Cook County State’s Attorney Eileen O’Neill Burke
WASHINGTON, D.C. — Cook County has filed its primary brief in defense of its ban on so-called "assault weapons" before the Supreme Court, as the county's state's attorney argues the ban should be considered constitutional because state and local governments should be free to prohibit "exceptionally dangerous" weapons and, if people living in such places wish to own such weapons, they are free to leave.
The brief was filed at the U.S. Supreme Court by Cook County State's Attorney Eileen O'Neill Burke on Oct. 21.
The filing will serve as the basis of Cook County's arguments before the high court as the court weighs whether the U.S. Constitution's Second Amendment should be interpreted to prevent Cook County and other state and local governments from banning long lists of semiautomatic rifles.
In the county's filing, Burke urged the justices of the high court to uphold a Cook County ordinance, which largely dates back to 1993, banning the popular AR-15 and other kinds of guns the county has designated as "assault weapons."
Burke asserted the gun ban ordinance passes constitutional muster because it "fits neatly" within what the county described as the U.S. legal tradition permitting governments to ban weapons that lawmakers determine to be "exceptionally dangerous, lethal, and prone to misuse."
Further, Cook County argued the AR-15 and other similar weapons are "too militaristic" and "ill-suited for self-defense and hunting," and instead have been used in mass shootings in schools, nightclubs, churches and other settings, placing the lives of civilians and police alike at greater risk.
Burke's brief particularly notes to instances, such as the 2022 school shooting in Uvalde, Texas, and the Pulse night club shooting in 2016, in which police officers armed with semiautomatic pistols did not promptly engage shooters armed with AR-15s or similar weapons, because they claimed they believed themselves to be "outgunned."
The brief does not address other documented instances in which civilians armed only with pistols successfully neutralized other mass shooters armed with semiautomatic "assault weapons."
Regardless, Cook County argued the alleged "exceptional lethality" of "assault weapons" like the AR-15 and its alleged limited utility in self-defense should place the weapons outside of the constitutional protections normally afforded under the Second Amendment's right to keep and bear arms.
"Undoubtedly, some Americans may enjoy owning AR-15s for use in target practice and other recreational activities," Burke wrote in the brief. "But the Constitution generally leaves it to elected representatives to decide when enjoyable but dangerous products may be sold to the public. And the Second Amendment does not dictate otherwise for a militaristic weapon that is excessively dangerous and ill-suited for self-defense or hunting."
The filing landed as the county's response to the opening briefs filed by gun owners and Second Amendment rights advocates, which asked the Supreme Court to strike down Cook County's ordinance, along with a similar state-level "assault weapons" ban from Connecticut.
Both challenges were lodged by the Second Amendment Foundation (SAF).
The SAF and other Second Amendment rights advocates hope the Supreme Court's decision to at last take up cases addressing such gun bans means the high court will end a growing list of other laws in Illinois and elsewhere pushed primarily by Democrats that they say trample Second Amendment rights.
The Cook County case is just one of several legal challenges to so-called "assault weapons" bans raging in courts across the country.
In Illinois, for instance, the courts have wrangled over the constitutionality of Illinois' statewide gun ban, dubbed by supporters as the "Protect Illinois Communities Act," since it was enacted in 2023.
The law includes several provisions banning a long list of semiautomatic firearms and so-called "large capacity magazines," which the state defined as ammunition magazines which can hold more than 10 rounds.
Democratic state lawmakers and Gov. JB Pritzker passed the law in 2023, in direct response to the massacre at the 2022 Fourth of July parade in suburban Highland Park. The attack was carried out by a lone gunman wielding a semiautomatic rifle manufactured by Smith & Wesson, which the state has included on a list of so-called "assault weapons" Illinois Democrats believe should be banned in the state.
Second Amendment rights supporters, however, say the law is a blatant violation of the Second Amendment, particularly as interpreted by the U.S. Supreme Court in two decisions, New York State Rifle & Pistol Association v Bruen and the earlier landmark Second Amendment decision, District of Columbia v Heller.
The Cook County ordinance predates the Illinois law and in some ways served as the model for the constitutionally questionable law. The county first banned certain semiautomatic weapons in 1993. But the ordinance was strengthened and lengthened in the years since to ban a longer list of firearms and so-called "large capacity magazines."
The ordinance has also been the subject of long-running legal challenges.
To this point, courts in Illinois, in particular, mostly have sided with the state and Cook County.
For the most part, judges, including at the U.S. Seventh Circuit Court of Appeals and other appeals courts, have ruled that the banned weapons are not "arms" protected by the Second Amendment, because the courts say states and other governments have the authority to ban weapons they believe are overly dangerous or too closely related to military-style weaponry.
One federal judge in Illinois, U.S. District Judge Stephen McGlynn in southern Illinois, has ruled the law unconstitutional. That ruling, however, was overturned again by the Seventh Circuit on appeal.
There, a 2-1 majority of a three-judge panel again said in July that Illinois Democratic lawmakers can still ban AR-15s and other "assault weapons" if they wish, so long as lawmakers determine the weapons they wish to ban are "unusually dangerous" or "capable of unprecedented lethality."
However, while not directly before the Supreme Court, the fate of the Illinois law and similar "assault weapons" bans enacted by other states and local governments likely hinge on the result of the Supreme Court's forthcoming decision in the Cook County and Connecticut challenges.
In their briefs at the Supreme Court, challengers have asserted the Cook County and Connecticut bans must fall because they unconstitutionally prohibit Americans living in those places from owning weapons that are in common use and are not both "dangerous and unusual."
They note the firearms banned under the county ordinance and similar state laws are among the most commonly owned guns in America.
In response, Cook County said the high court should all but ignore such ownership numbers, asserting only that it is enough for lawmakers to decide the guns are too dangerous to continue to allow private ownership.
The county warned that, otherwise, governments will be encouraged to simply preemptively ban all new kinds of firearms and other weapons, lest too many people own them and they become exempt from being banned in the future under such a legal test.
Further, the county urged the high court to reject arguments from gun owners and their backers in the Justice Department that their rights to own "offensive" weapons like the AR-15 should be preserved to enable citizens to maintain their constitutional role, as militia, to assist in "repelling invasions, suppressing insurrections, and resisting tyranny."
Cook County argued such reasons for owning semiautomatic rifles are no longer valid, because "today, of course, these responsibilities are reserved for the United States military..."
And, Cook County argued that its bans don't unfairly trample the constitutional rights of people living in the county or other locations that have enacted similar gun bans. Rather, they said, overturning the gun bans would instead restrict the rights of people living in heavily populated places like Cook County to decide which weapons should be permitted in their communities.
"People are, of course, free to visit and live in communities that have more permissive approaches towards unusually dangerous firearms. But our Constitution and this Nation’s historic record do not support removing firearm regulation from democratic processes when the safety of communities hangs in the balance," the county wrote.
The Supreme Court is scheduled to hear oral arguments in the Cook County and Connecticut consolidated cases on Dec. 2. A decision in such a hotly contested case would likely come months later, perhaps in June or early July.
