Holland & Knight's local government team in Chicago sprang into action when it noticed the peril and opportunity buried in a gun law on its way to the governor's desk.
Illinois had a long-standing ban on concealed carry of firearms, but in 2012 the Seventh U.S. Circuit Court of Appeals gave the state 180 days to roll back the prohibition and implement a system to allow concealed carry. A voluminous bill passed in 2013 made Illinois the last state to allow concealed carry of firearms.
The controversial bill was the subject of vigorous debate and compromises, and after the final version passed the Legislature, Holland & Knight's Illinois Government and Municipal team noticed that a careful reading revealed the law preempted local government's authority to pass its own firearms restrictions. Any community that contemplated enacting restrictions on firearms, such as a ban on assault weapons or large-capacity magazines, was about to see that right eviscerated.
There were two exceptions: existing local firearm laws were grandfathered in and municipalities had 10 days after the bill became law to pass new restrictions. With the governor expected to sign the measure within 30 days, that meant local governments had no more than 40 days to research, draft, debate and pass ordinances in this complex area of law.
Holland & Knight immediately informed its municipal government clients of this window. The mayor and city council of Highland Park – a suburb of 29,000 people on Chicago's North Shore – informed the firm that it wanted to pass an assault weapons ban that would stand up to court challenges on this highly litigious issue. Highland Park's appointed corporation counsel, Holland & Knight Partner Steven M. Elrod, along with Partner Hart M. Passman embraced the challenge of drafting an ordinance that would withstand court challenges. Mr. Elrod, executive partner in the firm's Chicago office and chair of the national Land Use and Government Team, has served as the city's attorney since 2000. He and Mr. Passman are part of a team that represents 25 local Illinois governments and 22 other county or state government entities.
Laws restricting firearms have required meticulous crafting since the 2008 U.S. Supreme Court decision, District of Columbia v. Heller. This landmark decision, one of the few the high court has issued addressing the scope of the Second Amendment, settled the long debate over whether the constitutional right to possess firearms attaches only to "militias" or is a personal right. The court said that it is an individual right and struck down a Washington, D.C., law that placed tight restrictions on firearms ownership by its residents. A 2010 Supreme Court decision growing out of the city of Chicago's ban at the time on handguns, McDonald v. Chicago, said the Second Amendment personal right to possess firearms – and thus, Heller – applies to all of the states. These two decisions have been used to successfully challenge firearms restrictions across the nation, and any new law passed by Highland Park would have to be drafted in careful deference to these rulings.
The Holland & Knight team studied firearms laws across the nation, and combed through Heller and McDonald. Inside Heller, they found the passage in the majority opinion written by the late Justice Antonin Scalia that would form the basis for Highland Park's new law. Justice Scalia, no friend of gun control, nonetheless wrote that the Second Amendment, like other rights, "is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose."
Elsewhere in the opinion, Justice Scalia noted that the Second Amendment was written to protect weapons "in common use at the time." In the modern context, he wrote that the "common use" limitation supported "the historical tradition of prohibiting the carrying of 'dangerous and unusual weapons.'"
In this last passage, Mr. Elrod and Mr. Passman recognized the clause in Heller that could be construed to address assault weapons, which he viewed as clearly "dangerous and unusual" since they are suited for military use rather than hunting, sport or home defense.
The resulting four-page ordinance banned pistols, rifles and shotguns that met a detailed definition of "assault weapon," as well as detachable magazines that hold more than 10 rounds.
As expected, the ordinance was promptly challenged. The plaintiffs, an obstetrician who lived in Highland Park and the Illinois State Rifle Association, asked for a temporary restraining order (TRO) while pursuing a constitutional challenge. They argued that the ordinance violated the constitutional right of law-abiding citizens to own guns, such as the AR-15 and large-capacity magazines that are owned by millions of Americans.
Holland & Knight's litigation team led by Partner Chris Murdoch with assistance from Holland & Knight Government Law Associate Karl Camillucci, prevailed in its opposition to the TRO and relied on Justice Scalia's own words in winning a decision at the Seventh Circuit that upheld the law. The plaintiffs then asked the Supreme Court to review the decision. At this point, the ordinance had drawn national attention from powerful organizations on both sides of the issue, and was considered a high-stakes test of how far local governments could go in regulating firearms post-Heller.
Highland Park faced protracted and expensive litigation as it defended its ordinance. In an effort to reduce the burden on the city's taxpayers, Mr. Elrod asked the Brady Campaign to Prevent Gun Violence to provide assistance, and worked with the organization to obtain pro bono legal help. The Holland & Knight team continued to support the city in the litigation and in December 2015 the high court declined to take up the appeal, allowing the Seventh Circuit decision to stand. The nearly three-year battle had ended and Highland Park, as well as other cities with similar firearm regulations, were assured that they could maintain those laws for the foreseeable future.
The ordinance is considered a model law for local governments across the nation that want to enact restrictions on assault weapons. There have been a handful of arrests under the ordinance, all occurring when police investigating unrelated activity observed illegal weapons. The Highland Park Mayor and City Councilmen have said that the law makes the community safer by banning weapons that were used by gunmen to spread carnage in mass shootings, such as those in the Sandy Hook school in Newtown, Conn., a suburban community not so different from Highland Park.
Highland Park's ordinance remains a prime example of how a proactive law firm that monitors state legislation and understands the larger backdrop of constitutional law can assert the interests of its municipal clients.