EAST ST. LOUIS – While U.S. District Judge Stephen McGlynn awaits a Seventh Circuit decision on his injunction against Gov. J.B. Pritzker’s weapon ban law, he tackles a claim that owners won’t know how to comply due to vagueness.
McGlynn plans to hear arguments on Oct. 11 on a constitutional claim of vagueness in regards to the Protect Illinois Communities Act.
Brothers Thomas Maag and Peter Maag of Wood River moved for summary judgment on vagueness in May.
They represent Jeremy Langley, Timothy Jones, and Matthew Wilson, who originally sued State Police Director Brendan Kelly in Crawford County Circuit Court in February.
“Since at least 1780, rifles have actually existed which included a magazine capacity of well in excess of 15 shots,” they wrote.
“Such rifles include the Austrian Girardoni rifle, which was used by Meriwether Lewis in his famous expedition to and through the West,” they added.
Kelly removed the complaint to the U.S. District Court for the Southern District of Illinois, where Chief Judge Nancy Rosenstengel consolidated it with three others and assigned them to McGlynn.
McGlynn issued an injunction against the law in April.
Kelly and other state officials appealed, and McGlynn stayed discovery.
McGlynn decided the general stay didn’t apply to a different constitutional theory after Maag filed a vagueness claim.
He held a hearing on Aug. 11 about how to move forward.
“These cases involving the Second Amendment are coming in pretty fast and furious from all over the country and all different circuits,” he said.
McGlynn said it didn’t appear that judges were of one mind.
He asked if anyone needed discovery before oral argument, and Assistant Attorney General Christopher Wells said he needed to depose manufacturers and store owners.
“We think there are going to be factual disputes about which particular magazines are in fact interchangeable between handguns and long guns,” he said.
Thomas Maag said, “If the court wants actual examples they can be brought to the court or anywhere the court deems appropriate for inspection and demonstration.”
Wells said, “The interchangeability of some subset of magazines by itself is not going to be sufficient to establish a vagueness challenge to the statute.”
Maag responded, “Every single firearm we pled is interchangeable.”
Maag said he could bring the weapons into court to demonstrate.
At the hearing, McGlynn told Maag, "You better alert the U.S. marshals."
McGlynn brought up a section of the law providing misdemeanor prosecution for first offense and felony charges with penitentiary time for second offense.
“If you are found guilty of a felony, you are not allowed to possess firearms; and so you have a number of people that were law abiding who might be tripped up on the statute that would have to forfeit all their weapons,” he said.
“I’ll entertain arguments that we should analyze vagueness challenges regarding Second Amendment rights the same way we might analyze criminal statutes that implicate First Amendment rights,” he added.
McGlynn said subpoenas on manufacturers weren’t necessary.
He said he’d focus on what makes something AR-like and what makes something AK-like without being an armor-like rifle.
He said there are interchangeable parts and, “Apparently it’s the moves per second.”
“Will the judge decide that? Will the jury decide that?” he asked.
McGlynn asked if it forced defendants to forego Fifth Amendment rights so they could testify as to why they thought something was or was not AR-like or AK-like.
“What about a pump action shotgun that looks exactly like an AR-15, could that be an AR-like weapon or does it have to be a weapon that is semi automatic?” he asked.
Wells said speculation and hypotheticals about particular weapons weren’t appropriate.
McGlynn said he’d entertain additional discovery after depositions.
He said the parties could supplement the record when other courts reach decisions.