Yesterday a firearm and magazine confiscation ordinance in the Chicago suburb of Deerfield was blocked on by a temporary restraining order. The Lake County Circuit Court held that the ordinance violates a state preemption statute. The court's opinion is attached to this post.

Procedural history: The Deerfield ordinance was enacted on April 2, 2018. Its effective date would have been June 13, today. Two lawsuits have challenged the oridinance. One was supported by the National Rifle Association. The plaintiffs were Guns Save Life, a 20-year-old Illinois advocacy organization, and John Wombacher, a Deerfield resident. That case is 18CH498. A parallel case was brought by the Second Amendment Foundation, the Illinois State Rifle Association, and Deerfield resident Daniel Easterday. That case is 18CH427. The caption for the court's ruling is the NRA case, but the SAF case is also cited.

Both cases raised the preemption issue, and the court agreed with the plaintiffs. The NRA case also raised some other issues, discussed below, on which the court was not persuaded.

Statute and ordinance background: In 2013, Deerfield enacted an ordinance regulating the storage and transportation of so-called "assault weapons" and "high capacity" magazines. The municipal ordinance was in contemplation of imminent passage of an Illinois state statute preempting such laws. The Illinois statute is 430 ILCS 65/13.1. It declares: "the regulation of the possession or ownership of assault weapons are exclusive powers and functions of this State." Any local ordinance or regulation that "purports" to regulate the ownership or possession of such arms in a manner inconsistent with state law is void. Since Illinois does not prohibit the ownership of "assault weapons," no local government may do so. The state statute defines "assault weapons" as "firearms designated by either make or model or by a test or list cosmetic features that cumulatively would place the firearm into a definition of 'assault weapon' under the ordinance."

However, the preemption statute includes a grandfather clause. Local laws enacted before the preemption statute's effective date (or within 10 days after the effective date) may continue in force. Grandfathered ordinances "may be amended."

In April 2018, Deerfield substantially changed its 2013 ordinance. The new law changed the definition of "assault weapon," and prohibited possession, transportation, bearing, and sale. Residents who had been in lawful possession of such arms had until June 13 to surrender them to the Chief of Police or otherwise remove them from the village. The penalty for non-compliance was a fine of $1,000 per day. In addition, the Deerfield ordinance, as interpretted by the Deerfield government, similarly prohibited the possession of any "Large Capacity Magazine." This was defined as magazines over 10 rounds, such as the 13 or 17 round magazines that are the manufacturer-supplied standard magazines for many of the most common handguns.

Magazine ban: Carefully examing the ordinance's text, the court found that the ordinance does not in fact ban magazines. The ordinance has no "text that specifically prohibits possessing or owning a large capacity magazine." Instead, the ordinance simply makes a "large capacity magazine" one element in the definition of "assault weapon." "At best, Deerfield only prohibited large capacity magazines to the extent that the magazine is a component part of an assault weapon…" If the ordinance had prohibited magazines, then the prohibition would be preempted and void.

Preemption: The legislative intent for preemption was undeniable, for the Illinois General Assembly had used the magic words that are well-established in state preemption law: "exclusive powers and functions of this State" and "a denial and limitation of home rule powers and functions under" Illinois Constitution art. VII, sect. (h). So Deerfield's best argument was the the 2018 ordinance was a permissible amendment of the 2013 ordinance.

Illinois appellate precedent provides guidance for whether an ordinance should be considered a new ordinance or an amendment to an old ordinance. Deerfield's characterization of the 2018 law as an amendment was not dispositive. If there is a "a clear confict between the two ordinances where both cannot be carried out, then an intention to repeal will be presumed." To decide whether something is a new ordinance, "the court must perform a comparative analysis of the ordinances and analyze all its terms."

The old ordinance regulated storage and transporation. The new ordinance prohibits ownership, possession, and sales. Obviously the new ordinance is not an amendment of the storage and transportation ordinance, since storage and transportation are now prohibited (because possession is prohibited). "The banning of assault weapons is substantively different than regulations regarding the transportation and storage of such weapons by one who owns or possesses assault weapons."

Further, the 2018 ordinance has two "entirely new" sections: one on disposition of "assault weapons" and magazines, and one on destruction of such items after they are surrendered to the chief of police.

Implicit in the court's analysis is the fact that there is a "clear conflict between the two ordinances where both cannot be carried out." Under the 2013 ordinance, Deerfield residents were supposed to store and transport "assault weapons" in certain ways. Deerfield residents carry out the storage and transport instructions of the 2013 ordinance because the 2018 ordinance prevents residents from possessing the items to be stored and transported.

Hunting law preemption: The NRA plaintiffs had also argued that the 2018 ordinance is preempted by the state Wildlife Code. Like other states, Illinois allows the use of certain types of firearms for certain types of hunting, and prohibits hunting with other firearms under various conditions. 520 ILCS 5/1.1 et seq. For example, quail or Hungarian partridge may only be taken with a shotgun or with a bow and arrow. Id. 2.7, 2.13. Handgunners who hunt deer must use a handgun with a minimum caliber of .30, and a barrel at least four inches long. Id. 2.25. Shotguns capable of holding more than 3 rounds may only be used in certain hunting situations. Id. 2.33(m). (Hunters typically comply with shotgun capacity rules by inserting a temporary plug in the shotgun magazine.)

Because the guns banned by Deerfield may lawfully be used for hunting in Illinois, the plaintiffs argued that the village's gun ban was preempted by the Wildlife Code. The court disagreed. The subject that the Wildlife Code preempts is "hunting and taking of game…not firearm ownership or possession."

Eminent domain: The final argument, which was advanced in the NRA case but not the SAF case, was that the confiscation ordinance is a taking of private property. Thus, "just compensation" was required under the Illinois constitution.

Two recent California cases have addressed a similar issue, in the context of a California statute confiscating magazines over 10 rounds. The federal district court for the Central District of California held that the confiscation is not a taking. Rupp v. Becerra, 2018 WL 2138452 (C.D. Cal. 2018). The federal district court for the Southern District came to the opposite conclusion, and has issued a statewide injunction against the confiscation statute. Duncan v. Becerra, 265 F.Supp.3d 1106 (S.D. Cal. 2017). The issue is currently before the Ninth Circuit. (My amicus brief is here; it addresses Second Amendment and empirical issues, not takings).

The Illinois court decided the question by citing an 1887 U.S. Supreme Court case upholding an alcohol confiscation law enacted in Kansas. The Supreme Court stated "A prohibition simply upon the use of property for purposes that are declared, by valid legislation, to be injurious to the health, morals, or safety of the community, cannot, in any just sense, be deemed a taking or an appropriaton of property." Mugler v. Kansas, 123 U.S. 623 (1887). Since Deerfield asserted that it was protecting "public health, safety, morals and welfare," Mugler was persuasive. (Mugler was not binding precedent, since it involved the U.S. Constitution, not the Illinois Constitution.)

Gun owners are often astonished to find that their property can be confiscated by the government without compensation. Yet as the Mugler case illustrates, the alcohol prohibition era has furnished supportive precedent. Not all the alcohol prohibition cases came out this way, but many did. The Mugler case is one of many counter-examples to the widespread but false assertion that the Supreme Court in the late 19th century was absolutist in protecting property rights.

Taking guns: A common claim of some anti-gun activists is that "Nobody wants to take your guns." To the contrary, the Deerfield ordinance was supported by the Brady Center, which since the 1970s has been one of America's most eminent anti-gun organizations. In the Deerfield case, the Brady Center joined the Village of Deerfield's legal team, and helped write the Deerfield brief. This is consistent with decades' of statements from gun control organizations, politicians, and others expressing their objective take some or all firearms. Today, there are many people who advocate Australia as a gun control model that the U.S. should follow; the Australia model, as I detailed in Chronicles magazine, is forcible confiscation, with some compensation for the guns and no compensation for now-worthless accessories.

At least for the time being, gun confiscation will not be implemented in Illinois.