Illinois State Police Director Brendan Kelly asks U.S. District Judge Stephen McGlynn not to rule on a motion for partial summary judgment filed by Wood River attorney Thomas Maag, who argues that the ban is “void for vagueness”
Attorney Kathryn Hunt Muse filed the motion to stay consideration of the motion for partial summary judgment on June 2 on behalf of Kelly.
“In the interest of judicial economy and to avoid piecemeal litigation and appeals, the court should continue its stay of the proceedings on these claims and deny without prejudice the Langley plaintiffs’ summary judgment motion,” Muse wrote.
She argues that if partial summary judgment was considered now, then any ruling would be “immediately appealable.”
“Given that briefing and argument will conclude in the Seventh Circuit regarding the current interlocutory appeals before briefing of the instant motion, deciding the Langley plaintiffs’ motion would generate a second interlocutory appeal too late for consolidation with the currently pending interlocutory appeals,” Muse wrote.
She adds that the motion for partial summary judgment requires discovery in an “inefficient manner,” and lifting the stay would “deprive this court of some of the benefits of consolidation.”
“The most efficient way to resolve the Langley plaintiffs’ motion is at a later date, after discovery and after the current interlocutory appeals are resolved,” Muse wrote.
Maag filed the motion for partial summary judgment on May 19.
“This court previously heard motions for preliminary injunction as to the Second Amendment claims in this case, specifically reserving the remaining claims in this case for future ruling,” Maag wrote. “One of those reserved claims was the vagueness claims. Granted, the preliminary injunction issue is presently pending in a higher court, which appears headed on a fast train to Washington D.C. However, this case is not stayed. The time to hear these claims is now.”
Maag argues that the “statute is void for vagueness.”
“In this case, multiple portions of the statute are so vague and ambiguous and to be indecipherable, not just by lay persons, but even by experts,” he wrote.
He added that “most of the act is so vague and ambiguous as to call into serious question the competence in the subject matter of the persons that wrote it.”
Maag wrote that if the case were to go to trial, the plaintiffs would focus on the vagueness of the ammunition capacity issues for feeding devices and the “rifles, duplicates, variants, or altered facsimiles with the capability of any such weapon.”
For example, Maag explained that not all “assault weapons” use magazines. Some weapons feed ammunition from cloth belts, feed strips, and “disintegrating links.”
“Although it is not clear how one is to know how to discern what a given magazine or other ammunition feeding device is supposed to be classified as, as is not clear what kind of firearm a given device was designed for, or possibly can be used in,” Maag wrote.
He explained that some magazines can be used in both handguns and long guns.
“Knowing that, in the actual real world, it is impossible to determine whether a given ammunition feeding device is for a handgun, a long gun, or some other kind of gun, the ban on over 10 round rifle or shotgun magazines is unconstitutionally vague,” he wrote, “as no reasonable person, or for that matter, the leading firearms expert in the world, can discern a rifle or shotgun magazine from a handgun magazine or any other magazine.
He also argues that some weapons are not specifically identified as handguns, rifles or shotguns, including the Remington Tac-14DM, 1919A4 Semi Auto, Japanese Type 3, and Feed Strip Fed MG.
Maag claims the list of prohibited weapons was “written by persons with no actual knowledge of firearms, rather, it is just a list of guns that someone, without actual firearms knowledge, through (sic) might be similar, and even at that, failed.”
He argues that if the specific sections are found to be unconstitutionally vague, then “the entire act should be stricken.”
“The bottom line is that much of the challenged statute is incomprehensible by persons of ordinary intelligence, providing no objective standards, and requiring much guesswork to try to comply with,” he wrote, “which even if arguendo the Act were lawful under Second Amendment standards (which it is not), it provides a chilling effect on the right of law abiding firearm owners, as well as sellers, who, unsure of what is legal, or not, simply refuse to sell to Illinois addresses or residents, or refuse to buy what may well be legal items, based on fear of felony prosecution under an indecipherable statute.”
McGlynn granted a statewide injunction for the four consolidated gun ban challenges on April 28 in the Southern District of Illinois. The state defendants appealed the ruling to the Seventh Circuit. Briefing is set to conclude on June 26 and oral arguments on June 29.
“In no way does this Court minimize the damage caused when a firearm is used for an unlawful purpose; however, this Court must be mindful of the rights guaranteed by the Constitution,” McGlynn wrote.
“While (the Illinois ‘assault weapons’ ban) was purportedly enacted in response to the Highland Park shooting, it does not appear that the legislature considered an individual’s right under the Second Amendment nor Supreme Court precedent.
“Moreover, (the ban) did not just regulate the rights of the people to defend themselves; it restricted that right, and in some cases, completely obliterated that right…” he continued.
The gun ban, or the Protect Illinois Communities Act, was signed into law on Jan. 10 by Gov. J.B. Pritzker. Since then, there have been several state and federal lawsuits challenging the law’s constitutionality.