*** UPDATE *** Annie Thompson from the attorney general’s office…

The Protect Illinois Communities Act is an important tool in what must be a comprehensive approach to addressing gun violence throughout Illinois, and we remain committed to defending the statute’s constitutionality. We are reviewing the 5th District’s decision, and we will seek its review by the Illinois Supreme Court, and we will ask the court for an expedited schedule.

* Fifth Illinois Appellate Court…

The narrow issue before us in this case is whether the circuit court of Effingham County properly granted a temporary restraining order (TRO) in favor of plaintiffs under Illinois law. In counts I, II, and III of plaintiffs’ verified complaint, plaintiffs alleged that the procedure by which Public Act 102-1116 (eff. Jan. 10, 2023) (Act or Protect Illinois Communities Act) became law violated the Illinois Constitution and therefore denied them due process of law. In count IV, plaintiffs alleged that the exemptions provided for in the Act violate the equal protection clause of the Illinois Constitution based on their right to keep and bear arms. […]

In order to obtain a TRO, plaintiffs are required to demonstrate the following elements: “(1) a clearly ascertained right in need of protection, (2) irreparable injury in the absence of an injunction, (3) no adequate remedy at law, and (4) a likelihood of success on the merits of the case.” … Once the plaintiff establishes a fair question that his or her rights were violated, the plaintiff has also established a fair question that he or she would likely prevail on his claim. […]

With regard to count I, plaintiffs alleged that the Act violated the “single subject rule” and therefore should be declared unconstitutional. … The Illinois Supreme Court enunciated a two-tier test to determine whether an act runs afoul of the single subject rule. … The court determines first whether the act involves a legitimate single subject and then whether the various provisions within an act all relate to the proper subject at issue. … Thus, in light of the test before the court, and the liberal construction afforded to the single subject rule (Cutinello, 161 Ill. 2d at 423), we cannot conclude that inclusion of these clarifications offends the subject matter so much as to violate the single subject rule. […]

We turn now to count II of the complaint, which alleged the Act violated the three-readings rule found in article IV, section 8 of the Illinois Constitution. … Plaintiffs acknowledged the enrolled-bill doctrine before the circuit court, and that the legislation at issue was certified pursuant to the doctrine. However, plaintiffs asserted the enrolled- bill doctrine should be abandoned and/or abrogated. The circuit court agreed, specifically stating that “the time to revisit this practice is now.” … We cannot agree. … Accordingly, in this case, the circuit court did not have the authority to decide if or when the Illinois Supreme Court should revisit the issue raised by the plaintiffs in count II, and this court does not have that authority either. […]

With regard to count III, plaintiffs alleged that the manner in which the Act was passed violated due process as required by article I, section 2 of the Illinois Constitution, and that accordingly the Act should be declared unconstitutional. Specifically, plaintiffs alleged they “were denied any meaningful opportunity to participate in the passage of [the Act] which attempts to materially impair their fundamental rights to bear arms.” As further explanation, plaintiffs alleged that the “due process violation being complained of herein is the complete and total failure of the [d]efendants to comply with express constitutional procedural guarantees afforded the [p]laintiffs under Ill. Const. 1970, art. IV, § 8(d).” In the response filed with this court, plaintiffs stated that the crux of count III is that plaintiffs “demand the legislative process comply with the procedural requirements of the Illinois Constitution, particularly the single subject rule and the three-readings rule.” However, because we have found there is no likelihood of success on the merits with regard to counts I and II, we must likewise conclude there is no likelihood of success on the merits of count III, because by its plain language it is contingent upon the existence of potentially meritorious claims on counts I and II. As such, we find the trial court erred in granting a TRO on this basis.

With regard to count IV, plaintiffs present an equal protection claim, based not upon the process by which the Act was passed, but upon the groups created by the enumerated exemptions found in the Act. … Defendants claim there is no fundamental right at issue here and so the level of scrutiny is rational basis. This standard requires the court to determine whether the statute bears a rational relationship to a legitimate government purpose. […]

[In Guns Save Life, Inc. v. Ali, the Illinois Supreme Court stated] “We agree that the ordinances impose a burden on the exercise of a fundamental right protected by the second amendment. At its core, the second amendment protects the right of law-abiding citizens to keep and bear arms for self-defense in the home.” […]

While there is no dispute that the Illinois Supreme Court did not find the right to bear arms under the Illinois Constitution was a fundamental right in 1984 when deciding Kalodimos, it is equally undisputable that the Illinois Supreme Court now accepts the second amendment as a “fundamental right” guaranteed by the United States Constitution and the fourteenth amendment. […]

Under the strict scrutiny analysis, legislation that significantly interferes with the exercise of a fundamental right will be upheld only if it is “necessary to serve a compelling state interest” and is “narrowly tailored” to effectuate that purpose. … Defendants have argued that plaintiffs have no right in need of protection and are unlikely to succeed on the merits; however, defendants’ arguments were based on an erroneous perception that plaintiffs’ right to keep and bear arms was not a fundamental right. As such, we find that plaintiffs’ allegation that the Act infringes on their rights as Illinois citizens to keep and bear arms is a sufficiently alleged right in need of protection. Here, plaintiffs’ complaint alleged that the legislation’s exemption of seven categories of persons from the now prohibited purchase and/or possession of assault weapons, assault weapons attachments, .50-caliber rifles, and .50-caliber cartridges had no basis and therefore violated equal protection guarantees.

In response, defendants claimed the purpose of the Act was to reduce firearm deaths and mass shooting casualties and the exempted categories were based on employment and/or training. We note, however, that no such purpose or basis for the exempted categories is found in the record. The closest this record comes is the naming of the Act as the Protect Illinois Communities Act. While intent of legislation can be found by reviewing the legislative history, based on the legislative procedures utilized for this Act, there is no legislative history. We only have post- enactment statements. Comments issued after legislation is passed is “subsequent legislative history,” not “legislative history,” and is entitled to little, if any, weight. … Accordingly, we find that plaintiffs alleged sufficient facts for a TRO to issue on count IV. […]

We hold no crystal ball allowing us to determine the likelihood of potential harm if the TRO is granted, but we temper our lack of prescience with recognition that both interests—whether through the regulation of firearms or through the fundamental right to keep and bear arms—are based on the increased desire to protect and defend loved ones in light of these horrifying and devastating shootings.

Here, we find it extremely relevant that no opportunity for discourse was provided to the citizens of this state that would allow for recognition of the competing interests in accomplishing what we believe is likely a common goal. Nor does it appear that the legislative process allowed for even a moment of debate between the lawmakers to ensure that the enactment of this law was “narrowly tailored” to effectuate the Act’s purpose in any manner that would allow a larger exempted group to retain their fundamental rights. For these reasons, we find that balancing the equities favors the issuance of a TRO for count IV, and therefore, we affirm the trial court’s order granting the TRO for count IV.

* From Justice James Moore’s dissent…

I begin by stressing that in my view, this appeal does not allow us to address whether Public Act 102-1116 (eff. Jan. 10, 2023) (Act) infringes upon any rights granted by the United States Constitution, specifically the second amendment. This significant point was expressly stated to the circuit court by counsel for the plaintiffs during the hearing on the emergency motion for a temporary restraining order (TRO) when he stated, “We are not making second amendment constitutional arguments here because those are for a different day and a different court ***.” Because no issues related to the second amendment of the United States Constitution are before us, as they were not pleaded and were notably disclaimed by counsel for the plaintiffs, I believe our ruling on the grant of the TRO should in no way be interpreted as instruction or guidance as to any issues that may in the future be raised under the second amendment of the United States Constitution. […]

Turning to count IV, as noted by the majority, in this count the plaintiffs present an equal protection claim, based not upon the process by which the Act was passed, but upon the group created by the enumerated exemptions found in the Act. However, I believe the majority has failed to adequately address a crucial threshold matter relating to count IV. As the Illinois Supreme Court has stated, “it is axiomatic that an equal protection claim requires a showing that the individual raising it is similarly situated to the comparison group.” People v. Masterson, 2011 IL 110072, ¶ 25. If a party fails to show that he is similarly situated to the comparison group, his equal protection challenge fails. Id. The plaintiffs’ complaint failed to allege how each, or even any, of the plaintiffs are similarly situated to the exempted group set forth in the Act. The plaintiffs’ complaint and arguments point to a hypothetical Navy SEAL, but failed to allege this scenario was applicable to the plaintiffs. As set forth above, “to be considered ‘well-pleaded,’ a party’s factual allegations must be supported by allegations of specific facts.” Allegations that are “cursory,” or “inexplicably lacking in specifics,” are not sufficient to support the granting of a TRO. This is true because “the standard for injunctive relief is far too high for a court to rely solely on the moving party’s innuendo.” … Therefore, because the plaintiffs have failed to allege facts demonstrating that they are similarly situated to the exempt group complained of, their equal protection challenge fails, and the circuit court’s granting of the TRO must be reversed in its entirety.

I also cannot agree with the majority that if we were to further analyze count IV, strict scrutiny would apply. … As a factual matter, Ali involved a claim under, inter alia, both the second amendment to the United States Constitution and the Illinois constitutional provisions regarding the right to bear arms. Accordingly, it is not surprising that the court would mention “a fundamental right protected by the second amendment.” At no point did the court state that Kalodimos was no longer good law, or in any other way imply that the right to bear arms is now a fundamental right under the Illinois Constitution. Thus, I cannot attribute to Ali the significance the plaintiffs desire.

Accordingly, in light of the only extant precedent on this question, the only way this court could find that a fair question existed that the plaintiffs had a likelihood of success on the merits of this claim under a strict scrutiny equal protection analysis would be to find that Kalodimos has been overruled by a case or cases other than Ali. There is no evidence to support such a conclusion, and as explained above with regard to the other counts before us in this appeal, the circuit and appellate courts of the State of Illinois are required to apply binding precedent from the Illinois Supreme Court to the facts of the cases before the circuit and appellate courts. […]

Put another way, only the Illinois Supreme Court could rule that in a case such as this one—where the plaintiffs pointedly do not invoke the protections of the second amendment to the United States Constitution, and in fact pointedly disclaimed, in the circuit court, “making second amendment constitutional arguments [in this case]”—the development of federal precedent related to the second amendment to the United States Constitution nevertheless has rendered untenable the Illinois Supreme Court’s previous holding that the right to bear arms under our state constitution is not a fundamental right. […]

(I)n this case the plaintiffs have stated emphatically that they are not proceeding under the United States Constitution, and thus have clearly and unequivocally chosen not to avail themselves of the level of protection offered by the second amendment. That leaves only the protection offered by the Illinois Constitution, which pursuant to Kalodimos does not afford to the plaintiffs a fundamental right and does not entitle them to strict scrutiny analysis of their count IV equal protection claim.