The Volokh Conspiracy
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Second Amendment Roundup: Illinois Gun Ban Enjoined
The banned “assault weapon” features improve accuracy and reduce the risk of stray shots.
On April 28, Judge Stephen P. McGlynn of the Southern District of Illinois, in Barnett v. Raoul, issued a preliminary injunction against enforcement of the recently-passed Protect Illinois Communities Act (PICA), which bans "assault weapons" and standard-capacity magazines.
That morning, I had posted "A Judge Who Understands Firearms," describing the oral argument in which Judge McGlynn exhibited superior expertise about firearms and how they work, in contrast to the lack of such knowledge by too many judges.
At the beginning, the court stipulated the following proposition to which any court should agree: "no state may enact a law that denies its citizens rights that the Constitution guarantees them. Even legislation that may enjoy the support of a majority of its citizens must fail if it violates the constitutional rights of fellow citizens."
In finding that the plaintiffs are likely to prevail on the merits, the court brushed aside the argument that magazines holding more than the verboten number of cartridges are unnecessary to the functioning of a firearm and are thus not "arms." It didn't help Illinois that its own expert called them "arms"!
Also rejected was the argument that the prohibition on pistols with arm braces don't interfere with Second Amendment rights. Despite its recent attempt to restrict some braces, ATF itself recognizes that braces may be necessary for persons with disabilities to hold and fire certain pistols. Again, braces are "arms."
Next, the court succinctly summarized how the banned features facilitate the ability to accurately shoot and hit their intended target in case of confrontation, which is clearly protected by the Second Amendment:
Plaintiffs stated that "[a] pistol grip improves accuracy and reduces the risk of stray shots," that "[t]humbhole stocks likewise … provide for greater accuracy and decreases the risk of dropping the firearm or firing stray shots," and that "flash suppressors not only prevent users from being blinded in low lighting conditions … but also reduce recoil and muzzle movement, making the firearm less painful to use." … Defendants' have also recognized that such items "facilitate . . . sustained accuracy." … This Court agrees that in the case of each of these items "[t]he defensive application is obvious, as is the public safety advantage in preventing stray shots."
What a refreshing contrast to judicial opinions that superficially claim that pistol grips are designed to spray fire from the hip or that fail to address the specific banned features at all, opting instead to parrot the term "assault weapon" in every other sentence.
Next, Judge McGlynn found what is undeniable – that AR-15s are in common use and thus meet the Heller-Bruen test for protected arms: "more than 24 million AR-15 style rifles are currently owned nationwide," and they accounted for "nearly half of the rifles produced in 2018, and nearly 20% of all firearms of any type sold in 2020." "Under the Caetano test, even 1% of the 24 million AR-15 style rifles held by citizens is sufficient to result in a finding that such arms are in common use."
To make the statistics vivid, consider that sales of AR-15s more than double the sales of Ford F-150 pickup trucks.
No small wonder that the defendants "were unable to produce evidence showing that modern sporting rifles are both dangerous and unusual." (Notice that Judge McGlynn didn't use the loaded propaganda term "assault weapons.")
Since the banned firearms and magazines are in common use, they are protected and supposed historical analogues are irrelevant. Nonetheless, the state claimed some early restrictions such as those on Bowie knives as historical analogues, but they were concealed-carry regulations with a different "how and why" (Bruen's term) of the current ban on mere possession.
As to the balance of harms that a court must consider in granting a preliminary injunction, the court found it "uncontroverted that many of the banned modifiers, including but not limited to pistol grips, protruding grips, flash suppressors, and shrouds, have legitimate purposes that assist law-abiding citizens in their ability to defend themselves. The other side is less clear – there is no evidence as to how PICA will actually help Illinois Communities." Indeed, the Illinois Sheriffs' Association filed a brief opposing the ban and some local Illinois States Attorneys believe the ban to be unconstitutional.
Enactment of the PICA was a response to the Highland Park shooting last July 4, an act of violence that we all condemn. However, as the court observed, "it does not appear that the legislature considered an individual's right under the Second Amendment nor Supreme Court precedent." Judge McGlynn offered the following sage reflections:
"Nothing in this order prevents the State from confronting firearm-related violence. There is a wide array of civil and criminal laws that permit the commitment and prosecution of those who use or may use firearms to commit crimes. Law enforcement and prosecutors should take their obligations to enforce these laws seriously. Families and the public at large should report concerning behavior. Judges should exercise their prudent judgment in committing individuals that pose a threat to the public and imposing sentences that punish, not just lightly inconvenience, those guilty of firearm-related crimes."
With that, the court issued a preliminary injunction state-wide against enforcement of the ban. The state has sought a stay of the injunction pending appeal.