Following last summer’s horrific mass shooting at a Fourth of July parade in Highland Park, Illinois, which left seven people dead, nearly fifty others wounded, and a 2-year-old orphaned, the Illinois General Assembly swung into action.
The result is the Protect Illinois Communities Act (PICA), which on January 10 was passed by both houses of the legislature and signed into law by Governor J.B. Pritzker. The new law’s supporters argue that it will save lives. Its critics say that it is unconstitutional and that it will be very hard to enforce.
PICA does a few things, the biggest of which is a ban on the sale or transfer of certain rifles deemed to be “assault weapons.” People who already own such firearms will be required to register them with the state government by January 1, 2024, once a system for registration has been created later this year.
The law also, as the governor’s office noted in a press release, “caps sales of high-capacity ammunition magazines, bans ‘switches’ that convert legal handguns into assault weapons, and extends the ability of courts to prevent dangerous individuals from possessing a gun through firearm restraining orders.”
Let’s deal with these three provisions one by one.
First, the ban on new high-capacity magazines, such as the 30-round magazines reportedly used by the accused shooter in the Highland Park massacre. Practically speaking, such a ban is virtually unenforceable, except as an after-the-fact charge for another crime. Magazines are cheap, they almost always lack serial numbers, they are easily available in other states, and nowadays they can even be produced with a 3D printer.
For an example of the complications involved in a ban on high-capacity magazines, look at California, the Land of a Hundred Gun Laws. One of the state’s three mass shootings this month—the Monterey Park shooting at a Lunar New Year festival—involved a gunman reportedly using a 30-round magazine. But California banned the possession of high-capacity magazines more than twenty years ago, and in 2016 enacted a law authorizing their confiscation. But these provisions have been tied up in litigation for years; just last summer, the U.S. Supreme Court vacated a Ninth Circuit ruling upholding the ban.
Second, the Illinois law’s new state-level ban on “switches”: This is a fine provision, although somewhat duplicative as they’re already illegal under federal law. Switches allow someone—with little skill required—to turn a semiautomatic Glock handgun, America’s most popular, into a fully automatic machine gun. All for just about $25. It’s somewhat disturbing and awfully hard to regulate, because it is basically a piece of plastic.
Third, the part of PICA regarding restraining orders keeping guns out of the hands of dangerous individuals: These are good changes. Before the passage of PICA, only family members and law enforcement could use the state’s “red flag” laws to force somebody to surrender their guns. Now, that power also lies with prosecutors. And the renewable six-month period the government was permitted to retain a flagged individual’s guns was raised to a year.
The new Illinois law was challenged in court almost before the ink in the governor’s signature had dried. No surprise there: After the bill passed the state Senate, the president of the Senate, Don Harmon, told his Republican colleagues “We’ll see you in court.”
It’s worth putting the new Illinois law in the context of other recent state gun laws. Illinois is a blue island in a sea of red and purple. And in recent years, legislatures have passed laws loosening gun restrictions in several of those red states—like Missouri, where individuals who aren’t even legally eligible to purchase a handgun are nonetheless now permitted to carry one concealed in public without a background check or any training whatsoever.
Unlike nearly all other states, Illinois requires its residents to apply for and receive a Firearm Owner Identification (FOID) card before they can legally own a gun or buy ammunition. Those under the age of 21 are required to get parental or guardian sponsorship, even though in neighboring states, 18-year-olds can typically purchase any shotgun or rifle of their choosing.
The accused Highland Park shooter, who was 21 at the time of the crime, was reportedly 19 when his father sponsored his FOID card. His father did this after several disturbing events, including the son’s suicide attempt by machete and a threat to kill everyone in his house. As a result, the father has been charged with seven felonies.
It is worth noting that Highland Park had banned most semiautomatic weapons and high-capacity magazines in 2013, the former measure staying on the books despite a legal challenge that went all the way to the Supreme Court, which declined to hear the case.
Obviously, the well-meaning attempts to protect citizens by restricting guns at the state level in Illinois and at the local level in Highland Park failed to prevent the parade massacre. The ease of purchasing firearms, even in a state with restrictions like those in place in Illinois, makes city ordinances usually after-the-fact additional chargeable crimes. At best, a local ban on ownership of certain types of weapons within one city’s limits might enable a keen-eyed neighbor to report a lazy lawbreaker.
All of which raises two questions. First, would the new Illinois law have helped prevent the Highland Park mass shooting if it had already been in place at the time?
The accused Highland Park shooter reportedly bought five guns legally under the laws in place at the time. The Smith & Wesson M&P15 used in the shooting, an AR-15-style rifle, is one of dozens of firearm models explicitly labeled an assault weapon in the new law. So had the law been in place before the shooting, he would not have been able to legally purchase that gun, nor the high-capacity magazines used in the shooting. And if he already possessed the gun before PICA was passed, he would have had to register the gun and keep it on private property. (Assuming, of course, a registration regime had already been set up.)
Of course, he could still have gotten the M&P15 illegally—perhaps on the black market in some other state where the laws are looser, and transported it to Illinois—but having to leap over that hurdle might have been sufficient deterrence to prevent the killing.
And second, what are the chances that the law will stand up in court?
PICA’s ban on the sale and transfer of a type of weapons and of high-capacity magazines going forward, of course, rankles Second Amendment enthusiasts—and it may not survive legal challenges. As a leading Illinois gun-owners advocate told the Reload, PICA “flies in the face of the Supreme Court”—and specifically the Court’s Bruen decision last year, which held that, for a gun restriction to pass muster, “the government must affirmatively prove that its firearms regulation is part of the historical tradition.”
Since the passage of PICA, most Illinois county sheriffs, who are elected by voters, have issued nearly identical statements announcing they will not enforce the law. Some sheriffs, like Jeff Connor of Madison County, cite the Bruen ruling as justification for not proactively enforcing the law:
. . . pending further direction by the courts, the Madison County Sheriff’s Office will not expend its limited resources to check whether otherwise law-abiding gun owners have registered their weapons with the State, nor will the Madison County Sheriff’s Office be arresting or housing otherwise law-abiding individuals solely due to non-compliance with HB 5471. As to possible prosecution, if the Madison County State’s Attorney’s Office is brought cases relating to the enforcement of HB 5471, it will exercise strict prosecutorial discretion in such circumstances, ensuring that the clearly-defined Second Amendment rights of our citizens remain undiminished.
Along with Madison, around half of the counties in the state have passed resolutions to symbolically designate themselves “Second Amendment sanctuaries.” (In good Trump-era Republican fashion, the name was chosen to echo and troll the “sanctuary city” movement, where cities such as Chicago proclaimed they would not enforce all aspects of federal immigration law.)
Until now, the Second Amendment sanctuary movement has been largely symbolic—or, as one supporter described it, “a warning shot across somebody’s bow.” PICA might be catalyzing the movement to become something more politically willful. And in a mirroring of the arguments that broke out years ago over “sanctuary cities,” many of the positions have been reversed. Gov. Pritzker hit the same notes that a Republican immigration hardliner might have in the earlier verse of this “sanctuary”-themed song when he recently said:
You don’t get to choose what laws you enforce when you are in law enforcement. You have to, you know, enforce the laws whether you like them or not. You take an oath to do that. And these sheriffs have taken that oath.
Democratic sheriffs, like Champaign County Sheriff Dustin Heuerman, disagree with their Republican colleagues: “Not agreeing with the law, does not equal it being unconstitutional and does not equal me not enforcing that as a law enforcement officer.”
But the discretion that enables law enforcement agents to make their own judgments about what sorts of investigations and cases to pursue with limited resources would provide enough leeway for the sheriffs to take this position without announcing it—and without eliciting censure from commentators, their colleagues in law enforcement, and the governor. It’s hard to avoid the conclusion that there’s a bit of both lib-baiting and fear-mongering going on. Writing in the Chicago Sun-Times, Rich Miller, a journalist who covers state politics, observed: “What the sheriffs have basically done is to deliberately inflame the public for no good reason, and then tossed in an empty threat to not house violators in their jails unless they have an order from a judge.”
That’s in part because the state of Illinois doesn’t actually require its sheriffs to enforce most laws. Miller continues:
State statute requires sheriffs, acting as their counties’ supervisors of safety, to enforce all state traffic laws. But there is no requirement to enforce other laws. And their state-mandated oaths of office require them to support the U.S. and Illinois constitutions, but not individual laws.
Law enforcement discretion is a long-accepted policy. But sheriffs issuing written statements flatly declaring they will not enforce a state law no matter what sure does appear to go well beyond that.
And what about the provision of PICA that is arguably its most controversial—the gun registry? If you’re not a gun person, you might think there exists somewhere a neat and orderly registry of the guns people buy. You’d be wrong—the NRA wouldn’t have it any other way, and has been warning its dues-paying members for years about gun registries.
A 1986 federal law severely restricts the ability of the National Tracing Center to have the means to quickly assist in identifying the last record of ownership of a gun if authorities need to find out. It’s insane.
Some blue states, like Maryland and California (as well as Washington, D.C.), have gun registries in some form, but the power of the NRA is muted in those states and limited to what they can win in court. What makes Illinois different is that, yes, it’s a left-leaning state, but it’s a Midwestern one. One where the political power of Democrats is far more concentrated.
One unintended consequence of the year that it will take before the registry is set up and fully activated is that opponents of the law have ample time to win injunctions in court. Within a week and a half of Gov. Pritzker signing the legislation, a court in conservative Effingham County issued a restraining order exempting over 800 individuals and a few gun dealers from enforcement of the law after they filed a suit against the state. The plaintiffs in the Effingham injunction allege that Democrats used procedural tricks to expedite the passage of the law.
They are not alone in contesting it. Former Republican candidate for attorney general Tom DeVore has filed a similar suit with a large number of plaintiffs. Still more will likely be filed in the coming weeks.
For his part, Gov. Pritzker says he is “confident that the courts will uphold the constitutionality of Illinois’ law.”
Is the governor’s confidence warranted? In the wake of Bruen, I’m not sure it is. Under Bruen, if you cannot demonstrate that, say, restrictions on open carry or the banning of magazines of a certain size are statutes with a robust historical lineage in the United States, you cannot make a new law restricting either open carry or the larger magazines in the present. This new historical test presents a daunting problem for laws like PICA.
Former Illinois Congressman Joe Walsh tells me that Gov. Pritzker is walking down a “losing road.” One friend of mine, a former congressional staffer from the Illinois delegation, was even more pessimistic: “If you’re anti–gun rights, Illinois doing this is the worst thing,” he says. “They’ll litigate and you’ll end up with even weaker provisions.”
One fevered response to PICA came from former Illinois Republican gubernatorial candidate Darren Bailey, who tweeted: “I’ll die on my front porch before anyone takes my guns away. My message to Springfield: If you want my guns, come get them.” We have the better part of a year to see what happens in the courts before registrations must be completed.
So if you want to see what the coming decades of state-level gun control legislation will look like, keep your eyes on PICA this year and how it fares in the courts.
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