Justice Filing Brief in Illinois Gun Ban Case

“The Second Amendment is not a second-class right. See you in court, Illinois,” United States Assistant Attorney General for the Civil Rights Division, Harmeet K. Dhillon, declared in a mid-June post on X.com. “Proud of my @CivilRights team — thank you, Jesus!”

She wasn’t offering a prayer of gratitude. Rather, she was acknowledging the contributions of Deputy Assistant Attorney General Jesus A, Osete, who co-submitted an Amicus Curiae (friend of the court) brief along with Dhillon and three other Justice Department lawyers to the United States Court of Appeals for the Seventh Circuit in support of plaintiffs in Barnett v. Raoul, a challenge to the state of Illinois outlawing “some of the most commonly used rifles and magazines in America via a so-called ‘assault weapons’ ban.”

Noting the state had enacted the ban “just a few months after [New York State Rifle & Pistol Association, Inc. v.] Bruen,” wherein the Supreme Court had established a “text, history, and tradition” standard for determining the constitutionality of “gun laws,” the DOJ brief then referenced the District of Columbia v. Heller decision and argued “Illinois violated the Supreme Court’s clear directive that States cannot prohibit arms that are “in common use” by law-abiding citizens for lawful purposes.

The brief represents a 180º turn in DOJ practices in gun cases, where previously, the government had defended infringements against challenges, just as Attorney General Pam Bondi had done in Florida, when, as State AG, she had supported “red flag” laws, gun bans for 18–20-year-old adults, and more.  It arises because of President Donald Trump’s Executive Order, Protecting Second Amendment Rights, in which he “instructed his Administration to ‘protect the Second Amendment rights of all Americans’.” Doing her own turnaround, Bondi issued an “all hands” memo in early April pledging Justice would “use its full might to protect the Second Amendment rights of law-abiding citizens.”

Enforcing 2A from State Infringements

That changes were coming was indicated before that in late March, when DOJ announced a “pattern or practice” investigation looking into “lengthy eighteen-month delays”  in the Los Angeles County Sheriff’s Department’s processing of concealed handgun license applications delays, said to be “unduly burdening, or effectively denying, the Second Amendment rights of the people of Los Angeles.”

“This Department of Justice will not stand idly by while States and localities infringe on the Second Amendment rights of ordinary, law-abiding Americans,” Bondi proclaimed. “The Second Amendment is not a second-class right, and under my watch, the Department will actively enforce the Second Amendment just like it actively enforces other fundamental constitutional rights.”

That raised great hope, particularly for this correspondent, who had been calling for DOJ to do exactly that against California’s in-your-face infringements since the turn of the century with a totally grassroots “Petition for Enforcement of the Second Amendment.” In it, we challenged Attorney General John Ashcroft to back his -- unprecedented for the DOJ -- admission that the Second Amendment was an individual right with meaningful action to protect it. After submitting over 40,000 mailed in signatures, printed out and returned by spontaneous volunteers from around the country (we had presumed boxes of actual hard copy pages should make more of an impression than email petitions), it turned out Ashcroft’s declaration was just words to garner political support. Ultimately, we, and by extension every gun owner who took the time to support the effort and gather signatures, were met with deliberate indifference and ignored.

With Bondi’s announcement about looking into Los Angeles concealed carry license application delays, hope was renewed and Second Amendment advocates looked for ways to call attention to infringements in other states. Two attempts that I have been involved in reporting on were made about denial of rights in  Illinois, the same state AAG Dhillon is weighing in on with the amicus brief.

The first complaint to the Civil Rights Division was against blatant conflict of interest.

“On 8/11/23, the Illinois Supreme Court ruled to uphold the state Assault Weapon ban. It was 4-3, with Justice Rochford authoring the opinion,” the complaint stated.  “She violated current SCOTUS precedent (Caperton V Massey) by refusing to recuse herself regarding blatant conflicts of both political interests (campaigned with/was bankrolled by the main defendant(s) and was endorsed/took money from a lobbying group that lobbied for the law).”

“After careful review of what you submitted, we have decided not to take any further action on your complaint,” the Justice Department inexplicably responded.

The second complaint detailed racial discrimination with the Illinois’ Firearms Owner Identification card requirement and process.  

 “DOJ forwarded your inquiry to the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) for response,” the plaintiff was told. “ATF implements policy and regulations to enforce laws created by Congress. As such, we encourage you to reach out to your State congressional delegation with your recommendations regarding firearm laws. We hope this information proves helpful to you.”

So, why forward it to ATF? And what will complaining to politically invulnerable Illinois Democrats about infringements they enthusiastically impose do, aside from give them a good laugh?

Making Their Case

With these two failed attempts as backdrop, DOJ’s Civil Rights Division involving itself proactively in arguing against the Illinois semiauto/magazine ban is a remarkably welcome change and adds credence to the thought that it’s going to tactically pick and choose the right cases where the most progress can be made. So, now we can look at what is actually being argued and see if the right tactical arguments are being advanced.

“The Act violates the Second Amendment by banning AR15s and other firearms that are in common use by law abiding citizens for lawful reasons,” the brief asserts. “Many of the banned firearms are ‘Arms’ under the Second Amendment.”

“Many” is  curious word to use. What firearms are NOT arms? That’s why a concession in a footnote should raise concerns: “For purposes of this amicus brief, however, the United States does not challenge the district court’s findings that certain firearms banned by the Act, such as .50 caliber rifles and pistols, do not fall within that category.”

Perhaps the tactic will be to get a ruling that will help in later challenging those? Or what? Turning the conversation to tanks, grenades, artillery and submarines doesn’t seem like they’re arguing on favor of what Tench Coxe of the Continental Congress called “every terrible implement of the soldier.”

Still, the brief adds some important points that an ultimate Supreme Court decision will need to consider: Among recognized “uses by law-abiding citizens for lawful purposes” are “self-defense, target shooting, and public defense,” that last category touching on the core purpose the Framers had in mind as articulated in the first 13 words of the Second Amendment.

That’s why another key point made in the brief, that “the Second Amendment’s text does not exclude ‘militaristic’ arms,” is of paramount importance. ”After all, ‘a militia would be useless unless the citizens were enabled to exercise themselves in the use of warlike weapons,’” the brief  explains.

The right to keep and bear arms also includes “ the right to purchase them, to keep them in a state of efficiency for use, and to purchase and provide ammunition suitable for such arms, and to keep them in repair…. The right to keep and bear arms also involves the ‘right to maintain proficiency in firearm use’,” the brief elaborates. “The Second Amendment protects firearm attachments that are useful to the exercise of the right, including magazines, suppressors, and other firearm attachments that are in common use by law-abiding citizens for lawful reasons.”

That leaves a concern, a big one articulated in these pages before: Currently banned arms, along with arms technology that will be developed in the future, are not “in common use.” Since no innovation ever begins “in common use,” a government with the power to do so can ban all new weapon developments, retaining them exclusively for itself. That’s a point the Second Amendment community needs to be making before we find we’ve been caught in a web of our spinning.

But Wait. There’s More.

In addition to the DOJ brief, one signed by 35 state’s attorneys has been filed challenging the Illinois bans on behalf of the counties they represent, making two main arguments: “The act, as a ban on a class of arms “in common use” for self-defense today, is categorically unconstitutional under Heller; [and] The act is inconsistent with the historical tradition of firearms regulation and is therefore unconstitutional under Bruen.”

With that comes an ominous footnote about a legal dilemma: “The State’s Attorney is conscious of their dual responsibilities both to support the Constitution of the United States and to prosecute offenses committed in violation of the laws of the State of Illinois. Until the courts clarify that such restrictions are unconstitutional, the duty to enforce the law remains, while each State’s Attorney makes prosecutorial decisions based on their understanding of the appropriate legal principles at play and the facts and circumstances of each case.” Think about that. And ask yourself how many signatories would resign before conducting a prosecution they knew was wrong.

So Now What?

Now we wait and see what the Seventh Circuit will do. Then we’ll see appeals based on how they rule. Then we’ll see what the Supreme Court will do, if anything. If they do nothing, the infringements will continue in Illinois and other “blue” states. If they hear the case, and if Illinois loses, we’ll see if those states will keep playing games with laws in defiance of SCOTUS, and if anything will be done to discourage that. But the real interesting dynamics will happen if gun owners lose. Then we’ll see if the Second Amendment is worth the parchment it’s written on.

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