One justice says he hopes high court will hear the matter once lower courts issue decisions
By PETER HANCOCK | Capitol News Illinois
SPRINGFIELD – The U.S. Supreme Court announced Tuesday it will not immediately review Illinois’ assault weapons ban, leaving the law in place at least until challenges to the law have been fully heard in lower courts.
The announcement came just two days before the two-year anniversary of a mass shooting at an Independence Day parade in Highland Park that left seven people dead and dozens more injured or traumatized.
That shooting served as the impetus for state lawmakers to pass the Protect Illinois Communities Act, which bans the sale and possession of a long list of semi-automatic rifles and handguns as well as various kinds of attachments and large-capacity magazines.
Read more: What to know about Illinois’ assault weapons ban
“I applaud the U.S. Supreme Court for allowing Illinois’ common-sense gun reform to continue,” state Rep. Bob Morgan, D-Deerfield, the law’s chief sponsor in the House, said in a statement. “Every day that assault weapons and high capacity magazines are banned in Illinois represents fewer gun deaths and reduced gun violence.”
“This is a victory for common sense. Weapons of war have no place on our streets. I am proud to have worked on it and even prouder to see it upheld in court today,” said Illinois Senate President Don Harmon (D-Oak Park). Harmon was the sponsor of the legislation creating the assault weapons ban.
The court’s announcement came in a batch of orders issued Tuesday morning, one day after the court released the final opinions from its 2023-2024 session. Most of the orders dealt with petitions for cases to be heard when the court’s next session begins in October.
Usually, the court issues only a one-sentence order either granting or denying a petition to review a case, known as a writ of certiorari. Occasionally, though, one or more of the justices will attach a statement explaining their reason for the decision.
Justice Clarence Thomas, one of the court’s most conservative justices, issued such a statement, noting the court is often “wary” about taking up “interlocutory” appeals – that is, appeals of decisions made during the course of a proceeding, before a final verdict is reached.
“These cases arise from a preliminary injunction, and the Seventh Circuit stressed that its merits analysis was merely ‘a preliminary look at the subject,’” Thomas wrote, referring to a November decision by the Seventh Circuit Court of Appeals. “But if the Seventh Circuit ultimately allows Illinois to ban America’s most common civilian rifle, we can – and should – review that decision once the cases reach a final judgement.”
State lawmakers passed the ban during a lame duck session in January 2023. Gov. JB Pritzker signed it into law just hours after its final passage in the House, making Illinois the ninth state at that time, along with Washington, D.C., to enact such a ban. The state of Washington passed a similar law a few months later.
The legal challenges to Illinois’ law moved swiftly through federal courts, putting those cases in a position to be taken up by the Supreme Court ahead of challenges in some other states.
In April, a judge in the Southern District of Illinois granted a preliminary injunction to block enforcement of the law while it was being challenged, saying it would likely be found unconstitutional. But in separate cases in the Northern District of Illinois, two other judges came to the opposite conclusion and declined to grant injunctions.
Those cases were eventually consolidated in an appeal to the Seventh Circuit, which lifted the Southern District injunction and allowed the law to remain pending a final resolution.
But the movement in Illinois and other states to ban the types of weapons used in numerous mass shootings came around the same time the new conservative majority on the Supreme Court was developing new legal standards for judging gun control measures.
In 2008, the court ruled in District of Columbia v. Heller that the Second Amendment protects an individual’s right to possess ordinary types of weapons that are commonly used for lawful purposes. But it also noted there is a “historical tradition of prohibiting the carrying of dangerous and unusual weapons.”
Then in June 2022, less than two weeks before the Highland Park mass shooting, the court ruled in New York State Rifle & Pistol Association v. Bruen that to justify restrictions on someone’s right to keep and bear arms, the government must demonstrate the regulations are “consistent with the Nation’s historical tradition of firearm regulation.”
That opinion, written by Thomas, has been criticized as unworkable because of its reliance on practices that were in place at the time of the Constitution’s founding, long before the invention of many weapons in use today.
In his statement Tuesday, Thomas acknowledged that the court so far has provided little guidance about which weapons are protected by the Second Amendment and which ones are not. But he also accused the Seventh Circuit of being “nonsensical” in concluding that the weapons banned under the Illinois law were “militaristic” in nature and therefore not protected by the Second Amendment.
“The Seventh Circuit’s contrived ‘non-militaristic’ limitation on the Arms protected by the Second Amendment seems unmoored from both text and history,” he wrote.
Hannah Hill, executive director of the National Association for Gun Rights, a lead plaintiff in one of the Illinois cases and in cases in other states, said she was confident the bans will eventually be overturned.
“This is not a loss, it’s simply a procedural setback,” she said. “And we have every confidence that the Supreme Court is going to strike down an assault weapons ban, as soon as the right vehicle gets brought to them.”
But Yolanda Androzzo, executive director of One Aim Illinois, a leading gun control advocacy group, said in a separate interview that the battle is far from over.
“The decision indicates that the battle over this legislation will continue in lower courts,” she said. “One Aim Illinois remains committed to supporting this legislation and will continue to advocate for its upholding in district courts.”
A spokesman for Pritzker, meanwhile, defended the law, saying in a statement that it makes Illinois a safer place.
“Despite those who value weapons of war more than the safety of their constituents, this law remains in effect and will continue to protect Illinoisans from the constant fear of being gunned down in a place of worship, at a parade, or on a street corner,” spokesperson Alex Gough said.
Attorney General Kwame Raoul said in a statement his office would continue to defend the law’s constitutionality when the cases are returned to lower courts.
“Assault weapons were designed for military use, and Illinois residents can be assured the Protect Illinois Communities Act will help prevent these weapons of war from being used to cause devastation in our schools, places of worship and recreation spaces,” he said. “The law is an important part of what must be a multifaceted approach to addressing gun violence, and I am pleased it remains in effect in Illinois.”