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
Decatur, IL
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.
KWAME REACTS
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?
Right here:
“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.
So if the IL Supremes do allow this order to stand and that negates the federal challenges, does that give the state legislature an opportunity to go back, edit, fix stuff, possibly follow the right procedures, and pass a stronger, harder to fight law?
The short answer is yes. The Macon County ruling found only that the exemptions in the statute for certain groups violated the Illinois Constitution. Remove the exemptions, the law stands as written.
Thank you, John! Wow. Great news. I don’t really need a gun and mags, but I think I’ll go shopping tomorrow to support my local gun shop. Assuming they are skeered reading DeVore’s claptrap.
I don’t think any online stores are going to keep up on this. I tried to buy some M-lok items which are not banned from 2 places and was refused the sale at both. It seems they all want to err on the side of caution and avoid future litigation.
Off to see ehat 24.9 and 24.10 say
Boch is right.
1.9 and 1.10 are the secrions on the prohibited guns and mags.
Not so sure about parts. Didn’t see those but then again my phone isn’t the ideal place to study the code.
https://ilga.gov/legislation/ilcs/ilcs3.asp?ActID=1876&ChapterID=53
Great news, by the way! Great job Rep. Caulkins.
THANK U FOR A JOB WELL DONE REP CULKIN!
Not sure what Devore’s continued angle on this is, but if this is in fact a statewide order (and I believe it is given the facially unconstitutional language of the ruling), then doesn’t this ruling render Devore’s actions moot? The courts have to apply the same standard statewide across all circuits, so what is the point in any continued litigation on Devore’s cases?
I am not convinced the ISC is going to overturn this ruling on wrong standard, but I will clearly state I am not a lawyer, so that is nothing at all but an opinion. I gave up predicting courts a long time ago. Equal Protection was clearly violated here, so I see no way they can leave a law stand where so much of the language established bogus protected classes without any basis in law or fact. Ultimately, we need to win on 2A grounds and those cases need to continue, but that is as much to prevent future attempts at what the GA tried to pull here than anything. This Protect Communities Claptrap needs to be tossed out in its entirety. There can be no argument that sections 24-1.9 and 24-1.10 clearly prevent our right to keep and bear arms, and further establish protected classes.
I think what the state probably filed is a request to stay the order pending appeal. So, the ISC could very easily simply say that the judgement of the district court is ‘suspended’ in order to give the ISC time to decide the appeal. In that case, the Macon County TRO would still stand (I think). It is also interesting that the ISC chose not to interfere with the TROs, which might lead one to believe that they do not consider the cases to meet ’emergency’ status. I do not know. I find all of this very confusing, to be honest.
“I think what the state probably filed is a request to stay the order pending appeal.”
This is what is conspicuously absent. There is no “stay.” The order states a finding but does not go on to issue injunctive relief. Stocks carefully parses his words in the press release saying “well defined legal authority” without providing specific case law. Also he acknowledges that there is a difference of opinion between he and the defendants attorney over the scope of the findings.
There are reports that the finding was actually drafted by and approved by both the plaintiff and defense attorneys. Apparently both sides are willing to bet they are correct on what the finding means.
And this may be even further confusing
https://twitter.com/bishoponair/status/1631791192819073027?s=61&t=dwtZH-jlxNcZAjKfEs5lrg
His final statement confirms that the scope is not settled.
I got an e-mail from Mandi at Federal Firearms Licensees of Illinois, who says that the ruling is not statewide, and doesn’t apply to anyone but the original Macon County litigants. They are advising their members that the ruling doesn’t change anything. In their opinion, the ruling didn’t really do anything at all yesterday. If you were covered by the TRO (I am), you still are, but if you weren’t in the original suit yesterday meant nothing at all different.
Not sure if I believe this, but it really doesn’t matter what I believe. What matters is what resellers believe, and it appears that they are clearly going to err on the side of caution and still refuse to sell anything covered under the law to Illinois residents unless both they and the resident are in the Macon County lawsuit. It has been my experience that almost all out of state resellers are refusing to honor the TRO (the only one I have found is Gun Mag Warehouse). All are waiting for a real statewide ruling. I really have no idea what to think, and why the judge did not clearly specify the scope of the ruling. We have been left hanging by this.
For anyone interest in what FFLIL is saying, here is the webpage:
https://mailchi.mp/e068ea63240b/macon-county-ruling-unpacked?e=7e742f232f
John: If you can make better sense of this than I can, I think we would all appreciate your insight.
What a mess. I am inclined to believe it means what it says. At the same time, dealers have about a million reasons to play it safe & conservatively.
This reminds me a lot of people like me refusing to carry in a Fanny pack or anything similar for fear of arrest and or prosecution when the law said it was perfectly legal. But that didn’t stop a lot of police chiefs and states attorneys from threatening arrests and prosecutions.
You don’t have to agree with me, but I believe the ruling last Friday only pertained to the plaintiffs named in Dan’s suit. For him and his lawyer to suggest that it’s a statewide injunction is irresponsible. It still has to win at the supreme court to have statewide effect. The timing of Kwame’s appeal was also very odd. Caulkins almost seems to be in step with Kwame to get his case rushed to Supreme Court. DeVore is contending that Dan’s case may not be solid enough without the added evidence obtained through discovery. Why wouldn’t Caulkins want to wait 4-6 weeks more to solidly nail down case and have the opportunity for Pritzker, and his crew, to incriminate themselves through the discovery process???? Seems really fishy to me. Time will tell if I’m wrong.
Disclaimer: I’m a named plaintiff in DeVore’s case, and I continue to buy “banned” items from dealers also named in DeVore’s cases. Most online, dealers will continue to hit the easy button of not selling to ANY Illinois resident.
Huh, still awaiting moderation, when you approved other comments since then. I’m paying attention.
Truth Hurts: The only time a comment is held for moderation is for first-time posters. Yes, there may have been other comments that popped up live before I approved yours (and nine others) this evening. But those comments came from folks who had earlier posts approved at some point in the past three months.
Also, for the record, Ken tried to return, but he couldn’t help himself, sharing vulgarities, ad hominem attacks and other trash. So I gently put him in the trash where that sort of nasty, childish and churlish behavior belongs.
No dealer is going to think it applies statewide, and no attorney will tell their client to go ahead. We are in legal limbo again. My fear is that Illinois will just pass a new law if and when this gets struck down. I don’t know what ISC can do, but I know of nothing to stop them from ruling in favor of the state and telling Caulkins to pound sand. There is no appeal above ISC. Then only our federal cases can stop this. I expect many more dealers to give up and close their doors if this drags out.
Challenges at the state court level have always been a temporary solution while the federal litigation proceeds. This case cannot be won at the state level.