SPRINGFIELD — Legal wrangling over Illinois’ sweeping gun ban is set to resume Monday in East St. Louis, where a federal judge will consider a challenge to the constitutionality of a law that is almost two years old and has so far withstood a barrage of challenges from gun rights advocates.
The bench trial before U.S. District Judge Stephen McGlynn could be a difficult test for the ban on many semiautomatic guns, however, since McGlynn last year said the law was likely unconstitutional following a hearing over a request by plaintiffs seeking to temporarily block the ban from being enforced.
McGlynn issued a preliminary injunction on the ban, but the U.S. 7th Circuit Court of Appeals in Chicago subsequently issued a stay on that ruling. The appeals court then in November rejected an argument that the law violates the Second Amendment rights of residents and ruled that states and municipalities “have a strong likelihood of success” in defending their gun bans.
However, the court made clear that its opinion dealt only with the preliminary injunctions issued by lower courts and that it was not ruling “definitively on the constitutionality” of the state and local laws at issue in the case.
Some believe that the law could ultimately land before the U.S. Supreme Court. Dan Eldridge, president of Federal Firearms Licensees of Illinois, an advocacy group for gun dealers that has been part of the litigation, expressed confidence that this week’s hearing will be an important step toward the ban ultimately being struck down.
“We’re the masters of the subject matter expertise here,” said Eldridge, who owns Maxon Shooter’s Supplies and Indoor Range in Des Plaines. “We do anticipate a win along with a significant record that’s going to come out of that trial.”
The gun rights proponents, which also include the National Shooting Sports Foundation, a firearm industry trade organization, and the Illinois State Rifle Association, have relied heavily on the landmark 2022 case of New York State Rifle & Pistol Association v. Bruen, in which the U.S. Supreme Court established a new constitutional standard holding that gun laws today shall be historically consistent with laws on the books in the 18th century, when the Second Amendment was codified.
The National Shooting Sports Foundation has cited Bruen’s “historical tradition” test to contend that Illinois’ ban on many semiautomatic guns, which require the trigger to be pulled once per round, is too broad because it prohibits guns that are commonly used by law-abiding citizens. The organization has noted there have been more than 24 million so-called modern sporting rifles in circulation in the U.S. since the early 1990s, including many AR-15- and AK-47-type guns that are subject to the Illinois ban.
Gov. JB Pritzker, who signed the ban into law shortly after lawmakers passed the measure in January 2023, and other gun control advocates have maintained that ban meets constitutional standards.
“There are misguided judges who are making decisions that I think are inappropriate and do not hold dear public safety the way that we do,” Pritzker said earlier this month at an unrelated event in Skokie. “So, I’m hopeful … the decision will get made in mid-September the right way, but if it doesn’t, that it’ll get overturned by higher courts.”
Gun rights advocates have filed several lawsuits both on the state and federal levels, and most court decisions have been in the favor of Pritzker’s administration and Democratic Illinois Attorney General Kwame Raoul — but not without some dissent.
The April 2023 decision by McGlynn, who was appointed to the bench in 2020 by Republican President Donald Trump, to grant a preliminary injunction was overturned in November when a U.S. 7th Circuit Court of Appeals panel by a 2-1 vote found that “at least since the Founding there has been an unbroken tradition of regulating weapons” to protect public safety and that the state and local laws at issue “stay within those boundaries.”
However, Judge Michael Brennan, a Trump appointee, in his minority opinion rejected what he called the majority’s “remarkable conclusion” that the banned weapons and attachments do not qualify as “arms” that fall under the rights granted by the Second Amendment, finding that they indeed do “warrant constitutional protection.”
After the 7th Circuit’s decision in November, gun rights advocates made a consolidated appeal to the U.S Supreme Court, which in July declined to take up the case.
But Justice Clarence Thomas, a member of the high court’s 6-3 conservative majority, said the court should take up the full case if it comes back for review and expressed deep reservations about the Illinois gun ban’s constitutionality.
“In my view, Illinois’ ban is ‘highly suspect because it broadly prohibits common semiautomatic firearms used for lawful purposes,’” Thomas wrote, citing case law to justify his position. “It is difficult to see how the Seventh Circuit could have concluded that the most widely owned semiautomatic rifles are not ‘Arms’ protected by the Second Amendment.”
The Illinois gun ban was a response by lawmakers to the mass shooting at Highland Park’s Fourth of July parade in 2022 that left seven people dead and dozens of others injured. Robert Crimo III was charged in the case and is still awaiting trial.
Crimo was able to obtain the Smith & Wesson M&P15 rifle used in the shooting — a gun that is among those prohibited under the gun ban — after his father helped him acquire a state firearm owner’s identification card more than two years before the shooting, despite reports to police that Crimo III had tried to kill himself and threatened to kill others.
A so-called clear and present danger report had been filed after authorities responded to at least one incident involving Crimo, though it wasn’t retained because, according to Illinois State Police, he didn’t have a firearm permit or pending application for one at the time.
Since then, amid criticism from at least one top Republican in the Illinois General Assembly, the state police issued administrative rules clarifying its ability to retain clear and present danger reports even if the subject doesn’t have a FOID card or a pending application on file and isn’t deemed to be an imminent threat.
Republicans have largely joined gun rights advocates in opposing the gun ban, which includes the requirement that anyone who owned a prohibited weapon prior to Jan. 10, 2023 — when Pritzker signed the firearms ban into law — to register the firearm with Illinois State Police.
The state’s ban prohibits the delivery, sale, import and purchase of more than 100 high-powered guns including semiautomatic rifles, shotguns and handguns. Also banned are the delivery, sale and purchase of magazines of more than 10 rounds for long guns and 15 rounds for handguns.
Illinois’ ban also prohibits any “device, part, kit, tool, accessory, or combination of parts that is designed to and functions to increase the rate of fire of a semiautomatic firearm above the standard rate of fire.”
People who owned guns covered by the law’s effective date but didn’t register them with the state police could be charged with a misdemeanor for a first offense and felonies for subsequent violations. Many law enforcement officials have declared that they had no intention of proactively investigating violators of the law.
Over a series of public hearings, gun rights advocates expressed confusion over the registration process, particularly on what they view as varying definitions of certain firearm accessories that need to be registered.
Through Dec. 31, 29,357 people had registered about 69,000 prohibited guns and over 42,000 accessories, according to Illinois State Police data. A little over 2.4 million Illinoisans have firearm owner’s identification cards, meaning only about 1.2% of FOID card holders registered guns or accessories subject to the ban, the statistics through 2023 show. However, the true degree of compliance with the law is not possible to determine, since residents with a valid FOID card may not own guns or accessories that are subject to the ban.
Eldridge, the gun shop owner with Federal Firearms Licensees of Illinois, said the ban has led to business closures and confusion over issues including whether repaired guns outlawed under the ban can be transferred from gunsmiths to the firearm owners.
“This is a slow process. It’s much slower than I’d anticipated. I did not realize that over a year and half later we would just now be getting to the trial after all the pretrial maneuvering,” Eldridge said.