U.S. Supreme Court Justice Amy Coney Barrett has refused again, for now, an invitation to step in and block Illinois' ban on so-called "assault weapons" from taking effect at the turn of the year.
On Dec. 13, Justice Barrett denied a request for an emergency injunction against the controversial gun ban that had been requested by a group of Decatur gun owners, led by State Rep. Dan Caulkins.
That request had come as part of Caulkins' larger petition asking for the U.S. Supreme Court to review the Illinois Supreme Court's ruling from earlier this year upholding the state "assault weapons" ban.
Barrett issued her denial without comment. She is the justice assigned to hear such urgent appeals from courts within the U.S. Seventh Circuit, which includes the states of Illinois, Indiana and Wisconsin.
The denial is not a complete rejection of Caulkins' request for U.S. Supreme Court review, which was filed in early November.
And it is one of two requests still pending before the U.S. Supreme Court for intervention on behalf of Illinois gun owners.
In mid-November, Caulkins and his fellow Macon County gun owners filed the petition, asking the U.S. Supreme Court to potentially overturn the Illinois Supreme Court's decision upholding the gun ban. In that petition, Caulkins argued the Illinois Supreme Court's Democratic majority had all but thumbed its nose at the U.S. Supreme Court by allowing two justices who received big campaign donations from Gov. JB Pritzker and the state's top Democratic lawmakers to participate in deciding the case.
The petition centers on the refusal by Illinois Supreme Court Justices Elizabeth Rochford and Mary K. O'Brien to step aside from hearing Caulkins' challenge to the gun ban when it landed before the state high court.
Over $10 million in donations, support
The petition notes that both Rochford and O'Brien received millions of dollars from Pritzker and his campaign organization, as well as from campaign committees led by Illinois House Speaker Emanuel "Chris" Welch, D-Hillside, and State Senate President Don Harmon, D-Oak Park.
Further, a supplemental filing to Caulkins' petition noted Rochford and O'Brien received millions of dollars more in indirect support from a political committee set up by a lawyer who is a top Harmon ally - and who also represented Harmon in court - specifically to smear Rochford's and O'Brien's Republican opponents in an advertising blitz, asserting the Republican candidates could somehow strip away abortion rights in a state dominated by Democrats.
That same campaign committee, All for Justice, has since been socked with one of the largest ever fines in Illinois history for violating campaign finance rules.
At the same time as the All for Justice committee was accusing the Republicans of judicial bias, Rochford and O'Brien were touting their progressive political stances, and receiving endorsements from prominent left-wing organizations, including from gun control groups, who typically require endorsed candidates to pledge to support "assault weapons" bans, among other gun control measures.
Caulkins' petition asserts the Illinois Supreme Court's behavior in the case violated the due process rights of Illinois gun owners to a fair hearing. Specifically, they note the campaign donations received by Rochford and O'Brien far outstrip the campaign support for a state Supreme Court justice in West Virginia which led to the landmark Caperton v Massey decision in 2009.
In that case, the U.S. Supreme Court determined a West Virginia Supreme Court justice had violated the due process rights of litigants before that court when he refused to step aside from hearing a case, despite having received campaign support from a businessman involved in the case.
In that decision, the U.S. Supreme Court said no one needed to prove “actual bias.” Rather, it was enough, they said, that there was a “serious risk of actual bias – based on objective and reasonable perceptions – when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge’s election campaign when the case was pending or imminent.”
In the supplemental brief, Caulkins noted the West Virginia justice had received only $3 million in indirect campaign support. In Illinois, however, Rochford and O'Brien received more than $10 million in direct and indirect campaign support from Pritzker, Harmon, Welch and All for Justice.
"Comparatively, it eludes reconciliation to find intolerable unconstitutional bias or appearance of bias in Caperton and reject the same finding as it respects Justices Rochford and O’Brien," Caulkins' lawyers wrote in the supplemental brief.
Caulkins and the Macon County gun owners are represented by attorneys Jerrold H. Stocks, Brian D. Eck and Patrick C. Sullivan, of the firm of Featherstun Gaumer Stocks Flynn & Eck, of Decatur.
Pritzker and his allies chose not to respond to the Caulkins petition.
Barrett and the other justices of the U.S. Supreme Court are expected to consider whether to take up Caulkins' petition during the Supreme Court's conference on Jan. 5.
Not the final word, yet
Meanwhile, Barrett continues to weigh a request from the National Association of Gun Rights for emergency action to block Illinois' gun ban law.
The NAGR had requested this spring for Barrett to step in, but that request was refused at the time.
The latest request for intervention was filed on Nov. 27. It centers on the refusal by the U.S. Seventh Circuit Court of Appeals to block the law from taking effect on Jan. 1 while constitutional challenges to the law play out. Such proceedings could continue for months and even years, challengers have pointed out, potentially leaving millions of Illinois gun owners facing the risk of criminal charges.
In the Seventh Circuit's reasoning, Illinois' law should be allowed to take effect, because judges believe the Second Amendment doesn't necessarily protect "assault weapons," or any other weapon that state lawmakers may believe is too dangerous or too closely resembles "military-grade" weapons.
The NAGR petition asserts the Seventh Circuit has misinterpreted recent U.S. Supreme Court decisions on Second Amendment rights to keep and bear arms, and must be addressed immediately, if those Supreme Court decisions mean anything.
Illinois Attorney General Kwame Raoul has responded to the NAGR petition, asserting the Seventh Circuit got the case right, and Illinois has the authority to ban a wide range of guns in the name of public safety, without running afoul of the Second Amendment.
Barrett has not yet responded to the NAGR petition.
However, the briefings before the Supreme Court come with just days remaining before the so-called Protect Illinois Communities Act takes full effect, and Illinois gun owners could face criminal charges, including fines or imprisonment, for failure to register any of the weapons or firearms accessories they may own that are on the long list of items banned by the state law.
The NAGR is represented by attorney Barry K. Arrington, of Wheat Ridge, Colorado.