Thursday, April 5, 2012

Wilson V. Cook County - A Partial Win

The Illinois Supreme Court issued its anticipated opinion this morning in the challenge to the Blair Holt Assault Weapons Ban. This is the ban on certain semi-automatic pistols, rifles, and shotguns in Cook County. The court affirmed the judgment of the appeals court that the Cook County ordinance did not violate the due process and equal protection clauses of the 14th Amendment. However, it reversed the appeals court on one count on Second Amendment groups and remanded it back to the trial court in Cook County for further hearings.

Here is a summary of the opinion from the Illinois Supreme Court:

Wilson v. County of Cook, 2012 IL 112026

Appellate citation: 407 Ill. App. 3d 759.

JUSTICE THEIS delivered the judgment of the court, with opinion.

Chief Justice Kilbride and Justices Freeman, Thomas, Garman, Karmeier, and Burke concurred in the judgment and opinion.

The Illinois Supreme Court held that a second amendment challenge to Cook County’s ban on assault weapons could proceed in circuit court and should not have been dismissed at the pleading stage for failure to state a cause of action. No trial has yet occurred.

At issue is the constitutional validity of a Cook County ordinance enacted in 2006 and renamed the Blair Holt Assault Weapons Ban in 2007. Various plaintiffs opposed to the ordinance filed a preenforcement action seeking declaratory and injunctive relief based on their facial challenges to the ordinance’s constitutionality. It was claimed that the ordinance violates due process because of vagueness, denies equal protection, and is in violation of the right to bear arms, which is protected by the second amendment to the United States Constitution. The defendants responded with a motion to dismiss, which the circuit court granted. The appellate court affirmed the dismissal in 2011, and the plaintiffs appealed to the Illinois Supreme Court.

In this decision, it was held that the dismissal of the complaint counts alleging denial of due process and equal protection could stand, and the results reached in the courts below were upheld. However, as to the second amendment issue, the supreme court took a different view. 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. The supreme court said that, at this point in the lawsuit, it cannot be said that no set of facts can be proved that would entitle the plaintiffs to relief. Neither has the County had an opportunity to present evidence to justify a nexus between the ordinance and the governmental interest it seeks to protect. Therefore, the circuit court’s dismissal of the complaint count based on the second amendment was improper and was reversed, as was that part of the appellate court’s judgment which affirmed the dismissal.

The cause was remanded to the circuit court of Cook County for further proceedings.

The full opinion can be found here.

I have read the full opinion and hope to post on it later. Now it is back to work to earn a living!


  1. A quick skim of their analysis of the second amendment reads like a brady campaign press release.

    Unfortunately, they will lose. The whole idea of "assault weapons" needs to go away.

  2. See Article 1 Section 8 which defines the Constitutional missions of the militia. Among the missions specified is repelling invasions, which argues current military issue arms are indeed protected. Given that the AR variants commercially available in the US are 90%+ part for part compatible with current issue rifles, that certainly doesn't seem to give the gov a choice. See also Miller and it's inquiry whether or not a sawed-off shotgun is a miltia weapon (and therefore protected).