By Scott Kaspar, Publisher
On January 20th, a week-and-a-half after Gov. JB Pritzker’s assault weapons ban went into effect, Gov. Pritzker was caught flat-footed when an Effingham County judge entered a Temporary Restraining Order (TRO) against his gun ban. It was a win that no one saw coming based on a novel theory by former Republican AG candidate Thomas DeVore that the gun ban violates the Equal Protection Clause of the Illinois Constitution.
And since that early win, additional TROs have been secured across Illinois, with additional plaintiffs now joining the consolidated litigation in Effingham County that very soon will cover nearly 7000 Illinoisans, including nearly 200 gun shops.
But a direct appeal to the Illinois Supreme Court of the basis for the TRO – the Equal Protection violation – brought by Gov. Pritzker and stipulated to by Illinois State Rep. Dan Caulkins of Decatur, now jeopardizes the rights of thousands of Illinoisans safeguarded under the TRO – including the livelihoods of hundreds of small business gun shop owners and their employees.
It’s a development so shocking that the only rational explanation must be that Caulkins cut a deal with Pritzker.
When Effingham County judge Joshua Morrison entered the TRO, his order found that DeVore is likely to prevail on the Equal Protection grounds. That is not an invitation to take the matter directly to the Illinois Supreme Court. Rather, it is the judge signaling to the parties that if the case is developed and brought to trial, DeVore is likely to win.
DeVore’s Equal Protection argument is based on seemingly arbitrary exemptions in the gun ban that allow for certain people to purchase or own banned weapons.
For instance, active and retired law enforcement are excluded from the ban, as are active military, prison guards, and employees in private security.
Not excluded, however, are retired members of the military.
In other words, a mall cop is exempt from the assault weapons ban and is free to buy an AR-15, but a retired member of SEAL Team Six is not.
To prevail on this argument, though, DeVore would have to show that the State cannot satisfy its legal burden to justify the constitutional violation – that is, at a minimum there must be some rational basis justifying these exemptions. And DeVore was doing just that: he served discovery requests on the defendants including requests for admission that the gun ban legislation is totally devoid of any justification whatsoever.
Rather, many legal experts who have analyzed the legislation believe that the exemptions were included to appease lobbyists in order to secure enough votes in Springfield for the bill to pass. There’s no other reason why mall cops would be exempted, unless lobbyists for the private security sector insisted.
And the rationale cannot be that the exempted groups are properly trained with so-called assault weapons, because most mall cops are not. And retired military, who would have been qualified with banned weapons, are not among the exempted groups.
Defendants Gov. Pritzker and Illinois AG Kwame Raoul have refused to answer DeVore’s discovery requests on the basis for the exemptions, citing what appears to be some type of executive privilege that allegedly cloaks the legislative history of the gun ban.
In other words, the defendants don’t want to give anyone a window into how the sausage is made in Springfield that might expose which lobbyists and which members of the General Assembly carry the influence.
Then enters Rep. Caulkins, who filed his separate stand-alone complaint that largely copied DeVore’s complaints, including the same Equal Protection violations. But Caulkins chose to fundraise off his case, allegedly taking $200-per-person campaign donations in exchange for “joining” the litigation.
There’s one hitch: Caulkins’ complaint failed to name the hundreds of campaign donors properly, instead naming an unincorporated association that does not appear to actually cover the donors. That put Caulkins in a bind with his donors and potentially with the Illinois State Board of Elections.
Hence, the opportunity was ripe for Caulkins to cut a deal with Pritzker to short-circuit the litigation and get Caulkins out from underneath potential campaign finance violations and save Gov. Pritzker from having to answer DeVore’s discovery.
That is, fast-track a case with absolutely no record to the Illinois Supreme Court and rush to a final adjudication.
There is just no other reason why Caulkins would have agreed to this rush to judgment, unless it was to get himself out of hot water.
And maybe the Democrat-controlled Illinois Supreme Court will agree that the assault weapons ban violates the Equal Protection Clause and give Caulkins the win. Maybe sacrificing this law to protect how the sausage is made in Springfield is more valuable to Gov. Pritzker, as there no doubt will be another run at an assault weapons ban should this one be struck down.
But why would Caulkins take that risk, when the rights of thousands of Illinoisans and the livelihoods of hundreds of gun shop owners and their employees hangs in the balance?
No one willingly enters into a game of Russian Roulette. It’s a gamble one would take only if the 80% chance of potential success outweighed the 20% chance of certain death.
But that’s where Caulkins finds himself now.
And Gov. Pritzker just pulled the trigger on an empty chamber and now has handed the revolver back to Caulkins for his turn.
Scott Kaspar is a 20-year trial lawyer licensed in Illinois, Iowa, Colorado, and California, who has handled and won complex litigations in federal courts across the country. Kaspar also is one of the plaintiffs in the first DeVore case in which a TRO was granted on January 20th. He can be followed on Twitter at @ScottKaspar.
