In an amazing turn of events, the Department of Justice (DOJ) Civil Rights Division is asking to take part in oral arguments against Illinois’s Protect Illinois Communities Act (PICA) at the United States Court of Appeals for the Seventh Circuit.
PICA is a so-called “assault weapons” ban law with restrictions on the allowed capacity of firearm magazines that went into effect in 2023. The law prohibits almost all semi-automatic rifles with certain cosmetic features, including the most popular long gun in the United States, the AR-15. Following the law’s passage, various lawsuits emerged across the state. These various lawsuits got consolidated under Barnett v. Raoul.
At the District Court level, the plaintiffs challenging the law would be granted a preliminary injunction against the law from taking effect. A preliminary injunction is used to maintain the status quo while a case moves through the legal process. The court must find that the plaintiffs are likely to succeed on the merits of the case, will suffer irreparable harm, and the balance of interest is in their favor. The District Court’s decision was stayed pending an interlocutory appeal after the state filed for an emergency stay against the injunction.
A three-judge panel from the Seventh Circuit would take the case but rule against granting a preliminary injunction. The judges on the case were Andrea Wood, Frank Easterbrook, and Michael Brennan. Both Wood and Easterbrook are known for their anti-gun beliefs, so the plaintiffs had an uphill battle. The judges used a Bruen analysis to decide that Illinois law was constitutional.
The first step is to see if the plain text of the Second Amendment protects the conduct. In Heller, the Supreme Court ruled that arms in common use cannot be banned. Even though AR-15s are the most popular rifle in the country, two of the three judges said they are not in common use for self-defense and therefore not protected by the plain text of the Second Amendment.
Because, according to the judges, the plaintiffs failed at step one of Bruen, there was no need to proceed to step two, where the defendants would have to produce historical analogues from the founding era showing that the gun law is consistent with the history and tradition of the nation’s firearm regulations. Judge Brennan vehemently disagreed with the majority’s opinion.
The plaintiffs requested an en banc hearing, in which the panel’s ruling would be vacated and the full bench would hear the case. Most believed that an en banc hearing would be granted because of how the Bruen analysis was used to deny the preliminary injunction. Still, the Seventh Circuit decided not to review the case en banc and let the panel’s decision stand. The plaintiffs filed for a writ of certiorari with the United States Supreme Court, but the writ was denied, although Justice Samual Alito and Clarence Thomas would have granted certiorari. The rest of the Justices thought it was too soon to get involved because the merits of the case had not been heard, but hinted in Snopes and Ocean State that they were willing to take the case or one similar.
Oral arguments for the merits of the case have been set for September 22. Multiple groups and entities have filed amicus briefs. One of those government organizations was the DOJ’s Civil Rights Division, led by Harmeet K. Dhillon.
In a shocking turn of events, Ms. Dhillon herself has asked the Seventh Circuit to allow her to argue against PICA. If granted, she will be given five minutes out of the plaintiff’s time to make a case as to why the law is unconstitutional. There is no guarantee that the court will grant the request, but this is the first time the DOJ has asked to argue against the gun law.
The filing reads: “If the Court grants this motion, the Assistant Attorney General for the Civil Rights Division of the Department of Justice, Harmeet K. Dhillon, will present oral argument on behalf of the United States.”
Even with the federal government’s backing, the plaintiffs face an uphill battle since the panel is made up of what many people consider to be two rabid anti-gun activist judges out of the three that sit on the panel. Even if the plaintiffs lose, they are expected to ask for an en banc review, but there is no guarantee that it will be granted. They could also file for a writ of certiorari with the Supreme Court, and there is a feeling among legal experts that this is the case that SCOTUS will take to decide the constitutionality of magazine and assault weapon bans.
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About John Crump
Mr. Crump is an NRA instructor and a constitutional activist. John has written about firearms, interviewed people from all walks of life, and on the Constitution. John lives in Northern Virginia with his wife and sons, follow him on X at @crumpyss, or at www.crumpy.com.
