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AG attempts to dismiss lawsuit against gun dealer regulations

Tuesday, Aug 20, 2019

* Center Square

Illinois Attorney General Kwame Raoul said a lawsuit challenging the Illinois Gun Dealer License Certification Act is “not ripe for judicial review” and should be dismissed because state police have yet to fully implement the act and that no part of the law has been used to stop dealers from doing business.

The attorney general responded Monday to a lawsuit in Sangamon County Circuit Court filed by several gun stores across the state and the Illinois State Rifle Association. […]

Some dealers don’t want to invest the $300 to $1,500 per business operating name to apply and comply with the new state mandates required on top of what’s required to get the federal firearms dealer license.

“[Gun dealers] may spend $20,000 on a security system for example and it might not work [for the state mandate] so they have to go spend another $20,000,” Pearson said.

* From the AG’s motion to dismiss

After a licensee submits the required materials to the State Police for certification of the federal firearms license, the State Police issues an “initial certificate of license within 30 days.” “If the [State Police] does not issue the certificate within 30 days, the licensee shall operate as if a certificate has been granted unless and until a denial is issued by the” State Police. Dealing in firearms without a certified license is a crime, and also can subject the firearms dealer to administrative sanctions. Not one of the plaintiff firearms dealers alleges that it has been subjected to any sanctions, or that the State Police has denied or prevented it from obtaining a certificate. A certification of license is valid for the term of the federal firearms license being certified.

* About those security systems

Plaintiffs challenge section 5-50 of the Act, 430 ILCS 68/5-50, which describes the type of security system that a certified licensee must have for a retail location. That section states that, by no later than January 2, 2021, “[e]ach certified licensee operating a retail location in this State must maintain a video security system and shall maintain video surveillance of critical areas of the business premises, including, but not limited to, all places where firearms in inventory are stored, handled, sold, or transferred, and each entrance and exit.” 460 ILCS 68/5-50(a). Also, “[i]f a video security system is deemed inadequate by the [State Police], the licensee shall have 30 days to correct the inadequacy. The [State Police] shall submit to the licensee a written statement describing the specific inadequacies.”

* Excerpts from the Second Amendment argument

In District of Columbia v. Heller, 554 U.S. 570, 592 (2008), the United States Supreme Court confirmed that “conditions and qualifications on the commercial sale of arms” are “presumptively lawful” under the Second Amendment. And in McDonald v. City of Chicago, 561 U.S. 742, 786 (2010), the Court said, “[w]e made it clear in Heller that our holding did not cast doubt on such longstanding regulatory measures as . . . laws imposing conditions and qualifications on the commercial sale of arms. We repeat those assurances here.”

The presumption of validity of regulatory burdens on the sale of firearms is not surprising, for the Second Amendment’s “central component is the right to possess firearms for protection.” Ezell v. City of Chicago, 651 F.3d 684, 699 (7th Cir. 2011) (emphasis added). Nothing in the Complaint alleges that the Act imposes an undue burden on a citizen’s right to possess a firearm—at least, not to the extent that the Second Amendment would be concerned. Where a restriction on firearms is presumptively valid, as Heller and McDonald say is the case for regulations concerning the sale of firearms, the Second Amendment does not apply. See Teixeira v. County of Alameda, 873 F.3d 670, 690 (9th Cir. 2017) (“[T]he Second Amendment does not independently protect a proprietor’s right to sell firearms.”), certiorari denied, 138 S. Ct. 1988; United States v. Chafin, 423 Fed. Appx. 342, 344 (4th Cir. 2011) (“Indeed, although the Second Amendment protects an individual’s right to bear arms, it does not necessarily give rise to a corresponding right to sell a firearm.”).

* On the challenge to the fees

To the extent Count II includes a vagueness challenge to the Act’s fee provision, 430 ILCS 68/5-70, the claim should be dismissed under section 2-615 of the Code of Civil Procedure for failure to allege any facts suggesting that the fee provision is unconstitutionally vague.

* Ripeness

Thus, as in Conlon, plaintiffs’ vagueness challenge is not ripe because it is possible that the rulemaking process will clarify the terms that plaintiffs claim to be vague, and will moot their vagueness challenge.

Moreover, the Complaint nowhere alleges any facts showing that defendants have enforced any of the challenged provisions against any of the plaintiff firearms dealers. […]

In Count III, Plaintiffs allege that the State Police is enforcing sections 5-30, 5-55, and 5- 60 of the Act without the promulgation of administrative rules. (Ex. B, Compl., ¶¶44–52.) But as noted above, the rulemaking process is underway and, in the meantime, the Complaint does not allege that the State Police has enforced any of the provisions against any plaintiff.

The AG also maintains that the ISRA lacks standing.

- Posted by Rich Miller        

13 Comments
  1. - Todd - Tuesday, Aug 20, 19 @ 12:35 pm:

    On the standing issue, the AG is way off base as Ezell took care of that and the City lost big on that issue.


  2. - Demoralized - Tuesday, Aug 20, 19 @ 1:12 pm:

    Heaven forbid we would want to attempt to make those who sell firearms secure them better if they are not already doing so.

    This is why I despise groups like the ISRA and the NRA. Of course I’ll be accused of being against the 2nd Amendment because I don’t support the radical positions of these groups.


  3. - FFS - Tuesday, Aug 20, 19 @ 1:16 pm:

    I must’ve missed the news where firearms sales have stopped in illinois because of this law. If some store decided they didn’t want to sell anymore, seems that was their choice, but I can go down the street right now and find a place that’s selling guns.


  4. - Demoralized - Tuesday, Aug 20, 19 @ 1:40 pm:

    ==but I can go down the street right now and find a place that’s selling guns==

    That’s the exact point that should be made over and over. The suggestion that this law is somehow an infringement on someone’s 2nd Amendment rights is ludicrous. Guns are readily available and they will still be readily available even with this law in place. The argument they are trying to make boils down to people should not have their right to sell guns infringed upon. There is no right to sell anything. I frankly have no sympaty for someone who can’t manage to comply with some aspects of this law, particularly the aspects regarding the securing of firearms.


  5. - Todd - Tuesday, Aug 20, 19 @ 2:27 pm:

    Demoralized –securing firearms is one thing, but its not a one size fits all as some protocols would simply be impractical. One local store has over 2000 long guns on display, putting those behind lock and key in a vault every night just doesn’t work.

    But the other point is ISP put out guidance that was 1 vague in a lot of ways and then way beyond what any authority conveys like mandatory hiring of armed guards.

    And we haven’t seen all the details on say the security systems. a store not far has 125 cameras in the store. the 90 day retention on that is going to be pretty costly, and then what happens if it says requires 4K resolution? that cost goes even higher.

    I get it you don’t like guns or gun stores.


  6. - Birdseed - Tuesday, Aug 20, 19 @ 3:11 pm:

    === - Demoralized - Tuesday, Aug 20, 19 @ 1:12 pm:

    Of course I’ll be accused of being against the 2nd Amendment because I don’t support the radical positions of these groups. ===

    :sigh:

    Another victim heard from..


  7. - Demoralized - Tuesday, Aug 20, 19 @ 3:25 pm:

    ==I get it you don’t like guns or gun stores.==

    And there it is. Because I don’t agree with Todd I must not like guns. I knew that’s where the conversation would go and you didn’t disappoint.

    And sorry to rain on your parade, but I have firearms in my house Todd. Seems kind of odd for a guy who dislikes guns don’t you think?


  8. - Todd - Tuesday, Aug 20, 19 @ 3:36 pm:

    Ok so you don;t like other people who have guns and the gun stores they go to — hows that


  9. - Demoralized - Tuesday, Aug 20, 19 @ 3:38 pm:

    You really are a piece of work. Grow up.


  10. - RNUG - Tuesday, Aug 20, 19 @ 3:40 pm:

    To summarize the AG’s argument: This lawsuit should be dismissed because we haven’t harmed you yet.

    Tell that to all the gun shops that closed or moved out of state rather than apply for the new license.


  11. - Demoralized - Tuesday, Aug 20, 19 @ 3:42 pm:

    Here we go again. Disagree with Todd and you obviously dislike guns. Sigh.


  12. - RNUG - Tuesday, Aug 20, 19 @ 3:47 pm:

    == … because I don’t support the radical positions of these groups. ==

    Groups like the NRA, ISRA and GSL just respond with the same kind of over the top language some of the anti-gun groups use. Personally, I don’t like some of their language but neither side seems to be able to use moderate language.


  13. - Todd - Tuesday, Aug 20, 19 @ 4:34 pm:

    D — no we have a name for guy like you we call them Fudds and its not a term on endearment.

    in my view, if planned parenthood would not accept the types of restrictions that people like you would place on gun owner or gun stores then we should not accept it either.

    buying a gun should be no more difficult than being able to vote. Period. No ID to vote, no FOID card or special ID to own a gun.

    The 1st amendment covers more than the quill, printing press and spoken word, it applies to this blog, the internet, radio and TV all developed long after 1789 and so so the 2A covers modern firearms like semi-auto ARs, AKs Glocks and the like.

    I’m pretty consistent that way.

    I get your not in the industry and don;t think much about adding, $1000, $5000, $10,000 or $20,000 in costs to small to medium size biz and running 1200 of them out of town is no sweat off your brow.

    But to some people, it is a big deal when they may have to go an hour to find a new gun shop.

    I get it let them eat cake.


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