State wraps up case in challenge to assault weapons ban

By PETER HANCOCK
Capitol News Illinois
phancock@capitolnewsillinois.com

EAST ST. LOUIS – A federal judge invoked images from the 1917 race riots in East St. Louis, Illinois, on Thursday at the end of a trial in a case challenging the constitutionality of the state’s ban on assault-style weapons and large-capacity magazines.

Judge Steven McGlynn, who has presided over the trial, called attention to the neighborhood just outside the courthouse, much of which was destroyed during a series of deadly attacks by a white mob against the city’s Black population.

“The official death toll was 39, but no one believes that,” McGlynn said, noting that the true death toll was probably in the hundreds.

“I wonder what would have happened,” he said in a possible indication of how he intends to rule. “I wonder what would have happened if they (the Black population) had had some of the weapons we’re talking about today.”

Illinois lawmakers passed the assault weapons ban, officially known as the Protect Illinois Communities Act, during a special lame duck session in January 2023. It came in response to numerous mass shootings across the country in which gunmen used AR-style weapons. Among those was a shooting the previous summer at an Independence Day parade in Highland Park that left seven people dead and dozens more injured or traumatized.

The trial in the Southern District of Illinois involved four cases, each with multiple plaintiffs who argued the law violates the Second Amendment right to keep and bear arms.

Throughout four days of testimony, a central issue has been whether the weapons and equipment covered under the law are commonly used in American society for lawful purposes such as self-defense, and thus protected under the Second Amendment, or military-grade weapons that state and local governments can more easily keep out of civilian hands.

It’s a distinction the 7th Circuit Court of Appeals made when it first reviewed challenges to the assault weapons ban. In a 2-1 ruling in November 2023 that denied requests to block enforcement of the law while challenges proceeded, the appellate court said there is a “long tradition” of distinguishing between military and civilian weapons and that the state’s assault weapons ban “respects and relies on that tradition.”

That decision was appealed to the U.S. Supreme Court, which said in July it would not hear the case until after the lower courts had conducted full trials.

The trial in the Southern District of Illinois began Monday with plaintiffs in the case presenting expert witnesses who argued the AR-style rifles and other weapons covered by the law are among the most popular firearms on the market in the United States and that they are suitable for self-defense and other purposes.

And they drew a sharp distinction between the semiautomatic weapons covered by Illinois law that can only fire one shot with each pull of the trigger, which they said have no practical value in a military setting, and fully automatic weapons that can fire continuously for as long as the trigger is pulled.

But the state has countered with its own expert witnesses who argued semiautomatic weapons like the ones covered under the Illinois law are actually more suited to military purposes than fully automatic weapons, which they said are less accurate, waste ammunition, and are prone to overheating and jamming in combat situations.

Jason Dempsey, a retired Army colonel who now works as a senior fellow at the left-leaning Center for a New American Security, said that during his tours of duty in Iraq and Afghanistan, he never used his service rifle in fully automatic mode, and neither did the soldiers serving under him.

During cross-examination, though, plaintiffs’ attorney Andrew Lothson pointed out that Dempsey himself owns an AR-style rifle with many of the features that would make it illegal under the Illinois law. Dempsey replied that he does not favor a total ban on such weapons but believes people who own them should be trained in how to use them safely.

Another key question in the trial, and one that attorneys in the case have said they will address in written briefs, is whether there is a historical tradition the type of weapons covered by the Illinois law that dates back to the founding of the Constitution.

That is a relatively new legal standard first articulated by the Supreme Court in 2022 in New York State Rifle & Pistol Association v. Bruen.

During closing arguments, Lothson argued the law should be held unconstitutional because all the items covered by it are “useful for self-defense” and are not militaristic in nature. He also said neither the U.S. military nor any foreign military uses the semiautomatic-only weapons banned under the Illinois law.

But Kathryn Hunt Muse, of the Illinois attorney general’s office, argued there is no functional difference between the assault-style weapons covered under the law and the M4 or M16 service weapons commonly used in the U.S. military.

Attorneys in the case still have 30 days to submit written briefs and exhibits as well as their own proposed findings of fact and conclusions of law, which could form the basis of McGlynn’s final ruling.

McGlynn did not indicate when such a final ruling would be issued.

Capitol News Illinois is a nonprofit, nonpartisan news service covering state government. It is distributed to hundreds of newspapers, radio and TV stations statewide. It is funded primarily by the Illinois Press Foundation and the Robert R. McCormick Foundation, along with major contributions from the Illinois Broadcasters Foundation and Southern Illinois Editorial Association.