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Gun ban plaintiffs: 'Constitutional rights are not extinguished by hyperbole'

Illinois enacted a ban on more than 170 semi-automatic guns and magazines over 15 rounds for handguns and 10 for rifles.

March 24, 2023 6:10pm

Updated: March 24, 2023 11:41pm

The final scheduled filings have been made in the Southern District of Illinois federal courts in the consolidated challenge of Illinois’ gun and magazine ban. The next key date is oral arguments next month.

The state enacted a ban on more than 170 semi-automatic guns and magazines over 15 rounds for handguns and 10 for rifles. There’s also a registry that opens in October with a Jan. 1 deadline, or gun owners face criminal penalties.

Four plaintiff groups sued in federal court. The cases challenging the ban on Second Amendment grounds were consolidated. Thursday, the plaintiff groups filed their responses to the state’s position that the law will stand constitutional muster.

The separate filings are in the Barnett case, the Caleb case, the Langley case and the Federal Firearms Licensees of Illinois case.

Gun-rights advocate Todd Vandermyde has been counseling the gun store owners’ group and argues the state has it all wrong.

“They keep trying to interject interest balancing and these important governmental interests and emotion into what’s a purely legal question, does the plain text of the Second Amendment and the rulings from four [U.S. Supreme Court] rulings stop this ban in its tracks,” Vandermyde told The Center Square.

In the Barnett case, the plaintiffs argue among other claims that Illinois’ ban includes “arms” that "shall not be infringed," a violation of the Second Amendment.

In the Langley case, which was the first state-level case to be filed only to later be transferred to federal court, the plaintiffs argue “constitutional rights are not extinguished by hyperbole.”

The FFL IL plaintiffs allege the state’s reliance on 20th century machine gun laws is “unpersuasive and factually wrong.”

The Caleb defendants argue “whether a particular type of bearable arm is ‘necessary for self-defense’ is irrelevant.”

Oral arguments are set for April 12 in the Southern District of Illinois federal courts. It’s unclear when a ruling on a preliminary injunction to possibly block the law pending further action would happen.

In the Northern District of Illinois federal court, the state was admonished by a federal judge in a recent docket entry. In that case, the McHenry state’s attorney brought a challenge to the state’s gun ban in state-level court, but the case was transferred to federal court.

“The defendants removed this case, then moved for judgment on the pleadings based on lack of standing … They have now filed a notice of withdrawal of their motion for judgment on the pleadings based on their conclusion that the federal courts lack jurisdiction over this case, the case they removed to federal court. … So what is it? Do the defendants believe this Court has jurisdiction (which is the only basis to remove it here) or do the defendants believe this Court lacks jurisdiction because the plaintiff lacks standing? Pick one and be prepared to tell the Court why,” wrote Federal Judge Iain D. Johnston. “And if the answer is the Court lacks jurisdiction, be prepared to tell the Court why the case was removed to this Court.”

The judge went on to remind the state the taxpayer cost of the ongoing proceedings.

“Perhaps the judicial resources already expended could have been avoided had the defendants complied with this Court's standing order on Removed Cases, specifically the unheeded requirement that in ‘any action removed to this Court, within 7 business days, defense counsel must also file a certification that they have read this standing order,’” Johnston wrote. “The parties are directed to review the standing order if they have not already done so, including the warnings about summary remands, awards of costs, and sanctions for the unnecessary use of the Court's time to be paid personally by counsel.”

Friday, the state responded to the McHenry County state’s attorney’s challenge with a reply similar to the reply it provided in the consolidated Southern District challenge.

Separately, the state has filed its response to the state-level challenge of Illinois’ gun ban to be heard in the Illinois Supreme Court.

The Macon County case against Illinois’ gun ban brought by state Rep. Dan Caulkins, R-Decatur, is set for a mid-May hearing at the Illinois Supreme Court. The state argues the measure doesn’t violate equal protections as Caulkins alleges. Caulkins says that because the gun ban exempts those in the law enforcement and security professions, others' equal protections rights are violated.

The plaintiffs are set to respond April 13 with a state reply by April 27. Oral arguments are expected mid-May.

Separately, the state tried to hold proceedings in the consolidated state-level challenges brought by attorney Thomas DeVore. An Effingham County judge denied that motion. DeVore said the cases are different because he’s seeking evidence from legislative leaders and the governor about how the measure was negotiated and passed into law.

“The judge seemed pretty clear when he’s saying, ‘I’m not staying this case because of discovery requests,’ that he’s not then going to disallow that discovery because it would be contradictory to the logic he employed when he denied their stay,” DeVore told The Center Square.

DeVore’s cases have a May 4th hearing in Effingham County court.

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