the Second or Fourteenth Amendments,” the opposition states.
The state defendants argue that the law attempts to regulate weapons that are considered “dangerous and unusual.”
“Americans in prior eras subject to comparable regulations maintained the right to keep and carry muskets or rifles for self-defense, even as laws in several states restricted weapons associated with public violence and criminality - concealable pistols, Bowie knives, clubs, and, later, machine guns and semi-automatic weapons,” the opposition states.
The law was passed in response to “dramatic technological changes and unprecedented societal concerns,” according to state officials.
“The near-instantaneous swapping of a modern 30-round magazine is materially different than manually re-filling each chamber of a Colt revolver, individually inserting rounds into a Winchester repeating rifle, or loading a single musket ball in half a minute,” the opposition states.
“This difference has lethal implications: the Highland Park shooter could not have inflicted the same carnage in a minute with a musket, a Colt revolver, or a Winchester repeating rifle as he did with his AR-15 and 30-round magazines,” it continues.
The state defendants also argue that the plaintiffs have failed to show they will suffer irreparable harm without injunctive relief.
Individual plaintiffs who already own semi-automatic weapons and high-capacity magazines regulated under the Act may continue lawfully owning them if they submit to a registry.
As for the gun store plaintiffs, the defendants argue that they will still be able to sell the regulated items to certain Illinois residents included in the listed exemptions.
“While the gun store plaintiffs might have fewer customers for these items, an impact on their commercial success is not a Second Amendment violation. The right protected is individual lawful self-defense, not an unlimited ability to profit from firearm sales,” the opposition states.
Local defendants respond to injunction requests
Local officials from St. Clair, McHenry and Randolph Counties were sued in addition to the state defendants in the suit filed by Wheaton attorney David Sigale on behalf of plaintiff Dane Harrel and others (3:23-cv-141). They also filed responses to the motions for injunctive relief on March 2.
Belleville attorney Thomas Ysursa responded on behalf of St. Clair County State’s Attorney James Gomric and Sheriff Richard Watson, taking no position as to the arguments of either party.
“The St. Clair County defendants note that as county level officials they have no role in the drafting and passage of legislation including the Protect Illinois Communities Act …” Ysursa wrote. “Likewise, the St. Clair County defendants have had no role in the formulation of the legal challenges that have been presented by plaintiffs in the Harrel case or any of the other consolidated cases.”
Ysursa notes that the St. Clair County officials are obligated to enforce Illinois laws as well as honor the Constitutional rights of its citizens.
“The fulfillment of these duties includes the exercising of prosecutorial discretion which is endowed in the St. Clair County defendants,” he wrote. “In order to perform their duties, the St. Clair County defendants must have a clear understanding of the laws of the State of Illinois.”
“The St. Clair County defendants will abide by any order that this court enters in regards to the motion for preliminary injunction,” he added. “The St. Clair County defendants request clarity of the current state of the law so that they may perform their duties under the Constitution and laws of the State of Illinois.”
St. Louis attorney James Godfrey Jr. entered a similar response on behalf of Randolph County State’s Attorney James Kelly and Sheriff Jarrod Peters.
He wrote that county officials have had no role in the passage or formulation of the law. He added that they must have a clear understanding of the laws in order to perform their duties.
Assistant State’s Attorney Troy Owens responded on behalf of McHenry County State’s Attorney Patrick Kenneally and Sheriff Robb Tadelman.
The 18-page response filed by Owens supports the plaintiffs’ arguments for injunctive relief, claiming the U.S. Supreme Court ended the debate on the right to bear arms when it decided Bruen.
“Specifically, the court held that 'When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct,'” Owens wrote. “The government must then justify its regulation by demonstrating that it is consistent with the nation’s historical tradition of firearm regulation.”
“The court went on to state that courts considering challenged Second Amendment regulation should determine whether ‘modern and historical regulations impose a comparable burden on the right of armed self-defense and whether that burden is comparably justified,’” he added.
In opposition to the state defendants’ arguments that semi-automatic rifles, such as the AR-15, are not in common use, the McHenry County defendants agree with the plaintiffs.
“AR-15 rifles are among the most popular firearms in the nation,” Ownes wrote. “Recent firearms research indicates that over 24.6 million Americans have owned AR-15 or similar modern semi-automatic rifles.”
Additionally, he wrote that approximately 20 percent of all firearms sold in recent years are banned under the new law, and more than 20 million adults participated in sport shooting in 2020 with rifles now banned under the law.
“The most critical common use of the firearms banned by the Act is self-defense,” Owens wrote. “A majority of owners of AR-style rifles said that they owned their firearms for self-defense.”
Owens argues that AR-style rifle rounds are more suited for home defense than most handgun rounds because they have sufficient stopping power and quickly lose velocity after passing through a target. He wrote that handgun rounds have greater mass and maintain velocity after passing through objects, posing “significantly greater risks to unintended targets in the home.”
He added that firearm accessories such as flash suppressors, folding and telescoping stocks, and detachable magazines also aid in self defense.
He argues that semi-automatic weapons are not commonly used to commit crime.
“According to FBI statistics in 2019 there were only 364 homicides known to be committed with rifles of any type, compared to 6,368 with handguns, 1,476 with knives or other cutting instruments, 600 with personal weapons (hands, feet, etc.) and 397 with blunt objects,” he wrote.
Owens also argues that magazines holding more than 10 and 15 rounds is standard, and a ban on them will not deter criminals.
“Hundreds of millions of magazines capable of holding more [than] ten rounds are in circulation in America,” he wrote. “It will not be difficult for criminals to acquire them through illegal means.”
Addressing the claims against the McHenry County defendants, Owens wrote that the plaintiffs have not established sufficient proof to support relief against them because they have committed no conduct in violation of the plaintiffs’ constitutional rights.
“Notwithstanding the fact that McHenry County Defendants have not engaged in any conduct that runs afoul … the preliminary injunction based upon plaintiffs’ request for declaratory relief because the Act violates the Second Amendment as articulated in Heller, McDonald, and Bruen,” he wrote.
The sheriffs named in Harrel’s suit have all previously declared opposition to the weapons ban.
Tadelman and Peters issued similar statements on Jan. 11 in opposition to HB 5471, calling it a “clear violation of the 2nd Amendment to the U.S. Constitution.”
“Therefore, as the custodian of the jail and chief law enforcement official for McHenry [and Randolph] County, that neither myself nor my office will be checking to ensure that lawful gun owners register their weapons with the State, nor will we be arresting or housing law abiding individuals that have been charged solely with non-compliance of this Act,” they both wrote.
Watson also expressed disappointment in the passage of HB 5471.
“As the chief law enforcement officer of St. Clair County, I am very concerned and disturbed by the ongoing and escalating violence that occurs throughout our state and country,” he wrote. “I am always supportive of new tools, techniques and laws that assist us in preventing and holding accountable those that wage efforts of harm and violence on others. However, I feel that this new law does not do that. I will continue to advocate on behalf of all St. [Clair] County residents and our dedicated law enforcement officers.”
“I understand that our nation has witnessed frequent tragedies involving gun violence and I am in no way attempting to minimize the impact these events have had,” he added. “However, I do not believe we should limit the protections that have been guaranteed to law-abiding citizens in the United States Constitution. I look forward to working with members of the Illinois Sheriff’s Association and our elected legislators to provide common sense laws to address the many issues we face without limiting protections guaranteed in the constitution. Many of our legislators have already promised there will be challenges to this new law and I will be supportive to any constitutional challenges that may occur.”
U.S. District Court for the Southern District of Illinois case numbers 3:23-cv-141, 192, 209, 215