EAST ST. LOUIS – Illinois citizens who defend themselves with firearms that legislators banned can defend themselves with handguns instead, assistant attorney general Christopher Wells told U. S. District Judge Stephen McGlynn at a hearing on April 12.
McGlynn heard three hours of argument on a motion for an injunction against the ban.
Wells told him legislators banned semiautomatic rifles and ammunition magazines because, “They are being used in a way that is terrifying to the public.”
“The firearms industry has pushed these kinds of weapons,” he said.
“We can’t decide the Constitution on the basis of success of a marketing campaign,” he added.
McGlynn asked how people can defend themselves with arms they can’t handle.
Wells said, “These are difficult judgments.”
McGlynn said a dad who’s six foot three and a mom who’s five feet one could choose an adjustable stock that would make it easier for both to use.
“The more comfortable they are the more accurate they are,” he said.
McGlynn asked Wells about elderly and disabled people who can’t hold a pistol with one hand.
Wells said, “We didn’t come here today to talk about …”
McGlynn responded, “I came here today to talk about it.”
McGlynn heard first from Erin Murphy of Alexandria, Virginia, speaking for all plaintiffs and lawyers in cases McGlynn has consolidated.
She said the burden is on the government to prove a ban is consistent with historic tradition.
McGlynn said, “How about 50 caliber? No one picks one of those up for defense.”
Murphy said plaintiffs don’t challenge a ban on them.
She said the U.S. Supreme Court decided in New York State Rifle and Pistol Association v. Bruen that the Second Amendment protects firearms in common use for lawful purposes.
McGlynn asked what number moves a firearm into common use.
Murphy said, “Once you are in the millions there’s no question and we’re talking about tens of millions of magazines.”
She said there are more AR-15s in America than trucks on the road.
She said people gravitate to arms that fire accurately.
“Those are the things the state singled out,” she said.
“If you don’t fire accurately the first time you have a better chance the second time,” Murphy added.
McGlynn asked what the state could do about mass shootings and she said the state could keep weapons out of the hands of those who would do harm.
“There are many things the state can do, but they can’t disarm law-abiding citizens,” she said.
McGlynn asked plaintiff counsel Tom Maag of Wood River to comment on grenade launchers.
Maag said people use them to call for help in the wilderness.
McGlynn asked if most of them are used for flares and Maag said yes.
“They’d be more accurately described as flare launchers?” McGlynn asked.
Maag said, “Yes, or flare gun. They’re owned by millions. They sell them at Wal-Mart.”
Wells opened his remarks with a reference to seven deaths and 18 injured in Highland Park at a Fourth of July parade.
Pointing at plaintiff counsel he said, “They say they sold so many that they’re untouchable.”
“That’s not the constitutional standard,” he said.
Wells said only certain types of weapons are protected.
He added that large capacity magazines are not protected.
McGlynn asked how the state can choose what law abiding citizens can own.
Wells said the state can choose by attributes.
“The market shouldn’t dictate,” he said.
McGlynn described a case where a woman successfully defended her home and family with a firearm Illinois banned.
“Does the government say no ma’am, sorry, I know you’re scared and you may not know how to load it?” he asked.
Wells said the scenario motivates a lot of people.
“That’s one specific scenario. Look at the actual case,” he said.
McGlynn said, “In a situation where they have to succeed, do I get to say no?”
He asked if that was infringement, and Wells said, “I would suggest it is not.”
Wells said plaintiffs failed to establish common use.
He said there are 230 million handguns in America, ten times as many as AR-15s.
McGlynn asked what makes a flash suppressor illegal, and Wells said it stabilizes the firearm.
McGlynn asked if it reduces interference with vision, and Wells said yes.
McGlynn asked, “What’s wrong with that?”
He said all sorts of safety measures were made illegal.
On a final point McGlynn questioned Wells about criminal penalties.
He said the first violation is a misdemeanor and the second is a felony.
He said someone who never did anything wrong could be looking at five years in prison.
“That’s pretty extreme,” he said.
Wells said prosecutors have discretion.
McGlynn asked Murphy for rebuttal and she said, “It’s not our burden to prove that every firearm in here is in common use.”
“They don’t like our evidence, but they don’t have any evidence and the legislature didn’t have any evidence,” she added.
McGlynn said, “All of us would love to see a serious reduction in the number of mass shootings but we have to look at more than the gun.”
“Why do we have all these troubled people? What red flags do we see?” he asked.
He took an injunction under advisement.