Founding fathers didn’t own AR-15s or large capacity magazines, Pritzker and Raoul argue in defense of ban

Illinois Attorney General Kwame Raoul on Thursday filed a brief defending Illinois’ assault weapon ban, arguing the weapons restricted by the newly enacted law aren’t commonly used for self-defense and that large capacity magazines are accessories — not “arms.”

It also argues the country’s founding fathers owned guns that could only fire a single shot before reloading — proving assault weapons and large capacity magazines weren’t in “common use” when the Constitution was ratified.

“The assault weapons restricted by the Act are not commonly used for self-defense; by design and in practice, they exist for offensive infliction of mass casualties,” the brief states.

It also argues the term “arms” refers to weapons and not “accessories,” and that large capacity magazines are therefore not protected under the Second Amendment’s right to bear arms.

Those are among the key arguments in a 72-page brief filed by Raoul, Gov. J.B. Pritzker and Illinois State Police Director Brendan Kelly in the Southern District of Illinois — in response to challenges to the ban in four federal lawsuits that were consolidated on Feb. 24.

Pritzker on Jan. 10 signed legislation that bans the sale of assault weapons and caps the purchase of magazines at 10 rounds for long guns and 15 for handguns. It also makes rapid-fire devices known as switches illegal because they turn firearms into fully automatic weapons.

Pat Nabong/Sun-Times file

Two key U.S. Supreme Court decisions are shaping the legal arguments around such bans. Thursday’s brief references them both, known as the Bruen and Heller decisions.

In the 2022 Bruen case, the high court’s 6-3 ruling required judges to rely on the Second Amendment’s text and the history of gun regulation to decide the constitutionality of gun laws — and not on the strength of the public safety purpose of those laws.

And in the 2002 Heller decision, the Supreme Court found that the Second Amendment guarantees the right to “possess and carry arms in case of a confrontation.” That ruling struck down a ban on handguns in Washington, D.C.

The brief filed Thursday states that Heller acknowledged handguns are “the quintessential self-defense weapon” and called M-16 rifles “weapons that are most useful in military service.”

“The Act regulates weapons and accessories like those categorically marked as unprotected in Heller,” the brief argues in its defense of the Illinois ban. “That is why it does not infringe the Second Amendment.”

In the Bruen ruling, whose opinion was written by Justice Clarence Thomas, restrictions on weapons must be limited to dangerous and unusual arms that aren’t commonly used. Opponents, including the National Association for Gun Rights, have argued the weapons banned by the Illinois law are “unquestionably” in common use.

J. Scott Applewhite/AP file

The state’s response argues otherwise.

“The Second Amendment’s text protects only arms in common use at the time the Second or Fourteenth Amendments were ratified, or those commonly used for individual self-defense today,” the brief says. “Plaintiffs cannot show the Act violates the Second Amendment because it regulates weapons designed for war, not self-defense.”

The federal suits, now consolidated, were filed by Illinois residents who own assault weapons and large capacity magazines, businesses that want to continue selling those items and gun rights and advocacy organizations. They are seeking a preliminary injunction prohibiting the defendants from enforcing the act, specifically limitations on the purchase and sale of assault weapons and large capacity magazines.

A number of state lawsuits have also challenged the ban, with most claiming it violates the Illinois Constitution. Some of the suits have resulted in temporary restraining orders — but only blocking enforcement of the ban against the gun owners and other plaintiffs who filed the suits.

Thursday’s brief notes that the only court that has considered whether the ban infringes on the Second Amendment has already ruled that it does not. U.S. District Judge Virginia Kendall on Feb. 17 ruled that the Illinois and Naperville bans on selling assault weapons are “constitutionally sound.”