SCOTUS allows Illinois assault-weapon ban enforcement during appeal

In Thursday's order, another sign of a court giving a second look at its Second Amendment jurisprudence.

In a brief order Thursday afternoon, the U.S. Supreme Court refused to block Illinois’s ban on assault weapons and high-capacity magazines during litigation. No justices noted their dissent.

The move means the law, the Protect Illinois Communities Act, will remain in effect for the indefinite future. There was no reasoning — or vote count — given, as is the Supreme Court’s practice with such requests.

The high court order followed a November decision from the U.S. Court of Appeals for the Seventh Circuit preliminarily upholding the ban against a Second Amendment challenge. The 2-1 decision from the appeals court applied the “history and tradition“ test laid out by Justice Clarence Thomas in 2022’s New York State Rifle & Pistol Association, Inc. v. Bruen to conclude that the state law and similar local ordinances are likely constitutional.

The appeals court has since rejected a request to hear the appeal en banc — meaning by the full appeals court — so the challengers’ only remaining step is asking the Supreme Court to review the case.

While that request — a petition for a writ of certiorari — is likely to come soon enough, Thursday’s order from the high court means that the law will remain in effect during any Supreme Court appeal. And, due to the timing, briefing on the cert request won’t be completed in time for the justices to hear the case this term, even if they do choose to grant cert. That, in turn, would mean that, even if the court does take the case, it won’t hear arguments in the case until fall of 2024 — which then means a decision could come as late as the end of June 2025.

In short, the effect of Thursday’s order is that the Illinois law likely will remain in effect at least for the next year and a half.

It’s not the end of the challenge, to be clear. We don’t know the vote count, and arguments over the law (if the court takes the case) could end with the court striking down the law. But, we do know that, if there were any votes to grant the challengers’ request to halt enforcement of the law during the appeal, no justice felt strongly enough about this matter at this time to say so publicly.

All of that itself sends an important sign to lower courts, lawyers, and lawmakers.

What’s more, Thursday’s order comes on the heels of arguments last month in another Second Amendment case in which the justices appeared likely to uphold the federal criminal ban on firearm possession by people subject to domestic-violence restraining orders.

The court also in November agreed to consider a related, but not Second Amendment, case later this term over the federal bump-stock rule — a case about statutory interpretation and the definition of “machinegun.” The Justice Department asked the justices to hear the case to reverse a decision from the U.S. Court of Appeals for the Fifth Circuit siding against the rule, initially issued by the Trump administration.

We don’t have final decisions in any of these cases, but — looking at all of this together — it does appear increasingly clear that the court is realizing that there must be limits to the expansive jurisprudence it has been setting forth since 2008’s District of Columbia v. Heller decision that the Second Amendment established an individual right.