The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CALEB BARNETT, et al.,
Plaintiffs,
v. Case No. 3:23-cv-209-SPM (Lead Case)
KWAME RAOUL, et al.,
Defendants.
DANE HARREL, et al.,
Plaintiffs,
v. Case No. 3:23-cv-141-SPM
KWAME RAOUL, et al.,
Defendants.
JEREMY W. LANGLEY, et al.,
Plaintiffs,
v. Case No. 3:23-cv-192-SPM
BRENDAN KELLY, et al.,
Defendants.
FEDERAL FIREARMS
LICENSEES OF ILLINOIS, et al.,
Plaintiffs,
v. Case No. 3:23-cv-215-SPM
JAY ROBERT “J.B.” PRITZKER, et al.,
Defendants.
MEMORANDUM AND ORDER WITH RESPECT TO
SCHEDULING AND DISCOVERY CONFERENCE
McGLYNN, District Judge:
In order to address potential confusion, the Court issues the following Order to
clarify the path to move forward in this litigation in advance of the Scheduling
Conference on February 28, 2024. The Court first notes that the parties may offer
any relevant evidence and advance any arguments as to any relevant issue in this
litigation.
APPLICABLE LAW
This case is a constitutional challenge to the Protect Illinois Communities Act,
Ill. Pub. Act 102-1116 § 1 (codified at 720 ILL. COMP. STAT. 5/24-1.9–1.10) [hereinafter
PICA]. The Plaintiffs in this action argue that PICA is unconstitutional under the
Second, Fifth, and Fourteenth Amendments. The focus of this Order will be the
Second Amendment claims. The Supreme Court has provided guidance on how
Second Amendment cases should be analyzed via a one-step historical test. See New
York State Rifle & Pistol Association, Inc. v. Bruen, 142 S. Ct. 2111 (2022); see also
McDonald v. City of Chicago, 561 U.S. 742 (2010); District of Columbia v. Heller, 554
U.S. 570 (2008). The Seventh Circuit has stated that their preexisting test from
Friedman v. City of Highland Park, 784 F.3d 406 (7th Cir. 2015), is consonant with
Bruen’s historical test because it was not explicitly abrogated by Bruen. See Bevis v.
City of Naperville, 85 F.4th 1175, 1190–91 (7th Cir. Nov. 3, 2023).
Bruen ruled that the Government “must affirmatively prove that its firearms
regulation is part of the historical tradition that delimits the outer bounds of the right
to keep and bear arms.” Id. at 19. Moreover, two of the relevant metrics are “how and
why the regulations burden a law-abiding citizen’s right to armed self-defense.” Id.
at 29. The Supreme Court emphasized in Bruen that Heller previously determined
that “the Second Amendment protects only the carrying of weapons that are those ‘in
common use at the time,’ as opposed to those that ‘are highly unusual in society at
large.’” Bruen at 47 (citing Heller at 627). Importantly, when considering weapons
that were banned at the time of the Founding, “even if these colonial laws prohibited
the carrying of handguns because they were considered ‘dangerous and unusual
weapons’ in the 1690s, they provide no justification for laws restricting the public
carry of weapons that are unquestionably in common use today.” Id. The Second
Amendment does not preclude restrictions or the outright prohibition of weapons that
are “dangerous and unusual.” Heller at 627. Therefore, the Second Amendment
protects weapons that are in “common use” as long as they are not “dangerous and
unusual.” Put another way, weapons that fit into the “common use” category and not
into the “dangerous and unusual” category cannot be proscribed by the federal or
state governments.
Additionally, the Supreme Court stated that the “definition of ‘bear’ naturally
encompasses public carry” because “[m]ost gun owners do not wear a holstered pistol
at their hip in their bedroom or while sitting at the dinner table.” Bruen at 32.
“Although individuals often ‘keep’ firearms in their home, at the ready for self-
defense, most do not ‘bear’ (i.e., carry) them in the home beyond moments of actual
confrontation. To confine the right to ‘bear’ arms to the home would nullify half of the
Second Amendment’s operative protections.” Id. As “the need for armed self-defense
is perhaps ‘most acute’ in the home, we did not suggest that the need was insignificant
elsewhere” because “[m]any Americans hazard greater danger outside the home than
in it.” Id. at 33 (quoting Heller at 628) (citing Moore v. Madigan, 702 F.3d 933, 937
(7th Cir. 2012)).
The Seventh Circuit contends that Friedman and Bevis do not suffer from
Bruen’s instruction that any two-step test is “one step too many.” Bruen at 19; see
Bevis at 1191. This Circuit adopts a scheme in which, prior to conducting any Second
Amendment analysis as to a weapon, attachment, or magazine, the Court must first
determine if the item in question constitutes an “Arm” for purposes of the Second
Amendment. See Bevis at 1192. If the item does not, then the Seventh Circuit holds
that the Second Amendment has nothing to say about a law banning or restricting it.
See id. This method is required even if the item otherwise falls within the definition
of what constitutes an “Arm” as set out in Heller and Bruen. See Bevis at 1192–1202.
The Seventh Circuit contends that this precertification process renders Friedman
consistent with the “methodology approved in Bruen” that they employed in Bevis.
Id. at 1191.
This Court is tasked with determining whether the Plaintiffs are entitled to
the declaratory and equitable relief they seek; specifically, that Illinois be enjoined
from enforcing the provisions of PICA due to their unconstitutionality. In Friedman
and in Bevis, the Seventh Circuit has come at this question from a different direction
than that utilized by the Supreme Court in Bruen. As will be more fully explained
herein, the Plaintiffs should proceed in their constitutional challenge to PICA offering
evidence relevant to the tests of Heller and Bruen as well as the tests applied in Bevis.
The Court is mindful that the Friedman/Bevis test manifestly shifts which
party bears the burden to prove which arms are outside the protective reach of the
Second Amendment; Bevis requires the citizen to prove that the weapons in question
are protected by the Second Amendment instead of placing the burden on the
Government to prove that its law banning or restricting arms is consistent with “the
historical tradition that delimits the outer bounds of the right to keep and bear arms.”
Bruen at 19.
In its treatment of the banned AR-15 “and its many cousins covered by the
Act,” the Bevis court opined that it was likely they could be banned because “[b]ased
on the record before us, we are not persuaded that the AR-15 is materially different
from the M16.” Bevis at 1196–97. “Heller informs us that the latter weapon is not
protected by the Second Amendment, and therefore may be regulated or banned;
because it is indistinguishable from that machinegun, the AR-15 may be treated in
the same manner without offending the Second Amendment.” Bevis at 1197 (citing
Heller). The Seventh Circuit “conclude[d] this portion of the opinion by stressing
again that this is just a preliminary look at the subject” and that “Second Amendment
challenges to gun regulations often require more evidence than is presented in the
early phases of litigation.” Id. (citing Atkinson v. Garland, 70 F.4th 1018, 1023–25
(7th Cir. 2023)). Because of this, the Seventh Circuit stated that “[t]here thus will be
more to come, and we do not rule out the possibility that the plaintiffs will find other
evidence that shows a sharper distinction between AR-15s and M16s (and each one’s
relatives) than the present record reveals.” Id. Moreover, “[b]etter data on firing rates
might change the analysis of whether the AR-15 and comparable weapons fall on the
military or civilian side of the line.” Id.
BURDENS OF PROOF
I. Are the covered items “Arms”?
Considering the discussion above, the Plaintiffs must establish that the items
in question are not items that are beyond the gravitational pull of the Second
Amendment; in other words, that the items are not on the wrong side of the delimits
of the Second Amendment. According to the Seventh Circuit, Second Amendment
protection does not embrace “weapons that are exclusively or predominantly useful
in military service, or weapons that are not possessed for lawful purposes.” Id. at
1194. Such items would not trigger Second Amendment protection even though they
would otherwise clearly fit the definition of “Arms” as defined in Heller and
reaffirmed in Bruen.
Bevis requires the Plaintiffs to establish by a preponderance of the evidence
that:
1. The weaponry in question is an item an ordinary person would keep at home
for purposes of self-defense;
2. The weaponry in question is not exclusively or predominantly useful in
military service; and
3. The weaponry in question is not possessed for unlawful purposes.1
See Bevis at 1194. If the Plaintiffs can prove the above three propositions, then the
item is captured by the gravitational pull of the Second Amendment and the case
ripens at that moment into a claim where the Second Amendment might have
something to say about it, according to the Seventh Circuit’s rationale in Friedman
and Bevis.
Having been captured within the Second Amendment’s gravitational pull, in
order to land safely on terra firma, the Plaintiffs need only establish by the
preponderance of the evidence that Arms, attachments, and/or magazines are in
common use for any lawful purpose and are not otherwise dangerous and unusual. If
they are able to establish all of the above, the Plaintiffs will have met their burden to
prove that the ban of specific items in PICA violates their Second Amendment rights.
Friedman and Bevis do hold that fully automatic “machineguns” are
categorically beyond the limits of Second Amendment protection. See Bevis at 1190
(quoting Friedman at 408) (“[W]e reaffirmed ‘the rule that the Second Amendment
does not authorize private persons to possess weapons such as machine guns and
sawed-off shotguns that the government would not expect (or allow) citizens to bring
with them when the militia is called to service.’”).
That being said, the Seventh Circuit also acknowledges that, “[o]bviously,
many weapons are ‘dual use’: private parties have a constitutionally protected right
1 The example given for this prong of precertification (which is not a test, mind you) is a sawed-off
shotgun. See Bevis at 1193 (quoting Heller at 625). With this in mind, it appears this prong applies
only to a class of Arms or attachments and is not a component of the bearer’s case-specific criminal
intent.
to ‘keep and bear them’ and the military provides them to its forces. In this sense,
there is a thumb on the scale in favor of Second Amendment protection.” Bevis at
1195 n.8. This exceptionally important clarification resolves any confusion that an
Arm can never enter the gravitational pull of the Second Amendment simply by virtue
of the fact that the military may provide that Arm or a similar Arm to its forces or
that they would be useful in a military or law enforcement setting. Clearly, the “dual
purpose” rule does not require Arms, attachments, or magazines to be defined as
either for an exclusively military purpose or for an exclusively civilian purpose. Just
because an Arm has a “cousin in the military” does not mean that the Arm is beyond
Second Amendment protection. See Bevis at 1196.
The Seventh Circuit’s acknowledgement of the dual purposes of a weapon could
fairly be restated as follows: a civilian can have a constitutionally protected right to
keep and bear particular Arms, attachments, or magazines, even if the military
provides the same or similar Arms, attachments, or magazines to its own forces or
law enforcement provides them to its officers if the arms have a dual use. Critically,
the Seventh Circuit places the “thumb on the scale in favor of Second Amendment
protection” for dual-use Arms. Id. In acknowledging the obvious, as the Seventh
Circuit words it, the task at hand comes into clearer focus. It also helps chart the path
for discovery in this case and more clearly fleshes out how a hearing on the merits
should look.
In this vein, the Plaintiffs may choose to provide evidence that semiautomatic
rifles, carbines, and pistols/handguns; specified attachments (e.g., barrel shrouds,
foregrips, flash suppressors, etc.); and/or magazines holding a specified number of
rounds and/or ammunition-carrying devices are commonly held by civilians for self-
defense or other lawful purposes and are not exclusively or predominantly useful in
military or law enforcement contexts. Even if they are used by the military or by law
enforcement, dual use may still be demonstrated. Once dual use is established, the
scale tips toward Second Amendment protection.
A. How Weapons Are Sorted Between Military and Civilian Uses
It is important to understand that there are far more similarities than
dissimilarities between military use and civilian use when it comes specifically to
semiautomatic rifles and pistols. Thus, the sorting process must necessarily be much
more probing and multifaceted and must consider why a citizen might select certain
weapons for self-defense and the practical challenges citizens face when called upon
to defend their lives.
1. Military Use
The M16 and M4 are designed to be carried by members of the military.
Military members utilizing M16 rifles or M4 carbines do so in specific ways, from
guarding critical facilities or equipment to advancing on specific targets. Such
soldiers, marines, airmen, and sailors are deployed with various other pieces of
equipment including (but not limited to) the following: a Kevlar helmet, body armor,
utility uniforms, tactical boots, load-bearing vests, knives, flashlights, a radio, a
sidearm, and copious quantities of spare ammunition, to list a few. Our troops also
proceed into harm’s way as a trained unit, supported by air cover, reinforcements,
medical support, naval support, and reconnaissance and intelligence from human and
satellite sources. In such situations, the M16 and M4 are designed to fulfill a specific
niche; their semiautomatic fire feature permits precise target shooting while their
ability to fire in a three-round burst or in a fully automatic capacity is designed to
provide suppression fire in a situation where members of a squad are moving to or
from an objective. Military hardware must meet the exacting military specifications
to fire in a fully automatic capacity for a substantial period of time without failure.
2. Civilian Use
The average civilian may be called upon to defend his or her person, family, or
property from an armed attack or invasion. This person is usually ambushed or is the
target of a sneak attack and is stuck with the weapons he or she has readily available.
The civilian may be called upon to defend others who are not armed and often will
not have time to plan or regroup with other allied defenders. Combat in the home or
property may draw the civilian away from ammunition supplies. The storage of Arms
in the household usually requires restricted access to firearms and munitions because
they must be maintained under lock and key and inaccessible to children or those
who might self-harm. In an emergent situation, the accuracy, safety, ease-of-use, and
magazine capacity of an individual defense weapon may literally be the difference
between life and death of the civilian and his or her family members.
Thus, while both members of the military and civilians may be called upon to
engage in mortal combat, the civilian is often an “army of one” with no backup, no
support, and no reinforcements in the moment when the attack occurs. The life and
death stakes mandate that their firearms have both lethal capabilities and give, at a
minimum, our citizens a fighting chance. Therefore, sorting between military use and
civilian use is an exercise in understanding the complex dynamics of self-defense in
which lethal force may be required to repel a rapist, a murderer, an arsonist, a
kidnapper, a stalker, an armed burglar, or multiple attackers at once.
Moreover, if our inquiry is fully satisfied by simply considering a self-defense
scenario in which one physically fit person confronts one other person at his or her
front door while armed with a pistol or pump-action shotgun, then this case is fairly
straightforward. However, if we consider only that scenario, then our search is
superficial and woefully inadequate. Considering only that scenario does a great
disservice to citizens who face mortal combat under very different circumstances.
Unlike members of the military who must meet rigorous physical standards in order
to be deployed in combat, citizens who may find themselves in a self-defense scenario
may be of various ages with various ranges of physical mobility. Unlike deployed
members of the military, a civilian called to defend himself or others may not be able
to operate a pump-action shotgun or a pistol by reason of disability, age, or infirmity.
Therefore, such consideration of physically fit individuals only would impermissibly
exclude the elderly, disabled, infirm, and others. It would also ignore the myriad
challenges facing a citizen in defending himself or herself in a confrontation.
3. Characteristics and Considerations
The following non-exhaustive list of considerations may be relevant to whether
or not an item has lawful purposes or falls within the dual-use category. Does the
item in question: expand the civilian’s options for offensive or defensive strategy
and/or tactics for the protection of an individual or others in confronting one or more
armed assailants; improve accuracy, safety, comfort, or ease of operation; protect
against hearing damage, flash blindness, or personal injury; reduce recoil; reduce or
eliminate downtime (because of reloading, cycling, or lack of ammunition before the
threat is neutralized); or accommodate a disability, handicap, or physical infirmity.
Regarding magazines and ammunition-feeding devices, either party can offer
evidence that magazines with a capacity of more than ten rounds for rifles or more
than fifteen rounds for pistols are reserved for military use. However, if the Plaintiffs
establish that magazines of larger capacity for rifles and pistols are in common use
and are dual purposed, then the Plaintiffs satisfy both Bevis and Bruen and the court
may treat such magazines as protected dual-use Arms covered by the Second
Amendment.
II. Historical Tradition
If the Plaintiffs establish that the weapons, attachments, or ammunition-
feeding devices proscribed by PICA are “Arms” included within the protective reach
of the Second Amendment in line with Friedman and Bevis, the Government “must
affirmatively prove” that PICA “is part of the historical tradition that delimits the
outer bounds of the right to keep and bear arms” via a showing of “how and why the
regulations burden a law-abiding citizen’s right to armed self-defense.” Bruen at 19,
29. The Court notes that such raw data has already been provided in other Second
Amendment challenges across the United States. See, e.g., Rhode v. Becerra, No. 28-
CV-00802-BEN-JLB (S.D. Cal. 2024) (Doc. 79).
ANTICIPATED FINDINGS OF FACT
The parties are to meet and confer regarding a discovery schedule and the date
for a final hearing on the merits of the Plaintiffs’ claims for declaratory and equitable
relief. The Court has previously advised the parties that this case will proceed on an
expedited basis. The Court evaluates issues regarding burdens of proof and the
elements that the respective parties must prove by a preponderance of the evidence
in order to succeed in their claims or defenses. While the Court sets out its analysis
for moving forward, the parties should know that this Order will neither prevent any
party from advancing any argument nor restrict any party from offering any relevant
evidence or advancing other theories of the case which individual parties deem
appropriate. When the Court does enter a judgment with respect to the claims in this
case, the Court will make a series of findings of fact based upon the relevant caselaw
of Heller, Bruen, Friedman, and Bevis. However, the parties are free to suggest the
Court make specific findings of fact on other elements or issues they believe to be
relevant to Heller, Bruen, Friedman, Bevis, or any other cases at hand.
The Court notes that the Seventh Circuit in Bevis treated semiautomatic rifles
as a category in referring to the AR-15 “and its many cousins covered by the Act.”
Bevis at 1196. In light of this, the Court will treat evidence relevant to any of the
banned firearms as relevant to the class or category of firearms to which that weapon
belongs. Additionally, the Court will also consider any evidence relevant to a class or
category of firearms to be relevant to any individual firearm in that class or category
of firearms.
The factual questions the Court will address include:
1. Is the item an “Arm” as defined in Heller and Bruen?
2. Is the item an “Arm” as defined in Bevis?
3. Is there a rational basis for a civilian to select a particular “Arm” for use in
self-defense in the home?
4. Is there a rational basis for a civilian to select a particular item for use in self-
defense outside the home?
5. Is there a rational basis for a civilian to select a particular item for use in self-
defense to repel a riot or large-scale attack?
6. Is the item an “Arm” that may be used to resist tyranny?
7. Is the item exclusively or predominantly useful in military or law enforcement
settings?
8. Is the item specifically designated by the United States military as a weapon
to be acquired by the United States military and issued to its troops?
9. Does the item meet all of the specifications required by the United States
military to qualify for issue as a rifle or pistol to be deployed with United States
troops?
10. Is the weapon materially different from an M16, M4, or machinegun?
11. Is the firing rate of semiautomatic weapons banned by PICA materially
different from the firing rate of the M16, M4, or fully automatic machineguns?
12. Is the item a dual-use Arm that may be used in both military and civilian
settings?
13. Is the item principally possessed and used for unlawful purposes?
14. Is the item in common use?
15. Is the item “dangerous and unusual”?
CLAIMS FOR MONEY DAMAGES PURSUANT TO 42 U.S.C. § 1983
Some of the Plaintiffs have brought claims for money damages under 42 U.S.C.
§ 1983. See Fed. Firearms Licensees of Ill. v. Pritzker, No. 23-cv-00215-SPM (Doc. 55).
In response to these claims, the Defendants have filed a jury demand “for any and all
claims that can be tried by jury.” Id. (Doc. 77, p. 51). Parties are granted fourteen (14
days) to brief the issue of whether the amount to award in money damages is a
question that is to be decided by a jury, should the Plaintiffs’ challenge to PICA be
successful in whole or in part. In the event this Court decides that the measure of
monetary damages suffered by any Plaintiff is a question of fact for a jury, this Court
will bifurcate the hearing on the merits of claims seeking declaratory and equitable
relief from the hearing on monetary damages to which certain Plaintiffs may be
entitled. Discovery as to any of the Plaintiffs’ alleged money damages will proceed on
a different track than discovery to be scheduled for claims seeking only declaratory
judgment or other equitable relief.
IT IS SO ORDERED.
DATED: February 23, 2024
/s/ Stephen P. McGlynn_
STEPHEN P. McGLYNN
U.S. District Judge