Problems With New Illinois Gun Laws

(Version Two)

{note: this is a different version of a previous commentary.]

Illinois lawmakers have passed legislation requiring police to take possession of guns from accused domestic abusers who are subject to protection orders. The Illinois statute seeks to protect domestic violence victims but may run afoul of constitutional Due Process protections.

Rising Domestic Violence

In support of the new gun seizure bill, domestic violence advocate Amanda Pyron claimed “There has been a 63% increase in domestic violence firearm-involved deaths between 2019 and 2023 across Illinois….” Those opposing the new Illinois restrictions (who outnumbered supporters two-to-one in witness testimony) raised concerns that innocent gun owners will lose rights to an untrustworthy government while domestic violence continues to escalate, that many smaller police departments lack the resources to comply with the new law, and that officers may be injured trying to carry out its terms.

Suicide rates have skyrocketed in the US, leading many gun opponents to seek waiting periods or handgun ownership limitations. School shootings reflect an increased level of mental illness in America, and so-called “assault weapons” are targeted as the root culprit. Studies show domestic violence increased more than 8% in the US during COVID-19 lockdowns (which may be repeated as new disease threats emerge in early 2025). Yet, gun control activists seek to lock down individual gun rights in an unrealistic fantasy that the government can slow the scourge of violence by reactionary rather than preventive measures.

The new Illinois statute was launched in response to the high-profile shooting of Karina Gonzalez and her daughter in 2023 by her estranged husband. Had Karina’s husband killed her by strangulation or stabbing, no bills would have been proposed to ban ropes and knives (though 1,562 Americans were killed with knives in 2023 alone).

Stronger Protective Orders

Studies show that nearly one in two women report experiencing intimate partner violence – and more than 2 in 5 men. Approximately 75% of all fatal victims of domestic violence each year are women, and 1 in 4 US men report enduring severe physical violence from an intimate partner. Most states now impose severe penalties for violating terms of protective orders, creating room for abuse in pursuit of enhanced protections.

The United States Supreme Court declined a challenge to Illinois’ ban on assault weapons, and has ruled that seizing guns under a federal protective order doesn’t violate the Second Amendment. However, Illinois' new law is not in the clear unless it also preserves Due Process provisions. Protective orders present special problems for Due Process concerns as they are often interim orders that do not afford subjects to fully challenge the claims against them.

The US Supreme Court seemingly green-lighted Illinois’ recent restrictions on guns in US v Rahimi, which held a federal restraining order issued after a court finding that a defendant “represents a credible threat to the physical safety” of an intimate partner may be constitutionally employed to prohibit that defendant from possessing firearms while the order is in effect. It is unclear whether Illinois laws provide sufficient Due Process protections for guns seized under its protective orders.

Guns in the Crosshairs

The Rahimi Court clarified previous US Supreme Court rulings to permit the deprivation of guns from dangerous actors, noting “These precedents were not meant to suggest a law trapped in amber.” Yet the Court specifically did not address whether Rahimi’s loss of his guns in that domestic violence case ran afoul of the Due Process clause of the US Constitution.

In his strident dissent, Justice Clarence Thomas explained the special risks posed by protective order proceedings (in that case, federal 18 U. S. C. §922(g)(8)):

There is no requirement that the accused has actually committed a crime; instead, he need only be prohibited from threatening or using force, or pose a “credible threat” to an “intimate partner or child.” §922(g)(8)(C). Section 922(g)(8) thus revokes a person’s Second Amendment right based on the suspicion that he may commit a crime in the future. In addition, the only process required before that revocation is a hearing on the underlying court order. §922(g)(8)(A). During that civil hearing—which is not even about §922(g)(8)—a person has fewer constitutional protections compared to a criminal prosecution for affray. Gone are the Sixth Amendment’s panoply of rights, including the rights to confront witnesses and have assistance of counsel, as well as the Fifth Amendment’s protection against double jeopardy.

Thomas invoked the history of the use of bans on guns against black citizens as a caution against this abuse:

The Government peddles a modern version of the governmental authority that led to those historical evils. Its theory would allow federal majoritarian interests to determine who can and cannot exercise their constitutional rights. While Congress cannot revive disarmament laws based on race, one can easily imagine a world where political minorities or those with disfavored cultural views are deemed the next “dangers” to society.

Maj Toure, founder of Black Guns Matter, agrees. Toure observes that “All gun control is racist. It was literally started to literally stop black people from having the means to defend themselves.”

The question for Illinois residents (of any skin color) going forward will be whether the state affords sufficient Due Process protections in its protective order proceedings to safeguard fundamental Second Amendment rights.