Jim Dey: Illinois gun-ban law at beginning of long road of litigation

Nov. 13—It took U.S. Judge Stephen McGlynn 178 pages to explain why, but the bottom line is that the downstate federal judge has declared Gov. J.B. Pritzker's highly touted assault-weapons ban unconstitutional.

Now the legal battle will move to the 7th Circuit Court of Appeals in Chicago, which had upheld the law in a preliminary decision related to an injunction.

At the same time, the political war over the Second Amendment re-ignited, as demonstrated by a spokesman for the governor. He charged the decision favors "those who value weapons of war more than public" and is intended to protect Illinoisans who suffer from the "constant fear" of being gunned down in public places.

The spokesman, obviously, was referring to mass-casualty shootings that have made headlines across the country. There is no minimizing the trauma and loss associated with those events.

At the same time, it's highly unlikely Illinoisans suffer from the "constant fear of being gunned down" whenever they leave home. If they did, they probably wouldn't leave home.

Nonetheless, the Pritzker administration's response to what surely will be a preliminary decision on a complicated legal issue reveals the depth of emotion the gun issue elicits as well as the extent some elected officials seek to exploit that emotion.

The Illinois law — or one similar to it — is certainly headed to the U.S. Supreme Court for final review. A Maryland gun law similar to Illinois' is ahead in the legal line of litigants.

The Illinois law bans the sale of a variety of semi-automatic rifles and limits the size of ammunition magazines. At the same time, it allows current owners of banned firearms to keep them if they register them with the state police.

In finding the law unconstitutional, McGlynn concluded that the nation's "history and tradition does not support a statute as far-reaching as Illinois'."

McGlynn's "history and tradition" reference comes straight from a U.S. Supreme Court ruling. Unfortunately, that legal test is so obviously vague that it's difficult for lower-court judges to divine its meaning.

In a majority decision on a New York law, Justice Clarence Thomas ordered that firearms subject to a ban must be dangerous, unusual and out of step with tradition.

But what does that mean when comparing modern firearms with traditions that date back 200 years? No wonder different judges can look at the same facts and reach different conclusions.

The Illinois law was passed in response to the tragic July 4, 2022, mass shooting in Highland Park. In that case, the shooter legally purchased his firearm.

But it's important to remember that the vast majority of gun crimes are driven by illegal possession of firearms.

McGlynn noted the difference in his opinion.

"Disarming law-abiding citizens does not inoculate us from the evil, hatred and psychosis or from the tyranny of others. ... The oft-quoted phrase that 'no right is absolute' does not mean that fundamental rights precariously subsist subject to the whims, caprice or appetite of government officials or judges," he said.

McGlynn's "no right is absolute" is a fair analysis of the Second Amendment's protection of the right to keep and bear arms. Regulation is permitted, but bans are frequently stricken. One ban that has survived judicial scrutiny is the federal ban on machine guns.

The question, of course, is where to draw the line. Reasonable people can disagree. So what matters is how bright a line the high court can and should draw. The current one is too vague to allow legislators and lower courts proper guidance.