‘Weapons of war’ and the Second Amendment

It may seem intuitive that the Second Amendment does not protect an individual’s right to bear a hand grenade or a machine gun.¹ Then why is an AR-15-type Bushmaster rifle, the type used to fire 155 rounds of ammunition within five minutes, killing 20 first-graders and six adults in the Sandy Hook Elementary School shooting, not considered a prohibited weapon of war? And what can subdivisions of the state of Illinois, including local governments, do to regulate such weapons?

The Illinois Firearm Concealed Carry Act (“the Act”) preempts home rule powers over the regulation, licensing, possession, registration, and transportation of handguns and ammunition for handguns.² Ordinances or regulations governing firearms and ammunition enacted after the passage of the Act are considered invalid.³ However, upon passage of the Act, Illinois lawmakers included a narrow exception: ordinances regulating assault weapons were allowed if such ordinances were passed within ten days of the effective date of the Act.⁴

Highland Park, Illinois, took advantage of this sliver of a window. It passed Ordinance No. 68-13, amending its city code to prohibit the manufacture, sale, ownership, acquisition, or possession of assault weapons within the city.⁵ For the purposes of the city’s ordinance, “assault weapon” is extensively defined, and each category contains several prohibitive features, but the term generally includes semiautomatic rifles with the capacity for large magazines; semiautomatic pistols or semi-automatic rifles with fixed magazines capable of accepting more than ten rounds of ammunition; semiautomatic pistols with the capacity to accept detachable magazines; semiautomatic shotguns; and conversion kits from which an assault weapon may be assembled. The ordinance contains a non-exhaustive list of over 60 specific models that are prohibited, including Uzis, AK-47s, AR15s, and sniper rifles.

The ordinance specifically exempted firearms that had been made inoperable, qualified as “antique firearms,” or which were designed for Olympic target shooting. Those in possession of prohibited firearms were given 90 days to remove, render inoperable, or surrender the weapons to the chief of police, with a steep daily penalty for violations.

Unsurprisingly, the Illinois State Rifle Association (the “ISRA”) had something to say about Highland Park’s ordinance. The ISRA, along with named plaintiff Arie Friedman, sought an injunction of enforcement of the ordinance, claiming that it violated the Second Amendment, citing District of Columbia v. Heller, 554 U.S. 570 (2008), as applied to the states by the Fourteenth Amendment in McDonald v. Chicago, 561 U.S. 742 (2010). Heller, of course, solidified an individual right to possess firearms in the home. However, the decision added that this right was not unlimited, and cautioned against interpreting the decision to include “dangerous and unusual” or military-grade weapons not in “common use at the time.”⁶ Ultimately, the Seventh Circuit upheld the Highland Park ordinance, and the United States Supreme Court refused to hear the case on appeal.⁷

Fast forward one year. On April 2, 2018, the village of Deerfield, Illinois, passed an ordinance banning the possession, sale, and manufacture of assault weapons and large capacity magazines in the village, specifically citing the failed challenge to Highland Park’s ordinance.⁸ Within three days, a resident of Deerfield, along with the ISRA and Second Amendment Foundation, filed suit against Deerfield, seeking an injunction and a declaratory judgment finding the ordinance preempted by state law and unenforceable.⁹

The village of 19,000 inhabitants immediately catapulted into the national news in a post-Parkland landscape where the limits of the right to bear arms are at the forefront of the country’s mind. A February 20, 2018, Quinnipiac poll found that 67 percent of respondents favored a ban on assault weapons,¹⁰ and the conversation does not seem to be quieting any time soon.

Deerfield is not alone in its attempts to legislate the right to bear arms at the state and local level. The Fourth Circuit Court of Appeals upheld the state of Maryland’s ban on 45 kinds of assault weapons and its 10-round limit on gun magazines in 2017.¹¹ And a Massachusetts District Court held in early April 2018 that AR-15 rifles, the high-powered rifle used in several recent mass shootings, as well as similar military-style rifles and high-capacity magazines, are not protected under the Second Amendment, citing Heller’s conclusion that “[w]eapons that are most useful in military service . . . fall outside the scope of the Second Amendment and may be banned.”¹² However, not all local governments are on board with efforts to restrict gun ownership. For example, Iroquois and Effingham Counties have each recently adopted resolutions that express opposition to State legislation that aims “to restrict the Individual right of U.S. Citizens as protected by the Second Amendment of the United States Constitution,” and, in Effingham’s case, named the city as a “sanctuary” for gun owners.¹³
Four federal courts of appeals, including the 4th Circuit,¹⁴ 7th Circuit,¹⁵ the Court of Appeals for the District of Columbia Circuit,¹⁶ and the 2nd Circuit¹⁷ have weighed in, upholding laws that restrict or completely ban assault weapons. There is no circuit split. In each of these cases, the courts agreed that application of Heller requires that the “not unlimited” right must be balanced against the protection of the public from weapons that have the potential to kill and injure on a massive scale.

As Illinois’ state law is currently written, subdivisions of the state, including home rule municipalities, are unable to pass legislation regulating firearms and ammunition. Similarly, 41 other states had pre-emption legislation prohibiting local governments from enacting gun laws as of February 2018.¹⁸ However, the tide may be turning. In 2017, state Senator Julie Morrison, D-Deerfield, introduced a bill (SB 2130) to reinstate local governments’ authority to regulate assault weapons, but the bill died in committee.¹⁹ Senate Bill 2314, which would give local municipalities the right to regulate assault style weapons, just passed out of committee and is headed to full Senate at the time of this writing.²⁰

The above cases and legislative efforts may signal a coming change that could open the door to Illinois and its municipalities to legislation that may previously have been considered constitutionally impossible.