AFTER THE PARKLAND FLORIDA HIGH SCHOOL SHOOTING, ANTIGUN FORCES LAUNCH VIRULENT MULTIPRONGED ATTACK AGAINST CIVILIAN POSSESSION OF SEMIAUTOMATIC WEAPONS.

ANTIGUN GROUPS LAUNCH MASSIVE ANTIGUN CAMPAIGN TO RESTRICT AND CONSTRICT THE AMERICAN CITZENS’ EXERCISE OF THEIR NATURAL AND FUNDAMENTAL RIGHT TO KEEP AND BEAR ARMS, UTILIZING SEVERAL VENUES: MAINSTREAM MEDIA PROPAGANDA; CONGRESS, STATE LEGISLATURES; LOCAL GOVERNMENTAL BODIES; AND THROUGHN THE COURTS.

INTRODUCTION

Coming on the heels of the tragic incident at Marjory Stoneman Douglas High School, in Parkland, Florida, this past February, the American people have witnessed an incessant barrage of virulent antigun messaging, along with an extensive vicious campaign, on multiple fronts: through the Press, through local, State and Federal Government, and through the Courts. And, all of it aimed toward denying the average law-abiding, rational, responsible firearm owner of his or her natural and fundamental right to keep and bear arms, codified in the Second Amendment to the U.S. Constitution. Antigun activists, including advocacy groups, legislators, and mainstream media organizations and the secretive wealthy, powerful Globalist interests financing their efforts, see an opening. They are reinvigorated. They believe they can convince the public to accept further constraints on the Second Amendment. Antigun groups and like-minded individuals, in the media, in entertainment, in government, and in the Courts are all pushing once again, and more forcefully, to constrain Americans’ access to firearms, commencing with attacks on civilian ownership and possession of semiautomatic firearms. These antigun elements are clearly pressing for federal firearms’ legislation, modeled on the National Firearms Act of 1934, that, given the NFA’s onerous licensing requirements and monetary expense, has, for most Americans, effectively operated as a ban on civilian ownership of fully automatic and selective fire weapons. In a series of articles, commencing with a look at a draconian local ordinance, we will analyze and comment on recent legislative and judicial actions and efforts, in various jurisdictions, to restrict, or further restrict, or to ban outright public possession of semiautomatic firearms, misidentified and pejoratively referred to as “assault weapons” or “weapons of war.” We begin this series with an analysis and commentary on an amendment to a local community’s restrictive firearms’ ordinances.

PART ONE

THE VILLAGE OF DEERFIELD, LOCATED IN LAKE COUNTY, ILLINOIS, 25 MILES NORTH OF CHICAGO, AMENDS A FIREARMS’ ORDINANCE, BANNING, ALTOGETHER, WITHIN ITS JURIDICTIONAL BORDERS, CIVILIAN POSSESSION OF SEMIAUTOMATIC WEAPONS, DEFINED AS ‘ASSAULT WEAPONS.’

IN THE VILLAGE OF DEERFIELD, ILLINOIS, RESIDENTS HAVE 60 DAYS TO GET RID OF THEIR PERSONAL PROPERTY—SEMIAUTOMATIC WEAPONS DEFINED AS “ASSAULT WEAPONS”—OR FACE ONE THOUSAND DOLLAR FINE PER DAY FINE.

On April 6, 2018, the Village of Deerfield amended a firearms ordinance, to take effect, June 13, 2018, that bans, outright, the ownership and possession of firearms, defined, in Illinois Statute, as ‘assault weapons.’ The impetus for this action, set forth in the ordinance reads, in part: “the corporate authorities of the Village of Deerfield find that, since the enactment of Village of Deerfield Ordinance No. 0-13-24 (July 1, 2013), assault weapons have been  increasingly  used  in an  alarming  number  of  notorious  mass  shooting  incidents  at public schools, public venues, places of worship and places of public accommodation including but not limited to, the recent mass shooting incidents in Parkland, Florida (Margery Stoneman  Douglas High School; 17 people killed), Sutherland Springs, Texas (First Baptist Church; 26 people killed), Las Vegas, Nevada (Music Festival; 58 people killed), and Orlando, Florida (Pulse Nightclub; 49 people killed). . . .”

The Ordinance No. 0-18-06, amends Chapter 15 (morals and conduct), article 11 (assault weapons), section 15-87 (safe storage of assault weapons) and section 15-88 (transportation of assault weapons) of the municipal code of the village of Deerfield to regulate the possession, manufacture and sale of assault weapons in the village of Deerfield. There is a notable carve-out to the outright ban on possession of firearms, defined as ‘assault weapons.’ Village officials have exempted, inter alia, law enforcement officers, agents or employees of the Village; of the State of Illinois; of any other State, or federal law enforcement officers. Retired law enforcement officers are also exempted from the outright ban but must comply with storage requirements related to such weapons.

SHOULD AMERICANS, OTHER THAN THOSE WHO RESIDE IN DEERFIELD, ILLINOIS BE CONCERNED?

Granted, the Village of Deerfield is a small community in a State not known for supporting the Second Amendment to the U.S. Constitution, but, even, by the severely restrictive firearms standards of Illinois law, and the severely restrictive nature of the Deerfield Ordinance, as originally enacted, the present incarnation of the Village of Deerfield Ordinance is even more extreme. To get a handle on just how extreme this Ordinance is, consider a couple of passages.

As originally enacted, the Ordinance sets forth, in paragraph “(a)”, titled, “Safe Storage,” that: “It shall be unlawful to possess, bear, manufacture, sell, transfer, transport, store or keep any assault weapon on the village unless such weapons is secured in a locked container or equipped with a tamper resistant mechanical lock or other safety devise, properly engaged. . . .”

The redraft of the Ordinance strikes out the entirety of the paragraph except for this sentence: “It shall be unlawful to store or keep any assault weapon in the Village.”

The Ordinance, as amended, explains further how an individual who had previously lawfully acquired an “assault weapon,” and who had lawfully acquired a large capacity magazine (LCM), defined in Illinois law as a magazine capable of holding 10 rounds of ammunition or more, may legally dispose of both. An individual may either:

“Remove, sell or transfer the Assault Weapon or Large Capacity Magazine from within the limits of the Village; Modify the Assault Weapon or Large Capacity Magazine either to render it permanently inoperable or to permanently make it a device no longer defined as an Assault Weapon  or Large Capacity Magazine; or Surrender the Assault Weapon or Large Capacity Magazine to the Chief of Police or his or her designee for disposal as provided in Section 15-91 of this Article.”

Suppose a person wishes to retain his or her “assault weapon” and LCM. That person, who does not fall within a stated exemption, cannot do so she cannot do so. Moreover, the penalties for failure to abide by the Ordinance are as harsh as the Ordinance that denies one the right to maintain control over his or her own personal property. The Ordinance sets forth that:

“Any person who is found to have violated this Article shall be fined not less than $250 and not more than $1,000 for each offense. and a separate offense shall be deemed committed on each day during or on which a violation occurs or continues. Every person convicted of any violation under this Article shall, in addition to any penalty provided in this Code, forfeit to the Village any assault weapon.”

An individual has “60 days” from the effective date of the Ordinance, April 2, 2018, to comply with the Ordinance or be penalized. “The Chief of Police or his or her designee shall have the power to confiscate any assault weapon of any person charged with a violation under this Article. The Chief of Police shall cause to be destroyed each Assault Weapon or Large Capacity Magazine  surrendered or confiscated  pursuant to this Article. . . .”

The Ordinance hasn’t gone unchallenged. On its website, the Village of Deerfield points to a lawsuit filed by the Illinois State Rifle Association and the Second Amendment Foundation. The Arbalest Quarrel hasn’t had, as of the posting of this article, an opportunity to review the lawsuit, but the Village of Deerfield says: “the sole legal issue . . . is whether the Village lawfully ‘amended’ its prior assault weapons ordinance under Illinois law . . . [and, inter alia, that] the lawsuit effectively concedes the lawfulness of the Village’s assault weapons ban under the Second Amendment to the U.S. Constitution.”

The short answer to the question whether Illinois precludes County and local governments within the State to enact rules, codes, regulations, or ordinances contrary to State firearms laws is this: “partially.” The Illinois Preemption Statute, pertaining to Firearms, 430 ILCS 65/13.1, titled, “Preemption,” sets forth, in respect to firearms, designated, ‘assault weapons,’ the following:

“Notwithstanding subsection (a) of this Section, the regulation of the possession or ownership of assault weapons are exclusive powers and functions of this State. Any ordinance or regulation, or portion of that ordinance or regulation, that purports to regulate the possession or ownership of assault weapons in a manner that is inconsistent with this Act, shall be invalid unless the ordinance or regulation is enacted on, before, or within 10 days after the effective date of this amendatory Act of the 98th General Assembly. Any ordinance or regulation described in this subsection (c) enacted more than 10 days after the effective date of this amendatory Act of the 98th General Assembly is invalid. An ordinance enacted on, before, or within 10 days after the effective date of this amendatory Act of the 98th General Assembly may be amended. The enactment or amendment of ordinances under this subsection (c) are subject to the submission requirements of Section 13.3 [430 ILCS 65/13.3]. For the purposes of this subsection, ‘assault weapons’ means firearms designated by either make or model or by a test or list of cosmetic features that cumulatively would place the firearm into a definition of ‘assault weapon’ under the ordinance.”

Presumably, the Village of Deerfield Ordinance, as originally enacted, is consistent with Illinois Statute. The question here is whether the recent amendment to the Deerfield Ordinance coheres with Illinois Statute.

A FEW OBSERVATIONS:

I. THE VILLAGE OF DEERFIELD ORDINANCE OPERATES IN BLATANT DEFIANCE OF THE FUNDAMENTAL RIGHT TO KEEP AND BEAR ARMS.

The Village of Deerfield Ordinance goes much further than the New York Safe Act and the laws of similar jurisdictions that ban possession of firearms, defined as ‘assault weapons,’ insofar as individuals who lawfully acquired the weapons prior to enactment of the “assault weapons” ban timely register the weapons in accordance with State law and abide by other restrictions, pertaining to the weapons. Thus, the NY Safe Act has a so-called “grandfather” provision, as do the laws of various other States, albeit the provision in the NY Safe Act, for example, does not,  allow the owner of such “grandfathered” firearm to transfer that weapon to another person. Be that as it may, the Village of Deerfield provision goes one step further as there is no “grandfather” provision in the amended Ordinance. Hence, even those weapons that a person lawfully acquired before adoption of the amended Ordinance, cannot lawfully retain those weapons in the Village of Deerfield. The gun owner must get rid of them or render them inoperable if that gun owner chooses to retain custody over them.

II. CAN THE VILLAGE OF DEERFIELD ORDINANCE WITHSTAND A CONSTITUTIONAL CHALLENGE ON THE GROUND THAT THE ORDINANCE VIOLATES THE CORE OF THE SECOND AMENDMENT?

The Second Amendment issue goes to whether semiautomatic weapons defined in law, as ‘assault weapons’ fall within the core protection of the Second Amendment. Two cases on whether so-called “assault weapons” fall within the core protection of the Second Amendment went up to the U.S. Supreme Court on a writ of certiorari. One of them, Kolbe vs. Hogan, 849 F.3d 114, 2017 U.S. App. LEXIS 2930 (4th Cir. 2017), en banc, cert. den., 138 S. Ct. 469, 199 L. Ed. 2d 374, 2017 U.S. LEXIS 7002, 86 U.S.L.W. 3264, was denied a hearing and review by the U.S. Supreme Court, without comment. An earlier case involving the issue, Friedman vs. City of Highland Park, 784 F.3d 406, 2015 U.S. App. LEXIS 6902 (7th Cir. Ill., 2015), cert. den., 136 S. Ct. 447, 193 L. Ed. 2d 483, 2015 U.S. LEXIS 7681, was denied a high Court hearing but over a vigorous dissent from Justice Clarence Thomas, with the late Justice Antonin Scalia joining Thomas in his angry comment.

It is likely, given the remarks of Justice Thomas, referencing the seminal Second Amendment case, District of Columbia vs. Heller, 554 U.S. 570; 128 S. Ct. 2783; 171 L. Ed. 2d 637 (2008), that, had the high Court taken up the issue in either the Friedman case or Kolbe, the conservative wing Majority of the Court would find that so-called “assault weapons” do fall within the core of the Second Amendment, consistent with the rulings and reasoning of the Majority Opinion in Heller. But, it was the possibility of just such a ruling that obviously precluded the garnering of four votes necessary to obtain a high Court hearing on that salient issue, at the heart of the case. And, so, the American public is, once again, facing a continuing whittling away of Second Amendment protections, as forewarned by Justice Thomas, who observed that the Second Amendment has been reduced to a second-class right.

III. CAN THE VILLAGE OF DEERFIELD ORDINANCE WITHSTAND A CONSTITUTIONAL CHALLENGE ON THE GROUND THAT THE ORDINANCE AMOUNTS TO AN ILLEGAL EX POST FACTO LAW?

An ex post facto law is a law that criminalizes an action that had previously been lawful. The framers of the Constitution absolutely abhorred the enactment of such laws, referred to as ex post facto laws. Ex post facto laws are facially illegal. This means not only that our Constitution is the supreme law of the Land, but that legislation must always be appraised for lawfulness within the context of the U.S. Constitution. Restrictive gun legislation—all gun legislation that negatively impacts the Second Amendment—is immediately suspect.

Many legislators, be they members of Congress or assembly people in State or local Government, seem to forget the fact that the Constitution is supreme. Legislative enactments are not supreme and often abut dangerously against the sacred rights and liberties codified in the Bill of Rights of the U.S. Constitution. But this failure to respect the U.S. Constitution has had a decidedly unfortunate multiplier effect. For, as Federal and State Statutes, and local codes, regulations, and ordinances chisel away at our fundamental rights and liberties, the populace accedes to the incremental slow destruction of their rights and liberties.

The action of the Deerfield Village government may be seen as a microcosm of disastrous actions of Congress, ostensibly operating—so Congressional members say—for the benefit of the public, when they are benefitting themselves or secretive parties who have no interest in securing the rights and liberties of Americans.  So, firearms, designated as “assault weapons,” are banned simply on the “say-so” of those in charge, and the possession of such weapons constitutes a criminal act that heretofore had fallen within lawful bounds of local or State law.

Justice Thomas and the late eminent Justice Scalia expressed constant consternation at the arrogance of legislators who denigrate the sacred rights of the citizenry under the guise of protecting the public order. Redress is required.

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Copyright © 2018 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.