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
