March 6, 2023 – A federal judge in Illinois recently issued a decision in the case of Bevis v. City of Naperville, Illinois holding that the Second Amendment does not apply to “assault weapons” and “large capacity” magazines because they are dangerous weapons that have historically been subject to bans.
The City of Naperville, Illinois recently issued a ban on “assault weapons” and “large capacity” magazines. In addition, as previously reported, the State of Illinois recently enacted HB5471, the Protect Illinois Communities Act, which bans “assault weapons” and “large capacity” magazines throughout the state. In Bevis, the plaintiffs challenge the constitutionality of the City of Naperville’s ban and HB5471, arguing that the laws violate their right to keep and bear arms pursuant to the Second Amendment. They filed a motion for a temporary restraining order (TRO) and a preliminary injunction barring enforcement of these laws pending a decision on their constitutional challenge.
Judge Kendall of the U.S. District Court for the Northern District of Illinois issued a decision on February 17, 2023, denying plaintiffs’ motion on the basis that they failed to demonstrate a substantial likelihood of success on the merits. Purportedly relying on the Supreme Court’s decision in New York State Rifle & Pistol Association, Inc. v. Bruen, the Court held that the “text of the Second Amendment is limited to only certain arms, and history and tradition demonstrate that particularly ‘dangerous’ weapons are unprotected.” Judge Kendall then claimed that firearms were not typically used by criminals at the time of the enactment of the Second Amendment and contended that few people owned pistols, as opposed to long arms. Instead, the Court contended that the primary weapon used in crimes was Bowie knives, which several jurisdictions banned in the 1830s on the basis that they were particularly dangerous weapons. On that basis, she held that “assault weapons” and “large capacity” magazines are particularly dangerous weapons for which there is a historical record of bans that are consistent with the Second Amendment and the Bruendecision.  It should be noted that the Bruen decision held that the applicable time period for determining whether there is historical support for a firearm regulation was 1791, when the Bill of Rights was ratified, and the laws upon which Judge Kendall relied were not enacted until forty years later.
This decision denying the motion for a TRO and preliminary injunction will likely be appealed to the U.S. Court of Appeals for the Seventh Circuit.
Renzulli Law Firm, LLP will continue to monitor this case and other firearm related statutes and litigation around the country. If you have any questions concerning firearms related litigation, please contact John F. Renzulli or Christopher Renzulli.