In support of his vagueness claim against Illinois' controversial gun regulation law, Wood River attorney Thomas Maag argues that magazines sometimes remain on the market long after a corresponding firearm is out of production.
On Oct. 17, Maag filed a supplemental reply to Illinois State Police Director Brendan Kelly’s motion to supplement his response.
Maag argued that the crux of Kelly’s filing was “that for purposes of his opinions, old guns do not count, no matter how common they might be in the U.S. commercial market.”
“The simple fact of the matter is, it does not matter whether a given firearm, or group of firearms is newly introduced on the market, or is a World War One era relic … magazines are wear items, and remain on the market, to be bought and sold, even decades after a given firearm is out of production,” Maag wrote.
Maag originally filed a motion for partial summary judgment on behalf of the Langley plaintiffs, arguing that the Protect Illinois Communities Act (PICA) 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 argued that not all “assault weapons” use magazines, some magazines can be used interchangeably, and that the regulated weapons are not sufficiently identified.
“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.”
Kelly filed a motion to supplement his response to Maag’s summary judgment request on Oct. 10 through Chicago attorney Christopher Wells.
Specifically, Kelly requested McGlynn to consider the Oct. 3 depositions of plaintiffs Matthew Wilson and Scott Pulaski as well as the declaration of expert witness James E. Yurgealitis.
“The deposition testimony from plaintiffs’ own declarants dooms their argument that PICA is unconstitutionally vague …” Wells wrote.
In Kelly’s motion, Wells first argued that the plaintiffs’ indicate in their depositions that they are able to understand and apply PICA’s restrictions on magazine capacity.
“The deposition testimony of the Langley plaintiffs’ declarants has further confirmed that the dual-use nature of some magazines is not relevant to whether people of ordinary intelligence understand the application of PICA in the real world,” Wells wrote. “In the real world, people of ordinary intelligence, including plaintiffs’ declarants, choose what magazine to purchase, carry, and use knowing the type of firearm the magazine will be used in.”
Wells argued that because Wilson and Pulaski are not confused by the magazine capacity limits, the law is not unconstitutionally vague.
He also argued that the alleged vagueness of magazine interchangeability is “exaggerated and irrelevant.”
“Plaintiffs’ declarants admit, as they must, that not all magazines can be used in all firearms. Indeed, it would be “physically impossible” to do so,” Wells wrote.
Wells added that some magazines are only interchangeable with modification or are interchangeable with weapons that are no longer sold or produced for the U.S. market.
Wells further argued that the plaintiffs’ depositions show that PICA’s definition of “assault weapons” is not unconstitutionally vague.
“The deposition testimony from plaintiffs’ declarants confirms that their confusion is contrived, and that PICA’s definition of “assault weapon”—read in its entirety, as it must be—has a “core of understandable meaning,” he wrote.
In Maag’s reply, he argued that the “fact remains,” Kelly does not offer a definition of “AR Type” or “AK Type” of weapons.
“As far as receivers on which they might be built, but for the named/copycat gun section, it would be possible to build either a legal or an illegal gun, on the same receiver. These receivers are usually not marked in a way that would reveal a given gun as such a copycat. Even similar receivers do not necessarily accept the same parts. Without some objective definition, the ban is undecipherable, as other courts have held for similar bans,” Maag wrote.
He added that the statute provides no information to identify how much of a change is enough.
“As noted, the M1 Garand of World War II fame, and the AK-47 use the same basic design of bolt and gas system,” Maag wrote. “Is that enough of a change under the PICA to not be prohibited? That statute does not say.”
McGlynn heard arguments on the vagueness claim on Oct. 11, taking it under consideration.
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. Oral arguments were heard on June 29, and a ruling has not yet been announced.
“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.