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Illinois appellate court allows temporary hold on state gun ban to stay in place for plaintiffs in lawsuit

Levi Slater, of Accuracy Firearms. (John J. Kim/Chicago Tribune/TNS)

 An Illinois appellate court on Tuesday upheld a downstate judge’s decision to temporarily block Illinois’ recently enacted ban on high-powered weapons and high-capacity magazines from being enforced on more than 850 people and a handful of licensed gun dealers named as plaintiffs in a lawsuit challenging the ban.

The state’s 5th District Appellate Court agreed with Effingham County Judge Joshua Morrison’s finding that the ban violated the state constitution’s equal protection clause. Morrison’s ruling was based on a lawsuit filed by attorney Thomas DeVore, a Republican who made an unsuccessful bid for attorney general last year.

But the appellate court rejected other aspects of Morrison’s Jan. 20 decision, including that the ban violated the Illinois Constitution’s due process clause and the constitutional procedures for legislation.

The appellate court’s decision means that the plaintiffs in DeVore’s lawsuit will not be subject to the ban for the time being.

The appellate court agreed that the ban violated the equal protection clause of the constitution because it is applied inconsistently. For instance, active police officers are exempt from the ban, while retired military personnel are not.

“Perhaps, some of the plaintiffs’ training is equal to, or superior to, that of the exempted classes,” the court wrote. “We note, however, even if plaintiffs’ training is not, it would seem logical — given that the plaintiffs are allowed to retain the now prohibited weapons, if properly registered — that the legislation would allow such plaintiffs to obtain sufficient training so that the legislative prohibitions would be equally unnecessary for them.”

DeVore told the Tribune that the ruling could be significant for federal lawsuits challenging the ban too because the federal standard for equal protection is similar to Illinois’ standard.

“Right now, today, equal protection, and I think the court made it clear, it’s a huge issue when they carved out all these categories of people purely based on a profession, saying that they’re exempt from this law and … try to make it about training,” DeVore said Tuesday. “And if it’s about training, then every other citizen in the state should have a right to go get trained if training is, in fact, the issue.”

Judge Barry Vaughan wrote the appellate court opinion, with Judge Mark Boie concurring. Judge James Moore dissented on part of the decision.

A spokeswoman for Attorney General Kwame Raoul said the office plans to take its appeal to the Illinois Supreme Court, and will ask the high court for an expedited briefing schedule. Raoul is named as a defendant in the lawsuit, along with Pritzker, House Speaker Emanuel “Chris” Welch and Senate President Don Harmon.

A Pritzker spokeswoman said the governor “remains confident that as this case plays out, the constitutionality of the law will be upheld and Illinois will be a safer state for all.”

A hearing on DeVore’s lawsuit was still scheduled for Wednesday in Effingham County.

The Effingham County lawsuit is one of several challenges to the gun ban that include federal lawsuits that have been consolidated with the U.S. District Court in southern Illinois.

The gun ban was spurred by the mass shooting at the Fourth of July parade in Highland Park that left seven dead and dozens injured. Signed by Pritzker hours after it was passed by legislators, it immediately bans the delivery, sale, import and purchase of guns that are designated in the law as “assault weapons.”

Starting next year, people who possess guns covered by the ban must either register them with the state or face a misdemeanor for a first offense and a felony for subsequent offenses. The law also immediately bans the delivery, sale or purchase of large-capacity ammunition magazines of more than 10 rounds for long guns and 15 rounds for handguns.

As of April 10 current owners’ possession of large-capacity magazines will be allowed only at private residences, at a firing range or a sport-shooting competition, or at a federal licensed gun dealer for repairs. Violations will be subject to a $1,000 fine.

Also, devices that increase the firing rates of a firearm, known as “switches,” to turn them into semi-automatic or automatic weapons, are immediately banned and someone in possession would face a felony count for each device.

The new law also speeds up to July from January the existing requirement for universal background checks by federal firearm dealers or the Illinois State Police for private gun sales. It also modifies the state’s current “red flag” law that allows relatives and police to seek a court-approved firearm restraining order to keep guns out of the hands of dangerous people, extending the duration of the orders from six months to a year.


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