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* Tina Sfondeles…
Illinois Attorney General Kwame Raoul on Thursday filed a brief defending Illinois’ assault weapon ban, arguing the weapons restricted by the newly enacted law aren’t commonly used for self-defense and that large capacity magazines are accessories — not “arms.”
It also argues the country’s founding fathers owned guns that could only fire a single shot before reloading — proving assault weapons and large capacity magazines weren’t in “common use” when the Constitution was ratified.
“The assault weapons restricted by the Act are not commonly used for self-defense; by design and in practice, they exist for offensive infliction of mass casualties,” the brief states.
It also argues the term “arms” refers to weapons and not “accessories,” and that large capacity magazines are therefore not protected under the Second Amendment’s right to bear arms.
Those are among the key arguments in a 72-page brief filed by Raoul, Gov. J.B. Pritzker and Illinois State Police Director Brendan Kelly in the Southern District of Illinois — in response to challenges to the ban in four federal lawsuits that were consolidated on Feb. 24.
* What follows is the brief’s table of contents, which will give you the highlights. But click here for the whole thing…
Even if Plaintiffs meet their textual burden, history and tradition allow regulating these weapons and accessories
Large capacity magazines are not “arms”
Neither large capacity magazines nor assault weapons were in common use when the Second and Fourteenth Amendments were ratified
The Act restricts weapons and accessories not commonly used for self-defense today
1. The restricted weapons are for war—not individual self-defense
2. Sales and ownership numbers do not show commonality or useThe Act responds to dramatic technological changes and unprecedented societal concerns
There is a historical tradition of regulating dangerous and unusual weapons associated with increased criminality and violence
1. From the Founding Era through the 19th century, legislatures enacted categorical restrictions on dangerous and unusual weapons, including specific firearms 43
2. This tradition continued when 20th century legislatures regulated machine guns and assault weaponsThe Act is relevantly similar to historical regulations
1. The Act’s minimal burden on the right to self-defense is equivalent to, or less than, comparable historical regulations
2. The Act’s justifications are the same as historical analogues, but even more compelling 58
3. Plaintiffs’ attempts to distinguish the Act from the historical tradition of regulating dangerous and unusual weapons will fail
Argue away, but do your utmost to keep the conversation civil. Thanks.
posted by Rich Miller
Friday, Mar 3, 23 @ 9:08 am
Sorry, comments are closed at this time.
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The Founding Fathers didn’t envision cable TV and the internet either but, no credible source would argue they also aren’t protected by the First Amendment.
Comment by Soapbox Derby Friday, Mar 3, 23 @ 9:33 am
Raoul is doing the best he can in a very difficult situation. This case might not ultimately be decided by judges that Cook County voters would approve of.
Comment by Steve Friday, Mar 3, 23 @ 9:34 am
My child went to better schools- and has still lost a half dozen classmates to firearms and violence. That’s a reality I never had to even imagine, never mind get past. Beyond victims themselves, we are watching generational trauma with exponential implications.
Comment by West Sider Friday, Mar 3, 23 @ 9:37 am
Given the composition of the current U.S. Supreme Court, this is the proper case to make. It compels the IL Courts to address the federal precedents, and will almost certainly pass muster at the IL Supreme Court.
What this argument does is allow each side to prepare for the end game fight.
My only question is whether the courts will assert that because a need for militias was recognized in 1790, such languages will be used to allow citizens to own military grade weapons today.
That argument is tantamount to supporting the rights of people to prepare to overthrow the government, which is a very scary proposition, and an unjust and immoral reason for allowing people to possess the equivalence of machine guns and weapons sufficient to penetrate armor.
Comment by H-W Friday, Mar 3, 23 @ 9:42 am
If the purpose of the act is to prevent further incidents of mass violence, how does the grandfathering of existing weapons further that aim? Either they’re bad or they’re not.
Comment by Papa2008 Friday, Mar 3, 23 @ 9:43 am
==supporting the rights of people to prepare to overthrow the government==
I applaud Raoul’s attempt to thread the needle with the brief, but we still have 30% of the population who believe January 6th was ‘legitimate political discourse’.
Comment by Jocko Friday, Mar 3, 23 @ 10:01 am
They essentially just copied the reasoning laid out in Judge Kendall’s ruling in the Naperville case.
Ultimately, they are tasked with arguing that two of the country’s most successful constitutional litigators, who won the Bruen case, now are wrong in concluding Bruen applies to this law.
That’s an uphill fight.
Comment by JB13 Friday, Mar 3, 23 @ 10:04 am
“1. The restricted weapons are for war—not individual self-defense
2. Sales and ownership numbers do not show commonality or use”
Laughably wrong on both counts.
I own six firearms; every single model is mass-market and as common as a Toyota Camry. The Illinois AWB bans 4 of my 6 firearms. Only my two single-action cowboy-style revolvers are going to be legal under this law.
The AG defines the duck-hunting Remington autoloader shotgun my dad gifted me with the ornate duck etchings on the stock as a “weapon of war”. I hope he gets utterly and completely humiliated in front of SCOTUS.
Comment by sulla Friday, Mar 3, 23 @ 10:07 am
Knowing Alito, he will see this as a reminder that there are currently some limits and decide to get rid of limits. And you get a machine gun and you get a machine gun….
Comment by Amalia Friday, Mar 3, 23 @ 10:09 am
>>>>>That argument is tantamount to supporting the rights of people to prepare to overthrow the government, which is a very scary proposition, and an unjust and immoral reason for allowing people to possess the equivalence of machine guns and
and yet we opening discuss sending more small arms and ammo to our brethren in Ukraine.
>>>>>weapons sufficient to penetrate armor.
A lack of firearms knowledge may be present.
Various civilian, center-fire, hunting firearms can penetrate various levels of personal or light vehicular armor.
Comment by We've never had one before Friday, Mar 3, 23 @ 10:12 am
The Bruen test is not commonly used for self defense, which they are arguing. It is commonly used for lawful purposes. I get that twisting the test in this way is about the only way they will win, but I predict it eventually won’t end well for them with this argument. Whether that result is immediate or won’t occur until it reaches the Supremes is to be determined.
Comment by fs Friday, Mar 3, 23 @ 10:16 am
==as common as a Toyota Camry==
A Camry has many uses, an assault weapon has only one.
Comment by Jocko Friday, Mar 3, 23 @ 10:16 am
1. The restricted weapons are for war—not individual self-defense
2. Sales and ownership numbers do not show commonality or use
As for point one - the weapons identified are not weapons of war. Those would be weapons such as the M-14, M-16, M4A1, or M249 type firearms that have a full automatic option. Ar-15-style weapons which are banned under the new law, are simply semi-automatic rifles. They use the same firing mechanism found on pistols and deer hunting rifles going back over 100 years. They are not fully automatic and they are not used by the military.
As for point two - as the largest firearms retail association the NSSF has yearly data on rifle sales, and Ar-15 style sporting rifles are always in the top 10.
Comment by Donnie Elgin Friday, Mar 3, 23 @ 10:25 am
Something I’m wondering, let’s Assume AG Raoul loses at the en banc Appeal level, does he appeal to SCOTUS?
I find myself thinking back to the Madigan CCW case. If Raoul loses this law goes down but a future Federal Law may not be blocked if he appeals and loses federal AWB’s would also be blocked. Not to mention other states AWB’s that haven’t been challenged, yet. NY, CA, Mass., etc. would be affected. Madigan not appealing bought NY almost a decade before Bruen.
Just curious.
Comment by Mason born Friday, Mar 3, 23 @ 10:26 am
=is mass-market and as common as a Toyota Camry.=
And yet I never see them in public like I do a Camry.
=The AG defines the duck-hunting Remington autoloader shotgun my dad gifted me with the ornate duck etchings on the stock as a “weapon of war”.=
No he does not. Stop the nonsense.
Comment by JS Mill Friday, Mar 3, 23 @ 10:29 am
“And yet I never see them in public”
Silly answer. It is illegal to transport open weapons - the preferred method of transport would be to have the gun securely in its case and all ammo stored in a separate closed case. If you want to really see one in a legal setting - try visiting a gun range.
Comment by Donnie Elgin Friday, Mar 3, 23 @ 10:34 am
Wrong on a number of counts.
As I have previously noted from manufacturers sales reports, just one model of the many AR-15 clones, the S&W M&P 15, has been in the top 10 sellers the last decade, and the top seller a couple of those years. Toss in all the clones, and it’s hard to argue with a straight face that style rifle is not in common use.
Others have already addressed the issue of changing technology as it applies to the various amendments, so I won’t cite examples.
The grandfathering, while intended to partially deflect gun owners anger, does serve to weaken the argument that a ban is needed.
Raoul does have a thread to hang his arguments on as to past limited regulations and restrictions. But I don’t know if the current SCOTUS, once the case gets there, will buy all that Raoul is trying to sell.
Comment by RNUG Friday, Mar 3, 23 @ 10:36 am
Obviously biased but trying to be objective on how this might play out. Judge said he didn’t want to papered to death and the state hit him with 1,400+ pages, much of it trying to justify an interest balancing approach SCOTUS said should not be considered.
Much of the argument ignores or misstates Supreme Court precedence.
They focus their argument on the AR15 without explaining how they justify banning a variety of other firearms of all calibers. (Including firearms not in existence.) They also don’t explain how they can treat two functionally identical firearms differently based on how they look.
It will be interesting to see how the magazine issue plays out. I think it’s protected by 2nd amendment but it will be new/different ground if this goes to SCOTUS. Ultimately I think the assault weapons ban stuff gets tossed. Perhaps they let the ban on the guns that don’t exist stand. Hard to argue common use on imaginary firearms.
I will not be surprised if IL courts uphold the law. Ultimately this will be an issue resolved by SCOTUS, whether through these lawsuits or another state that is a little further along.
Comment by Pretzel Friday, Mar 3, 23 @ 10:37 am
I think it’s the best argument they can make.
Comment by Demoralized Friday, Mar 3, 23 @ 10:37 am
==No he does not. Stop the nonsense.==
Yes, he does. Maybe not the AG personally but the law he’s defending does.
Comment by Pretzel Friday, Mar 3, 23 @ 10:38 am
Mason — interesting point but, You have the Maryland case having been argued at the Court of Appeals and pending decision 4th. You have California up at the district level briefing concluded waiting decision, you have Illinois, NJ, New York and Colorado all in the wings as well as Oregon on mags. There will be a split, and it will go up. I think it will be decided in the next 18 months due to the posturing.
Comment by Todd Friday, Mar 3, 23 @ 10:41 am
===they are tasked with arguing that two of the country’s most successful constitutional litigators, who won the Bruen case, now are wrong in concluding Bruen applies to this law.
That’s an uphill fight.===
But the politics in places like Illinois will keep the zealot 2A Republicans losing statewide and in the Chicagoland area.
It’s the foolish that sees these wins as wins as the Republicans keep making poor choices in polled positions
Comment by Oswego Willy Friday, Mar 3, 23 @ 10:44 am
RNUG
–Raoul does have a thread to hang his arguments on as to past limited regulations and restrictions.–
I agree that’s his strongest point, the problem for him I see is that Bruen directly addressed the previous fallacies as using an incorrect test.
Comment by Mason born Friday, Mar 3, 23 @ 10:46 am
=== the problem for him I see is that Bruen===
The problem is this is a game of Calvinball. The ends are the means.
Comment by Rich Miller Friday, Mar 3, 23 @ 10:47 am
=Silly answer.=
If you want comedy go reread any number of your posts.
=It is illegal to transport open weapons - the preferred method of transport would be to have the gun securely in its case and all ammo stored in a separate closed case. If you want to really see one in a legal setting - try visiting a gun range.=
I am a frequent shooter, CCL holder, and avid hunter. I know the laws.
But when a silly statement like the camry statement is made, and based on the USSC majority position dejure, I responded with an empirically true statement.
Sorry it was too highbrow for you.
To the post- Raul’s filing will force the court to pick a lane. The changing goal posts of the court will have to be solidified or the courts majority members like Thomas will simply have to flat out admit they don’t care about the constitution, they just want a constant supply of weapons for gangsters and mass shooters.
Comment by JS Mill Friday, Mar 3, 23 @ 11:07 am
== Raul’s filing will force the court to pick a lane. ==
I agree.
My guess is the Illinois courts buy the historical regulation argument … but, since it is so broadly written, the courts may pick and choose exactly what firearms or components the statute is allowed to regulate.
And as others pointed out, the endgame is the pending and potential appeals in the Federal court system.
Comment by RNUG Friday, Mar 3, 23 @ 12:23 pm
=The problem is this is a game of Calvinball. The ends are the means.=
Amen
Comment by JS Mill Friday, Mar 3, 23 @ 12:35 pm
I can’t see thew AG winning on the argument that many of the banned weapons are not in common use or for self-defense. If you visit a gun store before the ban, these types of firearms represented a sizeable percentage of their inventory. For some it was the majority of their inventory. Google AR-15 and self-defense, and you will encounter numerous articles stating it is the best firearm for self-defense. You can also find a bunch of courses that explicitly cover self-defense skills using the banned weapons.
The argument that these firearms are only weapons of war is also factually incorrect. AR-15 and similar styles of rifles are routinely used in hunting deer, predators, hogs, and other types of animals in the states that allow it. This is largely because we have a generation of soldiers who are familiar with the firearm platform from their military service and like to use it for hunting due to that familiarity.
Some of the AG’s other arguments have more merit, but he is almost definitely going to lose on the stuff discussed above based on the Thomas Supreme Court test. If you are a proponent of the ban, you really have to hope that his other arguments hold more sway.
Comment by NickNombre Friday, Mar 3, 23 @ 12:40 pm
===If you are a proponent of the ban, you really have to hope that his other arguments hold more sway.===
Calvinball.
That’s why the politics is so crushing for GOP at the ballot box.
Comment by Oswego Willy Friday, Mar 3, 23 @ 12:57 pm
why Willie?
The Court said individual right, for lawful purposes, firearms in common use, no interest balancing, not connected to the Milita. That was Heller. then came McDonald then Ceatano and now New York which said yall got it wrong with all that interest balancing up to and including feelings.
They have been pretty consistent, everybody tries to drive a bus through whatever opening they wish into what they have written.
The AG is trying to string together a bunch of nonsense to justify this. And after the judge said don’t paper me to death they drop 1400 pages talk about not getting the hint
Comment by Todd Friday, Mar 3, 23 @ 1:27 pm
===why Willie?===
Because the “Calvinball Nuance” that lands as it does where the courts are now deemed “partisan” far more often than “impartial”
We’ve talked, and where you and I are differing is the “politics to”, which overshadows “the law is” because the “stationary-moving” sweet spot is now where polling says there needs to be some limits(?)
Remember, bud, I would like the maximum amount of regulation (if a ban of some sort is part, or even not) that is wholly constitutional, and the law, passed and signed, is constitutional until a court says otherwise.
That’s also a tenable political thought to the election aspect and candidate viability.
Even the status quo now, you have candidates that run away from their primary election stances on 2A.
Hope you’re well, as always.
Comment by Oswego Willy Friday, Mar 3, 23 @ 1:48 pm
=They have been pretty consistent=
Evidence notwithstanding.
=The AG is trying to string together a bunch of nonsense to justify this.=
More like everyone that ignores the full text of the amendment is stringing together nonsense. Ignoring the full text is, at best, cherry picking.
Comment by JS Mill Friday, Mar 3, 23 @ 2:30 pm
=It also argues the country’s founding fathers owned guns that could only fire a single shot before reloading — proving assault weapons and large capacity magazines weren’t in “common use” when the Constitution was ratified.=
This argument establishes an older and more consistent historical precedent and practice than the one the court cited in their most recent rulling.
I have no doubt that this will be rejected by the majority of the USSC, that will finally pull the curtain back on any notion of genuine jurisprudence on their part and, in the most literal sense, expose them for their “Calvinball” approach to the constitution.
Comment by JS Mill Friday, Mar 3, 23 @ 2:35 pm
No matter what Raoul tries, in the final analysis this goes to SCOTUS. And I doubt if he will receive a friendly audience by a majority of the Justices.
Comment by unafraid Friday, Mar 3, 23 @ 4:25 pm