Assault Weapon Ban Litigation Update & Calendar

Update 5/1/2024 2:11PM

From one of our attorneys:

Illinois cases heading to conference May 16. We could get a decision then, but they also could get relisted a couple times. From here, a number of outcomes are possible:

1. SCOTUS could grant certiorari in full, and hear the case in its next term. If that happens, the parties will submit more complete briefs on the merits, and oral argument will be heard likely sometime in the fall. Our upcoming trial before Judge McGlynn would likely get stayed.

2. The Court could also opt to issue a summary reversal, which would reverse the Seventh Circuit without further argument and briefing. Such summary reversals are usually accompanied by a per curiam opinion explaining the action. I see this as least likely, they won't decide an issue this big with a per curiam. I could be wrong.

3. Another alternative is for the Court to grant certiorari, vacate the Seventh Circuit’s ruling, and remand it back to that court for further proceedings. This would be a scenario in which the Supreme Court is not quite ready to hear the case but does want to give the Seventh Circuit guidance on how to correct errors in its legal analysis. Something similar could happen in the event that the pending ruling in Rahimi changes the Second Amendment analysis in a way relevant to the Bevis ruling.

4. Finally, there is always the possibility that the Court opts to deny review entirely for the time being, preferring to hear the case following a final judgment (or at least that will be our hope). If so, we go to trial and climb the ladder all over again.

This week, the parties to the Southern District Cases (FFL-IL et al) had a conference to set the calendar for our suit against the state regarding it's "Assault Weapons" Ban (AWB).  What we heard was good news, and here's why: 

First: The Trial Court

At the conference on the 11th, Judge McGlynn set requirements or expectations for the calendar in our trial:

1. May 10th: Expert Witness testimony due
2. May 16th: Status conference - likely to set the trial date
3. Early July 2024: Trial 

This calendar would likely produce a decision towards the end of July, which might seem a long way out, but it's good because of what's before the US Supreme Court.

Second: The US Supreme Court

Our organization joined the others in a petition to be heard by the Supreme Court of the United States (SCOTUS).  The basis of our petition is: In overturning Judge McGlynn's temporary injunction halting enforcement of the AWB, the 7th Circuit Court of Appeals (CA7) panel

1. acted in defiance of SCOTUS guidance in the Bruen and Heller cases, inventing a new test: "weapons of use to the military which may be banned even though they're in common use"
2. acted in defiance of SCOTUS regarding text, history, tradition test in Bruen.
3. departed from the SCOTUS precedent in Staples (common use)

Why This Calendar is Favorable to Us

We have a Cert petition before the Supreme Court, seeking a reversal of CA7's (7th Circuit Court of Appeals) flawed decision.  It is very unusual for SCOTUS to intervene in cases not yet decided, and ours hasn't even started.

But: there are two cases that have been heard by SCOTUS this term, and both have implications for the demise of the AWB in Illinois.  The Rahimi case deals with gun rights for a domestic abuser, something not contemplated in the 18th or 19th century, and the Cargill case deals with the bump stock ban and the extent of the ATF's rulemaking authority.

These may seem like odd things to hang our case on, but they're not.  Rahimi speaks to text, history, and tradition, and Cargill to the ATF's authority to make new law.  Our team filed an amicus brief in Cargill pointing out the slippery slope that the bump stock ban starts us down: If the ATF can ban a bump stock because it effectively converts a semi-auto to full auto functionality, then we are one rule-making episode away from a ban on all semi-autos.  If every AR-15 is "readily restored or converted" to full auto via the installation of a bump stock in the government's reasoning, then every AR-15 is subject to regulation as full auto.  The government didn't put it this way, of course, but that's a simple, logical conclusion of a bumpstock ban.

What We Expect to Happen

SCOTUS

Best Case:  SCOTUS grants us cert and agrees to hear our case in the fall session. That would give us a Supreme Court decision by June of next year.

Good Case: SCOTUS references our case in their Cargill or Rahimi decision, with some commentary about inferior courts (CA7) getting stuff wrong. That would make any appeal of a win in the trial court much, much more difficult for the state.

Bad Case: Cargill and Rahimi are decided on narrow grounds with no mention of our cases.

Bad Case 2: SCOTUS rules against the Cargill and Rahimi plaintiffs, says bump stock bans and the stripping of gun rights for novel reasons is A-OK.  This seems unlikely.

Trial Court and Appeals

Judge McGlynn has made it clear that he wants to get to the merits of this case quickly.  He has also made it clear that we must argue two tests here: the SCOTUS standard as articulated in Staples, Heller and Bruen, and also we must argue the Judge Woods/Easterbrook standard of military usefulness.  We are prepared for both.

A victory in the trial court would likely be appealed back to CA7, likely back to the same appeals panel that denied us before.  This outcome may depend on the depth of the record we build in the trial court (makes it harder to arbitrarily reverse the lower court) and on what, if any, action the SCOTUS takes in the two current-session cases, Cargill and Rahimi. Any decision here would likely be published early fall 2024.

So the bottom line is this: we have multiple paths to victory, the calendar has aligned well with what we need, and we continue to fight as a dealer's association and as gun owners against this ban.

How Can You Help Us Continue to Fight This?

We are now getting to the expensive part of this journey, with depositions, expert witnesses, and hours preparing for and attending the trial.  The support from FFL's and gun owners in Illinois and nationwide last spring was astonishing, and we need to keep the pressure on. We need your continued financial support to carry this to victory.  Please help in any way that you can.

Please support our efforts if you are able. Thank you.