Illinois General Assembly Begins to Exercise Its Exclusive Authority Over Firearms

by Holland & Knight LLP
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HIGHLIGHTS:

  • The Illinois General Assembly has approved a bill that, if signed by Gov. Bruce Rauner, would make it unlawful for a person to engage in the business of selling, leasing or otherwise transferring firearms without a license issued by the Illinois Department of Financial and Professional Regulation.
  • The Gun Dealer Licensing Act, adopted by both the House and the Senate, also imposes distance requirements for businesses that receive a license. Specifically, the premises where a gun dealer licensee operates cannot be located within 500 feet of any school, preschool or daycare facility. Importantly for local governments, the Act specifically provides that it "does not limit the authority of a local government to impose and enforce additional limits on the location of a business regulated under this Act."
  • This is a noteworthy action for a state legislature that has, as a collective body, remained relatively quiet since it boldly proclaimed in 2013 that it alone has the authority and the ability to regulate firearms in Illinois, and at the same time prohibited the ability of local governments, including home rule units, to regulate the subject matter.

The Illinois General Assembly on Feb. 28, 2018, approved a bill that, if signed by Gov. Bruce Rauner, would constitute its first exercise of gun regulation authority since it notoriously reserved all such regulation exclusively to itself in 2013.

Senate Bill (SB) 1657, adopted by both the House and the Senate, is known as the Gun Dealer Licensing Act and makes it unlawful for a person to engage in the business of selling, leasing or otherwise transferring firearms without a license issued by the Illinois Department of Financial and Professional Regulation. The Act also imposes distance requirements for businesses that receive a license. Specifically, the premises where a gun dealer licensee operates cannot be located within 500 feet of any school, preschool or daycare facility. Importantly for local governments, the Act specifically provides that it "does not limit the authority of a local government to impose and enforce additional limits on the location of a business regulated under this Act."

This is a noteworthy action for a state legislature that has, as a collective body, remained relatively quiet since it boldly proclaimed in 2013 that it alone has the authority and the ability to regulate firearms in Illinois, and at the same time prohibited the ability of local governments, including home rule units, to regulate the subject matter.

To understand the context of this new legislative effort, it is important to briefly review the history of the law of, and the status of legal challenges to, firearm regulation in the country and in Illinois.

Second Amendment Challenges

The 2008 U.S. Supreme Court decision in District of Columbia v. Heller, 544 U.S. 579 (2008), settled the long debate over whether the constitutional right to possess firearms attaches only to "militias" or is a personal right. The court said ownership of firearms is an individual right, and struck down a Washington, D.C., law that placed tight restrictions on firearm ownership by its residents. In a 2010 decision concerning the city of Chicago's ban at the time on handguns, McDonald v. City of Chicago 561 U.S. 742 (2010), the Supreme Court extended the Second Amendment personal right to possess firearms – and thus, Heller – to all of the states. However, the author of the Heller decision, Justice Antonin Scalia, was careful to note that the Second Amendment, like other rights, "is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose." Elsewhere in his opinion, Justice Scalia noted that the Second Amendment was written to protect weapons "in common use at the time." In the modern context, he wrote that the "common use" limitation supported "the historical tradition of prohibiting the carrying of 'dangerous and unusual weapons.'"

These passages in the Heller decision formed the basis for the defense of the assault weapon ban adopted by the City Council of the City of Highland Park in June 2013. The Highland Park law was upheld as constitutional by the U.S. Court of Appeals for the Seventh Circuit in Arie Freidman v. City of Highland Park, 784 F.3d 406 (7th Cir. 2015). On Dec. 7, 2016, the Supreme Court denied certiorari in the Highland Park case, thus allowing the Seventh Circuit ruling and the Highland Park ban to stand.

Although the Supreme Court has not directly ruled on a Second Amendment case in some time, its actions since the Highland Park case have indicated a willingness to allow certain regulations of firearms, including two cases reviewed in the past few months. On Nov. 27, 2017, the Supreme Court let stand a Fourth Circuit decision upholding a State of Maryland ban on assault weapons (Kolbe v Hogan 849 F.3d 114 (4th Cir. 2017)), and on Feb. 20, 2018, the Supreme Court let stand a Ninth Circuit decision that a California law requiring a 10-day waiting period before buying a firearm was constitutional. Silvester v Becerra 843 F.3d 816 (9th Cir. 2016).

Status of Firearm Regulation in Illinois

While the litigation resulting from Highland Park's ban on assault weapons confirmed the constitutionality of such a regulation, only a few local governments in Illinois have the authority to take action at this time. That is because the State has declared exclusive jurisdiction over the subject matter, as it is lawfully entitled to do under the Illinois Constitution.

In 2013, under pressure from the Seventh Circuit, the Illinois General Assembly adopted House Bill (HB) 183, by which it both enacted the Firearm Concealed Carry Act and – without prompting from the courts – also amended certain provisions of an existing Illinois law known as the Firearms Owners Identification Card (FOID) Act. Those new provisions proclaimed that "the regulation of the possession of ownership of assault weapons are exclusive powers and functions of this state" and that any ordinance or regulation that regulated "the possession of ownership of assault weapons in a manner that is inconsistent with [the FOID Act] shall be invalid." The Act pre-empted home rule authority, but it did provide limited grandfathering for ordinances or regulations "enacted on, before, or within 10 days after the effective date" of the Act. The Act became effective on July 9, 2013. Very few jurisdictions had regulations in place prior to the date of adoption of HB 183, and less than a dozen more adopted regulations within the applicable time period for continued effectiveness. Some of those regulations provided for a complete ban on assault weapons (including that which was adopted by the City of Highland Park), while others provided for less restrictive regulations such as registration, sales requirements and safe storage provisions.

The 2013 law does provide that an ordinance that was enacted within the applicable "grandfathering" time period may be amended, thereby providing those local governments that adopted some form of regulation the ability to expand to a complete ban on assault weapons at any time if they so desire. However, local governments that had not previously taken action, or that did not take action within the 10-day time period set forth in HB 183, are currently not able to regulate assault weapons unless authorized by the State.

One such form of State authorization may be the provision set forth in the above-mentioned SB 1657 concerning the licensing of gun dealers, which is awaiting the Governor's signature. If it becomes effective, Section 70(j) of the proposed Act specifically authorizes local governments to "impose and enforce additional limits on the location of a business regulated under this Act." Such businesses include those engaged in selling, leasing or otherwise transferring firearms. The ability of local governments to impose distance and location requirements on firearms dealers would, presumably, have been within the prohibition established by the 2013 law.

Additional State Legislative Efforts

An effort to eliminate the prohibition on local government regulation of assault weapons was attempted by State Sen. Julie Morrison by the introduction of SB 2130 in May 2015, immediately following the Seventh Circuit opinion upholding the constitutionality of the Highland Park law in the Friedman litigation. However, that bill never made it out of committee. On Jan. 24 of this year, Sen. Morrison re-introduced the proposal as SB 2314. The new bill awaits consideration by the Senate Judiciary Committee.

Also, this past week, several new actions to regulate firearms, in addition to gun dealer licensing in SB 1657, were enacted by the Illinois House.

  • HB 1467 would ban the "bump stock" and "trigger crank" accessories that are used to convert certain guns into rapid firing machines that simulate assault weapons.
  • HB 1465 would raise the legal age to purchase assault weapons and assault weapon accessories to 21 years old.
  • HB 1468 would impose a 72-hour waiting period before a person can purchase an assault weapon.
  • HB 772 would create the Lethal Violence Order of Protection Act, and allow a family member or a law enforcement officer to seek and obtain an order of protection against someone who poses an immediate and present danger by having a firearm in his or her custody or control.

Holland & Knight will continue to monitor the laws and regulations governing firearms in Illinois and throughout the country, and we will continue to report on the court cases that review and opine on these legislative actions.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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