Another Northern District Court judge rejects preliminary injunction against Illinois gun ban… and here’s why

A second federal judge – also in the Northern Illinois District Court – has denied a motion to for preliminary injunctive relief in Illinois Firearms Ban Act.  Here’s a link directly to the decision for your reading displeasure.

And the money quote:

Having considered the preliminary record at this stage, the Court concludes that [plaintiff Javier Herrera] is unlikely to succeed on the merits of his claim. Doe, 43 F.4th at 791. The challenged restrictions on semiautomatic weapons and large-capacity magazines in the City Code, County Code, and Illinois Act are consistent with “the Nation’s historical tradition of firearm regulation,” namely the history and tradition of regulating particularly “dangerous” weapons. New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111, 2130 (2022); District of Columbia v. Heller, 554 U.S. 570, 627 (2008). […]

The Bruen Court outlined a two-step analysis to determine whether a challenged gun regulation is constitutional. Bruen, 142 S. Ct. at 2126–34. The Court must first determine whether “the Second Amendment’s plain text covers an individual’s conduct.” If the plain text does not cover the challenged regulation, then the regulation is outside of the Second Amendment’s scope and is unprotected. However, if the text does include such conduct, “the Constitution presumptively protects that conduct.” As such, for the regulation to be upheld as constitutional, “[t]he government must . . . justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation.”

To demonstrate that a regulation is “consistent with the Nation’s historical tradition of firearm regulation,” the government must engage in “analogical reasoning” by pointing to “a well-established and representative historical analogue.” The government can utilize analogues from a range of historical periods, including English statutes from late 1600s, colonial-, Revolutionary- and Founding-era sources, and post-ratification practices, specifically from the late 18th and early 19th centuries. Bruen took special note that the Second Amendment is not a “regulatory straightjacket.” The government’s proposed analogue need not be “a historical twin” and the “modern-day regulation” need not be “a dead ringer for historical precursors” to “pass constitutional muster.”

Importantly, “Bruen does not displace the limiting examples provided in Heller.” 2023 WL 2077392, at *9. As set out in Heller, states may still enact (1) “prohibitions on the possession of firearms by felons and the mentally ill”; (2) “laws forbidding the carrying of firearms in sensitive places”; (3) “laws imposing conditions and qualifications on the commercial sale of arms”; and (4) bans on “dangerous” weapons that are not “in common use.” Id. at 2162 (Kavanaugh, J., concurring) (citation omitted). The list itself “does not purport to be exhaustive.” Id. (quoting Heller, 554 U.S. at 626 n.26).

The Court holds that the restrictions on possession of certain semiautomatic rifles and large-capacity magazines in the City Code, County Code, and Illinois Act are consistent with the Nation’s “history and tradition” of treating particularly “dangerous” weapons as unprotected. […]

In response to the Defendants’ citation to similar statutes in this case, Herrera argues that his suit does not concern public carry, but rather defense of the home. This argument is unavailing. The Supreme Court was clear in its instruction that “analogical reasoning” is not a “regulatory straightjacket” and “even if a modern-day regulation is not a dead ringer for historical precursors,” the government’s chosen analogue “may be analogous enough to pass constitutional muster.” Bruen, 142 S. Ct. at 2133. While the government’s analogue may not be identical, it need not be. Bruen also expressly observed that “dramatic technological changes” or “unprecedented societal concerns” may require a “more nuanced approach.”

Such an approach is applicable here. As the State Defendants put forth at oral argument, laws regulating weapons, including various firearms, developed over time in response to the type of harm that those weapons presented, as in the present case. … Here, the City Code, County Code, and Illinois Act similarly responded to “dramatic technological changes” and “unprecedented societal concerns” of increasing mass shootings by regulating the sale of weapons and magazines used to perpetrate them. Bruen, 142 S. Ct. at 2132. This is well in line with earlier laws regulating carry and progressing to restrictions on sale and possession, in and out the home.

Having concluded that Defendants demonstrated a tradition of regulating “particularly dangerous weapons,” the Bevis Court next considered “whether assault weapons and large-capacity magazines fall under this category” of “highly dangerous arms (and related dangerous accessories),” and answered with a resounding yes. The Court considered ample record evidence of the vastly destructive injuries that semiautomatic weapons cause and their “disproportionate[]” use in “mass shootings, police killings, and gang activity. The Court observed that large-capacity magazines “share similar dangers,” with studies showing that the use of such magazines lead to an increased number of fatalities in mass-shooting scenarios. The Court rejected any argument that regulations on semiautomatic weapons and large-capacity magazines are not “unusual,” given the ten-year federal ban on assault weapons and eight bans on semiautomatic weapons and large-capacity magazines in jurisdictions such as Illinois. As such, the Court concluded that “[b]ecause assault weapons are particularly dangerous weapons and high-capacity magazines are particularly dangerous weapon accessories, their regulation accords with history and tradition.” […]

The shall-issue licensing schemes discussed in Bruen involved a “background check” or the passage of a “firearms safety course,” Bruen, 142 S. Ct. at 2138 n.9, which are more onerous than the relatively mechanical registration process required by the Illinois Act, see 720 ILCS 5/24-1.9(d). Nor does the Act permit state officials to have “open-ended discretion” to deny or allow a firearm to be registered. Bruen, 142 S. Ct. at 2161 (Kavanaugh, J., concurring). Rather, owners of semiautomatic rifles before the Act’s effective date must provide the affiant’s FOID number, report the make, model, caliber, and serial number of the weapon, and thereafter affirm that he or she lawfully owned the weapon before January 10, 2023.

Here’s the bottom line: With all due respect to Mr. Herrera’s counsel, you can’t just say you’re suing to challenge Illinois new gun ban and staple a copy of the Bruen decision to your filing.  

Secondly, until and unless the Seventh Circuit Court of Appeals decides to get serious about hearing this case on appeal and reigning in these rogue opinions by radical anti-gun jurists, the Bruen decision will mean nothing.

Frankly, this looks a lot like Brown v. Board of Education from the 1950s.  It took two long years before the courts began to truly enforce Brown.  It looks more and more like the Bruen decision will require years to fully implement as well.

If Bruen is never enforced, then we’re one step closer to exercising the fourth and final box used in defense of liberty.