Gun Control Advocates Claim Initial Victory in Illinois, but Here’s Why They’ll Likely Lose the War
Amy Swearer /
The Supreme Court declined to intervene Wednesday in an important Second Amendment case challenging Illinois’ new restrictions on gun owners.
But no, it’s not time to panic.
The battle isn’t over. Not even close.
Earlier this year, Illinois enacted a law prohibiting civilian sales or transfers of many types of commonly owned semiautomatic rifles, based solely on the state’s arbitrary determination that certain cosmetic features turn these guns into so-called assault weapons.
Illinois residents who already possess these firearms, potentially millions of people, may continue to do so under the new law—but only if they first register their ownership with the state.
They may not remove the gun from their property, except to take it to a gunsmith or gun range. And they can’t transfer the gun to any other person residing in the state. The only exception: A person may receive an otherwise banned gun as part of an inheritance.
The Illinois state government, of course, chose to exempt itself from these prohibitions. Despite calling these guns “weapons of war” that aren’t useful for self-defense, the government will continue allowing police officers to use them for, well, that very purpose: defending themselves and others against common criminal threats to civilians whom the state insists have no use for these same guns.
Illinois’ new law is both poor public policy and a grotesque assault on the Second Amendment rights of peaceable citizens. It unquestionably should be struck down as unconstitutional, especially in light of the Supreme Court’s 2022 decision in New York State Rifle & Pistol Association v. Bruen. In that case, the high court said that for a gun law to be constitutional, the government must demonstrate that the law is “consistent with [the] Nation’s historical tradition of firearms regulation.”
In short, the United States has absolutely no historical tradition of completely banning sales of bearable small arms that are commonly possessed by peaceable citizens for lawful purposes.
Almost immediately after Illinois Gov. JB Pritzker, a Democrat, signed the bill into law, Second Amendment groups and Illinois residents filed legal challenges in state and federal court. They also requested that these courts issue an injunction that would keep Illinois from enforcing the law while their legal challenges were pending.
Unfortunately, the lower courts declined to issue an injunction, and although the 7th U.S. Circuit Court of Appeals soon will hear the case on the merits, its timeline for review is too late to stop the law from going into effect. So, Second Amendment advocates petitioned the Supreme Court to intervene and block the law from going into effect before the 7th Circuit issues its decision.
By declining to intervene Wednesday morning, the Supreme Court didn’t make any decision about the constitutionality of the Illinois law. Instead, the high court merely allowed Illinois to begin enforcing the law’s provisions.
Yes, it’s disappointing that the law will go into effect for the time being. But this is neither a significant victory for gun control advocates nor a reason for Second Amendment advocates to be alarmed.
It’s common for the Supreme Court to refrain from intervening in these types of cases at such an early stage in the litigation process. It does so for prudent reasons that have nothing to do with how the court might ultimately consider the underlying constitutional question.
Emergency interventions such as the one sought here require the Supreme Court to make decisions without the benefit of a robust factual record, extensive briefing from the parties, or ability to ask questions at oral argument. They also leave the court with far less time to consider important issues and reach well-reasoned decisions.
The Supreme Court has shown particular restraint when it comes to intervening in the myriad post-Bruen legal challenges under the Second Amendment that have worked their way through the lower courts over the past year.
No one knows for sure why the justices decline emergency intervention in some cases and not in others. However, one likely reason for their restraint in recent Second Amendment cases is that they’d like to give lower courts plenty of opportunity to try their hand at faithfully implementing Bruen’s framework.
Bruen was, after all, a major decision that fundamentally changed the way in which lower courts must analyze Second Amendment challenges. It’s possible that these lower courts ultimately will prove themselves capable of correctly applying Bruen, in which case the Supreme Court will have avoided unnecessary and premature intervention.
Even if lower courts fail to faithfully and correctly apply the Bruen framework, there is plenty of reason to believe that, in such a scenario, the Supreme Court will step in to vindicate both Bruen and the Second Amendment by striking down the Illinois law (or a similar law in a different state) as unconstitutional.
“Good law” sometimes takes time for courts to achieve. That wait certainly can seem like an eternity for the residents whose rights are being undermined. But despite early cries of victory from gun control advocates, this latest battle for the heart of the Second Amendment is far from over.
In fact, it’s hardly even begun—and defenders of the Second Amendment hold the high ground.
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