Illinois’s Unacceptable New Gun Law

O n January 10, the general assembly and governor of Illinois acted gleefully in defiance of the United States Supreme Court on a civil-rights issue. Behold: the Protect Illinois Communities Act. But as bad as this massive gun-control overreach is, it likely represents the apogee of gun-control efforts in Illinois. Its disregard for the Constitution is so blatant that its defeat could lead to further rollback of gun-rights infringements in the Prairie State.

The act criminalizes the manufacture, sale, transfer, and possession of a host of firearms, parts, accessories, and magazines, including all versions of America’s favorite rifle, the AR-15. Magazines holding more than ten rounds (rifle) or 15 rounds (pistol) are also prohibited from sale. By October, the Illinois state police is to establish a registry for owners of the banned items. Residents will have until January 2024 to legally declare their pre-ban ownership of now-banned firearms.

But here’s why the Illinois government’s gun-control hubris may have met its nemesis. Last summer, the Supreme Court reset the table on gun rights in its Bruen decision. The plaintiff’s complaint in this case was largely about New York’s arbitrary “may issue” concealed-licensing scheme. However, in addition to smacking down the state, the Supreme Court simultaneously granted certiorari, vacated, and remanded back to the lower courts four other gun-control laws: California’s ten-round magazine limit, New Jersey’s ten-round magazine limit, Maryland’s “assault weapon” ban, and Hawaii’s “may issue” concealed-carry-licensing scheme.

Both magazine-limit laws and Maryland’s “assault weapon” ban were returned to the lower courts on the basis of elements that are woven throughout the Illinois act. Moreover, large portions of the remanded New York law that were found unconstitutional are present in the text of the Illinois act. A reference to “Licensed Shooting Ranges” stands out as a probable cut-and-paste exercise from New York’s legislation, since there is no such thing in Illinois. While firearms dealers are licensed by the state and some cities, ranges are not.

In the Bruen decision, the Court clearly established strict, not intermediate, scrutiny as the standard for Second Amendment cases. Under strict scrutiny, there is no interest-balancing allowed: An act will no longer be considered constitutional if it infringes on an individual’s rights even if it advances a compelling interest of the state. The new test is clear: Does it infringe, and is there any historical analog to such infringement? In Illinois, the answer is clear: No, there is not.

Other “assault weapon” bans, including one local ordinance in Illinois, have been upheld using just such an interest-balancing test. The Highland Park “assault weapon” ban, which, of course, failed to prevent the depraved acts of a deranged killer last summer, was initially overturned in the District Court for the Northern District of Illinois, but it was reinstated in the Seventh Circuit Court of Appeals wholly on interest-balancing tests: “If it has no other effect, Highland Park’s ordinance may increase the public’s sense of safety.” There is not a single gun ban that has been upheld post-Bruen, because you don’t get to reject gun rights this way anymore.

In the face of this now-obvious injustice, those of us in Illinois who still believe in the Second Amendment have begun to act accordingly. The general public has begun voting with its wallet. The firearms trade is a seasonal business, so when assessing the magnitude of surges in sales, we who make our living in it look at prior-year comparisons. In the Thursday–Sunday period prior to the effective date of this act, sales of soon-to-be-banned long guns at our shop totaled ten times the prior year’s rate as the threats to cut off new sales became more credible. This is astonishing, and good evidence of how little support this act has in our community. It seems unlikely that individuals spend thousands of dollars on currently legal firearms that they will have to register, turn in, or destroy in a year.

But it’s not just the general public that is reacting. The state’s sheriffs are taking action as well. Illinois has 102 counties, each with an elected sheriff. As of this writing, some 90 of those sheriffs have stated that, as they swore to uphold the U.S. Constitution as well as the laws of Illinois, of which this act is now one, they will not enforce this unconstitutional act. Nor will they house in their jails anyone arrested solely for violations of this act. In addition to the sheriffs, many of the state’s attorneys in these 90 counties have said they will not prosecute offenders of this act.

Also prepared to advocate Second Amendment rights in Illinois are gun dealers such as myself. Our dealer association, Federal Firearms Licensees of Illinois, Inc. (FFL-IL) was organized in response to gun-dealer-licensing legislation in Illinois in 2017. We represent between 60 and 100 dealers, manufacturers, and distributors. Support within this community for our litigation against this act has been nothing short of astounding.

Acting in concert with gun clubs as well as both Illinois and national gun-rights groups, FFL-IL has formed the Illinois Gun Rights Alliance to direct the funding of a federal-court complaint challenging the constitutionality of this act. We have raised a war chest well in excess of our expectations and have retained a world-class team of attorneys. Our suit was filed in the U.S. District Court for the Southern District of Illinois on Tuesday, January 24. We will quickly seek injunctive relief for the now-effective prohibitions on sales and transfers of firearms and “assault weapon” parts. We expect complete victory when this act is tested against the Bruen-mandated standard of strict scrutiny.

Ours is not the only legal challenge circulating. There are other complaints filed in state and federal court. In the Fourth Circuit Court (Effingham County), Judge Joshua Morrison issued a temporary restraining order enjoining the state or any administrative or law-enforcement agency under its control from enforcing any and all elements of the act. While the complaint focused on the procedural shenanigans that the Illinois general assembly uses to cram legislation through in defiance of the due-process requirements of the Illinois constitution, there were some very relevant Bruen and due-process issues raised in this order.

The Court cannot find it logical that a warden of a prison (included in the exempted persons category) is necessarily better trained or more experienced in the handling of weapons than retired military personnel (not included in the exempted persons category). . . .

This argument could be considered moot as the US Supreme Court recently found (in Bruen) that the State of New York violated the constitution when requiring “proper cause” in order to obtain a license to carry a gun. As requirements for possession of a weapon in the home is generally and necessarily less restrictive than carrying a weapon outside the home, it follows that “proper cause” would be unallowable for possession as well.

Our complaint was filed on Tuesday, January 24 in the United States District Court for the Southern District of Illinois, and it addresses the manufacture, sale, purchase, and possession of banned firearms, the manufacture, sale, purchase, and possession of “assault weapon” parts, and the right to repair (which you cannot do if you can’t purchase parts).

When we win on these issues and collect attorneys’ fees, we will have a substantial war chest with which to go after other elements of this act and beyond. We didn’t choose to have this fight, but it’s a fight we are ready to win.