Anti Gun Rights Groups Held At Bay In Court's "Assault Weapons" Decision

  

Illinois Supreme Court Justices


The lawsuit filed by Matthew D. Wilson, Troy Edhlund, and Joseph Messineo,

against the Cook County, Illinois “Assault weapons” ban, has survived a motion

for dismissal in the Illinois Supreme Court and was sent back to the trial Court

for further proceedings. It was filed to challenge the Blair Holt

“Assault weapons ban’s constitutionality. 

A spokesperson for the three men said that this was a victory for them

because the Illinois Court kept the case alive. It was a unanimous decision
by the seven Justices. The three men have won a battle; however, a war still lies 
ahead. But, there may be a proverbial light at the end of the tunnel
for "black"guns in Illinois. 

A reading of the opinion shows that the case was sent back to the lower

Court because the Illinois Supreme Court felt that it didn’t have enough

on the existing trial record of the lower Court proceedings to rule on the

argument in the case. This is hardly a victory for the anti gun rights groups 
hoping for an outright upholding of the ban.

The Ordinance is a typical Chicago style oppressive anti gun measure  
Here is the Ordinance and what the Court said about  it.


The ordinance prohibits "the sale, transfer, acquisition, ownership,

or possession of “assault weapons as "defined by a specific list of 60

rifles and pistols designated by model name or type, and “assault

ammunition,” including any ammunition magazine having a capacity

of  more  than  12  rounds  of  ammunition." 1  

"The Cook County Commissioners proposed and passed the ordinance in 1993

for 3 purported reasons:

1) easy access to firearms and ammunition had become a concern of

public health, safety and welfare for the citizens of Cook County;
(2) assault  weapons  were  20  times  more  likely to  be  used  in  the

commission of a crime than other kinds of weapons; and
(3) there was  “no legitimate sporting  purpose for the military style  assault

weapons being used on the streets.”The ordinance also contained a

Laundry list of dozens of “attributes” of an “assault weapon.” 1

It was shortly followed by the Clinton AWB that expired in 2004. "The

2006 revised County ordinance also prohibits the possession of

large capacity magazines with the capacity to accept more  than  10

rounds  of  ammunition." 2   

"Under its provisions, a person  who prior  to  the  enactment, lawfully

possessed  assault weapons or large capacity magazines, had 90 days

from the effective date to surrender the weapons to the sheriff, to

remove the weapons from the county, or to modify the weapons to

render them inoperable or  no  longer  defined  as  an  assault  weapon. 

Violation  of  the Ordinance  is  punishable  by imprisonment  for  not 

more  than six months  and by a fine between $500  and $1,000." 1

The trio challenged the law in several respects. The only challenge that the

Court accepted was a Second Amendment challenge based on McDonald

and Heller.

The Illinois high Court cited the 2008 decision in District of Columbia v. Heller

where "a  five  justice  majority of  the  Supreme  Court  expressly

recognized,  in  its  first  “in-depth  examination,”  that  the  second

amendment confers an individual right to keep and bear arms (id. at

592), and that the “central component of the right” is the right of

armed self-defense, most notably in the home." 2

These men argued that the County’s ban on assault weapons as

defined in the Ordinance violates the second amendment right to bear

arms. The second amendment provides: “A well regulated Militia,

being necessary to the security of a free State, the right of the people

to keep and bear Arms, shall not be infringed" 2

.

Based on this interpretation, the US Supreme Court "invalidated the District of

Columbia’s complete prohibition on handguns in the home by law abiding

 citizens, and invalidated its requirement that all firearms in the home be

kept inoperable." 1

"The US Supreme Court majority found that

“under any of  the standards  of scrutiny the Court  has  applied  to

enumerated constitutional rights” a prohibition on all handguns was

a ban on “an entire class of ‘arms’ that is overwhelmingly chosen by

American society for [the] lawful purpose” of self-defense and that

a complete prohibition on their use was invalid. The Court

explained  that  “whatever else [the second  amendment]  leaves  to

future evaluation, it surely elevates above all other interests the right

of law-abiding, responsible citizens to use arms in defense of hearth

and home.”  1 


But the Illinois Court also said “Nevertheless, the Supreme

Court held that the scope of the right is not without limitations. The Court

made clear that “Like most rights, the right secured by the Second

Amendment is not unlimited.” 1

"The US Supreme Court additionally attempted to sketch out a non

exhaustive list  of  “presumptively lawful  regulatory measures,”  including

“longstanding prohibitions  on  the  possession  of firearms  by

felons and the mentally ill, or laws forbidding the carrying of firearms

in sensitive places such as schools and government buildings, or laws

imposing conditions  and qualifications on the commercial sale of

arms.” 1

"Thereafter, the US Supreme Court revisited the second amendment

in McDonald v. City of Chicago,where The US Supreme Court 

reiterated  its  central holding  in  Heller “that  the  Second Amendment

protects the right to possess a handgun in the home for

the purpose of self-defense. Additionally, that Court reiterated

that the second amendment right was far from absolute and noted that

the doctrine of incorporation “does not imperil every law regulating

firearms." 1

"Since  Heller and McDonald, courts have generally followed a two-pronged

approach.The threshold question we must consider is whether the

challengedlaw imposes  a  burden on  conduct falling within the

scope of thesecond amendment guarantee. That inquiry involves a textual and

historical inquiry to determine whether the conduct was understood

to be within the scope of the right at the time of ratification.

If the  government  can  establish  that  the  challenged  law  regulates

activity falling outside the scope of the second amendment right, then the

regulated activity is categorically unprotected." 1

"However, if the historical evidence is inconclusive or suggests

that the regulated activity is not categorically unprotected—then there

must  be  a  second  inquiry into  the  strength  of  the  government’s

justification  for  restricting  or  regulating  the  exercise  of  Second

Amendment  rights.” 1

"The second amendment categorically protects the right of

law-abiding  citizens  to  possess  a  handgun,  particularly for

self  defense in the home, because handguns are a class of arms that the

Supreme Court has found are “overwhelmingly” chosen by American

society for the lawful purpose of self-defense. Unlike the District of

Columbia handgun ban, the Illinois Court could not say

as a matter of law that the Ordinance  purports to prohibit  an  entire 

class  of  arms  that  is overwhelmingly chosen by American society

for self-defense in the home." 1

The Illinois Court said, The Ordinance is not an absolute ban on the

possession of all rifles, shotguns, or pistols for self-defense. Nor is

 it a complete ban on all semiautomatic firearms. Instead, it covers

a particular subset of these weapons with  particular  characteristics

that the County has determined make them capable of firing rapidly,

delivering a large number  of  shots  without  reloading,  and  creating

a  high  risk  of collateral damage." 1

"The Court in Heller had no reason to consider regulation of these particular

types of firearms with these particular attributes." 1

The State Court noted that, "It can’t be said  be said with any certainty,

unlike in Heller, that assault weapons, as defined  under the Ordinance, 

are the  “quintessential weapon of choice” for self-defense by Americans.

At least some of these types of weapons were banned for 10 years under

federal law and  have  been  banned  in  some  degree by numerous  states

andmunicipalities, albeit without any uniform definition." 1

"In 1994, the federal Bureau of Alcohol,

Tobacco, Firearms and Explosives characterized assault weapons as

“mass produced mayhem” and weapons of choice for gangs, drug

dealers, and mass killers to outgun police officers on the streets." 1

"The ATF, Congress, and the County have concluded that

assault weapons under varied definitions have no “sporting purpose.

The Illinois Court also couldn’t say conclusively at this early stage of the

litigation that assault weapons as defined in this Ordinance categorically fall 

outside  the scope  of the rights protected  by the second  amendment. 

Heller explicitly recognized  a  historical  and

long-standing tradition of firearms regulations prohibiting a category

of “dangerous and unusual weapons” that are “not typically possessed

by law-abiding citizens for lawful purposes.” Historically, weapons

like machine guns, sawed-off shotguns, grenade launchers, and other

high-powered weapons have fallen into this  category due to their

extreme nature." 1

"Both parties argue that the dangers of assault weapons as

defined by the reach of this Ordinance, and want to debate whether

these types of arms are appropriate for self-defense and whether these

types of prohibited weapons under the Ordinance are well suited to

the  core lawful  purpose  as  expressed  in  Heller." 1  

The three men "want to  present evidence to

support their allegation that this particular Ordinance

encompasses a myriad of weapons that are typically

possessed by law-abiding citizens for lawful purposes

and fall outside the scope of the dangers sought to be

protected under the Ordinance." 1

The Court concluded that, "Without a national uniform

definition of assault weapons from which to judge

these weapons, it cannot be ascertained at this

stage of the proceedings whether these arms with

these particular attributes as defined in this Ordinance

are well suited for self-defense or sport or would be

outweighed completely by the collateral damage

resulting from their use, making them “dangerous and

decided that this  question  requires them  to  engage  in  
an empirical inquiry beyond the scope

of the record  and  beyond the scope of judicial  notice 

about the  nature of the weapons that  are

banned  under  this  Ordinance  and  the  dangers  of  these

particular weapons." 1

Given the procedural posture of this case, the Court would "not choose

to make a second Amendment decision at this time. Unlike other cases,

the Court here had a minimal legislative record to review and didn’t

want to make assumptions without first attempting to ascertain relevant facts.

Their deference to a legislative finding is a balancing of competing interests." 

1. IN THE SUPREME COURT OF THE STATE OF ILLINOIS 
(Docket No. 112026)
MATTHEW D. WILSON et al., Appellants, v. THE COUNTY OF
COOK et al., Appellees.
Opinion filed April 5, 2012.

2. DISTRICT OF COLUMBIA ET AL. v. HELLER