The Illinois Supreme Court heard arguments Tuesday in the state’s appeal of a downstate judge’s ruling that temporarily struck down the state’s sweeping gun ban, which faces numerous legal challenges in both state and federal court.
Macon County Judge Rodney Forbes in late April found that the ban caused an “irreparable harm” by denying plaintiffs in the lawsuit led by state Rep. Dan Caulkins the ability to “purchase their firearm of choice” and “exercise their right to self-defense in the manner they choose.”
Before the high court on Tuesday, though, Jerry Stocks, an attorney for Caulkins and the other plaintiffs, argued the ban violates the Second Amendment of the U.S. Constitution.
Lawyers for Attorney General Kwame Raoul’s office contended that argument does not apply to this case because the lawsuit claims only that the gun ban violates the equal protection and special legislation clauses of the Illinois Constitution.
Chief Justice Mary Jane Theis appeared to push back on Stocks’ use of the Second Amendment, suggesting that he could’ve filed his lawsuit in federal court and consolidated it with other cases that have presented Second Amendment challenges to the weapons ban.
“You chose to shape it in a different way upon special legislation and equal protection. It’s a much different analysis,” Theis told Stocks.
“You cannot even begin to address the grounds that are in this complaint without addressing and finding what the Second Amendment says in this case,” Stocks replied.
Caulkins’ lawsuit alleges the ban violates the Illinois Constitution’s clause requiring that state laws should be applied equally to all citizens. Stocks argued the gun ban is not applied equally because it includes exemptions for groups including police officers, military personnel and prison wardens, as well as those who already owned the prohibited guns prior to the ban. Those gun owners can keep those firearms but are now required to register them with the Illinois State Police.
Stocks argued it’s improper to allow the “grandfathered” gun owners to own the prohibited firearms but to not allow anyone to purchase those guns after Pritzker signed the measure into law in January.
All citizens “have the fundamental, individual right to keep and bear arms” in their homes for self-defense, Stocks said. “The Second Amendment elevates above all interests.”
Aside from arguing that the Second Amendment issue raised by Stocks should be voided because it’s not in his lawsuit, Raoul’s office told the court that the plaintiffs have failed to prove the weapons ban violated the state constitution.
To prove the equal protection clause was violated by the ban, the lawsuit would have to show that Caulkins and the other plaintiffs are “similarly situated,” or alike, as are the specifically defined groups exempted from the weapons ban, the state argued.
“Members of the general public are not similarly situated to those (exempted under the law) because members of (the exempted groups) are sort of presumed to exercise greater responsibility in the safe handling and storage of firearms,” Assistant Attorney General Leigh Jahnig said.
“The reason that this court has identified the similarly situated requirement as a threshold element of an equal protection claim is because the legislature is permitted to treat unlike groups differently under the statute,” Jahnig said.
It could be months before the state Supreme Court issues its ruling on the state’s appeal.
The equal protection argument referenced in the Macon County ruling in some ways mirrored earlier state circuit and appellate court rulings that temporarily lifted the ban for hundreds of plaintiffs in legal challenges brought by unsuccessful Republican attorney general candidate Thomas DeVore.
Federal challenges to the ban argue the gun ban revolves largely around the Second Amendment argument. In one of those cases, a federal judge in East St. Louis granted a preliminary injunction to temporarily block enforcement of the ban, only for that ruling to be overturned by the Chicago-based U.S. 7th Circuit Court of Appeals six days later.
With that ruling from earlier this month, the ban appears to still be in effect for the time being.
A pro-gun rights plaintiff in one of the other federal cases, though, has asked the U.S. Supreme Court to overturn a 7th Circuit Court of Appeals ruling that denied a request for an injunction on the ban. The U.S. Supreme Court has not yet said how it intends to respond to that request.
Passed by the Democratic-controlled state legislature in early January and quickly signed by Gov. J.B. Pritzker, the gun ban was a response to last year’s mass shooting at the Fourth of July parade in Highland Park. The law immediately prohibited the delivery, sale, import and purchase of more than 100 guns that are designated in the law as “assault weapons.”
It also banned magazines capable of holding more than 15 rounds of ammunition for handguns, and more than 10 for semi-automatic rifles. By next year, people who possess guns covered by the ban must have either registered them with the state police or face a misdemeanor for a first offense and a felony for subsequent offenses.
After Tuesday’s hearing, Raoul was asked whether it was defensible for people who already owned the guns covered by the ban to keep them even while others cannot acquire such firearms.
“Yeah, under a rational basis test, we’re trying to keep people safe,” said Raoul. “We’ve had people use these types of weapons to commit mass shootings and there’s a rational basis to say that we don’t want a proliferation of assault weapons out there because we’re losing lives right here in the state of Illinois.”
Stocks was asked why he didn’t file the lawsuit in federal court, as Theis suggested.
“There are unique attributes to this case that only our Illinois Supreme Court can rule upon and there are the Second Amendment values or principles that federal and state courts have concurrent jurisdiction (over),” he said.
Also on Tuesday morning, the national gun safety activist group Moms Demand Action held a rally outside the Illinois Capitol to fight for more gun control measures, including one proposal that would allow law enforcement to confiscate guns from suspected domestic abusers.
Supporters of the group wrote chalk messages on the sidewalk outside the Illinois Supreme Court building, across from the Capitol, that read, “IT’S The GUNS” and “CHILDREN OVER GUNS.”
“We see tragedy every day in the news and in our communities and we know that we have to mobilize,” Lauren Harper, a volunteer with the group’s Illinois chapter, told a couple of hundred supporters by the Abraham Lincoln statue in front of the Capitol. “We cannot afford to wait for the gun industry to hold itself accountable for its recklessness.”
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