Federal appeals court weighs constitutionality of Illinois’ gun ban

A three-judge panel of a federal appeals court is now deciding whether state and local bans on guns and high-capacity magazines are constitutional.

In a case that is being closely watched throughout the country – and one many believe is almost certain to end up before the U.S. Supreme Court – the judges on the Seventh Circuit Court of Appeals are being asked to decide whether Illinois’ recently enacted gun ban violates the Second Amendment’s right to bear arms.

In April, a district court judge in East St. Louis sided with gun rights groups in ruling that it does and issued injunction blocking the state from enforcing the law. But the Seventh Circuit Court of Appeals quickly halted that order. Meanwhile, two different district court judges in Chicago have reached the opposite conclusion and declined to grant injunctions blocking enforcement of the law.

Now, the Seventh Circuit is hearing a consolidated appeal of all those cases, which also include challenges to similar assault weapon bans enacted locally in Chicago, Naperville, and Cook County.

Kris Brown, president of Brady, a gun control advocacy group that filed a friend-of-the-court brief in the case, said in an interview Thursday that a lot is at stake in the outcome of the case.

“A reasonable public safety-oriented interpretation of the Second Amendment is certainly at stake,” she said. “And specifically, obviously, a movement that Brady has long been a part of, to facilitate states and localities from enacting public safety measures, including assault weapons bans. And that’s particularly what’s at stake here, not just for Illinois but for other states as well.”

Thursday’s oral arguments came just days ahead of the one-year anniversary of the mass shooting at an Independence Day parade in Highland Park that left seven people dead and dozens more injured or traumatized. That was the event that prompted the city of Naperville and the state of Illinois to enact their bans.

Last year’s mass shooting in Highland Park, however, occurred just a few days after the U.S. Supreme Court struck down a New York state law restricting the right to carry concealed firearms, holding that such restrictions must be consistent with the nation’s “historical tradition” of firearm regulations.

While the standards laid out in that case were often referenced in Thursday’s arguments, Judge Frank Easterbrook, one of the three judges overseeing these cases, quickly dispelled any notion that the Supreme Court’s decision in New York State Rifle & Pistol Association v. Bruen settled the question of banning “assault weapons.”

“Bruen confronted the question in Bruen, which had nothing to do with arms like the AR-15,” Easterbrook said. “...We’ve got a hard question and I don’t think we can duck it.”

In briefs filed with the court, attorneys challenging the assault weapons restrictions argued that the ruling in the New York case should apply because the weapons banned under the laws are owned by “literally millions of law-abiding citizens for lawful purposes.”

They also argued that there is no historical precedent dating back to the founding of the Constitution for an absolute ban on an entire category of such weapons.

But Attorney General Kwame Raoul’s office, which is defending both the state and local laws, argued that the types of weapons banned for sale under Illinois’ law are not in “common use.” The deputy solicitor general arguing the case cited statistics showing only 6.4 million Americans – or less than 2 percent of all Americans – own AR-style rifles and that the 24 million AR-style rifles in circulation account for only 5 percent of all firearms in circulation.

Both sides’ reliance on a weapon’s “common use” was questioned by judges during oral arguments.

“It’s very troublesome to have a popularity contest determine a constitutional principle,” Judge Diane Wood said.

Easterbrook also called relying on a weapons’ historical availability or popularity an “anachronism,” saying that a weapon being banned or not banned creates a “self-fulfilling prophecy” for common use.

The state argued in its briefs that there couldn’t be a direct historical precedent for an assault weapon ban because those weapons did not exist at the time the Constitution was drafted. But it said there is a tradition that predates the founding of the Constitution in which the government steps in to regulate new categories of weapons that cause escalating or novel forms of violence.

Judges also questioned lawyers about the potential constitutionality of bans on other types of weapons, such as rocket launchers, machine guns, repeating rifles and grenades. Differentiating between similar arms – such as semi-automatic weapons like the AR-15 and the closely related, but fully automatic, M16 – was a central point of the back and forth between judges and lawyers.

“We have a sorting job where nuclear weapons are on one side of the sort and handguns are on the other side of the sort,” Wood said.

The Democratically controlled General Assembly passed the statewide ban during its lame duck session in January, making Illinois the ninth state to enact such a ban. A few months later, Washington state became the 10th.

So far, none of those laws has been overturned, but the challenges to the Illinois laws are being closely watched around the country. National gun rights organizations as well as gun control advocates have filed friend-of-the-court briefs, as did Republican attorneys general from 22 states.

Capitol News Illinois is a nonprofit, nonpartisan news service covering state government and distributed to more than 400 newspapers statewide. It is funded primarily by the Illinois Press Foundation and the Robert R. McCormick Foundation.