Madison County State’s Attorney Tom Haine
A group of nearly three dozen Illinois county state's attorneys have joined their names to the effort to strike down Illinois' ban on so-called "assault weapons."
On June 13, Madison County State's Attorney Tom Haine submitted a brief to the U.S. Seventh Circuit Court of Appeals, co-signed by 34 of his colleagues from most regions of Illinois, with the exception of the Chicago area, urging the federal appeals judges to uphold the decision of U.S. District Judge Stephen McGlynn, which declared Illinois' gun ban law unconstitutional.
“State’s attorneys have a duty to ensure that the laws we enforce are constitutional,” Haine said in a prepared statement issued in a release announcing the filing of the legal brief. “But this patently unconstitutional law – which purports to ban a type of firearm far more common than the Ford F-150 while accounting for only a tiny portion of violent crime in our state and nation – threatens the basic constitutional rights of the law-abiding citizens we are sworn to protect.
"Therefore, I am happy to partner with so many other Illinois State’s Attorneys in asking the Seventh Circuit to affirm Judge McGlynn’s excellent opinion, throw out this law, and protect our basic right of effective self-defense of hearth and home in Illinois and the rest of America.”
Haine is joined in the brief by the state's attorneys for the counties of Brown, Calhoun, Carroll, Christian, Clark, Clay, Clinton, Cumberland, Edwards, Effingham, Gallatin, Hancock, Henry, Iroquois, Jasper, Jefferson, Jersey, Jo Daviess, Johnson, Livingston, Marion, Mercer, Monroe, Ogle, Perry, Pulaski, Schuyler, Scott, Union, Vermilion, Warren, Washington, White and Woodford.
The brief in support of those challenging the Illinois "assault weapons" ban comes on the heels of a brief filed in the matter by the U.S. Justice Department, declaring that the U.S. government also believes Illinois' law violates Illinoisans' Second Amendment rights.
The legal challenges to the so-called Protect Illinois Communities Act (PICA) began almost immediately after Gov. JB Pritzker signed the legislation into law in 2023. The law took effect on Jan. 1, 2024.
The PICA 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.
Pritzker and other supporters of law say it is needed to prevent future mass shootings. Democrats rammed the law through the General Assembly in 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 Bruen and the earlier landmark Second Amendment decision, known as District of Columbia v Heller.
In those decisions, the Supreme Court created tests for states and courts to use when evaluating if such restrictions are constitutional. Those tests require courts and lawmakers to evaluate if the weapons being banned are both dangerous and unusual, and if the restrictions are in keeping with U.S. history and tradition dating back to the ratification of the Second Amendment in 1791 and the Fourteenth Amendment in 1868.
Despite those Supreme Court rulings, attempts to block the law have failed to this point.
McGlynn initially blocked the law. But that order was stayed by a U.S. Seventh Circuit appeals panel.
Federal judges in Chicago rejected similar injunction requests from other challengers.
Then, a majority of the Seventh Circuit panel sided with the state on the injunction question, saying they didn't believe the challengers would ultimately win.
In a 2-1 ruling, Seventh Circuit judges Frank Easterbrook and Diane Wood notably said they do not believe the Second Amendment protects the banned weapons at all, because those weapons are too dangerous and too closely resemble weapons used by militaries. They notably compared the semiautomatic AR-15 rifle to its fully automatic "military-grade" cousin, the M-16. They reasoned that since federal law prohibits ownership of fully automatic rifles, then states are free to ban any semiautomatic firearms they deem too similar.
Semiautomatic weapons fire one round for each time the trigger is pulled. Fully automatic "machine gun" weapons can spray numerous bullets each time the trigger is squeezed.
The U.S. Supreme Court has also, to this point, declined to weigh in on the Illinois case and similar decisions from other appeals courts handling similar challenges to similar laws in other states.
However, recently, U.S. Supreme Court Justice Brett Kavanaugh fired what many took to be a legal warning shot at gun-banning states and the courts upholding their laws, indicating the Supreme Court's conservative majority may be preparing to strike down "assault weapon" bans within the next year or two.
That comes after U.S. Supreme Court Justice Clarence Thomas, author of the Bruen decision, blasted the Seventh Circuit's ruling, calling their reasoning "nonsensical," "contrived" and "highly suspect."
Nonetheless, Illinois' law remains in effect, threatening Illinois gun owners with fines or jail time for violations.
And the legal challenge to Illinois' law has continued.
Back in Southern Illinois, McGlynn issued a ruling for the challengers on the merits, saying he found the law to be "an unconstitutional affront." He included a voluminous record of evidence and inquiry, which he said demonstrates precisely how the Illinois gun ban law violates the Second Amendment under Bruen and Heller.
Illinois Attorney General Kwame Raoul appealed the decision to the Seventh Circuit, which again stayed McGlynn's ruling until the appeals court can complete proceedings.
The Seventh Circuit has not yet scheduled oral arguments in the case. However, the court has begun accepting briefs from groups and lawyers seeking to sway the court on both sides.
In their brief, the Illinois state's attorneys say Illinois' gun ban has left them in "a difficult ethical and legal quandary," as it would force them to potentially prosecute and seek penalties, including potential prison time, against gun owners who the state's attorneys believe were only exercising their constitutional rights.
Haine and his colleagues say it is obvious to them that the PICA law represents an unconstitutional "categorical ban on nearly every modern semiautomatic firearm, including the most commonly owned rifles currently possessed for lawful purposes throughout the United States."
And they said such bans are not permitted under Heller and Bruen, as there is no historical analogs in the U.S. for such sweeping gun ownership bans.
Further, Haine noted public statements from Illinois House Speaker Emanuel "Chris" Welch and others in support of the law, indicating "the widespread use of these firearms is precisely what led (Illinois Democratic lawmakers) to target these commonly used firearms" - a motive Haine said flew in the face of the Supreme Court's holdings in Bruen.
"... Only a handful of states currently have similar bans, and none of them are older than the internet," Haine wrote in the brief. "The constitutional conclusion, supported by the historical record, is inescapable – the Act (PICA) violates the Second Amendment and cannot stand."
Haine and his fellow state's attorneys said they understood that AR-15s and similar rifles may appear "menacing" to people with little knowledge of guns.
"... But they are quite normal and valuable to millions of responsible, law-abiding Americans. In fact, it is the experience of (the State’s Attorneys), as the chief law-enforcement officers of our respective counties, that the overwhelmingly common use of such firearms is self-defense and recreation – for which they are well-suited – and not violent crime," they wrote.
In the filing, Haine and the county prosecutors said they, "like all Americans, ... are horrified by the mass shootings and violence our nation has experienced. These are heartbreaking reminders of how much pain and sorrow violent individuals with evil intentions can cause. As prosecutors, we go to work every day to deter such crimes, command justice for victims, put those who do harm to our communities behind bars, and protect our residents by strengthening the justice system and enforcing the rule of law.
"It is in service to that same rule of law that we urge this honorable Court to support and uphold the Constitutionally protected rights enshrined in the Second Amendment - the right of the people to own commonplace firearms so they can defend hearth and home and live freely with the means to secure their own and others’ ultimate safety," Haine and the other state's attorneys said.
