2A Groups Make Final Pitch for SCOTUS to Address Illinois 'Assault Weapons' Ban

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Well, it's hopefully the final pitch. If the Supreme Court turns away the cert petitions in the almost half-dozen challenges to Illinois' gun and magazine ban, the lawsuits will still continue to wind their way through the lower courts, but it could be years before they once again reach the High Court. In the meantime we're likely to see further misreadings or outright disregard for what justices had to say about determining the constitutionality of gun control laws in its Bruen decision. 


The cert petitions were filed back in February, after the Seventh Circuit Court of Appeals rejected a request for an injunction against Illinois's gun and magazine ban. In their decision, the Seventh Circuit panel bizarrely concluded that AR-15s and other semi-automatic firearms labeled by the state as "assault weapons" are not protected by the Second Amendment because they're "like" machine guns. The panel also decided that “especially dangerous weapons” can be banned even if they're commonly owned, so long as the government claims the bans are necessary to "protect communities". 

As the Second Amendment Foundation, Firearms Policy Coalition, Illinois State Rifle Association, and several individual plaintiffs argue in their response brief to SCOTUS, "the banned firearms and magazines are beyond doubt 'bearable arms' that are 'in common use', and applying the Courts' "text, history, and tradition" test to the Protect Illinois Communities Act must result in the gun ban being struck down. Further delay will only give lower courts more of an opportunity to continue disregarding what the justices have had to say about the scope of our Second Amendment rights. 

Respondents cite ten cases currently pending inthe courts below as a reason not to take this case and to permit the lower courts to continue to work. But given the ongoing resistance to the core reasoning of Heller and Bruen, Petitioners respectfully submit that the existence of so many other similar cases cuts in favor of granting certiorari now. This Court has previously recognized the importance of providing guidance on recurring issues that impact constitutional rights. There is no reason to think that permitting the issue to “percolate” any longer will add clarity to these issues (which already are clear), and delay threatens to prolong the deprivation of Second Amendment rights in jurisdictions around the country.


The justices are set to consider granting cert to the Illinois cases during their May 16th conference, but that's not the only case dealing with so-called assault weapons that will be before them. There's also a pending cert request in Bianchi v. Brown, which is the long-running challenge to Maryland's ban on "assault weapons." The Supreme Court vacated an earlier Fourth Circuit decision upholding the ban shortly after it released its decision in Bruen and sent the case back to the Fourth Circuit for a do-over, but before the three-judge panel that heard the case released their opinion, the Fourth Circuit made the almost unprecedented decision to take the case en banc. That not only further delays any decision coming out of the Fourth Circuit, it likely circumvents what would have been a favorable decision for gun owners. 

You can read the response brief submitted by SAF, FPC, ISRA, and the other plaintiffs here. I wish I could give you some action you could take to help lobby the Court to take up these cases, but unfortunately, the Supreme Court is one area where even the most committed grassroots activists have to adopt a wait-and-see approach. SCOTUS has been willing to grant cert at the government's request in several post-Bruen cases involving prohibited persons and ATF rules on bump stocks and frames and receivers, but it's turned away preemptive requests to wade in on "sensitive places" and "assault weapon" bans. Here's hoping that there are four justices now willing to address these gun and magazine bans, but it will probably be another month before we learn what the Court will do with Harrel v. Raoul and its associated cases.  


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