Federal Judge on Illinois Assault Weapon Ban: Not Constitutional, Registration not Constitutional

Restrictions on semi-automatic rifles, pistols, and shotguns have been ruled unconstitutional under the Second Amendment in the Federal District Court for the Southern District of Illinois, in the Seventh Circuit court of Appeals. The order is a permanent injunction against enforcement of the state legislation in the case of Halley v Raoul  on 8 November, 2024.  It is commonly known as an "assault weapon" and magazine ban.

There are two basic arguments which Judge Stephen P. McGlynn addressed in his order. The first is whether semi-automatic rifles and magazines for them are "arms" as covered by the text of the Second Amendment. Part of this argument is whether  military arms are covered by the Second Amendment.

The second is whether there is a history and tradition to support the arms as outside of the protections of the Second Amendment.

In the analysis of the  first question, Judge McGlynn defines bearable on page 16:

Therefore, this Court defines bearable as: a weapon that an individual carries for the purpose of being armed and ready for offensive or defensive action in a case of conflict with another person.

Judge McGlynn then identified "dangerous" as more than merely capable of inflicting harm. He defines "dangerous" as weapons who are difficult to control the harm to only an opponent. From page 67:

Therefore, this Court defines dangerous as: bearable arms that a typical operator cannot reasonably control to neutralize discrete, identified aggressors. Once more, it is the lack of the ability to discriminately control the arm and its discharged projectiles that makes it dangerous, not its rate of fire.

Judge McGlynn goes on to define what is meant by "unusual". From page 70:

Therefore, considering the above, unusual is defined as: an arm deploying an atypical method to neutralize an opponent in confrontation or that deploys a neutralizing agent that is caustic, incendiary, noxious, poisonous, or radioactive. Unusual would also include those weapons that are not designed for successful self-defense in neutralizing an opponent, but rather are primarily deployed to inflict cruel, brutal, or inhumane suffering on a person.

Using all the definitions he has created, Judge McGlynn comes to this conclusion about the arms covered by the Illinois statute (PICA):

Therefore, in relation to the weapons banned by PICA, this Court defines common use as presumptively encompassing: any bearable rifle, shotgun, or pistol that is capable of semiautomatic fire and is or has been available for purchase, possession, and usage by law-abiding citizens for self-defense, provided that it is not otherwise “dangerous and unusual.”Moreover, for the sake of clarity, the Court will also include essential features (like magazines) and nonessential features that increase operability, accuracy, or safety (like the various attachments prohibited by PICA) as items that are presumptively in common use.

Judge McGlynn then addresses the argument that AR15 rifles are not covered by the Second Amendment because they are too close to being "military" weapons. In this analysis, he makes an argument with which many will disagree. From page 110:

The current version of the militia is the United States Army National Guard and Air National Guard. Both organizations utilize U.S. Army and U.S. Air Force uniforms, accessories, and equipment.

He then states AR15 rifles are not "military-grade", on page 111:

Therefore, the Court holds that “military use” refers to weapons that are selected, procured, tested, and issued to military members for use in combat.With this in mind, none of the weapons, magazines, or attachment prohibited by PICA can be called “military-grade” since they were not issued to the military for use in combat.

On page 112, Judge McGlynn talks about "dual use" weapons, and concludes many weapons used by the U.S. military are "dual use".

Considering the above,the Court holds that “dual use” refers to weapons that, while predominantly useful in military contexts, are also useful for civilian offensive or defensive use in confrontation such that they would be covered by the Second Amendment’s guarantee.

On page 115, Judge McGlynn considers whether AR15 type rifles are used mostly for lawful purposes. The wording is a little awkward. Instead of "if every AR-15 in Illinois was used in a mass shooting", he meant if an AR-15 was used in every mass shooting in Illinois.

 JOHNSON,ET AL.,FIREARMS LAW AND THE SECOND AMENDMENT2000–01, 2005 (3d ed. 2021) (2024 Supp.) (discussing FBI Crime statistics and noting that the“[h]andguns” deemed protected under Heller and Bruen, not the firearms banned by PICA, “are the most common firearm used in mass shootings, accounting for over 50 percent”))). Moreover, as the Plaintiffs argue, even if every AR-15 in Illinois was used in a mass shooting, then 99.99% of AR-15 rifles would never have been used in a homicide. (Doc. 253, p. 92). Clearly, this means that such weapons are not used “for unlawful purposes.”(Id.). Such horrific and traffic incidents are clearly outliers, not the most common use for the semiautomatic “assault weapons” PICA purports to ban wholesale.

On page 116, Judge McGlynn shows the argument that AR-15 rifles are easily convertible is a non-starter, because commonly available shotguns are easily convertible to short barreled shotguns; yet common shotguns are protected under the Second Amendment.

Having shown most of the weapons regulated by PICA are covered by the text of the Second Amendment, Judge McGlynn uses the next 50 pages showing there is no history of commonly accepted statutes to ban most of the weapons covered by PICA, including accessories and magazines. He talks of the arguments about the requirement for registration on page 145.

The order is given on page 166:

 Therefore, the Court must take action as justice demands. PICA is an unconstitutional affront to the Second Amendment and must be enjoined. The Government may not deprive law-abiding citizens of their guaranteed right to self-defense as a means of offense. The Court will stay enforcement of the permanent injunction for a period of thirty (30) days from the date of this Order.

The conclusion of the 168 page order is given on pages 167-168. Judge McGlynn specifically mentions registration of weapons protected by the Second Amendment is an unconstitutional infringement.

"As the prohibition of firearms is unconstitutional, so is the registration scheme for assault weapons, attachments, and large-capacity magazines."

Here is the conclusion of Judge McGlynn's order: 

CONCLUSION

For the reasons set forth above, the Government’s Motion for Partial Summary Judgment on the Langley Plaintiffs’ Counts IV and VI(Doc. 220) is GRANTED. Most importantly, considering all of the evidence presented, the Court holds that the provisions of PICA criminalizing the knowing possession of specific semiautomatic rifles, shotguns, magazines, and attachments are unconstitutional under the Second Amendment to the United States Constitution as applied to the states by the Fourteenth Amendment. Therefore, the Plaintiffs’ request for a permanent injunction is GRANTED. The State of Illinois is hereby ENJOINED from the enforcement of PICA’s criminal penalties in accordance with720 ILL.COMP.STAT. §§ 5/24-1(a)(14)–(16) (bump stocks and assault weapons); 5/24-1.9(a)–(h)(assault weapons and attachments); and 5/24-1.10(a)–(h)(large-capacity magazines) against all Illinois citizens, effective immediately. As the prohibition of firearms is unconstitutional, so is the registration scheme for assault weapons, attachments, and large-capacity magazines. Therefore, the State of Illinois is ENJOINED from enforcing the firearm registration requirements and penalties associated with entering false information on the endorsement affidavit for non-exempt weapons, magazines, and attachments previously required to be registered in accordance with 430 ILL.COMP.STAT. 65/4.1. This permanent injunction is STAYED for thirty (30)days. The Clerk of Court is DIRECTED to enter judgment in favor of the Plaintiffs.

IT IS SO ORDERED.

DATED: November8,2024

The Defendants (state of Illinois) are given 30 days to appeal the decision to the Court of Appeals for the Seventh Circuit. The case was already sent to the Seventh Circuit on appeal about a temporary injunction. The three judge panel had a split decision, which struck down the temporary injunction, in favor of the Defendants. Judge Wood was on that three judge panel. She has retired. Therefore, it will be a different three judge panel to hear the appeal of the permanent injunction.

 

©2024 by Dean Weingarten: Permission to share is granted when this notice and link are included.

Gun Watch