about the author

Illinois Certified Concealed Carry Firearms Instructor, NRA Certified Pistol and CCW Instructor, Firearms Legal Consultant, Firearms Expert Witness - Fraternal Order of Police, and Illinois Licensed Private Security Officer. Specializing in semiautomatic handgun training and consulting. Mainly serving law enforcement personnel, attorneys, judges, business executives, private individuals with heightened security concerns, and licensed firearm dealers. Authority on firearms statutes, ordinances, regulations, related criminal laws and court rulings. Other services include firearm valuations, pistol conditioning and trigger/action enhancements. Service area encompasses northwest Indiana, southwest Michigan, and Chicago. Former Cook County Treasurer contractor and Illinois Board of Regents member.

EMAIL: BPETRIGGER@ATT.NET

Saturday, April 22, 2017

LARGE CAPACITY MAGAZINE LIMITS - COOK COUNTY AND CHICAGO, ILLINOIS

Updated June 14, 2023 ...

Executive Summary

There's considerable uncertainty and confusion regarding handgun magazine capacity restriction in Cook County, Illinois. Many people mistakenly believe that the preemption clause of the Illinois Firearm Concealed Carry Act (FCCA) is the exclusive or ultimate legal authority, and that it prohibits any limitation upon magazine capacity. In fact, there exists a valid and enforceable Cook County ordinance prohibiting "large capacity magazines" (LCMs) - defined as more than 10 rounds. Except for active law enforcement and peace officers, the ban extends to all persons in Cook County -- not merely its residents. Neither the Cook County ordinance, nor any related court rulings, exempt Illinois Concealed Carry Firearms Licensees. This treatise presents the salient issues.

Illinois Firearm Concealed Carry Act, 430 ILCS 66/ ("FCCA")
A December 2012, the U.S. Court of Appeals for the Seventh Circuit decision ("Moore v. Madigan") struck down a longstanding prohibition on concealed carry of firearms in Illinois. On July 9, 2014, to necessarily comply with the federal court's ruling, the Illinois legislature enacted the FCCA. It granted eligible, duly-qualified persons the right to carry concealed handguns under certain conditions and with specific exceptions. The following statute excerpts are particularly germane:

Section 5. Definitions. "Handgun" means any device which is designed to expel a projectile of projectiles by the action of an explosion, expansion of gas, or escape of gas this is designed to be held and fired by the use of a single hand.

Section 15. Violations. (f) ... Except as otherwise provided in this subsection, nothing in this subsection prohibits the licensee from being subjected to penalties for violations other than those specified in this Act.

Section 90. Preemption. The regulation, licensing, possession, registration, and transportation of handguns and ammunition for handguns by licensees are exclusive powers and functions of the State. Any ordinance or regulation, or portion thereof, enacted on or before the effective date of this Act that purports to impose regulations or restrictions on licensees or handguns and ammunition for handguns in a manner inconsistent with this Act shall be invalid ... This section is a denial and limitation of home rule powers and functions under subsection (h) of Section 6 of Article VII of the Illinois Constitution.

Illinois Firearm Owners Identification Act430 ILCS 65/ ("FOID") 
Is the statutory understructure for the FCCA and Illinois firearm-related criminal laws. Concurrent with the FCCA's adoption the FOID Act was necessarily amended to incorporate the FCCA preemption clause and other provisions, most importantly Sec. 13.1. Preemption:

(a) Except as otherwise provided in the Firearm Concealed Carry Act and subsections (b) and (c) of this Section, the provisions of any ordinance enacted by any municipality which requires registration or imposes greater restrictions or limitations on the acquisition, possession and transfer of firearms than are imposed by this Act, are not invalidated or affected by this Act.

(b) Notwithstanding subsection (a) of this Section, the regulation, licensing, possession, and registration of handguns and ammunition for a handgun, and the transportation of any firearm and ammunition ... are exclusive powers and functions of this State.

(c) Notwithstanding subsection (a) of this Section, the regulation of the possession or ownership of assault weapons are exclusive powers and functions of this State. Any ordinance or regulation, or portion of that ordinance or regulation, that purports to regulate the possession or ownership of assault weapons in a manner that is inconsistent with this Act, shall be invalid unless the ordinance or regulation is enacted on, before, or within 10 days after the effective date of this amendatory Act ... For the purposes of this subsection, "assault weapons" means firearms designated by either make or model or by a test or list of cosmetic features that cumulatively would place the firearm into a definition of "assault weapon" under the ordinance.

(d) For the purposes of this Section, "handgun" has the meaning ascribed to it in Section 5 of the Firearm Concealed Carry Act.

(e) This Section is a denial and limitation of home rule powers and functions under subsection (h) of Section 6 of Article VII of the Illinois Constitution.

State of Illinois Constitution, Article VII. Section 6
Grants certain powers to home rule units (counties and most municipalities) that transcend state law, including: (a) ... a home rule unit may exercise any power and perform any function pertaining to its government and affairs including ... the power to regulate for the protection of the public health, safety, morals and welfare. (c) If a home rule county ordinance conflicts with an ordinance of a municipality, the municipal ordinance shall prevail within its jurisdiction. (h) "The General Assembly may provide specifically by law for the exclusive exercise by the State of any power or function of a home rule unit. (m) Powers and functions of home rule units shall be construed liberally.

Cook County Ordinance, Chapter 54, Article III, Division 4, "Blair Holt Assault Weapons Ban" (Ordinance No. 13-O-32, 7-17-2013) 
Ignoring or contravening the Illinois legislature's clear intent, the FOID/FCCA definition of "handgun," and these Acts' preemption clauses pertaining to handguns and assault weapons, the Cook County Board (within the 10 day window granted under the FCCA) capitalized upon its home rule powers by strengthening the earlier-adopted "Blair Holt" ordinance. The especially relevant elements of the ordinance are:

Sec. 54-210. - Applicability. (a) The provisions included in this division apply to all persons in Cook County including, but not limited to, persons licensed under this article.

Sec. 54-211. - Definitions. 
"Assault weapon" does not include any firearm that has been made permanently inoperable, or satisfies the definition of "antique firearm" ...

Large-capacity magazine means any ammunition feeding device with the capacity to accept more than ten rounds, but shall not be construed to include the following: 1) A feeding device that has been permanently altered so that it cannot accommodate more than ten rounds. 2) A 22-caliber tube ammunition feeding device.

Sec. 54-212. - Assault weapons, and large-capacity magazines; sale prohibited; exceptions. (a) It shall be unlawful for any person to manufacture, sell, offer or display for sale, give, lend, transfer ownership of, acquire, carry or possess any assault weapon or large capacity magazine in Cook County. This subsection shall not apply to ... Transportation of assault weapons or large capacity magazine if such weapons are broken down and in a nonfunctioning state and are not immediately accessible to any person.

Sec. 54-214. - Violation; penalty. (a) Any person found in violation of this division shall be fined not less than $5,000.00 and not more than $10,000.00 and may be sentenced for a term not to exceed more than six months imprisonment. Any subsequent violation of this division shall be punishable by a fine of not less than $10,000.00 and not more than $15,000.00 and may be sentenced for a term not to exceed more than six months imprisonment. (Ord. No. 15-4167, 9-9-2015.)

To circumvent the Concealed Carry and FOID Acts, Cook County employed a disingenuous, convoluted, and incorrect characterization and categorization of "large capacity magazines" (LCMs) as assault weapons. Consider the following facts:
  • A magazine is merely the cartridge feeding mechanism for a semiautomatic firearm. A magazine, per se, doesn't and can't cause an explosion or projectile (bullet) expulsion.
  • A magazine alone doesn't meet the State's definitions of either firearm or handgun.
  • A magazine isn't listed as a weapon under the Illinois Unlawful Use of Weapons statute.
  • The county's apparent regard of magazines as "assault weapons" is totally incompatible with the State's ascribed definition: "firearms designated by either make or model or by a test or list of cosmetic features that cumulatively would place the firearm into a definition of assault weapon." A magazine is neither a make, model, test, list nor cosmetic feature.
As such, based upon state law (and common sense), magazines shouldn't be subject to county fiat. The City of Highland Park adopted a similarly flawed ban on LCMs and assault weapons within the FOID's 10-day grace period.

Under the Illinois Constitution, where county and municipal ordinances conflict, municipal law prevails. To the best of my knowledge, no city or village has officially preempted Cook County's LCM ban.

Court Rulings
In Dec. 2013, plaintiffs Dr. Arie S. Friedman and the Illinois State Rifle Association brought an action in the U.S. District Court to enjoin the city of Highland Park, Illinois from enforcing an ordinance nearly identical to Cook County’s AWB ordinance. In Sept. 2014, the U.S. District Court rejected the plaintiffs' argument.

In Aug. 2018, the U.S. District Court for the Northern District of Illinois (Wilson v. Cook County, Case No. 17 CV 7002), essentially reaffirming the 2015 federal appeals court ruling in Friedman v. City of Highland Park, upheld Cook County's Assault Weapon Ban. 

In Aug. 2019 the U.S. Court of Appeals, Seventh Circuit, affirmed the Aug. 2018 decision of the U.S. District Court for the Northern District of Illinois (Wilson v. Cook County, Case No. 17 CV 7002), upholding Cook County's Assault Weapon Ban. Unless and until the U.S. Appeals Court or U.S. Supreme Court overturns the Seventh Circuit decision, Cook County's prohibition on "large capacity magazines" (greater than 10 rounds) and AR-15 type rifles remains in effect, and violators are subject to prosecution.

Unfortunately, prevailing court rulings support the ban in Highland Park, Cook County, and similar others in Illinois and elsewhere.

No court rulings have exempted Illinois Concealed Carry Licensees from Cook County’s large-capacity magazine ban.

Ordinance Enforcement
Somewhat surprisingly, there's been no noteworthy, standalone LCM or assault weapon prosecution by Cook County. (The State's Attorney certainly has bigger fish to fry.) However, in June, 2018, the Cook County Sheriff's Office acknowledged their responsibility to enforce the ordinance, and intention to more vigorously do so. And Chicago Police officers have been directed to indicate magazine capacity on arrest reports.

It's unlikely you'd be caught with or arrested for a LCM (many police officers are unaware of or ignore the county ordinance). However, if found with a LCM or assault weapon, you might be charged with an ordinance violation and have to defend against prosecution by the Cook County State's Attorney. A first offense conviction could cost as much as six months' incarceration and a $10,000 fine. You'd also likely incur substantial attorney's fees, bail bond costs, along with other serious hardships.

Chicago Restrictions
On July 17, 2013, within the 10-day municipal preemption authority granted under the Illinois Concealed Carry and FOID Acts, Chicago similarly enacted bans on assault weapons. Section 8-20-010 of the Municipal Code enumerates certain firearm makes and models as "assault weapons." Later in the same section, but not included in the assault weapon category, "high capacity magazine" is defined as having an "overall capacity of more than 15 rounds." 

Section 8-20-075 declares the sale, manufacture, transfer or possession of assault weapons to be unlawful. Section 8-20-085 (b) specifically prohibits the sale or possession of "any high capacity magazine or tubular magazine extension for a shotgun carried, possessed, displayed, sold or otherwise transferred in violation of this section is hereby declared to be contraband and shall be seized by and forfeited to the city." The ordinance formatting and language are unclear and quite confusing. High capacity magazine is defined, but it could reasonably be construed that the city's ban seems to be specifically and solely related to shotguns.

Section 8-20-300 (a) provides that any person who violates Sections 8-20-075 or 8-20-085 "shall be fined not less than $1000.00 nor more than $5000.00 and be incarcerated for a term not less than 90 days nor more than 180 days." In addition to ARs, the ordinance bans laser light accessories, threaded barrels, silencers (mufflers), and flash suppressors.

Chicago Police Department directives pertaining to the IL Firearm Concealed Carry Act make no mention of the county's magazine capacity restriction. Thus far, very few related arrests or prosecutions have occurred and it's highly unlikely you'd be caught or charged. But bear in mind that firearm crimes occurring in Chicago are usually handled by the Cook County State's Attorney. Their office (especially in the current anti-gun climate) could begin aggressively prosecuting LCM offenders. And bear in mind that beyond city limits you'd be subject to possible arrest and prosecution for the county's 10-round magazine capacity restriction. Do you really want to take the risk, especially considering the potential consequences (i.e., six months in jail)?

Update January 2023
On January 10, 2023, Illinois enacted the “Protect Illinois Communities Act” (House Bill 5471 with Senate Amendment 3). Among other provisions, the Act bans the purchase, possession, delivery, and sale of any “large capacity ammunition feeding device.” Included in its definitions is “1) a magazine, belt, drum, feed strip, or similar device 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; or (2) any combination of parts from which a device described in paragraph (1) can be assembled.” The magazine ban becomes effective April 10, 2023.
 
The Act includes these exemptions: does not apply to a person's possession of a large capacity ammunition feeding device if the person lawfully possessed that large capacity ammunition feeding device before the effective date of this amendatory Act of the 102nd General Assembly, provided that the person shall possess such device only: on  private property owned or immediately controlled by the person; on private property that is not open to the public with the express permission of the person who owns or immediately controls such property; while on the premises of a licensed firearms dealer or gunsmith for the purpose of lawful repair; while engaged in the legal use of the large capacity ammunition feeding device at a properly licensed firing range or sport shooting competition venue; or (5) while traveling to or from these locations, provided that the large capacity ammunition feeding device is stored unloaded and enclosed in a case, firearm carrying box, shipping box, or other container. A person authorized under this Section to possess a large capacity ammunition feeding device may transfer the large capacity ammunition feeding device only to an heir, an individual residing in another state maintaining it in another state, or a dealer licensed as a federal firearms dealer under Section 923 of the federal Gun Control Act of 1968. 

Other exceptions are made for qualified law enforcement officers, private security contractors, and certain other duly authorized personnel. The Act does not exempt Illinois Concealed Carry Licensees or regular FOID cardholders.

A person who knowingly violates a provision of the Act commits a petty offense with a fine of $1000 for each violation. 

It’s important to understand that while this is now a State law, it does not exclude or nullify applicable existing home rule unit restrictions. The ten-round magazine capacity limitations previously imposed by Cook County, Highland Park, Deerfield, and other communities remain in effect. These ordinances have seldom been enforced and given the new state Act, future enforcement is even more unlikely. 

Update June 2023
In January 2023, Herrera v. Raoul was filed in U.S. District Court Northern District of Illinois challenging the constitutionality of, and requesting an injunction against, the Cook County and Chicago bans on magazine capacity and AR-15 style rifles. The District Court denied plaintiff’s requests. The Herrera case has been joined with another similar, Barnett v. Raoul, filed in U.S. 7th Appellate Court and oral arguments are scheduled for June 29, 2023. 

Current Status
The ban prevails throughout Cook County, unless and until any of three conditions occur: the County Board modifies or repeals Blair Holt; 2) a municipal ordinance, declaration or other official provision expressly allows LCMs and AR-15 style firearms within its jurisdiction; 3) The U.S. Appeals Court or U.S. Supreme Court overturns the Blair Holt ordinance (and/or similar laws in other jurisdictions). 

Recommendation
Given the Blair Holt ban and potential penalties, I urge clients, colleagues and others (especially concealed carry licensees) to comply with home rule restrictions unless or until the Seventh Circuit U.S. Appeals Court or U.S. Supreme Court issues a restraining order or decides such Second Amendment infringements to be unconstitutional. Bear in mind there's currently no federal, state or Cook County limitation on the number of magazines you can own or carry.

Miscellaneous Comments
Contrary to the wishful thinking of many concealed carry instructors, licensees, and self-anointed gun “experts,” the preemption clauses of 430 ILCS 65/13.1 and 430 ILCS 66/90 do not exempt them from the Cook County ordinance.

Civics Lesson ... United States courts have ultimate authority in determining the legality of statutes and ordinances. The U.S. Court of Appeals in this judicial circuit has ruled the Cook County ordinance enforceable. Courts in other federal jurisdictions have upheld similar “high capacity” magazine bans. Unless/until the U.S. Supreme Court rules otherwise, the Appeals Court decision here prevails.

Granted, very few people have been arrested and charged with the ordinance violation. However, the Cook County Sheriff’s Office acknowledged its authority and intention to enforce the ordinance. And Chicago Police officers are directed to indicate magazine capacity on arrest reports. Especially given the recent surges in shootings, armed robberies and carjackings, the Cook County State’s Attorney’s Office could begin prosecuting (at least symbolically) ordinance violators. Bear in mind that the potential penalty for violation could be up to 6 months incarceration and a $10,000 fine. Consider also the related bail bond and legal defense costs! Given the prospective penalty, do you really want to risk noncompliance?

If the Cook County AWB wasn’t enforceable, why do you think the Illinois State Rifle Assn., Second Amendment Foundation and other gun rights groups have invested so much in court fights against the ordinance? 

If still in doubt you might discuss this issue with an attorney well-qualified in this particular field. But every criminal defense and civil attorney, prosecutor, judge, legislator, mayor, and law professor with whom I’ve reviewed the issue has shared my interpretation. Incidentally, I would never solely rely upon the legal opinion of any gun store salesperson or other personnel.

Better safe than sorry!

Legal Disclaimer/Hold Harmless: Every reasonable effort has been made to ensure the accuracy and reliability of the treatise's contents. However, the information and recommendations are provided "as is," and without warranty of any kind. The author disavows any responsibility or liability for accuracy, timeliness, completeness, legality or reliability and shall not be responsible for any injury, liability, loss, or damage of whatever nature (direct, indirect, consequential) which may result from its use or non-use.

Originally published Feb. 14, 2016. Issue update June 14, 2023.

Copyright 2016-2024 Bruce Edenson. ALL RIGHTS RESERVED.