Our lawsuit challenging the Illinois semi-auto ban has just gotten more significant. On Monday June 2, the US Supreme Court (SCOTUS) declined to hear two Second Amendment cases; the Maryland “Assault Weapons" Ban and the Rhode Island’s Standard Capacity Magazine ban cases (Snope and Ocean State Tactical). Also on June 2, the 7th Circuit Court of Appeals rejected the plaintiff's appeal in the Viramontes case, a challenge to Cook County’s local “assault weapon” ban and upheld the local law, based in large part on an insufficient record from the trial court. Just days later, on June 5, SCOTUS unanimously rejected Mexico's lawsuit against Smith & Wesson, and included some great language as part of its 9-0 holding that we have already put to use.
Taken together, these decisions bode very well for a win this summer in our lawsuit against the State and PICA.
The State submitted its brief opposing our (second) win after a full trial in the district court last month. It was weak. We submitted our 7th Circuit briefs yesterday (FFL-IL, Barnett et al). The State has another kick at the can before the end of the month, then there is oral argument before a three judge panel in the 7th Circuit.
This case was conducted by the gun rights side according to the "lose fast and get to SCOTUS quickly" playbook. The panel that rejected the challenge is the same that will hear our case, but it is what they said that matters: the Viramontes plaintiffs did not develop a full record, and the court said "try harder." The "lose fast" playbook should now be discarded because it decreases the odds of SCOTUS accepting a case for review.
This decision will not hurt us because it is a non-precedential decision - meaning the court did not decide any issues other than that the complaint and record from the trial court was insufficient.
SCOTUS denied cert in this case, but three judges wrote a dissent saying SCOTUS should have taken the case, and with Justice Kavanaugh writing a separate statement (here page 18) explaining in essence that the Court is too busy to take it up right now. His statement says that the court expects to take up an AR-15 case “in the next term or two.” Our case is likely the next to get through the Circuit Court on merits, not motions, so that probably means us. We are “at-bat” so to speak.
In a unanimous decision (9-0) authored by Justice Elena Kagan (!) we got this regarding the AR15 and AK47 rifles:
"those products are both widely legal and bought by many ordinary consumers. (The AR–15 is the most popular rifle in the country." page 18.
So Justice Kagen now joins Justice Sotomayor in acknowledging, in a precedential decision, that these rifles are widely owned and used for lawful purposes. That’s a fact the state has contested. Reminder: the Heller Test, the standard by which all of these "Assault Weapons" bans are being challenged, affirms that arms in common use for lawful purposes are constitutionally protected and may not be banned.
The State's argument is that the rifles banned by the Illinois law (and similar laws in other states) and the attachments, magazines, and accessories are Extra-Super-Dooper dangerous and used by the military so civilians shouldn’t be allowed to own them. Justice Kagan shot down that argument too. So the state’s arguments shouldn't be persuasive under the Heller and Bruen standards mandated by SCOTUS.
Our brief adopts the Heller and 2A arguments of the other plaintiffs, but we further call out the registry and parts ban as additionally being constitutionally disallowed. We won on those claims, unique to our lawsuit, in the District Court after a full blown trial.
Severability in a public act means that if parts of the Act are found unconstitutional, the remainder may be severed from the problem section and remain in force. The State did write severability into PICA, but it is unimaginable how any part of this Act could be carved out without sinking the rest.
We have the fullest record, a strong opinion, 165 pages worth, in our District Court win, and we look forward to defeating the state again in the 7th Circuit.
We expect:
Watch this blog for updates as soon as we get them. We will communicate any changes as quickly as possible.
The Illinois Gun Dealers, Wholesalers, and Manufacturers, alongside concerned citizens from Illinois and elsewhere have been extraordinarily generous in their support of this litigation. This is a must-win, and litigating through CA7 and on to SCOTUS is seriously expensive.
Please support our efforts through FFL-IL if you are able to at the donation links below. Thank you!
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