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Deerfield, Illinois, gun confiscation law is blocked by state court

A Chicago suburb's law to confiscate firearms and magazines has been blocked by a temporary restraining order.

Yesterday a firearm and magazine confiscation ordinance in the Chicago suburb of Deerfield was blocked on by a temporary restraining order. The Lake County Circuit Court held that the ordinance violates a state preemption statute. The court's opinion is attached to this post.

Procedural history: The Deerfield ordinance was enacted on April 2, 2018. Its effective date would have been June 13, today. Two lawsuits have challenged the oridinance. One was supported by the National Rifle Association. The plaintiffs were Guns Save Life, a 20-year-old Illinois advocacy organization, and John Wombacher, a Deerfield resident. That case is 18CH498. A parallel case was brought by the Second Amendment Foundation, the Illinois State Rifle Association, and Deerfield resident Daniel Easterday. That case is 18CH427. The caption for the court's ruling is the NRA case, but the SAF case is also cited.

Both cases raised the preemption issue, and the court agreed with the plaintiffs. The NRA case also raised some other issues, discussed below, on which the court was not persuaded.

Statute and ordinance background: In 2013, Deerfield enacted an ordinance regulating the storage and transportation of so-called "assault weapons" and "high capacity" magazines. The municipal ordinance was in contemplation of imminent passage of an Illinois state statute preempting such laws. The Illinois statute is 430 ILCS 65/13.1. It declares: "the regulation of the possession or ownership of assault weapons are exclusive powers and functions of this State." Any local ordinance or regulation that "purports" to regulate the ownership or possession of such arms in a manner inconsistent with state law is void. Since Illinois does not prohibit the ownership of "assault weapons," no local government may do so. The state statute defines "assault weapons" as "firearms designated by either make or model or by a test or list cosmetic features that cumulatively would place the firearm into a definition of 'assault weapon' under the ordinance."

However, the preemption statute includes a grandfather clause. Local laws enacted before the preemption statute's effective date (or within 10 days after the effective date) may continue in force. Grandfathered ordinances "may be amended."

In April 2018, Deerfield substantially changed its 2013 ordinance. The new law changed the definition of "assault weapon," and prohibited possession, transportation, bearing, and sale. Residents who had been in lawful possession of such arms had until June 13 to surrender them to the Chief of Police or otherwise remove them from the village. The penalty for non-compliance was a fine of $1,000 per day. In addition, the Deerfield ordinance, as interpretted by the Deerfield government, similarly prohibited the possession of any "Large Capacity Magazine." This was defined as magazines over 10 rounds, such as the 13 or 17 round magazines that are the manufacturer-supplied standard magazines for many of the most common handguns.

Magazine ban: Carefully examing the ordinance's text, the court found that the ordinance does not in fact ban magazines. The ordinance has no "text that specifically prohibits possessing or owning a large capacity magazine." Instead, the ordinance simply makes a "large capacity magazine" one element in the definition of "assault weapon." "At best, Deerfield only prohibited large capacity magazines to the extent that the magazine is a component part of an assault weapon..." If the ordinance had prohibited magazines, then the prohibition would be preempted and void.

Preemption: The legislative intent for preemption was undeniable, for the Illinois General Assembly had used the magic words that are well-established in state preemption law: "exclusive powers and functions of this State" and "a denial and limitation of home rule powers and functions under" Illinois Constitution art. VII, sect. (h). So Deerfield's best argument was the the 2018 ordinance was a permissible amendment of the 2013 ordinance.

Illinois appellate precedent provides guidance for whether an ordinance should be considered a new ordinance or an amendment to an old ordinance. Deerfield's characterization of the 2018 law as an amendment was not dispositive. If there is a "a clear confict between the two ordinances where both cannot be carried out, then an intention to repeal will be presumed." To decide whether something is a new ordinance, "the court must perform a comparative analysis of the ordinances and analyze all its terms."

The old ordinance regulated storage and transporation. The new ordinance prohibits ownership, possession, and sales. Obviously the new ordinance is not an amendment of the storage and transportation ordinance, since storage and transportation are now prohibited (because possession is prohibited). "The banning of assault weapons is substantively different than regulations regarding the transportation and storage of such weapons by one who owns or possesses assault weapons."

Further, the 2018 ordinance has two "entirely new" sections: one on disposition of "assault weapons" and magazines, and one on destruction of such items after they are surrendered to the chief of police.

Implicit in the court's analysis is the fact that there is a "clear conflict between the two ordinances where both cannot be carried out." Under the 2013 ordinance, Deerfield residents were supposed to store and transport "assault weapons" in certain ways. Deerfield residents carry out the storage and transport instructions of the 2013 ordinance because the 2018 ordinance prevents residents from possessing the items to be stored and transported.

Hunting law preemption: The NRA plaintiffs had also argued that the 2018 ordinance is preempted by the state Wildlife Code. Like other states, Illinois allows the use of certain types of firearms for certain types of hunting, and prohibits hunting with other firearms under various conditions. 520 ILCS 5/1.1 et seq. For example, quail or Hungarian partridge may only be taken with a shotgun or with a bow and arrow. Id. 2.7, 2.13. Handgunners who hunt deer must use a handgun with a minimum caliber of .30, and a barrel at least four inches long. Id. 2.25. Shotguns capable of holding more than 3 rounds may only be used in certain hunting situations. Id. 2.33(m). (Hunters typically comply with shotgun capacity rules by inserting a temporary plug in the shotgun magazine.)

Because the guns banned by Deerfield may lawfully be used for hunting in Illinois, the plaintiffs argued that the village's gun ban was preempted by the Wildlife Code. The court disagreed. The subject that the Wildlife Code preempts is "hunting and taking of game...not firearm ownership or possession."

Eminent domain: The final argument, which was advanced in the NRA case but not the SAF case, was that the confiscation ordinance is a taking of private property. Thus, "just compensation" was required under the Illinois constitution.

Two recent California cases have addressed a similar issue, in the context of a California statute confiscating magazines over 10 rounds. The federal district court for the Central District of California held that the confiscation is not a taking. Rupp v. Becerra, 2018 WL 2138452 (C.D. Cal. 2018). The federal district court for the Southern District came to the opposite conclusion, and has issued a statewide injunction against the confiscation statute. Duncan v. Becerra, 265 F.Supp.3d 1106 (S.D. Cal. 2017). The issue is currently before the Ninth Circuit. (My amicus brief is here; it addresses Second Amendment and empirical issues, not takings).

The Illinois court decided the question by citing an 1887 U.S. Supreme Court case upholding an alcohol confiscation law enacted in Kansas. The Supreme Court stated "A prohibition simply upon the use of property for purposes that are declared, by valid legislation, to be injurious to the health, morals, or safety of the community, cannot, in any just sense, be deemed a taking or an appropriaton of property." Mugler v. Kansas, 123 U.S. 623 (1887). Since Deerfield asserted that it was protecting "public health, safety, morals and welfare," Mugler was persuasive. (Mugler was not binding precedent, since it involved the U.S. Constitution, not the Illinois Constitution.)

Gun owners are often astonished to find that their property can be confiscated by the government without compensation. Yet as the Mugler case illustrates, the alcohol prohibition era has furnished supportive precedent. Not all the alcohol prohibition cases came out this way, but many did. The Mugler case is one of many counter-examples to the widespread but false assertion that the Supreme Court in the late 19th century was absolutist in protecting property rights.

Taking guns: A common claim of some anti-gun activists is that "Nobody wants to take your guns." To the contrary, the Deerfield ordinance was supported by the Brady Center, which since the 1970s has been one of America's most eminent anti-gun organizations. In the Deerfield case, the Brady Center joined the Village of Deerfield's legal team, and helped write the Deerfield brief. This is consistent with decades' of statements from gun control organizations, politicians, and others expressing their objective take some or all firearms. Today, there are many people who advocate Australia as a gun control model that the U.S. should follow; the Australia model, as I detailed in Chronicles magazine, is forcible confiscation, with some compensation for the guns and no compensation for now-worthless accessories.

At least for the time being, gun confiscation will not be implemented in Illinois.

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  • Scarecrow Repair & Chippering||

    No attribution again, but we know who you are :-)

  • Chem_Geek||

    It shows as Kopel when I loaded the post, so I don't know what you're talking about. :-)

  • perlchpr||

    The federal district court for the Central District of California held that the confiscation is not a taking.

    So... it's legal to smoke crack if you're a judge?

  • UVaGrad||

    The judges in the Rupp and Duncan cases differed on whether the statue at issue actually requires confiscation of guns and magazines. Rupp didn't hold that confiscation wasn't a taking. It held that the statute doesn't require confiscation in the first place.

  • ||

    Conservatives need to start fighting fire with fire. We need to make it illegal to blatantly lie and says "No one is trying to take your guns." The 1st Amendment was never intended to cover lying sedition.

  • Martinned||

    Just a head's up, making it illegal to lie might have some consequences that you haven't thought of.

  • Chem_Geek||

    Lying is one thing; lying in the cause of anti-American sedition is something else entirely.

  • ||

    Exactly. That also goes for one of the left's other favorite lies, the "Women only make 74% of what men do for the same job."

  • UVaGrad||

    I can understand the argument that "no one wants to take your guns" is a seditious lie, even if I am not persuaded at all by that argument.

    I have no idea how "women make 74% of what men do" is seditious, even if it's a lie.

  • ||

    Because it's intent is to destroy our meritocracy and give undeserved power to women.

  • UVaGrad||

    Okay

  • JesseAz||

    You don't understand how it is dishonest to compare two disparate groups who work a disparate number of hours (men on average work more hours), have a disparate injury/death ratio (men are far more likely to be harmed or killed at work), and have disparate career paths? All of these things effect pay, yet you seem to blatantly imply that you can just compare the two disparate groups without thought.

    Do you know how statistics generally work?

  • jph12||

    "All of these things effect pay, yet you seem to blatantly imply that you can just compare the two disparate groups without thought."

    There is no possible good-faith reading of UVaGrad's post that implies any such thing. Don't be like Sarcastr0. Be better.

  • UVaGrad||

    @JesseAz: I'm assuming it to be a lie. So, for all the reasons you stated, the statistic is a misleading lie. Fine.

    My question wasn't about whether it was a lie. It's assuming this is a lie, why is it seditious. ARWP gave a straightforward answer.

  • Voize of Reazon||

    making it illegal to lie might have some consequences

    Definitely, but maybe not until he leaves office.

  • y81||

    "[M]aking it illegal to lie might have some consequences that you haven't thought of."

    Not so long as we appoint the judges.

  • KevinP||

    No one wants to ban or confiscate guns. Ever! It's a crazy and paranoid idea!

    Dem. Congressman Eric Swalwell: Ban "assault weapons", buy them back, go after resisters

  • Martinned||

    Pity...

  • Chem_Geek||

    What's the pity? An illegal, unconstitutional, anti-American, ill-conceived law was blocked.

    Taking an extreme position, the pity is that the city councilors who voted for it aren't in chains now as the Enemies Domestic that they have shown themselves to be.

  • the original jack||

    Always interesting to hear the view of the European serfs

  • Jerry B.||

    I do love the gun grabber's term of art, "gun buyback", in reference to the Australian confiscation of almost all semi-automatic and pump-action firearms, with draconian penalties for non-compliance. It's right up there with the mythical "assault weapon".

  • QuantumBoxCat||

    "A common claim of some anti-gun activists is that "Nobody wants to take your guns.""

    If, during an argument, someone says "nobody wants to [insert just about anything]" they should probably be dismissed. There are some 6 billion people on the planet and there is probably a good chance at least one of them "wants" to do the thing stated. Since the absolute term of "nobody" was used, it only takes one counter example to falsify the statement. Since the term "gun" can also encompass different things to different people, the statement is further made meaningless,

    I'm not sure what's worse, the person acting like they know the wants of all people and that the word gun conveys one meaning, or the listener who who even acknowledges the claim and thinks they are clever when they find a counter example.

  • ||

    I think you're being pedantic. When liberals say "No one wants to take your guns," what they really mean is "No one outside a few fringe people want to take your guns." Since it's a belief shared by a high percentage of Democrats, including many high level leaders of the left, it's not wrong to point out that the initial statement is a lie.

  • BigChiefWahoo||

    The folks who call themselves "moderates" and claim that they favor "commonsense" gun laws always seem reluctant to admit that there is anyone who advocates more extreme gun laws, and they also decline to call out any of those extremists. Why is that? Are those "moderates" really so moderate?

  • BigChiefWahoo||

    The folks who call themselves "moderates" and claim that they favor "commonsense" gun laws always seem reluctant to admit that there is anyone who advocates more extreme gun laws, and they also decline to call out any of those extremists. Why is that? Are those "moderates" really so moderate?

  • Careless||

    There are some 6 billion people on the planet

    When the heck are you from, 1996? It's over 7.5

  • Brett Bellmore||

    "At best, Deerfield only prohibited large capacity magazines to the extent that the magazine is a component part of an assault weapon..."

    So, it's not a ban of the magazines, because in theory you could still own the magazines if you had no guns they fit into?

    You really should have provided some sort of link the the decision and/or the law in question. It's hard to evaluate the court's reasoning when you don't have either.

  • apedad||

    "Gun owners are often astonished to find that their property can be confiscated by the government without compensation."

    Why is that?

    If something is illegal then the govt can confiscate it.

  • David Nieporent||

    Why is that?

    If something is illegal then the govt can confiscate it.

    The issue isn't whether the government can confiscate it; the issue is whether the government has to pay when it does so. Courts have said no.

    If you acquire something illegal, then that's not a surprising result. But if you legally own it and then the government makes it illegal, that's a different situation. Can the government declare it illegal to build homes in a certain area, and then just kick everyone who lives in that area out of their now-illegal homes without compensation?

  • Careless||

    Why would you go and try to make him think?

  • David Nieporent||

    Taking guns: A common claim of some anti-gun activists is that "Nobody wants to take your guns." To the contrary, the Deerfield ordinance was supported by the Brady Center, which since the 1970s has been one of America's most eminent anti-gun organizations. In the Deerfield case, the Brady Center joined the Village of Deerfield's legal team, and helped write the Deerfield brief. This is consistent with decades' of statements from gun control organizations, politicians, and others expressing their objective take some or all firearms.

    The rhetorical trick anti-gun-rights people use is to claim that because some firearms would still be permitted under this or that ordinance, it doesn't actually constitute taking or banning your guns.

  • Michael Ejercito||

    Is that like arguing that because opposite-sex marriages are permitted, banning same-sex marriage does not violate the fundamental right to marry?

  • mad_kalak||

    Where do you get the idea that one has a fundamental right to marry?

  • JesseAz||

    Marriage is a legal definition of ambiguous law. We wouldn't even have the issue of marriages if the government didn't decide to be an arbiter of how a partnership is dissolved and instead put the time and effort into simply requiring signed contracts in which the government solely arbitrated agreed to conditions defined by the contract.

    IE: government shouldn't be involved in marriage.

  • Mike45||

    The 2nd amendment does not stand in isolation.
    The 2nd amendment reserves the right to keep and bear arms to individual persons, while also affirming the authority of free states to form and arm militias. These two things are not mutually exclusive, and doesn't give the state any power to restrict individually owned arms. This is reinforced by the 10th amendment.
    The tenth amendment:
    "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, OR to the people."

  • ||

    Exactly.

  • ||

    I want to take your guns. But first I want to repeal the 2nd Amendment, so that I can then take your guns legally.

  • mad_kalak||

    But I wouldn't put it past you and your fellow ideological travelers to pass a few unconstitutional laws along the way either.

  • Mike45||

    Without the promise of the Bill of Rights the constitution would not have been ratified and we would not have the country we have today.
    What other inalienable rights would you disregard?
    What are your plans for us once we are disarmed?

  • ||

    Are you volunteering to come take them?

  • BigChiefWahoo||

    So, after you've repealed the Second Amendment, and come to take our guns "legally", should that turn out to be more difficult and complicated than you expected, will you then advocate repeal of Constitutional provisions prohibiting unreasonable searches and seizures and self-incrimination as well? Will you(or others) then argue that 'saving lives' is more important than a lot of old eighteenth century procedural due process? Can you really argue that the slope isn't slippery, or that there's no slope to begin with?

  • ||

    9th Amendment: the people retains all rights not otherwise enumerated, nothing in the USC can disparage them.

  • ThePublius||

    "Common sense," as in "common sense gun laws" is like "fair share" as in "the rich should pay their fair share." By this I mean both vague, undefined, and means only what the speaker wants it to mean, and its meaning can change over time. This is why free men such as I are opposed to any compromise on gun regulation, because over time, repeated concessions result in much less freedom.

    "When I use a word," Humpty Dumpty said, in rather a scornful tone, "it means just what I choose it to mean—neither more nor less." "The question is," said Alice, "whether you can make words mean so many different things." "The question is," said Humpty Dumpty, "which is to be master—that's all."

    LEWIS CARROLL (Charles L. Dodgson), Through the Looking-Glass, chapter 6, p. 205 (1934). First published in 1872.

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