SPRINGFIELD — When state Rep. Maura Hirschauer, D-Batavia, filed legislation that would ban assault weapons in January, it was met with little fanfare. After five months, just one of her colleagues had signed on as a co-sponsor and it remained in the gatekeeping House Rules Committee.
Such has often been the way for gun control legislation in Illinois, where despite Democratic supermajorities in the legislature and an ally in the governor’s office, lawmakers often shied away from greater regulation of firearms, a third rail that exposed the state’s regional divides as well as political ones.
But that reluctance fell by the wayside on July 4, when a 22-year-old gunman opened fire on a Fourth of July parade in suburban Highland Park, killing seven and wounding dozens.
The suspect, Robert Crimo III, used an AR-15-style semiautomatic rifle that was purchased legally with the help of his father, who faces reckless conduct charges for sponsoring his Firearm Owners Identification (FOID) card application
In the three weeks that followed that event, the number of House sponsors on that proposal jumped from two to 56. It takes 60 votes to pass a bill in the House during regular session.
“Every Illinoisan was at their own Fourth of July parade and could internalize how this could have been them,” said state Rep. Bob Morgan, D-Deerfield, who was marching in the parade when the shooting occurred. “And I think that really changed the conversation.”
With this renewed mandate to take on the issue, House Speaker Chris Welch, D-Hillside, announced in July that firearms safety would be a topic of one of the four working groups created to find legislative solutions for an expected special legislative session.
That session, also meant to address the Supreme Court’s overturning of Roe v. Wade, did not come to fruition. But the working groups kept meeting.
Three legislative hearings have been held on the proposal in the past two weeks and it is expected to be considered during the lame duck session in early January, which is the period before the end of legislators’ current terms and the start of their new terms.
Proponents and opponents of the legislation say it will likely be tweaked but that it is ultimately expected to pass and be signed into law by Gov. J.B. Pritzker.
But the debate will not end there. Gun rights advocates have promised a legal challenge. There is legitimate uncertainty as to the outcome in light of a recent Supreme Court decision that shifted the standard for evaluating the constitutionality of gun control laws.
Beyond that, questions remain about the effectiveness of an assault weapons ban, with even champions of the effort acknowledging that the policy alone will be no silver bullet.
What the legislation does
The top line of House Bill 5855, deemed by advocates the “Protect Illinois Communities Act,” is a ban on assault weapons. But the legislation does more than that.
It would also ban high-capacity magazines that hold more than 10 rounds and devices that can essentially convert any gun into a semiautomatic weapon by allowing the firing of multiple bullets with one pull of the trigger.
Under the proposal, only those under 21 who are active-duty members of the U.S. military or Illinois National Guard would be allowed to obtain a FOID card. Current law allows 18-, 19- and 20-year-olds to obtain a permit with parental consent.
It would also strengthen the state’s relatively new “red flag” law, enacted in 2019, which allows family members or law enforcement to petition a court to have a person’s firearms temporarily taken away if they are deemed a danger to themselves or others. The proposal would lengthen the period a person can be barred from possessing weapons from six months to one year.
The Illinois State Police would be tasked with investigating illegal firearms trafficking and coordinating firearms-related intelligence with other federal, state and local law enforcement agencies.
Several of these incorporated elements, including the large-capacity magazine ban, the strengthening of the “red flag” law and raising the age to obtain a FOID card to 21, were recommended by the Johns Hopkins Center for Gun Violence Solutions, which released a 16-page report detailing suggested Illinois policy changes in November.
But the most striking change would be a ban on the future manufacture, possession, delivery sale and purchase of assault weapons in Illinois. The state would join eight others — California, Connecticut, Delaware, Hawaii, Maryland, Massachusetts, New Jersey, and New York — and Washington D.C. in doing so if the legislation is passed and signed into law.
Illinois’ proposal identifies 49 types of “assault shotguns and rifles” and 20 kinds of “assault pistols” that would be covered under the ban. Also covered include several kinds of semiautomatic, centerfire rifle that can accept a detachable magazine and has any of the following features: a folding or telescoping stock, thumbhole stock, forward pistol grip, flash suppressor, or grenade launcher.
Those who currently own these weapons would be grandfathered in but required to register weapons covered under the ban with the state police within 300 days of the law’s effective date. The registration fee would be $25 per gun.
Morgan said that the definition of assault weapons, including the list of guns that constitute them, was largely pulled from the Federal Assault Weapons Ban, which went into effect in 1994 but sunset in 2004.
Is it constitutional?
It is all but certain that Illinois’ assault weapons ban, if enacted, would be challenged in court. Gun rights advocates have said as much.
“We’re not negotiating; we’re not going to school them on all of the technical flaws of this,” said Dan Eldridge, president of the Federal Firearms Licensees of Illinois and owner of Maxon Shooter’s Supplies and Indoor Range in Des Plaines. “We’re simply going to take them to court because they have the votes, we understand. And the governor wants an assault weapon ban in his resume as … he has national ambitions, he wants all this.
“So the political winds are pretty much in our face here,” he said. “We understand that. But it doesn’t matter what they pass. You cannot do this. You just simply can’t and they won’t win.”
Some states do have bans on assault weapons and high-capacity magazines in place. Several municipalities in Illinois do as well, passing them during a grace period in 2013 ahead of the state’s concealed carry law, which included a provision that made gun regulation exclusively a state function, taking effect. Highland Park’s assault weapons ban was upheld by a federal court in 2015.
“If we took our legal advice from the NRA, we might as well just legalize fully automatic weapons, flamethrowers and grenade launchers,” Morgan said. “The reality is the U.S. Supreme Court is very clear that a significant amount of common sense gun reforms are constitutional and legal.”
However, there is genuine uncertainty over whether several of the components of Illinois House Democrats’ proposal would pass constitutional muster.
At issue is a recent U.S. Supreme Court decision that significantly altered the way courts interpret the constitutionality of gun restrictions.
In New York State Rifle & Pistol Association, Inc. v. Bruen, the nation’s high court in a 6-3 decision found that New York State’s concealed carry law, which required that a person show a greater need for protection than the average person to be permitted to carry outside the home, was unconstitutional.
The landmark decision found that Americans have a broad right to carry a concealed firearm outside the home, the first major expansion of gun rights since District of Columbia v. Heller in 2008 and McDonald v. City of Chicago in 2012, which affirmed the rights of people to possess firearms in the home.
Though the substance of the decision does not directly relate to an assault weapons ban, the court laid out a new process for evaluating all Second Amendment cases.
“So that’s the aspect that’s going to be very impactful going forward in all of these types of cases, including cases like challenges to assault weapons bans, challenges to large capacity magazine restrictions, the type of things that Illinois is considering,” said Andrew Willinger, executive director of the Duke Center for Firearms Law.
The previous framework for examining gun laws was to first determine if the Second Amendment was implicated in any way. Then an analysis would be done to determine the objective the government was seeking to advance in its regulation, how effective it was and the burden it would impose on gun owners.
However, the Supreme Court in Bruen rejected this second step. Instead, the government now has to prove that the law they are defending has a “well-established and representative historical analogue,” which basically means there’s a longstanding tradition of regulation.
This is open to interpretation and there have been few samples of cases being decided since the Bruen decision came down.
“Certainly now after Bruen, I think most gun regulations are going to be challenged just because it’s unclear how this historical test is going to play out,” Willinger said. “And if judges construe it narrowly, then a lot of gun laws will be on sort of tenuous footing.”
Immediately following Bruen, the Supreme Court vacated several lower court decisions that upheld gun restrictions, including an assault weapons ban in Maryland and ban on high-capacity magazines in California and New Jersey, asking those courts to reconsider their decisions using the new framework.
Maryland and California’s laws are still working through the appellate court process but are expected to be decided in the next few weeks or months.
Rhode Island’s ban on high-capacity magazines that hold more than 10 rounds was upheld by a federal judge last week. In Oregon, where voters approved a similar ban, it remains to be decided, though a federal judge indicated that it would likely be upheld.
Willinger said that based on the limited evidence, large-capacity magazine bans appear likely to be upheld while assault weapons bans may come down to the types of weapons included and how widespread their uses are.
Would it be effective?
For Morgan, the answer to this question is simple.
“If a handgun had been used in the Highland Park mass shooting on the Fourth of July, more of my neighbors would be alive today,” he said.
Expert opinions are less clear, with some studies showing a reduction in mass shootings and the lethality of gun violence with assault weapons and high-capacity magazine bans in place. But others, such as the RAND Corporation, which analyzed a series of studies, found inconclusive evidence for the effect of assault weapon bans on mass shootings.
Kim Smith, director of programs at the University of Chicago Crime Lab and Education Lab, told lawmakers last week that three-quarters of shootings stem from an altercation that happens to take place in proximity to a gun. One way to reduce gun violence, she said, was “to make the situations in which those arguments occur more forgiving.”
“The best way to do that is to limit the widespread availability of illegal guns, particularly those equipped with high capacity magazines,” Smith said. “Without the presence of a gun, altercations would still happen, but they would be far less likely to result in deaths.”
Delrice Adams, executive director of the Illinois Criminal Justice Information Authority, agreed, telling lawmakers that “research has shown that bans on these lethal weapons are associated with significant reductions in the rate of fatal mass shooting incidents and victims killed.”
“During the 10 years that our country had that ban, there was a 40% decrease in gun violence by assault weapons,” Adams said. “However, since the expiration of this ban, the number of mass shooting deaths has grown by nearly 500%.”
According to a 2021 Northwestern Medicine study, the Federal Assault Weapons Ban, in effect from 1994 to 2004, was highly effective at reducing mass shootings.
The authors estimated that the ban prevented 10 mass shootings and that its continuation would have prevented 30 mass shootings that killed 339 people and injured 1,139.
“No matter which dataset you use, no matter how you measure mass shootings, there’s a benefit and a reduction in mass shootings and lethality and number of injuries,” said Lori Ann Post, director of the Buehler Center for Health Policy and Economics at Northwestern University and one of the study’s lead authors.
Still, the report noted that about 50,000 people die from gun injuries each year, with mass shootings accounting for just about 1% of those deaths.
But mass shooting incidents have risen significantly over the past two decades. According to the FBI, the number of active shooter incidents, defined as “one or more individuals actively engaged in killing or attempting to kill people in a populated area,” rose from three in 2000 to 40 in 2020.
And rates of gun deaths in general have risen as well, with the Johns Hopkins study finding that from 2011 to 2020, Illinois’ rate increased 64%.
It wasn’t just Chicago — the study found the highest gun death rates in that time were in St. Clair, Massac and Vermillion counties.
But even if an assault weapons ban is enacted, holes would remain. For one, Illinois is surrounded by states with looser gun restrictions, making it difficult to regulate the flow of guns into the state. And with the grandfather clause on assault weapons, many will still be legally owned across the state.
Even advocates acknowledge that the legislation would only be one part of a more holistic solution to reduce gun violence.
“While legislation strategies are critical to addressing gun violence and mass shootings, we simultaneously must invest in community violence intervention initiatives,” Smith said.
The state has already started in a sense.
In 2021, lawmakers approved the “Reimagining Public Safety Act,” which directed $250 million over three years toward community-based violence prevention initiatives.
Morgan said the solution to gun violence is not an either-or and that lawmakers had “to treat it with the complexity that the issue demands.”
“Gun violence is not a binary issue that can be solved with one change,” Morgan said. “Really, we got to this point through systemic disinvestment and the only way we’re going to really reduce gun violence is through addressing all the elements of the communities struggling with these issues.”
The legislation will likely be heard during the lame duck session.
Gun control legislation that passed and failed over the last 20 years
Gun control legislation that passed and failed over the last 20 years
Protection of Lawful Commerce in Arms Act
District of Columbia v. Heller
Expanded background checks
Lori Jackson Domestic Violence Survivor Protection Act
Domestic Violence Gun Homicide Prevention Act of 2014
Homemade Firearms Accountability Act
Denying Firearms and Explosives to Dangerous Terrorists Act of 2015
Criminalizing straw purchasing and gun trafficking
Enhanced background checks
72-hour waiting period for those on terrorist watch lists
Help End Assault Rifle Tragedies Act
Preventing Gun Violence Act
Gun Show Loophole Closing Act of 2017
Safer Neighborhoods Gun Buyback Act
Handgun Safety Trigger Act
Background Check Completion Act of 2017
Bipartisan bump stock ban
Closing the Charleston loophole
Universal background checks
Bipartisan Safer Communities Act
Protecting Our Kids Act
Assault Weapons Ban of 2022
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December 23, 2022 at 11:06PM