WASHINGTON (CN) — Illinois told the Supreme Court it should not interfere with the state’s ban on assault rifles, arguing Monday that its law poses no conflict with precedent because the Second Amendment does not protect AR-15s and similar weapons.
“By prohibiting the manufacture and sale of weapons and magazines increasingly used in the deadliest mass shootings, the Act comfortably fits within this pattern of regulation in response to new forms of violent crime perpetrated with technologically advanced weapons,” Illinois Solicitor General Jane Elinor Notz wrote in a brief filed this morning.
The state passed its ban on assault weapons early this year in response to the Independence Day parade massacre that killed seven people in Highland Park, Ill.
With multiple legal battles over the group playing out across the state, the National Association for Gun Rights brought an emergency application with the Supreme Court last week to enjoin the new Illinois law.
Notz calls the effort premature and says the lower courts should handle the matter before the justices intervene.
The suburb of Chicago where the July 4 shooter fired 83 rounds from a semiautomatic AR-15 rifle already had an ordinance that prohibited the sale of assault weapons, but the gun had been purchased elsewhere in the state. Other Illinois municipalities began reviewing their policies on assault weapons sales after the shooing.
Shortly after Naperville, about an hour south of Highland Park, passed its own ordinance, Illinois then passed the Protect Illinois Communities Act, banning the sale of assault weapons and large-capacity magazines. Those who already possess these items will be able to legally keep them if submit an endorsement affidavit to the state police by the start of next year. Penalties for violating the ban carry felony charges with three-year minimum jail sentences.
Gun advocates claim the ban runs afoul of Supreme Court precedent, pointing to a ruling from just last term in which the conservative majority swapped a historical test in place of the categorical test established in the 2008 case District of Columbia v. Heller used to evaluate gun regulations under the Second Amendment. New York State Rifle & Pistol Association Inc. v. Bruen requires gun laws to be analogous to gun regulations in the 1700s, but the lower courts have yet to find agreement over how similar the historical comparison must be.
Illinois claims its ban on assault weapons passes Bruen’s test because assault weapons are not used for self-defense.
“The instruments regulated by the Act are best suited for offensive combat: their defining characteristics are unnecessary (and often counterproductive) for self-defense, with the result that handguns and shotguns are preferred for self-defense scenarios,” Notz wrote (parentheses in original).
AR-15s and similar weapons were designed for the military with the goal of increasing “the effectiveness of killing enemy combatants in offensive battlefield situations,” the state argues. Tracing the origins of AR-15s used today to models created for the military in the 1950s, Illinois says these same weapons were used in the 1960s in field tests in Vietnam.
Because these weapons were designed for the military, Illinois claims they do not serve a purpose in self-defense scenarios.
“Assault weapons are designed to allow high-velocity rounds to be fired at ‘a high rate of delivery’ and ‘a high degree of accuracy at long range,’” Notz wrote. “But these features are unnecessary in the civilian self-defense context, where ‘most confrontations involving gunfire are at close range,’ and therefore do not require the long-distance accuracy of assault weapons.”
The law does not affect sales of handguns, rifles and shotguns, so, the state argues, it is analogous to historical precedents.
“And because the Act preserves access to a vast array of handguns, rifles, and shotguns, it is consistent with its historical predecessors in that it imposes tailored restrictions on the dangerous and unusual instruments causing harm to the public while retaining the ability for Americans to own and carry weapons for self-defense,” Notz wrote.
Outside of the merits of Illinois’ ban, the state says there is no emergency for the court to address.
“Despite labeling their application to this Court as an emergency, they waited 11 days from the district court’s denial of their preliminary injunction motions to seek an injunction pending appeal in that court, another 5 days to seek that relief in the Seventh Circuit after the district court denied their request, and another 8 days to seek emergency relief in this Court after the Seventh Circuit denied their request, even though their emergency application is a nearly word-for-word reproduction of their opening merits brief in the Seventh Circuit (which they filed before the Seventh Circuit denied their motion for injunction pending appeal),” Notz wrote (parentheses in original).
When the group filed its emergency appeal at the Supreme Court, its request was less urgent because a lower court had already ordered an injunction in a similar challenge from another group. This past Thursday, however, the Seventh Circuit lifted that injunction, putting the ban back on the books.
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