EAST ST. LOUIS - U.S. District Judge Stephen McGlynn pried confirmation out of Assistant Attorney General Chris Wells of the possibility that law enforcement could arrest whole families in their homes, all occupants of vehicles and other groups in the presence of unregistered regulated weapons or devices that Illinois criminalized.
The hearing on Oct. 11 involved a claim of vagueness in the Protect Illinois Communities Act, an issue separate from Second Amendment claims McGlynn resolved by enjoining enforcement of the law.
The state appealed his decision to Seventh Circuit judges, who haven’t reached a decision.
At the hearing, McGlynn asked Wells a Second Amendment question and Wells answered that the Seventh Circuit hasn’t said it’s Second Amendment.
McGlynn said, “In the meantime, does this statute apply to constructive possession?”
“If there’s drugs on the table, there’s a firearm on the table, and there’s people sitting around the table, they all get charged," he continued. “Pull over a car, there’s a gun under the seat. You’re the driver, it’s not my gun, well it’s your car. They are left to hope they can work out a deal with the prosecutors.”
“Does this statute allow for the prosecution of citizens who arguably are in constructive possession of these firearms?” McGlynn asked.
Wells said they could raise an appropriate constitutional defense.
“While I understand the court wants to speculate about particular situations -” he began.
McGlynn responded, “I’m not speculating, I’m asking you. Does this statute allow for prosecution of someone who is in constructive possession?”
Wells said, “I think this statute would allow for prosecutions that are consistent with other prosecutions under the same statutory framework.”
McGlynn said it’s a problem if ordinary citizens look at the statute and aren’t alerted that they could be violating the law.
He said, “Do you have an answer to my question or do you not want to answer that question?”
Wells said, “Can you give me the precise question again, your honor?”
McGlynn offered an example that a person had a pistol with a legal 15-round magazine and also had a semi automatic rifle that could receive the magazine in violation of a ten round limit.
He asked if possession of the magazine was a question of law for a judge or fact for a jury.
Wells said it would certainly implicate the rule of lenity.
The rule means a judge should apply an unclear or ambiguous law favorably to a defendant.
Wells said, “In that case it might be a question of law.”
Thomas Maag of Wood River opened the hearing on behalf of plaintiff Matthew Wilson by displaying pictures of rifles and pistols with matching magazines.
McGlynn asked him,” Isn’t it very simple to say you can use your 15-round magazine in your Beretta pistol but you can’t eject it and throw it into your Beretta rifle?”
Maag said the law prohibits possession or transfer of the magazine, not the use.
He showed McGlynn identical magazines in a firearm identification manual that state police director Brendan Kelly issued on Oct. 1.
He said the manual demonstrated that there was no genuine issue of fact that identical magazines fit both rifles and pistols.
McGlynn asked Maag if the law gave fair and sufficient notice of what it forbids.
Maag said, “The state banned possession or transfer of the magazine in isolation, whether you have a rifle, pistol, shotgun, or not.”
“A consumer need not even own or possess a rifle, pistol or shotgun to be subject to the magazine restrictions in the statute,” he said.
“The state could say it’s illegal to put a 15-round magazine into a rifle, but that’s not what they did,” he added.
Maag said a person of ordinary intelligence couldn’t ascertain whether a 13-round magazine is legal under a given set of circumstances.
He said it depends on what a police officer thinks, what a prosecutor thinks, what a judge thinks on a motion for directed verdict, and ultimately what a jury thinks.
Wells responded that the statute has a core of understandable meaning.
He said Maag focused on periphery instead of core.
He added that Maag put forward speculative questions at the statutory margin.
Wells said prosecutors must prove that defendants knowingly violated the law.
He argued that it’s not a trap for the innocent.
He said Maag identified six rifles he thought might not be AR on a list of 43.
He added that they acknowledged that 86 percent of the list fell into the category.
Wells said it suggested the category has an understandable core.
McGlynn asked Wells, “Was one of the purposes of this statute to deprive the rights of citizens to self defense?”
Wells said, “I do not believe that that was a purpose of the legislature.”
McGlynn asked if he agreed that some of the outlawed guns are arms as defined by the Second Amendment.
Wells responded, “We do not agree that what is listed in the statute are arms within the meaning of the Second Amendment subjection to protection.”
McGlynn noted that people in law enforcement say they won’t enforce it in their county.
He said there will be safe havens and counties and towns with vigorous prosecution.
Wells said, “I think I’m aware that comments like that have been made.”
McGlynn said, “It’s been filed on pleadings. They’re saying it to us.”
He quoted a Supreme Court decision that he could swat down that which he thinks is going to result in arbitrary and capricious application of criminal law.
Wells said courts in most of these circumstances have tried for years to apply specific language and haven’t settled on a standard.
“Will there be questions of statutory interpretation that come up in the future? Yes, potentially,” he said.
McGlynn asked again about one owner with two guns, and Wells said, “That’s the problem of talking about these types of -”
McGlynn said, “No, that is not a problem.”
Wells responded, “With respect to the example of differential enforcement in different courts, it’s already true for many different criminal statutes.”
McGlynn said, “Unfortunately, that’s true.”
“They are attempting to criminalize conduct that is specifically referenced in the United States Constitution, which says the right to keep and bear arms shall not be infringed,” he said.
“This is infringed, it’s regulated, it’s taxed in the sense that you are going to have to pay some fees to register these things, and it’s criminalized,” he added.
McGlynn noted that on a second offense, “You lose this gun and every other gun you own, all the ammunition and anything else that’s a weapon or an arm.”
“That’s gone and you can’t ever have it again, so this is a pretty daunting approach at addressing the exercise of a Second Amendment right,” he said.
“We decide what gun you use to defend yourself. You don’t,” he added.
“We decide what we think the threat to you is going to be, not you,” he continued.
McGlynn asked Wells if he anticipated getting warrant requests based on tracking of purchases.
Wells said it would depend on the evidence.
McGlynn said to Maag, “Just because it’s hostile to the Second Amendment doesn’t mean it’s vague. Is that true?”
Maag said it’s both.
McGlynn asked if it puts citizens on notice, and Maag said, “What it puts citizens on notice of is that the state government considers the Second Amendment a second class right.”
McGlynn took the argument under advisement.