A leading appellate attorney reviews the Illinois Supreme Court opinion handed down Friday, August 11. 

Caulkins v. Pritzker, 2023 IL 129453

By Karen Kies DeGrand, Donohue Brown Mathewson & Smyth LLC

In a 4-3 decision addressing the General Assembly’s recent enactment of a criminal code provision restricting the purchase, sale and possession of assault weapons, the Illinois Supreme Court reversed a Macon County circuit court’s order finding the Protect Illinois Communities Act (Act) unconstitutional. Plaintiffs included a business, two individuals, and a voluntary unincorporated association with hundreds of individuals and businesses, all of whom alleged that they “possessed or otherwise desire to deliver, sell, import, or purchase” assault weapons as defined in the Act “and/or manufacture, deliver, sell, or purchase” large capacity magazines (LCMs) defined in the Act. The opinion, delivered by Justice Elizabeth Rochford and joined by Chief Justice Mary Jane Theis, Justice P. Scott Neville and Justice Joy Cunningham, focuses on two relevant exemptions in the Act: A “grandfather” provision for individuals who lawfully possessed assault weapons before the statute’s effective date and seven enumerated classes of individuals involved in law enforcement and related professional fields.

Addressing a significant threshold issue, the majority determined that plaintiffs waived a challenge to the Act based on the second amendment of the United States Constitution. The court noted plaintiffs’ express disclaimer in their complaint of a challenge to the Act based on the second amendment. The supreme court also observed that plaintiffs did not assert the corresponding right-to-arms provision of the Illinois Constitution, Article I, Section 22. In addition, the majority observed that, even if plaintiffs had not waived the second amendment argument, the circuit court’s order granting plaintiffs’ motion for summary judgment lacked evidentiary support. The majority, accordingly, expressed no opinion concerning the second amendment’s impact on the Act.  

The majority then considered plaintiffs’ argument that the exemptions contained in the Act denied them equal protection under the Illinois Constitution and the related argument that the Act violated its special legislation clause, which prohibits the General Assembly from conferring a benefit or privilege upon one group while excluding other groups who are similarly situated. The majority was not persuaded by plaintiffs’ contention that the Act criminalizes “law-abiding gun owners” who hold Firearm Owners Identification (FOID) cards but immunizes others who also are law-abiding citizens with FOID cards. The Act exempts from the assault weapon ban trained professionals who receive specialized employment-related firearm training, a factor, in the majority’s view, supporting the presumption that they exercise greater responsibility than other FOID card holders in handling firearms. In this category, the Act specifically exempts law enforcement agencies, peace officers, corrections officials, and certain other current and retired law enforcement officers; the exemption also applies to members of the armed services, United States reserve forces, the Illinois National Guard, licensed private security guards and their employers. The supreme court also noted that the exempt groups, unlike the plaintiffs, are duty-bound to protect the public. Given these distinctions, the supreme court determined the classifications passed constitutional muster in light of the legislature’s goal, to implement firearm restrictions for the public’s health, safety, and welfare.

 The Act’s grandfather provision also withstood plaintiffs’ equal protection/special legislation challenge. It permits individuals lawfully possessing an assault weapon before January 10, 2023, the effective date of the Act, to continue to possess the firearm if they comply with certain provisions, including establishing their lawful possession by affidavit and documentary evidence, but restricts transfer of an assault weapon and LCMs. The majority reasoned that, to the extent plaintiffs alleged they did not legally possess restricted items, they were not “similarly situated” to the individuals within the grandfathered category. The court observed that those who allegedly possess assault weapons and LCMs within the ambit of the Act, like the grandfathered individuals, could retain them but not acquire more. 

The majority found a jurisdictional obstacle to plaintiffs’ final argument, that the court should affirm the circuit court’s ruling based on a violation of the Illinois Constitution’s three-readings requirement. The Constitution requires that a “bill shall be read by title on three different days in each house.” Ill. Const. 1970, art. IV, section 8(d). Finding that the judgment was partially adverse to plaintiffs because the circuit court did not invalidate the entire Act as requested in a count of the complaint raising the three-readings rule, the majority determined that plaintiffs could not renew this claim, unsuccessfully raised in the circuit court, in the absence of a notice of cross-appeal on the issue. 

Two supreme court justices wrote dissents. Justice Lisa Holder White, joined by Justice David Overstreet, would find the Act unconstitutional in its entirety based on a clear violation of the three-readings rule. Justice Holder White reasoned that the court should no longer adhere to the enrolled-bill doctrine, which the supreme court has historically followed. The doctrine relies on certification by the state’s Speaker of the House of Representatives and the President of the Senate that the procedural requirements for passage of a bill has been met. In Justice Holder White’s view, the “ethical lapses” of the legislature, its “remarkably poor self-discipline” with respect to the three-readings requirement, and its “blatant disregard of the court’s warnings and constitutional mandates” called for setting aside consideration of the Act until the legislation is validly passed.   

In Justice Mary K. O’Brien’s separate dissent, she focused on the special legislation clause of the Illinois Constitution. Departing from the majority’s analysis, Justice O’Brien would rule that plaintiffs are similarly situated to the exempted groups when one considers the legislative purpose of reducing the number of assault weapons and LCMs and, consequently, the number of mass shootings. In Justice O’Brien’s view, exempting the professional and grandfathered groups does not prevent out of state manufacturing and possession of assault weapons from being used in Illinois or elsewhere.