U.S. District Judge Stephen McGlynn granted a motion by gun advocates to amend their constitutional challenge to the state’s law regulating “assault weapons," They sought to add a claim opposing the firearm "registration scheme" in light of the Seventh Circuit’s continued delay in ruling on injunctive relief.
The amended complaint was filed Nov. 2 through attorney C.D. Michel of Michel & Associates on behalf of plaintiffs Federal Firearms Licenses of Illinois (FFL-IL), Guns Save Life, Gun Owners of America, Gun Owners Foundation, Piasa Armory, Cumberland County resident Debra Clark, Madison County resident Jasmine Young and Hardin County resident Chris Moore, referred to as “FFL plaintiffs.”
In addition to their original constitutional claims against the Protect Illinois Communities Act (PICA), the FFL plaintiffs argue in their amended complaint that the “registration scheme” violates the Second and Fourteenth Amendments.
The law requires owners of banned firearms to register their weapons with the Illinois State Police (ISP) by Jan. 1, 2024. However, the ISP waited until Sept. 15, 2023, to file emergency rules to implement PICA.
“Why the Illinois State Police waited over nine months from when the Firearms Ban Act was adopted to file emergency rules, rather than making ‘proposed rules’ under the normal process earlier is not explained,” Michel wrote.
“The registration requirement potentially affects thousands of Illinoisans in life-altering ways. Those who fail to register become criminals overnight. Not allowing the community of firearm owners affected by the law to review proposed regulations and weigh in on them before they became effective is unjustifiable,” he added. That is especially so given that emergency rules expire after 150 days, which here takes us beyond the January 1st deadline because the PICA Rules were first published in September. The State’s ‘emergency rules’ are thus effectively permanent rules without ever having complied with the permanent rule process.”
The amended complaint alleges the state’s delay in providing the PICA Rules is “more egregious” because they “just re-state the statutory provisions without providing any clarity.”
“Why it took so long to simply restate the law is a mystery,” Michel wrote.
In their amended complaint, the FFL plaintiffs specifically argue that a registration requirement as a precondition to keep a legally owned firearm is a violation of the Second Amendment.
“To prevail under that analysis, Illinois must demonstrate that this nation has a historical tradition of requiring people to register with the government all firearms and firearm parts that the government declares to be undesirable for public possession or forfeit their right to lawfully possess those items. Illinois cannot meet its burden because no such tradition exists,” Michel wrote.
Additionally, they argue that the rules make no allowance for weapons purchased after McGlynn granted injunctive relief in this case, which makes the Jan. 1 cutoff date act as a “complete ban and confiscation of firearms in that category.”
The FFL plaintiffs claim the gun ban also violates the Due Process Clause of the Fourteenth Amendment for failure to provide adequate notice.
“Illinois is not requiring that new purchasers of so-called “assault weapons” register them moving forward, where purchasers could be given actual notice of the requirement at the time of purchase. Rather, it is requiring that people who have previously purchased legal firearms register them, even if they acquired those firearms a decade or more ago,” Michel wrote.
The amended complaint adds that firearm owners have only two and a half months to comply with the registration requirement, but Illinois has only provided notice of the registration through announcements online.
“That is insufficient; particularly for a law that prescribes serious criminal consequences for failing to take steps presently for previously completed transactions that were lawful at the time,” Michel wrote.
The FFL plaintiffs argue that there is no excuse for moving so quickly with such a short window to comply.
“If the State Police were simply going to restate the law, they could have done that in March and let the process of public comment play out, which would have allowed them time not only to revise the rules based on the comments but given them more time to provide sufficient notice,” Michel wrote.
The amended complaint adds that even if gun owners were provided with sufficient notice, the registration requirement is too vague to be enforced.
“In sum, even if registration was permissible under the Second Amendment generally, both the law at issue and the recently released Illinois State Police Rules fail to give sufficient notice and are unacceptably vague as to what exactly must be registered,” Michel wrote.
He added that the “lack of clarity invites discriminatory, inconsistent enforcement of the registration requirement.”
The FFL plaintiffs sought approval to file an amended complaint on Oct. 25 as the case remained on appeal without a ruling on injunctive relief from the Seventh Circuit Court of Appeals for several months.
More specifically, McGlynn granted a statewide injunction for four consolidated gun ban challenges on April 28 in the Southern District of Illinois. The defendants appealed the ruling to the Seventh Circuit. Oral arguments were heard on June 29, but an appellate ruling has not yet been announced.
“Despite this ongoing litigation and the clear uncertainty around the constitutionality of its ban on common firearms, the State of Illinois has decided to nevertheless proceed with its requirement that covered firearms and parts be registered by Jan. 1, 2024,” Michel wrote in the plaintiffs’ motion.
Michel wrote that the plaintiffs waited to challenge the registration requirement until it became necessary. The plaintiffs held out to see if the state would “do the reasonable thing” and delay the registration while awaiting the appellate court’s decision.
The motion stated that the Illinois Joint Committee on Administrative Rules (JCAR) addressed the registration during its Oct. 17 meeting, resulting in a 5-5 vote to stop the implementation of the PICA Rules. Because the vote was tied, the rules were left in place.
With the Jan. 1 deadline approaching, the plaintiffs claim they can no longer wait to seek relief from the registration requirement.
“If they do not act now,” Michel wrote, “they will be barred from relief permanently.”
The state defendants - including Gov. J.B. Pritzker, Attorney General Kwame Raoul, and Illinois State Police Director Brendan Kelly - filed a response to the motion to amend on Nov. 1 through attorney Christopher Wells.
“The state defendants believe that the allegations and claims that the FFL plaintiffs seek to add through their amended complaint are meritless, making the amendment futile,” Wells wrote.
However, Wells added that the defendants engaged in discussions with the FFL plaintiffs’ counsel in an effort to streamline proceedings and adequately address a forthcoming second preliminary injunction request prior to the Jan. 1, 2024 registration deadline.
The state defendants agreed not to oppose the motion for leave to amend but reserved their rights to challenge the sufficiency of the amended complaint.
Instead, the state defendants asked the court to enter a schedule order allowing them 90 days to answer the amended complaint and allowing them until Dec. 1 to respond to the FFL plaintiffs’ forthcoming second motion for preliminary injunction.
In a Nov. 3 order, McGlynn approved the state defendants’ suggested scheduling order.