The lawsuits over Illinois' gun and magazine bans are heading to trial in federal court in East St. Louis next week, and in the final round of pre-trial arguments U.S. District Judge Stephen McGlynn has rejected a request for summary judgment based on allegations that the Protect Illinois Communities Act violates the Fourth and Fourteenth Amendment rights of gun owners. 

There are four separate lawsuits that have essentially been bundled together by the federal courts, and the plaintiffs in Langley v. Raoul had argued that the registration requirement contained within PICA was facially unconstitutional under the Fifth Amendment. As McGlynn pointed out, a facial challenge has a much higher bar to clear than an "as applied" challenge to a particular statute, and in this case the Langley plaintiffs failed to demonstrate that Illinois' requirement that owners of so-called assault weapons must register them with the state or face criminal prosecution violates the Fifth Amendment's protections against self-incrimination. 

At this stage, the Langley Plaintiffs have failed to advance any arguments that indicate that the PICA-mandated registration requirement has, in fact, led to unconstitutional self-incrimination in violation of the Fifth Amendment. Late registration does not carry criminal penalties in accordance with PICA and the administrative rules. They do not argue that any specific individual or that any of the named Plaintiffs have been subjected to self-incrimination in violation of the Fifth and Fourteenth Amendments. In fact, they do not dispute any of the material facts in question, as Director Kelly has indicated. Because there are no genuine issues of material fact in dispute, summary judgment is, therefore, appropriate. 

The judge's ruling doesn't mean the end of the cases, but it does mean that the trial will now revolve solely around the impact that the gun and magazine ban have had on the Second Amendment rights of Illinois residents. Judge McGlynn has been receptive to those arguments; he originally granted an injunction against the Protection of Illinois Communities Act last April, declaring that the plaintiffs were likely to prevail in their argument that the law infringes on their right to keep and bear arms by prohibiting the possession and sale of commonly-owned arms protected by the Second Amendment. 

The Seventh Circuit Court of Appeals reversed McGlynn's injunction in November of 2023, arguing that the state was likely to prevail in the litigation under the theory that AR-15s and other semi-automatic firearms fall outside the scope of the Second Amendment because they "are much more like machineguns and military-grade weaponry than they are like the many different types of firearms that are used for individual self-defense."

That's a gross misreading of what the Supreme Court has said about the scope of the right to keep and bear arms in cases like Heller and Caetano, where a majority held that the Second Amendment protects all bearable arms in common use for lawful purposes, including (but not limited to) self-defense. Arms that are both "dangerous and unusual" may lie beyond the scope of the Second Amendment, but there's nothing unusual about AR-15s and other modern sporting rifles or "large capacity" magazines, which are more common than Ford F-150s on American roads. 

Thankfully, McGlynn isn't bound by the Seventh Circuit's finding when the trial over PICA's gun and magazine ban provisions takes place next week. It will once again be up to the state of Illinois to demonstrate that the arms in question aren't covered by the text of the Second Amendment or the national tradition of gun ownership... and that its outright prohibition on the manufacture, sale, and future possession has analogues in U.S. history. 

The state failed to meet that burden before Judge McGlynn once before, and though the defendants can now cite the language in the Seventh Circuit's ruling overturning McGlynn's injunction, that alone won't be enough to automatically save the gun and magazine ban going forward. And with the Supreme Court set to consider granting cert to a lawsuit challenging Maryland's ban on so-called assault weapons later this fall, there's a good chance that SCOTUS will have the final say on these kinds of gun bans before the Illinois cases are fully decided.