EAST ST. LOUIS - U.S. District Judge Stephen McGlynn asked 15 questions about weapons the state banned in the Protecting Illinois Communities Act (PICA) and directed the parties to pick a date for providing answers.
An order he signed on Feb. 23 showed he plans to issue a specific ruling for each weapon.
The sixth question asks, “Is the item an ‘Arm’ that may be used to resist tyranny?”
McGlynn wrote that he’d treat evidence relevant to a banned firearm as relevant to the class or category of firearms to which it belonged.
He wrote that evidence relevant to a class or category of firearms would be relevant to any individual firearm in that class or category.
McGlynn presides over four consolidated constitutional challenges to the law.
He enjoined enforcement last year.
Then Seventh Circuit appellate judges consolidated appeals under the name Bevis, affirmed judges who denied injunctions, and vacated McGlynn’s order.
They found the Second Amendment doesn’t embrace military weapons.
They found no material difference between an AR-15, which the law banned, and an M16, which the military uses.
The appellate court declared the decision was “just a preliminary look,” and wrote that Second Amendment challenges often require more evidence than early phases of litigation present.
They wouldn’t rule out a possibility that plaintiffs would show a sharper distinction between AR-15s and M16s.
They found many weapons are obviously dual use and private parties have a right to keep and bear them.
The appellate court directed McGlynn to develop a record, and he has proceeded at an expedited pace in response.
McGlynn told lawyers in January that he’d hold a hearing before their summer vacations.
According to an order he issued with his questions, the Bevis decision meant he must first determine if an item constitutes an arm for Second Amendment purposes.
McGlynn found it requires this even if an item otherwise falls within the definition of arm as set out in the Heller and Bruen decisions of the Supreme Court.
He found Bevis requires a citizen to prove Second Amendment protection instead of placing the burden on government to prove a law is consistent with historical tradition.
He also found Bevis requires plaintiffs to establish that an ordinary person would keep the item at home for self defense.
He added that it requires them to establish that an item is not exclusively or predominantly useful in military service.
McGlynn found it requires them to establish that an item is not possessed for unlawful purposes.
“Plaintiffs need only establish by the preponderance of the evidence that arms, attachments and magazines are in common use for any lawful purpose and are not otherwise dangerous and unusual,” he wrote.
McGlynn summarized the Seventh Circuit’s position as, “Just because an arm has a cousin in the military does not mean that the arm is beyond Second Amendment protection.”
He wrote that in this vein, plaintiffs may provide evidence that civilians commonly hold semi-automatic rifles, carbines, pistols, handguns, attachments and magazines that aren’t exclusively or predominantly useful in military or law enforcement contexts.
“Once dual use is established, the scale tips toward Second Amendment protection,” he wrote.
McGlynn drew a contrast between weapons in military hands and weapons in private hands.
He wrote that military personnel deploy with armor and other equipment and proceed into harm’s way as a unit supported by air cover and reinforcements with medical support and intelligence from humans and satellites.
He countered that an average civilian defending self, family or property from armed attack “is stuck with the weapons he or she has readily available.”
“The civilian may be called upon to defend others who are not harmed and often will not have time to plan or regroup with other allied defenders,” he wrote.
He found arms in the household must be maintained under lock and key and inaccessible to children or those who might harm themselves.
“In an emergent situation the accuracy, safety, ease of use, and magazine capacity of an individual defense weapon may literally be the difference between life and death of the civilian and his or her family members,” he wrote.
He found a civilian is often an army of one with no backup, no support, and no reinforcements.
He found the case fairly straightforward if the inquiry considers a scenario in which a physically fit person confronts a person at the front door while armed with a pistol or pump action shotgun.
“Considering only that scenario does a great disservice to citizens who face mortal combat under very different circumstances,” he wrote.
He found citizens who in a self defense scenario might be of various ages with various ranges of mobility.
He found a civilian might not be able to operate a pump action shotgun or a pistol.
In a short list of questions before giving his complete list to the parties, he mentioned considerations that might be relevant to lawful purpose or dual use.
He asked if an item expands a civilian’s options for offensive or defensive strategy or tactics.
He asked if it improves accuracy, safety, comfort, or ease of operation.
He asked if it protects against hearing damage, flash blindness, or other injury.
He asked if it reduces recoil.
And he asked if it accommodates a disability, handicap, or infirmity.
McGlynn found either party can offer evidence that magazines with a capacity of more than ten rounds for rifles or more than 15 rounds for pistols are reserved for military use.
He found if plaintiffs establish that magazines of larger capacity are in common use and have dual purposes, they satisfy both Bevis and Bruen.
He directed the parties to confer about a discovery schedule and a date for a final hearing.
He plans a status conference on Feb. 28.
McGlynn's questions to address
District Judge Stephen McGlynn plans to address the following question at a final hearing on constitutional challenges to the state’s weapon law:
1. Is the item an “Arm” as defined in Supreme Court decisions Heller and Bruen?
2. Is the item an “Arm” as defined in the Seventh Circuit’s Bevis decision?
3. Is there a rational basis for a civilian to select a particular “Arm” for use in self defense in the home?
4. Is there a rational basis for a civilian to select a particular item for use in self defense outside the home?
5. Is there a rational basis for a civilian to select a particular item for use in self defense to repel a riot or large-scale attack?
6. Is the item an “Arm” that may be used to resist tyranny?
7. Is the item exclusively or predominantly useful in military or law enforcement settings?
8. Is the item specifically designated by the United States military as a weapon to be acquired by the United States military and issued to its troops?
9. Does the item meet all of the specifications required by the United States military to qualify for issue as a rifle or pistol to be deployed with United States troops?
10. Is the weapon materially different from an M16, M4, or machine gun?
11. Is the firing rate of semi automatic weapons banned by the law materially different from the firing rate of the M16, M4, or fully automatic machine guns?
12. Is the item a dual use Arm that may be used in both military and civilian settings?
13. Is the item principally possessed and used for unlawful purposes?
14. Is the item in common use?
15. Is the item “dangerous and unusual?”