Friday marked a rollercoaster day as the Macon County hearing happened at 1:30, but Judge Rodney Forbes had not seen the proposed order before it was presented to him in open court. Two hours later, he signed it. You can read it here:
Here is the press release put out by Jerry Stocks, the very talented and bright litigator from Macon County that State Representative Dan Caulkins hired to run this case:
FOR IMMEDIATE RELEASE
March 3, 2023
Macon County Judge Enters Declaratory Judgment Invalidating Assault Weapons Law
Jerrold Stocks, legal counsel for Plaintiffs in Caulkins et al v. Pritzker et al released
the following public statement regarding the Judgment entered in Macon County:
Final Judgment declaring 720 ILCS 5/24-9.1 and 10.0 facially invalid on
constitutional grounds was entered by Macon County Circuit Judge Rodney
Forbes in Caulkins et al. v. Pritzker, et al this date. Well-established Illinois
authority provides that a law declared unconstitutional pursuant to a facial
challenge is void, as if the law never existed, and is unenforceable in its entirety,
in all applications. 1 Notwithstanding any opinions from social media
commentators, parties or others that seek to interfere with the Caulkins litigation
or chill the use, possession or transfer of “assault weapons,” the Final Judgment
entered in Caulkins v. Pritzker meets the foregoing standard as a law invalidated
under a facial constitutional challenge. I fully expect that the Defendants will
express disagreement related to the scope for its effect.
The burden now rests with the State either to appeal the Final Judgment or
accept the result. Caulkins Plaintiffs anticipate that the State will appeal directly
to the Illinois Supreme Court under applicable Supreme Court Rule. Such appeal
procedures, if filed by the State, will be governed by Illinois Supreme Court Rules
or further Orders of that Court. It is likely that an agreed timeline to expedite
appeal may occur.
The Final Judgment in Caulkins represents a victory in one battle that is not,
necessarily, the end of the war against the subject legislation. Other lawsuits may
seek to present challenges to the legislation on factually broader and legally
distinct issues. If the Caulkins’ Final Judgment is affirmed on appeal, then the war
is won, for all cases. If not, then current (or future) litigants raising different
grounds than those grounds asserted in Caulkins still should enjoy their day in
court on those different grounds. Meanwhile, citizens are encouraged to proceed
in the subject matter of the invalid legislation with caution and always are
encouraged to seek the advice of his/her own counsel.
1 In re N.G., 2018 IL 121939, P43 (“a judgment based on a statute that is facially unconstitutional is void”); Napleton v. Village of Hinsdale, 229 Ill.2d 296, 306 (2008)(“ a successful facial attack voids the enactment in its entirety and in all applications.”); Morr-Fitz, Inc. v. Blagojevich, 231 Ill.2d 474, 498 (2008); People v. Manuel, 94 Ill.2d 242, 44-45 (1982)(void ab initio).
[Emphasis highlighting added…]
WHAT THIS MEANS
This ruling today strikes down the Illinois Firearms Ban Act in its entirety pending the outcome of the appeal by Kwame Raoul. More on that in a minute.
For now though, it applies across Illinois. It surely seems as though residents and businesses can buy and sell these now-formerly prohibited and restricted items. The entire law and its mandates are blocked from implementation as if the law had never been passed.
We would be remiss if we didn’t urge anyone wanting to buy America’s favorite rifle, or similar guns to do so right effing now. Ditto for the magazines to feed your favorite self-defense firearms. And the same goes for parts to complete your partially completed firearms.
If you have guns that were hanging in limbo because you had them on consignment at your local gun shop and want them back, now is the time to do that.
I know Tom DeVore has disputed these simple facts. In an email sent to some of what we believe are his gun dealer clients and potentially others, he wrote this:
“Today an order was entred in Macon County in regard to HB5471. This order has no statewide impact and means nothing legally for you. To the extent you sell “assault weapons” to anyone not exempt by the statute or court order in our TRO’s, you are subjecting yourself to potential criminal charges. If you choose to sell to anyone not allowed by law, you do so without my advice and will have no legal representation by me.”
No statewide impact? Really Tom?
For those unfamiliar with the term “facially unconstitutional,” here you go:
A facial challenge contends that a government law, rule, regulation, or policy is unconstitutional as written — that is, on its face. This challenge differs from an as-applied challenge in that it invalidates a law for everyone — not just as that law is applied to the particular litigant challenging it.
It invalidates the law for everyone. Period. Full stop.
I am not a lawyer but I know the difference between a facial challenge and an as-applied challenge. Just like I don’t need a biology degree to discern male from female and I don’t need a veterinarian degree to tell a dog from a cat.
Individuals and businesses are free to look over the court order signed by Rodney Forbes and draw their own conclusions. One better: take it to your local state’s attorney and ask his or her thoughts on the matter.
Within two hours of Judge Forbes signing the order, the IL AG Kwame Raoul filed an appeal with the the IL Supreme Court. If he had not done that, it would have mooted out our federal court case as the law has been effectively ruled unconstitutional in this final judgement. That’s right: we should thank Kwame Raoul for preserving our federal court cases challenging this gun ban on 2nd Amendment grounds.
I’ve been told the Illinois Supreme Court cannot hear this emergency motion until the end of May 2023. If this is true, that’s a darn shame. Pass me a tissue, please. That seems wildly unlikely that they couldn’t take any action for the better part of three months when it comes to my (admittedly limited) understanding of emergency appeals. I’m thinking the IL Supremes could issue a stay as soon as this coming week if they really wanted to.
WHAT HAPPENS NEXT?
The odds on thinking is that the Illinois Supreme Court is not going to let this order stand.
You want to know how they’re going to overturn this order?
“The appellate court held… that the challenged exceptions are subject to strict scrutiny as a result…”
The Illinois Supreme Court will rule that the wrong standard was used. They will rule that intermediate scrutiny was the appropriate legal standard of review given that this is an “Equal Protection” issue, not a Second Amendment challenge (subject to Bruen’s text, history and tradition / strict scrutiny standard). What’s more, the belief is that the ruling will come down 4-3, allowing one of the Dem Supreme Court justices to vote for upholding the order to make it look like it wasn’t a “partisan” decision.
If the IL Supremes do allow this order to stand, it will kill our federal lawsuit as the case will be “mooted” out.
Here’s Todd Vandermyde, our Illinois “Gun Law Guru,” with this thoughts on this decision. I’m listening to it right now.
It sounds like Todd’s a little leery about dipping his toe in the water as to the impact of this final order from the Macon County judge. Again, the advice I got earlier tonight: If you have any doubts, any doubts at all, take a copy of the order to your local state’s attorney and ask his/her thoughts on it.
Oh yeah, and don’t expect Gov. Jelly Bean to admit that his precious gun ban is in full arrest.