Update to
Harrel v Raoul (And affecting cases pertaining to
Protect Illinois Communities Act: NAGR v Naperville, Harrel v Raoul, Barnett v Raoul, GOA v Raoul, Herrera v Raoul, Langley v Kelly) -
https://www.thehighroad.org/index.p...oint-for-aw-magazine-ban.905531/post-13023968
Key excerpts from the ruling highlighting Bruen methodology compliance of "Text, history and tradition" with burden shifting to state/government including "military use/military grade"/dissenting arguments/opinions considerations directed by 7th Circuit on remand:
The United States Supreme Court has issued several landmark decisions that seemingly answered several important questions about the right to keep and bear arms ... this Court seeks to understand what exactly it means for a firearm to be “dangerous,” “unusual,” “bearable,” “in common use,” in “dual use,” and/or a “military weapon.”
... 1. "Bearable" ... this Court defines bearable as: a weapon that an individual carries for the purpose of being armed and ready for offensive or defensive action in a case of conflict with another person. (Pages 57-61)
... 2. "Dangerous" ... this Court defines dangerous as: bearable arms that a typical operator cannot reasonably control to neutralize discrete, identified aggressors. Once more, it is the lack of the ability to discriminately control the arm and its discharged projectiles that makes it dangerous, not its rate of fire (Pages 61-67)
... 3. "Unusual" ... Therefore, considering the above, unusual is defined as: an arm deploying an atypical method to neutralize an opponent in confrontation or that deploys a neutralizing agent that is caustic, incendiary, noxious, poisonous, or radioactive. Unusual would also include those weapons that are not designed for successful self-defense in neutralizing an opponent, but rather are primarily deployed to inflict cruel, brutal, or inhumane suffering on a person. (Pages 67-70)
... 4. "Common Use" ... this Court defines common use as presumptively encompassing: any bearable rifle, shotgun, or pistol that is capable of semiautomatic fire and is or has been available for purchase, possession, and usage by law-abiding citizens for self-defense, provided that it is not otherwise “dangerous and unusual.” Moreover, for the sake of clarity, the Court will also include essential features (like magazines) and nonessential features that increase operability, accuracy, or safety (like the various attachments prohibited by PICA) as items that are presumptively in common use. (Pages 70-75)
... "Dual Use" ... the Court holds that “dual use” refers to weapons that, while predominantly useful in military contexts, are also useful for civilian offensive or defensive use in confrontation such that they would be covered by the Second Amendment’s guarantee. (Page 112)
[“military use” refers to weapons that are selected, procured, tested, and issued to military members for use in combat. (Page 111)]
[“military-grade” ... issued to the military for use in combat. (Page 112)]
... The purpose of the Second Amendment is not crime reduction. Its focus is self-defense and the ability of each citizen to be able to either repel an attack by one or more adversaries or to offensively engage an adversary or adversaries to protect one self and/or others ... In an emergent situation, the accuracy, safety, ease-of-use, and magazine capacity of an individual defense weapon may literally be the difference between life or death of the civilian and his or her family members ... civilian defenders may be infirm, disabled, or small-statured such that they would not qualify as being “combat ready.” (Page 77-79)
... the right to keep and bear arms applies to any and all lawful purposes, not just self-defense in the home. (Page 79)
... Consider scenarios in which the choice of a specific weapon would confer a tactical advantage and could mean the difference between survival, death, or serious injury ... Consider an additional scenario where a citizen is called upon to defend himself or herself at home during a surprise assault by multiple armed aggressors. (Page 80)
... The Second Amendment guarantees that one may keep and bear arms for self-defense. Thus, a civilian defender has the advantage of forethought and the ability to plan and prepare for various “what if” scenarios. We have the right to select arms that may give us tactical advantages against an adversary ... One should also consider known disadvantages for confrontation, such as lack of mobility, when selecting arms, magazines, attachments, and configurations ... To limit civilians’ choice of arms would tip the scale in favor of the aggressors, who already will likely have various tactical advantages, including the element of surprise. (Page 84-86)
... The Court is also not convinced that weapons like the AR-15 and its relatives are “dangerous and unusual.” Considering the Court’s definition of “dangerous,” it is clear that a semiautomatic rifle does not suffer from the lack of control as is inherent to machineguns and sawed-off shotguns. Additionally, the AR-15 and other semiautomatic rifles do not appear to be “unusual” ... While they have features that closely resemble their military counterparts, they do not operate or utilize technology sufficient to call them “unusual” in the sense that they are not widely used in the United States. As discussed above, it appears, instead, that the rifles and other weapons banned by PICA are in common use when considering the volume of sales over the past 20 years (Page 102)
... Seventh Circuit ... was comfortable with grouping semiautomatic “assault weapons” or “modern sporting rifles” into broad categories for ease of analysis. Additionally, the Government has argued that AR-type weapons, AK-type weapons, specific semiautomatic shotguns, and associated “submachineguns” share similar features. Thus, it is apropos [appropriate/relevant] for this Court to consider all of these “modern sporting rifles” and their relatives together. (Page 103)
... Regarding thirty-round large-capacity magazines and the various attachments (e.g., pistol grips, flash suppressors, and the like) at issue here, this Court holds that these devices are also in common use and have legitimate self-defense purposes. For magazines, every round matters in a self-defense scenario - reloading takes away significant time during which the defender can be injured or wounded ... in a critical self-defense scenario, more rounds equals ahigher chance of survival. (Page 104)
... Similarly, the attachments at issue make a weapon safer, easier to aim, and easier to fire, features that are well-suited for self-defense. This is especially relevant to an individual who is infirm, small-statured, or has limited firearms training. In a self-defense scenario, every second matters and this Court will not fault individuals who are not able-bodied for choosing weapons that enable them to more carefully defend themselves and their families. (Page 105)
... Moreover, stating that military-grade weapons cannot be used by civilians because they need to be reserved for the militia is not a cogent [convincing] argument ... commercially available AR-15’s external similarity to the M16 rifle and M4 carbine belies its nature, as its lack of burst or fully automatic fire fundamentally renders it a different weapon. Thus, while they may be similar externally, they are not the same weapon and have vastly different functions ... Therefore, the Court holds that “military use” refers to weapons that are selected, procured, tested, and issued to military members for use in combat. With this in mind, none of the weapons, magazines, or attachment prohibited by PICA can be called “military-grade” since they were not issued to the military for use in combat ... a clear example is the semiautomatic handguns that are useful in military service yet are also “the quintessential self-defense weapon.” Clearly, even though handguns are useful and are used in military service, they are clearly protected by the Second Amendment (Page 110-112)
... While the Government argues that the lethality of AR-type weapons is sufficient reason to restrict them, those same features that increase “lethality” also increase the accuracy, portability, and safety of the weapons for use by variously abled individuals. The Second Amendment clearly cannot imply that those who are elderly, disabled, or small-statured must only choose a handgun or pump-action shotgun for self-dense when other options (like AR-15s) will enable them to defend their homes more easily, safely, and securely. The same is true for operator-friendly features that protect the defender’s hearing, vision, and allow for ease of use. As discussed supra, large-capacity magazines may also be the difference between life and death for a person defending him or herself in the home. This Court also holds that thirty-round magazines are not predominately useful in military service and, even if they were, dual use has clearly been demonstrated given their usefulness for individual self-defense and their ubiquity. (Page 113)
... Moreover, the Court is not convinced by the Government’s argument that AR type weapons must be banned because it is easy to convert a semiautomatic AR-15 to a fully automatic weapon via the use of a bump stock or the like.
... Based on the above, the Court holds that the Plaintiffs have met their burden to demonstrate that the AR-15 and other AR-style weapons are protected “Arms” within the definition advanced by the Seventh Circuit in Friedman and Bevis. Additionally, the Court holds that the various other “assault weapons” proscribed by PICA (including AK-type weapons, various semiautomatic shotguns, and what the Government calls “submachineguns”) are also “Arms,” as are the thirty-round large capacity magazines and various firearm attachments designated by PICA. To reiterate, all of these weapons, magazines, and attachments are bearable, not dangerous or unusual, and are in common use. Moreover, they are all possessed for lawful self-defense purposes, are either not predominately useful for military service or are dual-use items, and are not possessed for unlawful purposes. (Page 117)
... II. History and Tradition
In Bruen, we are instructed to search our history so that we may evaluate efforts to regulate and restrict arms. Such a directive has caused courts and litigants to embark on a search of old laws that may serve as some historical analogue that may pair well with a present-day effort to restrict or even criminalize possession or purchase of firearms commonly held and used today ... the Court turns to the parties’ arguments in order to determine where PICA fits in the history and tradition of laws restricting firearms. After an exhaustive review of the statutes and arguments provided by the Government, the Court holds that the nation’s history and tradition of firearms regulation does not support a statute as far-reaching as PICA. Put another way, the Government’s arguments do not satisfactorily answer the “how” and “why” questions required by Bruen - most of the statutes it cites were prohibitions on concealed carry or on discharging weapons, not the outright prohibition of such weapons entirely. (Page 151)
Therefore, the Court must take action as justice demands. PICA is an unconstitutional affront to the Second Amendment and must be enjoined. The Government may not deprive law-abiding citizens of their guaranteed right to self-defense as a means of offense. The Court will stay enforcement of the permanent injunction for a period of thirty (30) days from the date of this Order.
CONCLUSION
For the reasons set forth above, the Government’s Motion for Partial Summary Judgment on the Langley Plaintiffs’ Counts IV and VI is GRANTED.
Most importantly, considering all of the evidence presented, the Court holds that the provisions of PICA criminalizing the knowing possession of specific semiautomatic rifles, shotguns, magazines, and attachments are unconstitutional under the Second Amendment to the United States Constitution as applied to the states by the Fourteenth Amendment.
Therefore, the Plaintiffs’ request for a permanent injunction is GRANTED. The State of Illinois is hereby ENJOINED from the enforcement of PICA’s criminal penalties in accordance with 720 ILL. COMP.STAT. §§ 5/24-1(a)(14)–(16) (bump stocks and assault weapons); 5/24-1.9(a)–(h)(assault weapons and attachments); and 5/24-1.10(a)–(h) (large-capacity magazines)against all Illinois citizens, effective immediately. As the prohibition of firearms is unconstitutional, so is the registration scheme for assault weapons, attachments, and large-capacity magazines. Therefore, the State of Illinois is ENJOINED from enforcing the firearm registration requirements and penalties associated with entering false information on the endorsement affidavit for non-exempt weapons,magazines, and attachments previously required to be registered in accordance with 430 ILL. COMP. STAT. 65/4.1. This permanent injunction is STAYED for thirty (30)days. The Clerk of Court is DIRECTED to enter judgment in favor of the Plaintiffs.
IT IS SO ORDERED.