EAST ST. LOUIS - U.S. District Judge Stephen McGlynn told Assistant Attorney General Christopher Wells he won’t wait for the state to explain the choices legislators made in the weapon ban they passed last year.
During a status conference on Feb. 2, McGlynn told Wells, “One presumes that you looked into all these things before they passed the law.”
“Now you are trying to play catch up and figure out, what are the ramifications of what they actually banned?” he said.
“I’m not interested in delaying this case for any length of time so the government can figure out what it is that they actually passed in litigation,” he added.
McGlynn presides over challenges to the Protect Illinois Communities Act, or the so-called "assault weapons" ban, that four legal teams filed for four plaintiff groups, which were later consolidated.
He enjoined enforcement of the ban last May but Seventh Circuit appellate judges found he acted prematurely.
They directed him to develop a full record.
At a status conference on Jan. 12, Wells and three plaintiff groups asked McGlynn to stay the case pending discovery.
Thomas Maag of Wood River stated his clients were ready to proceed.
McGlynn concluded, “We’re going forward.”
He said he’d hold an evidentiary hearing like a trial.
“Think about what evidence you want to marshal, how you are going to present it, what witnesses you are going to use and how long it’s likely to take,” he said.
McGlynn said it would be done before summer vacation, and he set another conference in three weeks.
Plaintiff counsel Matthew Rowen of Virginia said, “Plaintiffs have not had a great time reaching an agreement among ourselves.”
Wells said it’s the right of plaintiffs to change theory or strategy but, “We just have to know what those claims are and what evidence they’re going to present.”
“Thus far we just feel like we don’t have it,” he said.
McGlynn asked Rowen what discovery plaintiffs needed.
Rowen said facts for experts were “physical characteristics of different features of firearms, or physical characteristics of different combinations of features, and historical usage.”
He said these weren’t questions his clients intended to ask the state.
Maag also referred to a dispute over the number of AR-15 type rifles and said, “If they admit to some sufficiently large number we can cut that in the bud.”
McGlynn brought up a dispute over whether anyone in Illinois owns some of the weapons the state banned.
He asked Wells, “Is there anything in the legislative record that you guys developed that said well, we can ban this gun because nobody owns it?”
Wells said, “If they can articulate for us beyond the AR-15 group what it is they are actually challenging, then maybe we don’t need to go into the legislative record.”
“This case has to be litigated in the real world, like what gun did they want to buy that they can no longer buy,” he added.
“It’s not, come in and let me red pen the statute,” he continued.
Rowen and Wells agreed on one point, asking McGlynn to refer scheduling and discovery to a magistrate judge.
McGlynn let it pass until later, when plaintiff counsel David Sigale of Lombard said his clients didn’t want a magistrate.
McGlynn responded, “No, the discussion is going to be before me.”
“This shouldn’t be that tough.
“The military has told us what is reserved for our military.
“Can a government restrict the sale or possession of some of them because they are more military like than they are civilian like?
“That’s going to be an interesting test to apply.
“Some plaintiffs are bona fide experts in their own right. They sell these things.
“The sort of things I’d be looking at is, are these firearms commonly owned and held by civilian gun owners for any lawful use and might it include self defense.
“The Seventh Circuit spoke only about self defense in the home and of course we are called upon to defend ourselves in a lot of other places than just the home, maybe at work,” he continued.
McGlynn said he’d look at whether civilians commonly own magazines and attachments.
He said he’d also look at whether attachments improve accuracy, safety and fit, and whether they protect hearing, reduce recoil, or increase tactical advantages.