Mention the phrase “assault weapons ban” in Illinois and it’s easy to get confused.

There’s a law that passed both chambers of the state Legislature, was signed by Gov. J.B. Pritzker, but that’s now being challenged in both the Illinois Supreme Court and United States Supreme Court. 

What exactly does this all mean, and how are things likely to change, if at all? Here’s a distilled version.

First off, what’s the law? 

Following the Fourth of July Highland Park Parade shooting last year, Illinois as well as several municipalities around the state, including Naperville, moved to ban the distribution and sale of assault-style weapons and high-capacity magazines.

The Protect Illinois Communities Act bans the sale and distribution of assault weapons, high-capacity magazines, and switches in Illinois. It was signed into law by Gov. J.B. Pritzker Jan. 10 and was intended to be effective immediately.

House Bill 5471 also extends the ability of courts to prevent dangerous individuals from possessing a gun through firearm restraining orders. It requires existing owners of semi-automatic rifles to register their ownership, ensuring that law enforcement knows the location of these weapons and who to hold accountable. 

How many cases and where are they right now? 

There are now four state court cases. Two were filed in Effingham County, one was filed in White County, and one was filed in Macon County.

The Effingham and White County cases were filed by downstate attorney Tom DeVore, renowned for his pandemic work against mask mandates in Illinois schools. These three cases were later consolidated by the Illinois Supreme Court and are still pending in Effingham County. 

In the Macon County state case, where the lead plaintiff is Republican Illinois State Rep. Dan Caulkins, both sides filed motions for summary judgment. Here, a Macon County judge ruled in favor of defendants on three counts and for the plaintiffs on two counts – that they were denied equal protection under the law because of the weapons ban, and that the law constituted “special legislation” that should take the place of a more general mandate. Plaintiffs only needed to win on one count, meaning they won they won this case.

And yet. As a result, Attorney General Kwame Raoul, representing defendants of the ban, appealed to the Illinois Supreme Court under a rule known as 302a, which says that when a circuit court judge declares a law unconstitutional a direct appeal to the Supreme Court is allowed. 

Arguments in the Macon County case took place in the state Supreme Court during its May term in Springfield, and the sides are currently awaiting a decision. 

On the federal level, there are also three separate cases challenging the assault weapons ban under the second amendment of the federal constitution, two in the Northern District of the state’s federal court system and another in the Southern District. In the Northern District case, a Chicago judge refused to issue an injunction suspending the law from going into effect while the case was pending.

The plaintiffs appealed that decision to the Seventh Circuit Court of Appeals, and the Seventh Circuit affirmed the district court decision to refuse to issue an injunction in April. 

In the Southern District Court, a judge initially issued an injunction suspending the law, but the Seventh Circuit Court of Appeals reversed that decision.

The plaintiffs in one of the Chicago cases appealed to Justice Amy Coney Barrett who oversees the 7^th Circuit. Hmm? Court procedural rules allow for an emergency motion can be filed with the Supreme Court and the judge who oversees it can either issue an order or refer it to the full court. Justice Barrett chose to refer the case to the full court U.S. Supreme Court which upheld the seventh circuit’s decision to not suspend the law.  Arguments on the merits of the law before the Seventh Circuit are scheduled for the end of June. The U.S. Supreme Court, which ends its current term this month, could ultimately consider the case following that, during next year’s term at the earliest. 

Politics at play? 

In essence, court watchers note, the Illinois Supreme Court has two choices. Justices can decide on the case, making an affirmative statement on the state law, sending a clear message to the U.S. Supreme Court. 

Otherwise, the Illinois high court could wait for the U.S. Supreme Court to issue a decision, allowing the assault weapons ban to continue to be in effect in the meantime. 

If the Illinois Supreme Court issues the first decision, that message comes with political complications for Republican Justice Lisa Holder White. White, of Decatur, is up for election in the 2024 primary. A vote supporting the assault weapons ban could negatively affect her chance of winning re-election in a Republican-leaning district, luring a Trumpian candidate to run against her in the primary. 

Could the state Supreme Court’s Democratic-leaning majority force her to make this choice? Possibly. But justices – who legendarily eat dinner together each night in Springfield that the court is in session – could choose to act collegially by stalling. 

Difference in Constitutional language

There’s another reason, besides politics, that the state Supreme Court and federal Supreme Court could issue different rulings: differing constitutions. The U.S. Constitution, under the Second Amendment, describes an unconditional right to bear arms. 

Illinois’ Constitution, however, states that “subject only to the police power, the right of the individual citizen to keep and bear arms shall not be infringed.” That additional police power clause signals that the state constitution’s right to bear arms is not necessarily as unconditional and perhaps subject a lower standard of review. 

Differing positions

“There is, of course, always a danger that deranged individuals will commit horrific crimes, whether with the firearms Illinois and Naperville have outlawed, with other firearms it still permits, or with different objects entirely. But the potential criminal abuse of a constitutional right alone cannot be reason enough to snuff out that right.” – Federal Firearms Licensees of Illinois, Guns Save Life, Gun Owners of America, Inc., and Gun Owners Foundation wrote in their May 8 Amicus Curiae Brief to the U.S. Supreme Court opposing the ban. 

“Neither the balance of equities nor the public interest decisively favors the plaintiffs. On the one hand, they suffer an alleged deprivation of a constitutional right. Again though, the financial burden and loss of access to effective firearms would be minimal. On the other side, Illinois and Naperville compellingly argue their laws protect public safety by removing particularly dangerous weapons from circulation. The protection of public safety is also unmistakably a ‘public interest,’ one both laws further.”

– Northern District Judge Virginia Kendall in denying a temporary restraining order and preliminary motion for an injunction.