Wilson v. County of Cook

By Michael T. Reagan, The Law Offices of Michael T. Reagan

The circuit and appellate courts had rejected plaintiffs' constitutional challenges to the Cook County ordinance banning assault weapons. While the plaintiffs' petition for leave to appeal was pending in the Illinois Supreme Court, the Supreme Court of the United States filed its decision in McDonald v. City of Chicago, 130 S.Ct. 3020 (2010). The Illinois Supreme Court entered a supervisory order directing the appellate court to vacate its prior judgment and to reconsider the appeal in light of McDonald.

On that reconsideration, the appellate court again affirmed the circuit court's dismissal. In this opinion, the Illinois Supreme Court affirmed the decisions of the circuit and appellate courts to the extent that they dismissed the due process and equal protection challenges, but reversed the dismissal of the Second Amendment challenge. The case was remanded to the circuit court for what will likely be evidentiary hearings about the nature of the assault weapons banned under the ordinance, the dangers of those particular weapons, and whether they are of a "dangerous and unusual" character, perhaps thereby falling outside of Second Amendment protection.

The Cook County ordinance escaped the due process vagueness challenge because the definition of banned assault weapons included not only the "capacity to accept" a large capacity magazine, sufficiently specific in its own right, but also an added "characteristic test" detailing actual properties of the weapon in question. The equal protection challenge failed because the entirety of the legislative scheme did not arbitrarily differentiate between owners with similar firearms. The court noted that "the equal protection clause has generally been held to protect against inappropriate classifications of people, rather than things." However, the court did not have to take up that interesting argument because of its view that the ordinance survived even if an equal protection analysis was applied.

The Second Amendment challenge required the court to engage in extensive consideration of the recent SCOTUS opinions in District of Columbia v. Heller, 554 U.S. 570 (2008) and McDonald v. City of Chicago. Heller held that the Second Amendment confers an individual right to keep and bear arms, and that the central component of the right is that of armed self defense, most notably in the home. McDonald held that the due process clause of the 14th Amendment incorporates that Second Amendment right. Courts around the country are now analyzing the scope of that right.

Justice Theis' opinion for the unanimous court carefully sets out the progression through which that analysis is to occur, which cannot be restated here. The opinion notes that it cannot "be said with any certainty ... that assault weapons ... are the 'quintessential weapon of choice' for self-defense by Americans." Nor can it be said in the context of the § 2-615 motion on which the challenge was presented to the court that assault weapons as defined in the ordinance categorically fall outside the scope of protected Second Amendment rights. The necessary constitutional balance under a heightened scrutiny test requires a more developed record than is appropriate under a § 2-615 motion.