Future of Illinois' gun and magazine ban in doubt after federal court hearing

AP Photo/Michael Conroy

I had to chuckle the other day when I was doing a radio interview and the host complimented me on my “encyclopedic knowledge” of Second Amendment litigation during his introduction. While I appreciate the kind words, the truth is I find it almost impossible to keep up with everything going on in the courts at the moment. There are dozens of cases in active litigation all across the country, and it seems like major developments are happening on a weekly, if not daily basis.

We don’t have a decision yet, but one of those major developments took place in a federal courtroom in East St. Louis on Thursday, as U.S. District Judge Stephen McGlynn heard oral arguments in a challenge to Illinois’ ban on so-called assault weapons and “large capacity” magazines. McGlynn already issued a restraining order against the law that was signed by Gov. J.B. Pritzker back in January, finding that the new law is likely to be a violation of the Second Amendment, though the Seventh Circuit Court of Appeals has stayed that decision. This week gun owners were back in court arguing that the law should be struck down on vagueness grounds, and it sounds like McGlynn is likely to once again rule in their favor.

The Center Square’s Greg Bishop was in the courtroom for the hearing, and did a terrific job of reporting on the back and forth between McGlynn and the attorneys for both sides; Thomas Maag for the plaintiffs and Christopher Wells for the state of Illinois.

Under the gun and magazine ban enshrined into law by Pritzker back in January, handgun magazines are capped at a capacity of fifteen rounds, while magazines for long guns are allowable only if they can accept no more than ten rounds. As Maag pointed out, some magazines are interchangeable between a pistol and a rifle, and there’s no real way to determine if it’s legal to possess under Illinois law or not.

Wells’ argument is the one that’s not based in the real world. How, for instance, is a gun store owner supposed to know whether the magazine he’s selling to a customer is going to be used in a pistol or a rifle if it works with both? In Wells’ analogy, the location of where the sale takes place is supposed to inform the seller of the buyer’s intent; buy a paper clip at a head shop and its a roach clip, but if you buy one at Office Depot it’s not. Well, no one’s buying 15-round magazines at either of those locations. Instead, we’re talking about purchases made at federally-licensed firearms retailers, and despite Wells’ claim to the contrary it’s going to generally be difficult, if not impossible, for the seller to be able to divine the intentions of the buyer.

McGlynn has already shown he understands the issues at stake here in his order granting an injunction against the Illinois law that he handed down in April, and while you shouldn’t read too much into the questions he had on Thursday for Maag and Wells, based on Bishop’s reporting it does seem like the judge was at least highly skeptical of the state’s position.

That last bit sounds extremely promising for gun owners and Second Amendment supporters, but remember that McGlynn has already concluded that the Illinois law is likely to violate the Second Amendment. That’s why he granted the injunction in the first place. Thursday’s hearing was on vagueness grounds, not about whether the law violates the right to keep and bear arms. Still, it looks like McGlynn understands the chilling effect that a vaguely written law can have on the right to keep and bear arms, even setting aside for the moment whether or not the statutes are even constitutional to begin with.

There’s no official deadline for McGlynn to issue his decision, but it took about two-and-a-half weeks for the judge to grant his injunction after oral arguments were held back in April. With a registration deadline approaching in January, I think McGlynn appreciates the urgency of the situation, and I doubt he’s going to draw out his decision this time around. We could hear from him as early as this week, though I’d say it’s more likely that we’ll learn if he’s going to once again rule the Illinois law out of order in late October or early November. Until then gun owners throughout the state are going to keep their fingers crossed, their powder dry, and their guns unregistered with the Illinois State Police.