Gun advocates suing the state over its controversial Protect Illinois Communities Act (PICA) filed a new request for injunctive relief, seeking to preliminarily enjoin enforcement of the firearm registration requirement due to insufficient notice, vagueness and Constitutional violations.
“Given the State’s insistence on enforcing [the Jan. 1, 2024] deadline, despite this litigation, Plaintiffs bring this motion to protect their rights and those of the public in the meantime,” the motion states.
Attorney C.D. Michel, of Long Beach, Calif., filed the motion on Nov. 13 in the U.S. District Court for the Southern District of Illinois, asking U.S. District Judge Stephen McGlynn to grant preliminary injunction for a second time.
McGlynn previously granted injunction for four consolidated gun ban challenges in April on Second Amendment grounds. The defendants appealed the ruling to the Seventh Circuit. After oral arguments were heard in June, the appellate court waited more than four months to release a decision vacating relief on Nov. 3.
Michel filed an amended complaint 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 PICA, the FFL plaintiffs argue in their amended complaint that the “registration scheme” violates the Second and Fourteenth Amendments.
They now seek to preliminarily enjoin Gov. J.B. Pritzker, Attorney General Kwame Raoul and Illinois State Police Director Brendan Kelly from enforcing the Jan. 1, 2024, registration deadline.
They argue that the “registration scheme is unconstitutional thrice over.”
First, despite serious criminal consequences being threatened for failure to register, the state did not provide sufficient notice under the Due Process Clause. Michel wrote that the registration requirements were “merely” posted online in hopes that the public sees them.
Second, the FFL plaintiffs argue that the statutory terms used for identifying which firearms or parts must be registered are “hopelessly vague.”
Third, they claim the registration requirement violates their Second Amendment rights because there is no historical tradition of requiring individuals to register all firearms of a certain type with the government.
“In light of the irreparable harm that it will inflict on Plaintiffs and other Illinoisans who own a firearm or part potentially subject to it, the Court should enjoin enforcement of the unconstitutional registration to protect these rights and maintain the status quo pending litigation of Plaintiffs’ claims,” Michel wrote.
The emergency rules to implement PICA (PICA Rules) were filed by the Illinois State Police on Sept. 15 and “provide virtually no clarification of critical statutory terms for determining what firearms or parts must be registered,” Michel wrote.
Michel previously argued in the FFL plaintiffs' amended complaint that despite proper notice, the registration requirement affects Illinoisans in “life-altering ways.”
“Those who fail to register become criminals overnight,” Michel wrote. “Not allowing the community of firearm owners affected by the law to review proposed regulations and weigh in on them before they become effective is unjustifiable. “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.”
He also noted in the motion for preliminary injunction that the PICA Rules simply restate the statutory language for all terms rather than defining them so ordinary people can understand them.
“Making matters worse, the only ‘notice’ to the public Illinois has provided about registration is posting announcements about it online,” Michel wrote.
Michel wrote that even if proper notice had been given and sufficient time to comply provided, the terms are too vague to make sense of.
“Nearly every definition of a critical term of a Regulated Item is vague,” he wrote.
He added that organizational plaintiffs, such as Guns Save Life, Gun Owners of America and Gun Owners Foundation represent members who may not have received any notice of the registration requirement and are likely unsure which items need to be registered and how to register them.
“The state did not provide direct notice to firearm owners about what items must be registered. Apparently, the state assumes that people will just learn about the registration requirement via the news or internet. That is unacceptable,” he wrote.
Michel wrote that the Supreme Court previously held that “notice is required before property interests are disturbed, before assessments are made, before penalties are assessed.”
“At issue here is not merely individuals deprived of property rights, but potentially of their liberty, as there are criminal consequences, including incarceration, for possessing an unregistered regulated item after January 1, 2024,” he wrote.
As for their Second Amendment claims in their motion for injunctive relief, the FFL plaintiffs argue that the registration requirement “flunks Bruen’s straightforward test.”
The Supreme Court upheld the Second Amendment in its 2022 ruling in New York State Rifle & Pistol Association v Bruen, which the FFL plaintiffs claim established there is no tradition of banning commonly possessed firearms. Further, they argue that the registration requirement “has no historical pedigree.”
“The Second Amendment was written by people who had just revolted against a tyrannical government,” Michel wrote. “They sought to guarantee the People had a final recourse should the new government they were forming turn tyrannical.”
He added that there can be no historical tradition of registering firearms with the government “when one of the main purposes of the Second Amendment was to be a ‘doomsday provision’ for the People to protect themselves from a tyrannical government.”
Michel also wrote that registration laws did not exist until the 20th century, and they were used for taxation.
“To the contrary, our historical tradition has been to maintain privacy around firearm ownership. Indeed, even as recently as the 1980s, the Firearms Owners’ Protection Act forbade the federal government from keeping a registry directly linking non-NFA firearms to their owners, a law still in effect today.
The FFL plaintiffs argue that the Seventh Circuit provided a superficial preliminary assessment of the unconstitutionality of registration.
“The court’s doubt rested primarily on its (erroneous) conclusion that regulated items are outside the Second Amendment text,” Michel wrote.
“Plaintiffs are sensitive to the complexities of deciding legal issues that are sub judice by a higher court. But Illinois imposed an unconstitutional registration mandate on an equally unconstitutional timeframe. Plaintiffs have no other choice but to seek relief now,” he continued.
The FFL plaintiffs also argue that relief is also warranted because the “infringement on plaintiffs’ rights is real and imminent.”
“People who fail to register because of a lack of notice about the requirement, or because the vagueness described above makes them uncertain about what needs to be registered, are turned into criminals overnight. There is no un-ringing that bell,” he wrote.