Illinois Just Banned 'Assault Weapons' Because Their 'Only Intent' Is Mass Murder
The law is hard to defend on logical, practical, or constitutional grounds.
This week Illinois became the ninth state to ban "assault weapons." What are those? Gov. J.B. Pritzker's triumphant press release about the new law does not say, because the explanation would reveal the futility of trying to reduce gun violence through arbitrary restrictions that leave mass murderers and other criminals with plenty of equally lethal alternatives.
In Pritzker's press release, Illinois House Speaker Chris Welch (D–Westchester) describes the guns targeted by H.B. 5471, a.k.a. the Protect Illinois Communities Act, as "weapons of war." That phrase suggests Welch is talking about selective-fire rifles like those carried by U.S. soldiers, which can fire automatically.
That is clearly not true. Such rifles are strictly regulated under federal law, which has forbidden sales of newly manufactured machine guns to civilians since 1986. H.B. 5471 does not deal with machine guns; it deals with semi-automatic firearms, which fire one round per trigger pull.
"This new law begins the pushback against weapons whose only intent is to eviscerate other human beings," says Illinois Senate President Don Harmon (D–Oak Park). That claim is harder to check, because it is not clear what Harmon means.
Harmon's attribution of "intent" to inanimate objects implies that certain kinds of guns are inherently malevolent. According to this view, the firearms that Illinois has banned are not tools that can be used for good or ill but forces of evil that must be eradicated.
Based on the references to mass shootings that surround Harmon's statement, we can infer that he means "assault weapons" are suitable only for killing innocent people. But that also is clearly not true, since Americans own some 20 million rifles that fall into that legislatively defined category, and only a tiny percentage of them are ever used in homicides.
Handguns account for a large majority of firearms used in mass shootings, and they account for an even larger share of weapons used in all gun homicides: more than 90 percent in cases where the type of firearm was specified, according to the FBI's numbers. Rifles of any sort, only a subset of which would qualify as "assault weapons," were used in less than 3 percent of those cases.
In a 2021 survey, 30 percent of gun owners said they had bought rifles that are covered by the Illinois ban. Two-thirds of those "assault weapon" owners said they used them for recreational target shooting, while half mentioned hunting and a third mentioned competitive shooting. Sixty-two percent said they used the rifles for home defense, and 35 percent cited defense outside the home.
Even as Illinois legislators insist that "assault weapons" are good for nothing but mass murder, they acknowledge that the guns they damn have legitimate uses. H.B. 5471 allows current owners of these allegedly intolerable firearms to keep them, provided they register the guns with the state police.
Since unauthorized possession of an "assault weapon" is a Class A misdemeanor, punishable by up to 364 days in jail and a $2,500 fine, Illinois gun owners might want to find out if that registration requirement applies to them. They would be ill-advised to assume it does not simply because they do not own "weapons of war" or because they do not think their firearms harbor a homicidal "intent." Instead they must consult the legal definition of "assault weapon," which does not hinge on either of those fanciful factors.
H.B. 5471 emulates the approach embodied in the federal "assault weapon" ban that the House of Representatives approved last July. It applies to a long list of specific models, along with firearms that meet certain criteria. A semi-automatic rifle qualifies as an "assault weapon," for example, if it accepts detachable magazines and has any of six features:
1) "a pistol grip or thumbhole stock";
2) "any feature capable of functioning as a protruding grip that can be held by the non-trigger hand";
3) "a folding, telescoping, thumbhole, or detachable stock, or a stock that is otherwise foldable or adjustable in a manner that operates to reduce the length, size, or any other dimension, or otherwise enhances the concealability of, the weapon";
4) "a flash suppressor";
5) "a grenade launcher"; or
6) "a shroud attached to the barrel or that partially or completely encircles the barrel, allowing the bearer to hold the firearm with the non-trigger hand without being burned, but excluding a slide that encloses the barrel."
Since federal law prohibits civilian possession of military grenades, the practical impact of banning that fifth feature seems doubtful. Likewise with the other prohibited features, which may be useful in certain contexts but are by no means essential for mass murder. With or without a pistol grip, protruding grip, folding or adjustable stock, flash suppressor, or barrel shroud, a rifle fires the same ammunition at the same rate with the same muzzle velocity.
Removing those features makes little practical difference for someone bent on murder, although it may incommode law-abiding gun owners who, say, value the convenience of a folding stock, the versatility of an adjustable stock for shooters of different sizes, or the usefulness of flash suppressors in some hunting situations. Most mass murderers do not use guns with these features, and those who do surely could find suitable alternatives even if the government managed to eliminate "assault weapons," which H.B. 5471 does not purport to do.
By enacting "the strongest assault weapons ban in the nation," state Rep. La Shawn K. Ford (D–Chicago) says, Illinois is "sending the message that lives are valued over guns." Sending that message evidently was more important than crafting legislation that could reasonably be expected to improve public safety.
H.B. 5471 also imposes limits on magazine capacity: 10 rounds for rifles and 15 rounds for handguns. The rationale for those limits is that mass shooters who need to switch magazines more often will end up killing fewer people. That assumption is more plausible than the expectation that prohibiting features such as pistol grips, folding stocks, and barrel shrouds will have a meaningful impact on mass shootings. But "large capacity ammunition feeding device[s]," like "assault weapons," are very popular with law-abiding gun owners, who seem to think they are useful for noncriminal purposes.
In the 2021 survey of gun owners, about half of the respondents said they had owned magazines that can hold more than 10 rounds, which come standard with many of the biggest-selling rifles and pistols. Like the "assault weapon" owners, they cited a variety of lawful uses. Recreational target shooting (64 percent) was the most common, followed by home defense (62 percent), hunting (47 percent), defense outside the home (42 percent), and competitive shooting (27 percent).
If the need to switch magazines can make an important difference during a mass shooting, it also can make an important difference in self-defense situations, especially since people may face multiple attackers and most rounds fired in self-defense, even by trained police officers, miss the target. The authors of H.B. 5471 implicitly acknowledged that reality in two ways: They exempted police officers, and they set a higher limit for handguns, which the Supreme Court has called "the quintessential self-defense weapon."
Speaking of the Supreme Court, how is H.B. 5471 likely to fare against the inevitable constitutional challenges? In the 2008 case District of Columbia v. Heller, the Court said the Second Amendment covers arms "in common use" for "lawful purposes," a description that plainly applies to the guns and magazines that Illinois has banned. Last year in New York State Rifle & Pistol Association v. Bruen, the justices said gun control laws must be "consistent with this Nation's historical tradition of firearm regulation."
After Bruen, the Court vacated four appeals court decisions upholding state bans on "assault weapons" and "large capacity" magazines. It instructed the lower courts to reconsider those cases in light of Bruen. The Firearms Policy Coalition and other gun rights groups argue that "assault weapon" bans and magazine limits clearly fail the Bruen test.
Last July, U.S. District Judge Raymond P. Moore issued a temporary restraining order against a Superior, Colorado, "assault weapon" ban. He noted evidence that the firearms covered by Superior's law "are commonly used by law-abiding citizens for lawful purposes," which means "the right to possess, sell, or transfer" those guns is "presumptively protected."
Moore said the burden is therefore on the city to show that its ban is "consistent with the Nation's historical tradition of firearm regulation." He suggested that will be a formidable challenge: "The Court is unaware of historical precedent that would permit a governmental entity to entirely ban a type of weapon that is commonly used by law-abiding citizens for lawful purposes, whether in an individual's home or in public."
In Oregon, where voters approved a 10-round magazine limit in November, a federal judge was unimpressed by the Second Amendment argument against that law. But in December, a state judge granted a temporary restraining order based on the Oregon Constitution's guarantee that "the people shall have the right to bear arms for the defence of themselves." The Oregon Supreme Court declined to impose a stay on that order.
Dan Eldridge, a Des Plaines gun dealer who is president of Federal Firearms Licensees of Illinois, seems confident that H.B. 5471 will be defeated in the courts. He told CBS News he plans to keep newly prohibited magazines that came with guns his customers have recently purchased. He predicted that a court will enjoin the law "fairly quickly," at which point "we'll contact customers and let them collect the rest of their property."
