Illinois General Assembly Bans Assault Weapons (with exceptions) and Enhances Gun Safety Laws

January 10, 2023

By Steven M. Elrod

On January 10, 2023, the State of Illinois adopted the “Protect Illinois Communities Act” (the “Act”), providing for an expansion of firearm regulations including, for the first time in Illinois, a statewide ban on assault weapons and large capacity magazines.  While not as restrictive or comprehensive as the original draft legislation introduced late last year by Illinois State Representative Bob Morgan, it is nevertheless a significant piece of legislation.  Illinois will become the ninth state in the nation to have a statewide ban on assault weapons, joining California, Connecticut, Delaware, Hawaii, Maryland, Massachusetts, New Jersey, and New York.

The Act amends the “Deadly Weapons” section (Article 24) of the Illinois Criminal Code to add a new Section 1.9 that makes it unlawful, with several significant exceptions, for any person within Illinois to knowingly possess, or to knowingly manufacture, deliver, sell, or purchase an “Assault Weapon.”  The Act defines “Assault Weapon” through a comprehensive list of more than 50 models and classifications of pistols, rifles, and guns.

The ban on manufacturing, delivery, and sale becomes effective immediately on the effective date of the Act (which will be when the Governor signs the legislation).  The ban on possession does not become effective until January 1, 2024.

Significantly, the ban has many exceptions, the broadest of which is the pre-possession exemption.  Any person who possessed an Assault Weapon prior to the effective date of the Act may continue to possess that weapon so long as the person provides an “Endorsement Affidavit” to the Illinois State Police with certain required information by October 1, 2023.  The required information includes the affiant’s Firearm Owner’s Identification Card (“FOID”) number, and the make, model, caliber, and serial number of the pre-possessed Assault Weapon.  Information contained in the Endorsement Affidavit must be kept confidential, and is exempt from disclosure under the Illinois Freedom of Information Act (the Act amends FOIA to accomplish this protection).

Once an Endorsement Affidavit is completed and submitted as required, a rebuttable presumption is created that the person lawfully possessed, or had completed a purchase of, an Assault Weapon before the effective date of the Act.  Beginning on January 1, 2024, a person with an Endorsement Affidavit may transfer the Assault Weapon only to (a) an heir, (b) an individual residing in another state who will maintain the Weapon in another state, or (c) a federal firearms dealer.

The Act also excludes – and therefore, generally, allows continued possession of Assault Weapons by:

• Peace Officers.
• Qualified law enforcement officers and qualified retired law enforcement officers, as defined in the Illinois Law Enforcement Officers Safety Act (the exemption for retired law enforcement officers was not in the legislation originally introduced in the House, but was added before the final vote).
• Federal, state and local law enforcement agencies acquiring and possessing Assault Weapons for the purpose of equipping the agency’s peace officers.
• Prison wardens and superintendents.
• Members of the Armed Services, Reserve Forces, or National Guard while on duty or while traveling to or from their place of duty.
• Any company employing armed security officers at a nuclear energy, storage, or weapons facility.
• Any private security contractor agency (and its contractors) licensed under the Private Detective, Private Alarm, Private Security, Fingerprint Vendor, and Locksmith Act
• Nonresidents transporting, within a 24-hour period, an Assault Weapon through Illinois (if the weapon is broken down and unloaded)
• Possession for hunting use expressly permitted under the Illinois Wildlife Code, or while traveling to or from an authorized hunting location (if the weapon is broken down and unloaded)

Exempt individuals described above may, but need not, submit an Endorsement Affidavit to the Illinois State Police.

The Act also makes it unlawful for any person within the State to knowingly manufacture, deliver, sell, purchase, or possess a “Large Capacity Ammunition Feeding Device.”  Perhaps the most robust debate in the General Assembly centered around the definition of this term.  As originally introduced, the defined term included all magazines with the capacity of, or ability to accept, more than 10 rounds of ammunition.  A later version increased the number to more than 12 rounds.  The final version of the Act defines a prohibited magazine as one that has a capacity of, or that can be readily restored or converted to accept, more than 10 rounds of ammunition for long guns and more than 15 rounds of ammunition for handguns.

The ban on manufacture, delivery, sale, or purchase of Large Capacity Ammunition Feeding Devices is effective as of the effective date of the Act. The ban on possession of these Devices does not take effect until 90 days after the effective date.  As with the ban on Assault Weapons, this ban is also subject to several enumerated exceptions, including a pre-possession exemption (without the need for an Endorsement Affidavit).

The penalty for violating the ban on manufacturing, delivery, sale and possession of Assault Weapons is a Class A misdemeanor for a first violation and a Class 3 felony for a second or subsequent violation.

The penalty for violating the ban on Large Capacity Ammunition Feeding Devices is a petty offense and $1,000 fine for each violation

Other provisions of the Act include:

• An amendment to the Illinois Firearm Restraining Order Act to increase the duration of a circuit court’s Firearm Restraining Order (“FRO”) from six months to up to one year, including renewed FROs.
• An amendment to the Illinois FOID Act to require a federal firearm license dealer or the Illinois State Police to conduct a universal background check on any person seeking to purchase a firearm, effective July 1, 2023.
• Expansion of the authority of the Illinois State Police to investigate illegal firearm trafficking.

An early version of the Act also included an additional amendment to the FOID Act that would have eliminated the provision that allows a person under 21 years of age to apply for and receive a FOID card with the written consent of a parent or legal guardian.  This amendment was eliminated from the final version of the Act.

The adoption of the Act is not the first attempt by the State to ban assault weapons.  The last serious effort occurred in 2013, when the General Assembly considered the adoption of a concealed carry law.  After significant debate and major compromises on all sides, the General Assembly ended up passing highly unusual and somewhat extraordinary legislation that both declared the State’s intention to (1) not adopt any statewide regulation of assault weapons, but also (2) not allow any local government to regulate assault weapons either.  That legislation also awkwardly allowed some local governments with home rule authority to regulate assault weapons if they had done so prior to the effective date of the legislation, or if they did so within 10 days after the effective date of that legislation, with the ability to amend at a later date.  This rarely-used effort of partial preemption resulted in the implementation or continued existence of assault weapon regulations in more than 20 jurisdictions throughout the State.

Interestingly, the Protect Illinois Communities Act does not contain language preempting home rule jurisdictions.  Therefore, those governments that adopted assault weapon regulations prior to or within the 10-day window after the 2013 statute continue to have the ability to enforce their own local assault weapon regulations and bans that are more restrictive than those set forth in the Act.  Conversely, those local governments that did not have assault weapon regulations in place in 2013 will not have this ability.

It would not be a surprise to see a legal challenge to the Act brought under the Second Amendment.  Several lawsuits are currently pending in federal court challenging existing state and local government bans, including three in Illinois.  Significantly, however, the constitutionality of assault weapons bans in the Seventh Circuit Court of Appeals, which includes Illinois, was previously confirmed in the 2015 litigation concerning the City of Highland Park ban on assault weapons. Friedman and Illinois State Rifle Association v City of Highland Park, 784 F.3d 406 (7^th Cir. 2015), cert. denied, 136 S.Ct. 447 (2015).  The Seventh Circuit also upheld the assault weapon ban that had been adopted by Cook County. See Wilson v Cook County, 937 F.3d 1028 (7^th Cir. 2019).

While the federal judicial landscape has changed since the Highland Park and Cook County cases were decided, the judicial findings of constitutional validity of assault weapon bans have not, to date, been overturned.  A recent U.S. Supreme Court case concerning the regulation of concealed carry permits has clearly imposed a greater burden on governments attempting to regulate firearms. See New York State Rifle & Pistol Association v Bruen, 597 U.S. ___, 142 S.Ct. 2111 (2022).  While defending a Second Amendment challenge may now be more challenging, it is certainly not impossible, particularly with regard to assault weapons.