Earlier this month, Illinois joined the short list of states across the country in banning the sale and purchase of assault weapons and large-capacity magazines to much fanfare of gun control advocates.
There have been several iterations of the ban that have remained in limbo in recent years, but renewed calls for stricter gun laws in the months following the Highland Park mass shooting motivated lawmakers to move swiftly during the lame duck session.
The honeymoon over the new law however was short lived as it faces a bevy of legal challenges from gun rights proponents arguing the new law is unconstitutional.
Last week, those calling for the new law to be rejected won a small victory as a judge in Southern Illinois temporarily blocked the state from enforcing the law — though it was limited to the 865 gun owners and one downstate firearms store who filed the lawsuit.
On Tuesday, a second federal lawsuit was filed against Attorney General Kwame Raoul and Brendan Kelly, director of the Illinois State Police.
Can the law, called the Protect Illinois Communities Act, withstand the legal challenges and cement itself as the latest state to bar assault weapons? Or will a court sympathetic to gun rights rule the law unconstitutional proving another instance of the steep challenges to gun reform in the United States?
What is the ban?
The Protect Illinois Communities Act in many ways mirrors similar assault weapons bans that have passed throughout the country and to some degree the 1994 Federal Assault Weapon Ban that expired in 2004.
State Rep. Bob Morgan, whose district covers Highland Park, introduced the House version of the bill in December which would go on to gain major support from Democrat leaders..
The bill moved quickly through the Illinois General Assembly and on Jan. 10, Gov. J.B. Pritzker signed the assault weapons ban into law that took effect immediately. Pritzker was flanked by other Democrat leaders and survivors of gun violence.
Pritzker would go on to dedicate the law to the victims of the Highland Park mass shooting that killed seven, as well as the two Latino teens killed outside Benito Juarez High School in a December shooting, adding that “this will save lives.”
These assault weapons are mostly rifles but also include some handguns and shotguns. The law outlines which weapons are banned and provides detail on the make of the guns — in some cases outright banning all variants of a model like “AR 100 type semi-auto.”
A cap was also placed on the purchase of magazines at 10 rounds for long guns and 15 for handguns. Devices like “switches” — which can turn a handgun into an automatic weapon — were also made illegal under the law.
People who already own one or more of these banned guns are allowed to keep them but have to register them with the Illinois State Police before Jan. 1, 2024.
Pritzker said this is necessary to account for the assault weapons “currently in circulation,” so the state can know who is responsible for them if they were to end up in the “wrong hands.”
Tough road ahead
The passage of the law was met with immediate push back from not only pro-gun groups but also dozens of county sheriffs publicly saying they have no intentions of enforcing the law. ABC News reported at least 74 Illinois sheriff’s departments had made the vow.
DuPage County Sheriff James Mendrick was one of these officials who openly criticized the ban and recently came under tough criticism from several local members of Congress.
But the more concrete movement to repeal the law happened in the days after the ban was passed.
The first lawsuit was filed on Jan. 13 in Effingham County that sought a temporary restraining order that prevented the state from enforcing the law.
Despite these challenges, Raoul was confident that his office was well equipped to fend off these challenges.
“Over the last few years, my office has become accustomed to facing a barrage of challenges to newly-enacted state statutes and executive orders,” Raoul said in a statement. “As we have done previously, we are prepared to defend the Protect Illinois Communities Act in courtrooms around Illinois.”
On Jan. 20, Judge Joshua Morrison ruled in favor of the plaintiffs that blocked the state from carrying out the law against those named in the lawsuit. Morrison said his ruling was based on the state hastily passing the law and not following the necessary procedural requirements.
“This decision is not surprising,” Pritzker said following the announcement. “Although disappointing, it is the initial result we’ve seen in many cases brought by plaintiffs whose goal is to advance ideology over public safety. We are well aware that this is only the first step in defending this important legislation.”
The state is also dealing with a complaint that was filed in Crawford County and two federal lawsuits filed in the Southern District of Illinois — the most recent federal complaint being filed on Tuesday.
What are legal scholars saying?
Andrew Willinger, executive director of Duke Center for Firearms Law, said a ruling from the U.S. Supreme Court last year changed the way the courts look at the constitutionality of gun laws. This new test forces courts to look at historical evidence rather than whether there is a public safety concern.
“The new test will transform how these cases are litigated,” Willinger said. “But if you look back in history it’s not clear what the analogy would be. Like what kind of weapon would be similar to these guns when looking back in history? That will be really tricky.”
Willinger said he expects the lower level of the federal and state courts to find a way to uphold the law but the real test will come if the U.S. Supreme Court picks it up — which would be likely.
“If it makes its way all the way up, I think it’s going to be close,” Willinger said.
The case Willinger is referring to is the New York State Rifle & Pistol Association, Inc. v. Bruen which focused on conceal carry.
George Mocsary, a law professor at University of Wyoming who has written extensively on regulations and policy around the Second Amendment, said the Bruen ruling will cripple the law.
Mocsary argued that the problem with Illinois’ law is how it picked the guns to ban in an arbitrary way. He said a gun that’s not on the ban list could be the exactly the same as one on the ban list but because it is missing an attachment it’s OK.
“Certainly, Illinois’ ban on assault weapons with all its arbitrariness should fail,” Mocsary said. “Just the lack of logic or reasoning in the law alone is why I don’t think it can pass any legal test.”
Brannon Denning, a Constitutional law professor at Samford University in Alabama, said the Bruen ruling “has upended things.” It’ll also take over a year to see how the lower federal courts hear the case.
“I can’t predict how Illinois’ – or any state’s – assault weapons ban will fare,” Denning said. “The Supreme Court, though, will not be able to sit on its hands.”