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Challenge to Illinois Assault Weapon Ban Includes Militia Considerations in Right to Arms

Challenge to Illinois Assault Weapon Ban Includes Militia Considerations in Right to Arms

“A gun rights group representing over two million members and activists has asked the U.S. Supreme Court to decide whether Illinois' strict rifle ban is constitutional,” Fox News reports. “Gun Owners of America (GOA) and its sister organization, the Gun Owners Foundation… filed a petition for certiorari with the Supreme Court in their challenge to the Protect Illinois Communities Act (PICA). The groups, representing Illinois gun owners, argue the law imposes an unconstitutional, sweeping ban on hundreds of commonly owned and lawfully used rifles and ammunition magazines.”

“These bans took effect in January 2023, and GOA quickly filed suit and secured an injunction from Judge Stephen McGlynn,” GOA explains.  “As Judge McGlynn put it, the Illinois laws in question ‘seem to be written in spite of the clear directives in Bruen and Heller, not in conformity with them.’ Frustratingly, the anti-gun 7th Federal Circuit quickly blocked Judge McGlynn’s ruling, leaving Illinois gun owners with no choice but to request relief from the nation’s high court.”

The petition for Gun Owners of America, Inc. and Gun Owners Foundation, Petitioners, v. Kwame Raoul, Attorney General of Illinois, et al., Respondents presents one question: “Whether Illinois’ categorical ban on millions of the most commonly owned firearms and ammunition magazines in the nation, including the AR-15 rifle, violates the Second Amendment.”

Answering that question requires exposing the deliberately dishonest judicial contortions the Seventh Circuit had to go through to uphold the Illinois gun ban after the Supreme Court’s Bruen decision to reach a fabricated “conclusion” that “the Second Amendment’s two clauses have no relation to one another” and “ that millions of common arms are ‘similar’ enough to ‘military weapons’ that they fall on ‘the military side of that line’ and thus are not ‘Arms’ at all.”

It's good the petitioners have written their brief this way because, if it hears the case, it will force SCOTUS to consider the purpose behind the prefatory “militia” clause of the Second Amendment, something overlooked in other challenges to citizen disarmament laws that limited their arguments to self-defense. As this correspondent has cautioned, (see “The Militia Aspect,” Part 1 and Part 2) ignoring its core purpose makes the Second Amendment more vulnerable to infringements.

“Unsurprisingly, the [Seventh Circuit] majority did not explain how the Founders’ permeating fear of standing armies – like the one they had just defeated – is compatible with the notion that they would voluntarily and intentionally subjugate themselves to possession of only second-class ‘civilian weaponry’ that would make their future ability to ‘resist tyranny’ (Heller at 598) impracticable, if not impossible,” the petition points out.

“From start to finish, the panel majority based its Second Amendment analysis on the theory that, when the Heller Court ‘concluded that the Amendment recognized an individual right to keep and bear arms,’ it ‘severed’ the connection ‘between the prefatory clause which refers to the Militia and the operative clause, which refers to the right to keep and bear Arms,’” the petition elaborates. “Drawing from Heller’s statement that the meaning of operative clause is ‘not limited to’ the prefatory militia clause), the majority concluded that the two clauses have no relation to one other – actually, an inverse relationship – creating a novel civilian versus military arms dichotomy.”

The “reasons for granting the petition” are clear and inarguable to unbiased minds:

By severing the Militia clause and creating an “atextual and ahistorical distinction between ‘civilian’ and ‘military’ weaponry,” the inferior court is flouting SCOTUS precedents.

The inferior court “invented a new test” by “saddling petitioners with the burden to prove an AR-15 Is not “useful in military service,” and then “ignored its new test.”

This petition, if heard and correctly ruled on, can result in the legal recognition that the function of the Militia, defined by the high court in the Miller case as “all males physically capable of acting in concert for the common defense [and] bearing arms supplied by themselves and of the kind in common use at the time,” was to field citizen soldiers. These citizens bore arms that were suitable for that purpose, “ordinary military equipment” intended to be taken into “common defense” battles. The Militia did not assemble on the green bearing clubs and spears. They came with the intent to match and best a professional military threat.

“In common use at the time” was not limited to what was popular for sporting use. It was what was in common use by enemies foreign and domestic who would otherwise prevail if not matched (and bested) in capability. Rather than deter tyranny, such an imbalance would invite it.

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“If courts continue to operate under the misimpression that the right to keep and bear arms protects only neutered firearms like break-barrel shotguns and bolt-action hunting rifles, the Second Amendment will offer little but a parchment barrier against tyranny,” the GOA petition correctly observes.

This is an important legal hurdle to clear if gun owners ever hope to challenge the constitutionality of the National Firearms Act and regain recognition to own weapons that are theirs to keep and bear by birthright. Now all that’s needed is for SCOTUS to agree to hear the case and then to rule correctly.

And for the Republicans not to blow the elections, allowing a new Democrat supermajority to reshape the court in its image…


About the Author

David Codrea is the winner of multiple journalist awards for investigating / defending the RKBA and a long-time gun owner rights advocate who defiantly challenges the folly of citizen disarmament. In addition to being a regular featured contributor for Firearms News and AmmoLand Shooting Sports News, he blogs at “The War on Guns: Notes from the Resistance,” and posts onTwitter: @dcodrea and Facebook.


If you have any thoughts or comments on this article, we’d love to hear them. Email us at FirearmsNews@Outdoorsg.com.




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