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Breaking News in Illinois on “Assault Weapons”

The Illinois Supreme Court issued an opinion in the case challenging the Cook County ban on “assault weapons.” Word has it that the just released opinion remands on equal protection and due process grounds. No word whether the Second Amendment is involved yet. Looks like a punt. More to come as it comes. Check this post for updates.

UPDATE: Opinion here. The case remands on Second Amendment grounds, but upholds the dismissal for due process and equal protection. From the summary:

However, as to the second amendment issue, the supreme court took a different view. At this early stage of the litigation, in the procedural posture of this case, it cannot be said conclusively whether “assault weapons” as defined by the ordinance fall within or outside the scope of the rights protected by the second amendment. This question requires an empirical inquiry that goes beyond the scope of both the record in the current litigation and judicial notice. The supreme court said that, at this point in the lawsuit, it cannot be said that no set of facts can be proved that would entitle the plaintiffs to relief. Neither has the County had an opportunity to present evidence to justify a nexus between the ordinance and the governmental interest it seeks to protect. Therefore, the circuit court’s dismissal of the complaint count based on the second amendment was improper and was reversed, as was that part of the appellate court’s judgment which affirmed the dismissal.

Pretty much a punt on the Second Amendment issue. They essentially remand the case back to lower court to undergo a trial. This is a small win, given that the lower court originally approved Cook County’s motion to dismiss.

UPDATE: From the Chicago Tribune. I should note that I am not optimistic about success with assault weapons bans as things stand right now. The judiciary is quite hostile to gun rights just generally. I think the odds of finding judges to strike down bans on scary looking guns is long.

7 Responses to “Breaking News in Illinois on “Assault Weapons””

  1. PT says:

    And they will use rational basis for evaluating scary assault weapons, and rule them icky and not pleasant.

  2. Mike says:

    No, it affirms the dismissal of the equal protection/due process claims but remands on the issue of the 2nd Amendment.

  3. Harold says:

    Someone, I thought it was David Kopel but if so he’s so prolific I haven’t been able to find it again, surveyed the history of Federal judges and “assault weapons” and found it to be uniformly negative or thereabouts. He predicted we would find little joy in this area post-Heller (as I recall).

    We’ll see; the culture is changing in our favor….

  4. Ian Argent says:

    It’ll be interesting, considering the “in common use” language in Heller and the immense popularity of the AR-15. Also, since many AWB ban common pistols based on magazine size…

  5. Texas Colt carry says:

    I had read another news article on this subject where one of the anti’s was quoted “You dont have a constitutional right to carry a AK47″. I thought to myself, REALLY! I have read the second amendment over and over and NOWHERE do I find any limitation on a “type” of arm that can be owned or carried. So in fact, you DO have the right to an AK47 or any other firearm and is held by the constitution.

    I do understand the limitation placed by federal agencies on “assault” weapons, but those are full auto. Not because of what they look like. And you still have a right to own a full auto, if you qualify legally to own one. IF you really want to jump thru all the hoops needed to own such a thing.

    Judges, whether hostil to firearm ownership or not, needs to RULE of the constitutionality of the lawsuit or laws enforced. Not their personal opinions. Or make law from the bench!

  6. It isn’t quite a punt. The decision tells the lower court to reconsider based on “in common use” and whether the ban can be justified based on public safety needs as the ordinance required it. This means that “because we say it’s needed for public safety” isn’t enough. See http://claytonecramer.blogspot.com/2012/04/illinois-supreme-court-chicago-assault.html for those who can stand to read my blog.

  7. Todd says:

    Every day in the fight I learn something new.

    Today the Court returned Wilson v. Cook County to the trail court ruling that they court was wrong to dismiss the complaint without a hearing and taking evidence.

    When this got to the Appellate Court, the Court took off on a long winded diatribe against the 2 Amendment. It then went to the Supreme Court where they sat on it awaiting the outcome of McDonald. Once delivered, the remanded back to the Appellate Court to try again. Again the Court took off on an anti-Second Amendment screed. That became the distraction.

    The whole case was really about the 2-615 motion. But we didn’t want to not brief the other possible issues. And then with the orals on Wilson, the Court dove into a look at the Second Amendment and some of the issues present by the case.
    Justice Freeman’s first question certainly set a tone and provided a false lead for where things might go. Only Justice Thies really stuck to the issue at hand. And she wrote the opinion which was joined by all the other judges, with no separate opinions.

    At the time this case was started, Heller had not been accepted for cert. There was very little Second Amendment jurisprudence and hence the void for vagueness, due process and equal protection claims. Once Heller came out, the Appellate Court pivoted and tossed out the rabbit we all chased until today.
    The fact is all of that was a dress rehearsal for what is about to come. Now we get to build a record of why the County is wrong and why we are right.

    I think the Court did us a favor by tossing the vagueness part out. The Court said:

    “When the Ordinance is read as a whole, reference to section 54-211(1) through
    (6) would also put an individual on notice whether a particular
    weapon is banned based on the specific characteristics of the weapon.”

    The single feature test of the ban scoops up a lot of guns. That makes the ban much broader than the Clinton gun ban. And easier to defeat at the end of the day.

    I am told that some from the Cook County SA office watch this blog for comments and things I say so I won’t go into a lot of detail at this point. But suffice it to say, we get to argue all the points. And I think that the Court over the past few months and with this decision has given us a road map to follow. A very well defined map of the issues at hand. And today was no exception to that.

    I would also add that Justice Thies is what I would consider the worst possible draw for us on an opinion. And while she may have tipped her hand a bit, this was the best they could do. As a guess. Maybe I’m reading to much into it, but they didn’t seem to have the votes it to drop kick up through the goal posts. And maybe some of the ones on our side of the issue, show more restraint.

    But today we won. The Court refused to summarily dismiss a challenge to a semi-auto ban. They recognized a valid Second Amendment complaint existed. Cook sought to have this ruled on as a legitimate part of their legislative powers, which was not upheld. But they did live to fight another day.

    The Court already tossed out rational basis. So now we will fight over the standard of review. We will fight over “in common use”, “dangerous or unusual” as well has a host of other things. It is going to make for a very long record, which we know will end up back in front of the Illinois Supreme Court.
    And based upon Chicago’s handling of Ezell, and the Counties handling of Diggins, Holmes and Wilson, I know who has the better arguments and case to present.

    As to the Wildlife Code and the preemption argument, I here there is some debate about that at the County. And now they will have to face it head on, with the real prospect, that it could gut their precious ban. I was a bit surprised that they did not address it, but they didn’t have to. They decided on the 2-615 motion, agreed that there was a 2A challenge at hand and that was all the further they really need to go. They had dealt with the due process, equal protection and vagueness charges, thus laying out how they think the claims should proceed.

    But they left it wide open for us to challenge and debate.

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