Divided Federal Court Upholds Illinois Ban on ‘Assault Weapons’

Split ruling could go to the U.S. Supreme Court.

An AR-15 rifle at FT3 tactical shooting range in Stanton, Calif., on May 3, 2021. John Fredricks/The Epoch Times

A divided U.S. appeals court on Nov. 3 found Illinois’ new ban on “assault weapons” likely does not run afoul of the U.S. Constitution’s Second Amendment.

The prohibition on buying, selling, and owning some semiautomatic guns, including AR-15s, was signed into law by Democrat Illinois Gov. J.B. Pritzker in January. Almost immediately, groups and individuals who said it was illegal brought legal challenges.

But plaintiffs have to prove that the weapons that were banned “are arms that ordinary people would keep at home for purposes of self-defense, not weapons that are exclusively or predominantly useful in military service, or weapons that are not possessed for lawful purposes,” U.S. Circuit Judge Diane Wood, an appointee of former President Bill Clinton, wrote for the 2–1 majority in the new ruling.

She pointed to a 2008 U.S. Supreme Court decision that determined the Second Amendment only covers weapons “not typically possessed by law-abiding citizens for lawful purposes.”

Under a Supreme Court decision in 2022, courts must determine whether laws deal with conduct covered by the Second Amendment and, if they do, then governments must justify regulations by showing they are “consistent with the nation’s historical tradition of firearm regulation.”

That prompted the appeals court judges to turn to whether the guns banned by the Illinois law are covered by the Second Amendment.

“We conclude the answer is no,” Judge Wood said. “We come to this conclusion because these assault weapons and high-capacity magazines are much more like machine guns and military grade weaponry than they are like the many different types of firearms that are used for individual self-defense (or so the legislature was entitled to conclude).”

Lawyers for the plaintiffs had argued in court that there are important distinctions between AR-15s and M16s, a similar military gun, but Judge Wood said the answers were “unconvincing.” She did acknowledge that the M16 can be fully automatic while the AR-15 cannot be without modification.

U.S. Circuit Judge Frank Easterbrook, an appointee of former President Ronald Reagan, joined Judge Wood in the majority.

The ruling came in response to six lawsuits challenging the law. They were consolidated. Plaintiffs include Law Weapons, Inc., a gun store in Naperville; and Javier Herrera, an emergency room doctor in Chicago.

In lower court rulings, some judges had sided with plaintiffs and found the law ran afoul of the Second Amendment under the 2022 Supreme Court decision, while others said the law was consistent with historical U.S. restrictions.

A divided Illinois Supreme Court decision in August found the law did not violate the Illinois Constitution.

The law, called the Protect Illinois Communities Act, bans the purchase, sale, and ownership of semiautomatic rifles and pistols that meet certain conditions, including if it has a magazine capable of holding more than 10 rounds. The only exceptions are for “trained professionals,” such as law enforcement officers, and people who already owned the guns before the law takes effect in January 2024.

Dissent

U.S. District Judge Michael Brennan, an appointee of former President Donald Trump, dissented. He said the firearms banned under the law fall under the “arms” covered by the Second Amendment.

He noted that the Supreme Court has stressed the Second Amendment covers guns “in common use at the time” and said the banned weapons include “many of the most commonly-owned semiautomatic handguns, shotguns, rifles, and magazines.”

Because they’re covered, Illinois officials would have to show the ban is consistent with bans from the past. They offered examples, but those are not relevant, Judge Brennan said.

The examples of regulations on fully automatic machine guns, he said, for instance, missed how those guns are “materially different” from the newly banned weapons.

“The government parties have failed to show that the act and ordinances are consistent with the nation’s history and tradition of firearm regulation,” Judge Brennan said. “History and tradition do not support banning firearms and magazines so many citizens own, possess, and use for lawful purposes.”