A second federal judge – also in the Northern Illinois District Court – has denied a motion to for preliminary injunctive relief in Illinois Firearms Ban Act.  Here’s a link directly to the decision for your reading displeasure.

And the money quote:

Having considered the preliminary record at this stage, the Court concludes that [plaintiff Javier Herrera] is unlikely to succeed on the merits of his claim. Doe, 43 F.4th at 791. The challenged restrictions on semiautomatic weapons and large-capacity magazines in the City Code, County Code, and Illinois Act are consistent with “the Nation’s historical tradition of firearm regulation,” namely the history and tradition of regulating particularly “dangerous” weapons. New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111, 2130 (2022); District of Columbia v. Heller, 554 U.S. 570, 627 (2008). […]

The Bruen Court outlined a two-step analysis to determine whether a challenged gun regulation is constitutional. Bruen, 142 S. Ct. at 2126–34. The Court must first determine whether “the Second Amendment’s plain text covers an individual’s conduct.” If the plain text does not cover the challenged regulation, then the regulation is outside of the Second Amendment’s scope and is unprotected. However, if the text does include such conduct, “the Constitution presumptively protects that conduct.” As such, for the regulation to be upheld as constitutional, “[t]he government must . . . justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation.”

To demonstrate that a regulation is “consistent with the Nation’s historical tradition of firearm regulation,” the government must engage in “analogical reasoning” by pointing to “a well-established and representative historical analogue.” The government can utilize analogues from a range of historical periods, including English statutes from late 1600s, colonial-, Revolutionary- and Founding-era sources, and post-ratification practices, specifically from the late 18th and early 19th centuries. Bruen took special note that the Second Amendment is not a “regulatory straightjacket.” The government’s proposed analogue need not be “a historical twin” and the “modern-day regulation” need not be “a dead ringer for historical precursors” to “pass constitutional muster.”

Importantly, “Bruen does not displace the limiting examples provided in Heller.” 2023 WL 2077392, at *9. As set out in Heller, states may still enact (1) “prohibitions on the possession of firearms by felons and the mentally ill”; (2) “laws forbidding the carrying of firearms in sensitive places”; (3) “laws imposing conditions and qualifications on the commercial sale of arms”; and (4) bans on “dangerous” weapons that are not “in common use.” Id. at 2162 (Kavanaugh, J., concurring) (citation omitted). The list itself “does not purport to be exhaustive.” Id. (quoting Heller, 554 U.S. at 626 n.26).

The Court holds that the restrictions on possession of certain semiautomatic rifles and large-capacity magazines in the City Code, County Code, and Illinois Act are consistent with the Nation’s “history and tradition” of treating particularly “dangerous” weapons as unprotected. […]

In response to the Defendants’ citation to similar statutes in this case, Herrera argues that his suit does not concern public carry, but rather defense of the home. This argument is unavailing. The Supreme Court was clear in its instruction that “analogical reasoning” is not a “regulatory straightjacket” and “even if a modern-day regulation is not a dead ringer for historical precursors,” the government’s chosen analogue “may be analogous enough to pass constitutional muster.” Bruen, 142 S. Ct. at 2133. While the government’s analogue may not be identical, it need not be. Bruen also expressly observed that “dramatic technological changes” or “unprecedented societal concerns” may require a “more nuanced approach.”

Such an approach is applicable here. As the State Defendants put forth at oral argument, laws regulating weapons, including various firearms, developed over time in response to the type of harm that those weapons presented, as in the present case. … Here, the City Code, County Code, and Illinois Act similarly responded to “dramatic technological changes” and “unprecedented societal concerns” of increasing mass shootings by regulating the sale of weapons and magazines used to perpetrate them. Bruen, 142 S. Ct. at 2132. This is well in line with earlier laws regulating carry and progressing to restrictions on sale and possession, in and out the home.

Having concluded that Defendants demonstrated a tradition of regulating “particularly dangerous weapons,” the Bevis Court next considered “whether assault weapons and large-capacity magazines fall under this category” of “highly dangerous arms (and related dangerous accessories),” and answered with a resounding yes. The Court considered ample record evidence of the vastly destructive injuries that semiautomatic weapons cause and their “disproportionate[]” use in “mass shootings, police killings, and gang activity. The Court observed that large-capacity magazines “share similar dangers,” with studies showing that the use of such magazines lead to an increased number of fatalities in mass-shooting scenarios. The Court rejected any argument that regulations on semiautomatic weapons and large-capacity magazines are not “unusual,” given the ten-year federal ban on assault weapons and eight bans on semiautomatic weapons and large-capacity magazines in jurisdictions such as Illinois. As such, the Court concluded that “[b]ecause assault weapons are particularly dangerous weapons and high-capacity magazines are particularly dangerous weapon accessories, their regulation accords with history and tradition.” […]

The shall-issue licensing schemes discussed in Bruen involved a “background check” or the passage of a “firearms safety course,” Bruen, 142 S. Ct. at 2138 n.9, which are more onerous than the relatively mechanical registration process required by the Illinois Act, see 720 ILCS 5/24-1.9(d). Nor does the Act permit state officials to have “open-ended discretion” to deny or allow a firearm to be registered. Bruen, 142 S. Ct. at 2161 (Kavanaugh, J., concurring). Rather, owners of semiautomatic rifles before the Act’s effective date must provide the affiant’s FOID number, report the make, model, caliber, and serial number of the weapon, and thereafter affirm that he or she lawfully owned the weapon before January 10, 2023.

Here’s the bottom line: With all due respect to Mr. Herrera’s counsel, you can’t just say you’re suing to challenge Illinois new gun ban and staple a copy of the Bruen decision to your filing.  

Secondly, until and unless the Seventh Circuit Court of Appeals decides to get serious about hearing this case on appeal and reigning in these rogue opinions by radical anti-gun jurists, the Bruen decision will mean nothing.

Frankly, this looks a lot like Brown v. Board of Education from the 1950s.  It took two long years before the courts began to truly enforce Brown.  It looks more and more like the Bruen decision will require years to fully implement as well.

If Bruen is never enforced, then we’re one step closer to exercising the fourth and final box used in defense of liberty.


11 thoughts on “Another Northern District Court judge rejects preliminary injunction against Illinois gun ban… and here’s why”
  1. This case or all of the cases? Elections have consequences. That Biden appointee doesn’t look old enough to tie her own shoes. Was she selected based upon her skin color or her ideology? Because reading that decision suggests she has earned her position through affirmative action of some sort.

  2. “With all due respect to Mr. Herrera’s counsel, you can’t just say you’re suing to challenge Illinois new gun ban and staple a copy of the Bruen decision to your filing.”

    Good one John! I actually spat out some morning tea reading that zinger!

  3. Mr. H. learned that lesson the hard way. Bidet’s appointees have been overwhelmingly female.
    Not sure this judge wasn’t a graduate of Chicago Public Schools. She couldn’t read or couldn’t understand the Bruen decision. Interest balancing is supposed to be dead.

  4. Did they fail to remind the judge that only arms that are both “dangerous AND unusual” can be banned/regulated?

    1. She apparently couldn’t read. Freddy suggested she was a graduate of Chicago Public Schools. I’d have to agree.

  5. I am starting to become discouraged about this whole process. Now we have two judges in the same court that refuse to follow the law and make up some nonsense out of some tissue. Seventh is sitting on their hands. We have two bought and paid for judges on the ISC.

    We are losing the rule of law in this country, and the result of that is too ugly to contemplate.

  6. Not sure about the issue of implementation of Bruen. But if I understand the judges ruling. It sounds like more legal semantic gymnastics. The erosion of our rights is quite apparent in any case.

  7. I suspect if the plaintiff’s attorney had taken the time to present a proper brief with pertinent cites this case would be stronger for appeal. As J Boch notes attorneys must learn one cannot “staple a copy of the Bruen decision” to the filing. Gentlemen, calling out judges based on their physical appearance and making judgements as to their competence on this basis does no good. Simply because the USSC issued a decision does not relieve attorneys of their obligation to present an argument. When the southern district federal filings were taking time I heard many people complain. Had those cases been rushed we would have had no chance. A lesson to be learned is evident.

    1. Agree on all counts. Although she does make a low-hanging fruit for her reliance upon interest balancing in her decision.

    2. Well said jeff! I know it’s much easier nowadays with judici and Pacer but some of you may not know just how much work is involved in such cases. I’m finding it very useful to pull cases from Pacer and those referenced in videos on YouTube in fact that are mentioned by the Second Amendment rights groups. Then you can get their briefs online or simply by writing the producer of the content or the actual attorneys, in which case all of your research is done for you in the best way. Or at the least your basic research is done and you can follow up to narrowly tailor that to your own purposes.

      So my question is is there any gun rights group in the country that’s maintaining a brief bank? Someone with adequate resources should keep all of this research in a format that is accessible by everyone who needs it. I’m making several challenges to various gun laws and it would be very helpful to me to not have to do all of this on my own. If it’s already been done and done well then someone please make it publicly available and easily accessible!

      I forget his name but there’s a fat young, fairly inarticulate lawyer on YouTube who does current videos on current litigation in California. He pronounces Bonta in an odd way! I’m not real fond of him because the headlines on his YouTube videos are – every single one of them – a lie! Every one says “Court strikes down” or “court overthrows” or “this found unconstitutional!” When in fact none of that is true and instead he’s just hoping that is the result down the line. I think that’s unethical of an attorney to do that but he sure gets the eyeballs based on it! He has in the past provided links to online sources where we may access the complaints and briefs of cases that he discusses but he has stopped doing that in recent past. So that along with his blatant lying has led me to just forget his name.

      One would think that that would fall within the mandate of an organization such like this one, much more so in fact than attacking people calling them names like pedophile and ignorant Chicago public school graduates!

      Why don’t you use some of your precious resources and simply Park all of the gun rights groups briefs in an easily accessible position on your website? You are one of the few organizations that is actually doing anything about all of these outrageous new gun laws . What you do will be used nationally ! And I submit that if you also pursue this path you will receive much more Nationwide attention which is good for your root cause. I assure you they will be used in other cases!

      Thank you

      *p.s. mandate is not what you do on Saturday night’s jb!

  8. They used only half the quote. The full quote contains “dangerous and uncommon” weapons. All guns are dangerous which really was the sub-point of the 2A..

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