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Another state passes assault weapons ban, while yet another federal judge refuses to block Illinois’ law

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Washington state approved a package of gun control measures Tuesday that includes a ban on the sale of military-style semi-automatic weapons, making it the ninth state to join efforts to prevent the distribution of AR-15s and other powerful rifles often used in mass shootings.

The new laws put Washington in the ranks of states with the strongest gun control measures in the nation. They include a 10-day waiting period on gun purchases, gun safety training requirements and a provision allowing the state attorney general and consumers to sue gun manufacturers or dealers under public nuisance laws if they negligently allow their guns to fall into the hands of minors or “dangerous individuals.” […]

Gun rights proponents swiftly filed a lawsuit to challenge the semi-automatic rifle ban, saying it infringed on Second Amendment rights.

* Meanwhile, a second federal judge has denied a motion to impose a temporary restraining order and a preliminary injunction on Illinois’ ban…

Having considered the preliminary record at this stage, the Court concludes that [plaintiff Javier Herrera] is unlikely to succeed on the merits of his claim. Doe, 43 F.4th at 791. The challenged restrictions on semiautomatic weapons and large-capacity magazines in the City Code, County Code, and Illinois Act are consistent with “the Nation’s historical tradition of firearm regulation,” namely the history and tradition of regulating particularly “dangerous” weapons. New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111, 2130 (2022); District of Columbia v. Heller, 554 U.S. 570, 627 (2008). […]

The Bruen Court outlined a two-step analysis to determine whether a challenged gun regulation is constitutional. Bruen, 142 S. Ct. at 2126–34. The Court must first determine whether “the Second Amendment’s plain text covers an individual’s conduct.” If the plain text does not cover the challenged regulation, then the regulation is outside of the Second Amendment’s scope and is unprotected. However, if the text does include such conduct, “the Constitution presumptively protects that conduct.” As such, for the regulation to be upheld as constitutional, “[t]he government must . . . justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation.”

To demonstrate that a regulation is “consistent with the Nation’s historical tradition of firearm regulation,” the government must engage in “analogical reasoning” by pointing to “a well-established and representative historical analogue.” The government can utilize analogues from a range of historical periods, including English statutes from late 1600s, colonial-, Revolutionary- and Founding-era sources, and post-ratification practices, specifically from the late 18th and early 19th centuries. Bruen took special note that the Second Amendment is not a “regulatory straightjacket.” The government’s proposed analogue need not be “a historical twin” and the “modern-day regulation” need not be “a dead ringer for historical precursors” to “pass constitutional muster.”

Importantly, “Bruen does not displace the limiting examples provided in Heller.” 2023 WL 2077392, at *9. As set out in Heller, states may still enact (1) “prohibitions on the possession of firearms by felons and the mentally ill”; (2) “laws forbidding the carrying of firearms in sensitive places”; (3) “laws imposing conditions and qualifications on the commercial sale of arms”; and (4) bans on “dangerous” weapons that are not “in common use.” Id. at 2162 (Kavanaugh, J., concurring) (citation omitted). The list itself “does not purport to be exhaustive.” Id. (quoting Heller, 554 U.S. at 626 n.26).

The Court holds that the restrictions on possession of certain semiautomatic rifles and large-capacity magazines in the City Code, County Code, and Illinois Act are consistent with the Nation’s “history and tradition” of treating particularly “dangerous” weapons as unprotected. […]

In response to the Defendants’ citation to similar statutes in this case, Herrera argues that his suit does not concern public carry, but rather defense of the home. This argument is unavailing. The Supreme Court was clear in its instruction that “analogical reasoning” is not a “regulatory straightjacket” and “even if a modern-day regulation is not a dead ringer for historical precursors,” the government’s chosen analogue “may be analogous enough to pass constitutional muster.” Bruen, 142 S. Ct. at 2133. While the government’s analogue may not be identical, it need not be. Bruen also expressly observed that “dramatic technological changes” or “unprecedented societal concerns” may require a “more nuanced approach.”

Such an approach is applicable here. As the State Defendants put forth at oral argument, laws regulating weapons, including various firearms, developed over time in response to the type of harm that those weapons presented, as in the present case. … Here, the City Code, County Code, and Illinois Act similarly responded to “dramatic technological changes” and “unprecedented societal concerns” of increasing mass shootings by regulating the sale of weapons and magazines used to perpetrate them. Bruen, 142 S. Ct. at 2132. This is well in line with earlier laws regulating carry and progressing to restrictions on sale and possession, in and out the home.

Having concluded that Defendants demonstrated a tradition of regulating “particularly dangerous weapons,” the Bevis Court next considered “whether assault weapons and large-capacity magazines fall under this category” of “highly dangerous arms (and related dangerous accessories),” and answered with a resounding yes. The Court considered ample record evidence of the vastly destructive injuries that semiautomatic weapons cause and their “disproportionate[]” use in “mass shootings, police killings, and gang activity. The Court observed that large-capacity magazines “share similar dangers,” with studies showing that the use of such magazines lead to an increased number of fatalities in mass-shooting scenarios. The Court rejected any argument that regulations on semiautomatic weapons and large-capacity magazines are not “unusual,” given the ten-year federal ban on assault weapons and eight bans on semiautomatic weapons and large-capacity magazines in jurisdictions such as Illinois. As such, the Court concluded that “[b]ecause assault weapons are particularly dangerous weapons and high-capacity magazines are particularly dangerous weapon accessories, their regulation accords with history and tradition.” […]

The shall-issue licensing schemes discussed in Bruen involved a “background check” or the passage of a “firearms safety course,” Bruen, 142 S. Ct. at 2138 n.9, which are more onerous than the relatively mechanical registration process required by the Illinois Act, see 720 ILCS 5/24-1.9(d). Nor does the Act permit state officials to have “open-ended discretion” to deny or allow a firearm to be registered. Bruen, 142 S. Ct. at 2161 (Kavanaugh, J., concurring). Rather, owners of semiautomatic rifles before the Act’s effective date must provide the affiant’s FOID number, report the make, model, caliber, and serial number of the weapon, and thereafter affirm that he or she lawfully owned the weapon before January 10, 2023.

The opinion also touches on the era during the 14th Amendment’s ratification.

* Rep. Morgan…

State Rep. Bob Morgan, D-Deerfield, issued the following statement Tuesday after a federal judge in the Northern District of Illinois rejected an effort to block Morgan’s assault weapon ban legislation in Herrera v. Raoul:

“Today’s order is a victory for smart gun safety laws. The Protect Illinois Communities Act bans the sale of assault weapons and high-capacity magazines, targets interstate gun trafficking, and expands red-flag laws – actions we carefully crafted, knowing the gun lobby would sue to stop these public safety reforms. The NRA will continue its legal efforts to stop common-sense gun reform, and I, along with other advocates, will continue to fight to keep weapons of war off our streets to keep our communities safe.”

* G-PAC…

Today, the Gun Violence Prevention PAC (G-PAC) released the following statement from John Schmidt, a former U.S. Associate Attorney General and member of the Executive Board of G-PAC, in response to a federal judge’s latest decision regarding the Illinois assault weapons ban. This decision comes one week after the 7th Circuit Court of Appeals denied a motion to enjoin the Illinois’ assault weapons ban.

“A second Federal judge, Lindsay Jenkins in the Northern District of Illinois, has just denied an effort by a Chicago plaintiff to enjoin the new Illinois law banning assault weapons and large capacity magazines. Judge Jenkins agreed with Judge Virginia Kendall, who ruled in February in a separate case, that the ban on these extremely dangerous weapons is consistent with the nation’s historical tradition of firearms regulation.

“Judge Jenkins also upheld the new law’s requirement that owners of existing assault weapons must file with the Illinois State Police a report of ownership before the end of 2023. That requirement had not previously been challenged.

“While plaintiffs may appeal these losses, the court decisions continue to leave the law fully in effect and enforceable to protect Illinois residents from the dangers of these weapons.”

There’s also a similar case in the Southern District, which is in the 7th Circuit.

posted by Rich Miller
Wednesday, Apr 26, 23 @ 11:03 am

Comments

From what I’ve read on the Washington ban, it’s a bit more forgiving in that it allows possession of both AR-15 style rifles and larger capacity magazines; just bans current / future sales of said items. Plus it grandfathers all existing ones without registration.

Comment by RNUG Wednesday, Apr 26, 23 @ 11:12 am
I stopped having these discussions in other places, because almost every single time I hear the exact same misinterpretation of Bruen. It’s like there is a cheatsheet out there somewhere with specific (wrong)points to make about Bruen when having a discussion on this topic.

Even the lawyers arguing against some of these bans have clearly stated in their statements to the court they are not challenging the 50cal bans at all.

It’s impossible to have a meaningful discussion when the internet lawyers are claiming the entire thing is unconstitutional, when the lawyers in the cases themselves aren’t even claiming such a thing.

Comment by TheInvisibleMan Wednesday, Apr 26, 23 @ 11:14 am
===the internet lawyers are claiming the entire thing is unconstitutional===

Those lawyers appear to be advising our county sheriffs /s

Comment by Rich Miller Wednesday, Apr 26, 23 @ 11:16 am
I agree RNUG. And I am curious on our registration and the enforcement of it. I’d hate to be the cop trying to take AR-15’s away from a group of gun-lovers.

Comment by Lurker Wednesday, Apr 26, 23 @ 11:18 am
Good rulings by these judges. Now IL Supremes, get to work on approving a great IL law.

Comment by Norseman Wednesday, Apr 26, 23 @ 11:21 am
The judge did a good job explaining his position. But I think he overreached in going back to 1600’s British law.

The judge and various gun rights groups obviously disagree on the scope of Bruen. Sooner or later SCOTUS will have to clarify that … even if it is by just refusing to hear the various appeals.

Comment by RNUG Wednesday, Apr 26, 23 @ 11:22 am
The judge, in this case, was recommended to the president by Senators Dick Durbin and Tammy Duckworth in July 2022, and she was confirmed on a party-line vote. When cases inevitably get to the SCOTUS, they will be in playing to a much more unsympathetic bench.

Comment by Donnie Elgin Wednesday, Apr 26, 23 @ 11:23 am
=== But I think he overreached in going back to 1600’s British law===

To demonstrate that a regulation is “consistent with the Nation’s historical tradition of firearm regulation,” the government must engage in “analogical reasoning” by pointing to “a well-established and representative historical analogue.” Id. at [Bruen] 2133 (emphasis removed). The government can utilize analogues from a range of historical periods, including English statutes from late 1600s, colonial-, Revolutionary- and Founding-era sources, and post-ratification practices, specifically from the late 18th and early 19th centuries. Id. at 2135–56; Heller, 554 U.S. at 605– 626; Rahimi, 61 F.4th at 455–59. Bruen took special note that the Second Amendment is not a “regulatory straightjacket.” 142 S. Ct. at 2133. The government’s proposed analogue need not be “a historical twin” and the “modern-day regulation” need not be “a dead ringer for historical precursors” to “pass constitutional muster.” Bruen, 142 S. Ct. at 2133.

Comment by Rich Miller Wednesday, Apr 26, 23 @ 11:25 am
A new judge, just appointed to the bench by a president who says he wants to ban assault weapons, says that because the government banned some weapons in the past, it can ban any weapons it pleases now, as long as it says they are “dangerous.”

Yep, that’s exactly what Bruen says. Nailed it.

This is a long game. Lots of baseball left, as they say.

Comment by JB13 Wednesday, Apr 26, 23 @ 11:54 am
“Meanwhile in Opposite Land”

26 states (including Iowa, Indiana, and Missouri) now have some form of Constitutional Carry as law.

Some clarity would be appreciated from the SC (and a unicorn too, while I’m making wishes)…

Comment by Former ILSIP Wednesday, Apr 26, 23 @ 12:03 pm
=== But I think he overreached in going back to 1600’s British law ===

The Bruen decision itself is a joke. To base constitutional decisions on divinations of practices from hundreds of years ago is ridiculous.

Comment by Norseman Wednesday, Apr 26, 23 @ 12:03 pm
== 26 states (including Iowa, Indiana, and Missouri) now have some form of Constitutional Carry as law. ==

Thought I read last week it is up to 27 now.

Comment by RNUG Wednesday, Apr 26, 23 @ 12:17 pm
Can child support delinquency prevent obtaining a FOID card / cause one to be revoked? Concealed Carry permit? Firearm ownership?

What about “Constitutional Carry” states?

Comment by Anyone Remember Wednesday, Apr 26, 23 @ 12:38 pm
==they will be in playing to a much more unsympathetic bench==

So you whine about the path this judge took to the bench and then in the next breath says that as long as the judges came from a political perspective you agree with then it’s fine and dandy. Hypocrite much?

Comment by Demoralized Wednesday, Apr 26, 23 @ 12:49 pm
We’re heading to the Supreme Court on this mess Illinois has created, and the 7th Circuit continues to get wrong somehow. Based on the Circuit’s recent rulings, there is no longer a right to bear arms of any kind, since every ‘technological advancement’ or ’social issue’ could support bans totally inconsistent with the 2nd, and multiple recent rulings overturning bans and rulings supporting them.

Comment by thisjustinagain Wednesday, Apr 26, 23 @ 12:58 pm
=continues to get wrong somehow==

Thank you your honor. I’m glad we have you around to be our resident judicial authority.

Comment by Demoralized Wednesday, Apr 26, 23 @ 1:12 pm
How is the omission of the “in common use” requirement of Heller being justified in this ruling? Did I miss it or was it intentionally glossed over?

Comment by Papa2008 Wednesday, Apr 26, 23 @ 1:16 pm
I’m moving. 27 states to choose from.

Comment by Tequila Mockingbird Wednesday, Apr 26, 23 @ 1:41 pm
===Washington state approved a package of gun control measures===

Slightly not-Illinois-centric, but a dear friend of mine spearheaded this bill and fought for a year to get it through, through a kinda significant harassment campaign. It’s been a wonderful week for her and I’m really proud.

Comment by Suburban Mom Wednesday, Apr 26, 23 @ 1:50 pm
===I’m moving===

Gonna give myself a calendar reminder and check to see if you’re still commenting in a month. /s (kinda)

Comment by Rich Miller Wednesday, Apr 26, 23 @ 1:58 pm
“The Bruen decision itself is a joke”

Should read the Bruen decision itself is… now considered a legal precedent.

Comment by Donnie Elgin Wednesday, Apr 26, 23 @ 2:47 pm
===now considered a legal precedent.===

When you tell parents who lost children to school shootings, do you remind those parents it’s a legal precedent?

Rarely on these pages is there the sympathy, but golly, the legal scholars…

Comment by Oswego Willy Wednesday, Apr 26, 23 @ 3:02 pm