Challenge to Cook County’s assault weapons ban still alive

Illinois Supreme Court says lower court must answer Second Amendment question

April 5, 2012

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Former Chicago Mayor Richard M. Daley touches what Cook County describes as an assault weapon. Cook County's ban on so-called assault weapons is being challenged.

A challenge to Cook County’s assault weapons ban is still on.

That’s because the Illinois Supreme Court ruled Thursday that it was improper for the trial court and Illinois Appellate Court to dismiss a challenge to the ban two years ago. The state’s high court now wants a Cook County Circuit judge to determine if assault weapons should have the same protections as handguns under the Second Amendment.

Gun rights advocates look at the state high court’s ruling as a victory.

“The so-called assault weapons listed are not assault weapons, but they constitute approximately every typical firearm used for hunting and target shooting,” said Vic Quilici, lead attorney in the case and general counsel for the Illinois State Rifle Association. “We were very pleased with the court’s decision. We feel very good and very pleased with the fact that we’re getting the chance to go back and challenge the legislative assertions made on behalf of the passage of the ordinance.”

Cook County imposed the ban back in 1993 and expanded it in 2006 to include more weapons and equipment.

In 2007, three Cook County residents, Matthew D. Wilson, Troy Edhlund and Joseph Messineo, filed a challenge to the ban.

In 2010, a Cook County Circuit judge and later the Illinois Appellate Court threw out the challenge. That same year, the U.S. Supreme Court ruled that Chicago’s 28-year-old strict ban on handgun ownership was unconstitutional, adding fuel to the belief the county’s assault weapons ban could be next.

In delivering Thursday’s opinion, Illinois Supreme Court Justice Mary Jane Theis wrote: “At this early stage of the litigation, in the procedural posture of this case, it cannot be said conclusively whether 'assault weapons' as defined by the ordinance fall within or outside the scope of the rights protected by the Second Amendment. This question requires an empirical inquiry that goes beyond the scope of both the record in the current litigation and judicial notice.”

Cook County Assistant State’s Attorney Paul Castiglione said the county is confident the ban will be upheld in court once again.

“I’m very happy in the analysis of the court’s decision," he said. "It gives much guidance. It’s going to be very helpful. I think ultimately the facts will support what the county’s been trying to do here."

Castiglione maintains the county has the right to ban such weapons and it does not violate the Second Amendment.

“The notion of having a free exchange of semi-automatic weapons and weapons with large-capacity magazines, the county concluded, would pose a threat to the citizenry," he said. "[It] is in my view that the county has the authority and power to be able to regulate the possession and sale of those weapons.”

No date has been set to hear the case.

Cook County Board President Toni Preckwinkle is confident the assault weapons ban will be upheld.

“We believe the court will continue to uphold the constitutionality of the county’s assault weapons ban ordinance as it winds back through the trial system," Preckwinkle stated. "I will continue to support all efforts to stem gun violence in our community, including the county law."