SPRINGFIELD, Ill. – Illinois will soon outlaw advertising for firearms that officials determine produces a public safety threat or appeals to children, militants or others who might later use the weapons illegally, as the state continues its quest to curb mass shootings.
Gun-rights advocates say the plan, which Democratic Gov. J.B. Pritzker has pledged to sign into law, is an unreasonably vague decree that violates not only the constitutionally protected right to own guns, but also free speech.
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The prime exhibit in Democratic Attorney General Kwame Raoul's effort is the JR-15, a smaller, lighter version of the AR-15 semi-automatic rifle advertised with the tag line, “Get ’em One Like Yours.” The maker says it is deliberately made smaller, with added safety features, to fit younger shooters as they learn from adults how to safely maneuver such a weapon. Raoul says it’s marketed to children and potentially entices them to skip the adult supervision and start firing.
Opening the door to court challenges is part of ongoing efforts by Democratic lawmakers who control the Statehouse to eliminate gun violence, made more complicated by the U.S. Supreme Court’s expansion of gun rights a year ago. Pritzker also signed a ban on semi-automatic weapons this year, a law that gun-rights advocates continue to challenge in federal court.
Illinois would be the eighth state to approve legislation that allows such lawsuits against firearms manufacturers or distributors. The legislation comes after the deadliest six months of mass killings recorded since at least 2006 — all but one of which involved guns.
Raoul finds precedent in the 25-year-old settlement with large tobacco companies and more recently with advertising for vaping.
“We’ve gone after the marketing that has historically driven up the consumption by minors for those products that are harmful to them,” Raoul said. "The firearms industry shouldn’t be immune to the standards that we put on other industries.”
Except that other industries don't produce constitutionally protected products, counters the National Shooting Sports Foundation, an industry trade association that has filed federal lawsuits in nearly every state that has approved a similar law.
“They're infringing on your Second Amendment rights by taking away your First Amendment rights," foundation spokesperson Mark Oliva said.
Without specific legislation, states are largely barred from legal action by a 2005 federal law that prohibits lawsuits blaming manufacturers for the later criminal use of a purchased gun. It sprang from mayors in the late 1990s who sued gun-makers for creating a public nuisance, such as Chicago Mayor Richard M. Daley's $433 million action in 1998, which the Illinois Supreme Court tossed out in 2004.
But the federal law does allow legal action if a state explicitly names firearms and conduct by their manufacturers in state law, which is what Raoul's plan would do. He won over lawmakers by showing them advertising they decided was over the line.
“Some of the ads I’ve seen are just stomach-turning," Don Harmon, of Oak Park, who sponsored the legislation.
The ad for the JR-15, a smaller, lighter .22-caliber rifle, was among them. An emailed statement from the manufacturer, Wee 1 Tactical, said the gun has safety features found on no other gun.
“The JR-15 .22 youth training rifle is for adults who wish to supervise the safe introduction of hunting and shooting sports to the next generation of responsible gun owners," the statement said. “Parents and guardians wanting to pass on this American tradition have been purchasing small caliber, lighter youth training rifles for decades.”
Raoul said he doesn’t have any gun-makers “in the so-called crosshairs. ... It’s not our interest to go fishing.” A violation of the law could draw a $50,000 fine, but more important to the attorney general is the possibility of a court-ordered injunction. Still, Raoul hopes the law deters questionable practices and no legal action is necessary.
New York, New Jersey, Delaware, Washington, California, Hawaii and Colorado have adopted similar plans. The shooting sports group has filed federal lawsuits in all but Colorado and none has been settled. Despite the court action, the laws are in effect everywhere but New Jersey, which has barred implementation for members of the shooting sports group, according to the Brady Campaign, which has intervened on behalf of defendants in each case.
Connecticut has no exemption from the federal law, but courts decided the state's statutes were written broadly enough to allow a $73 million lawsuit settlement with Remington early last year for families of the victims of a 2012 mass shooting at Sandy Hook Elementary School in Newtown.
Other campaigns Raoul has tracked see manufacturers linking themselves to the military or law enforcement, claiming they are the Pentagon's top choice for a sidearm or long gun — regardless of whether they are or not. This, he said, suggests such claims attract those with ideas about forming illegal private militias.
That notion — and the question of advertising toward children — were included in an executive order from President Joe Biden in March to stop violence. It included expanded background checks and use of red-flag laws. Biden also encouraged the independent Federal Trade Commission to produce an analysis of how gun-makers “market firearms to minors and ... to all civilians, including through the use of military imagery.”
The White House referred questions about the study to the FTC, where spokesperson Douglas Farrar declined to comment.
To the suggestion that advertising is geared toward kids or the militia-minded, Oliva, of the shooting sports group, pointed out that no one under 18 may own a gun and a minor's access to one must be controlled by a parent. Advertising a gun's suitability for use in combat makes sense because serious gun owners want the most rugged available, he said.
Oliva and other critics mocked the proposal's “reasonable controls” standard, defined as “reasonable procedures, safeguards and business practices." Democrats who have a poor track record winning legislation to stop gun violence are simply asking the courts for help, said Todd Vandermyde, a former lobbyist in Springfield for gun-rights groups.
“They're coming in the back door, attempting to bankrupt the industry by running up their legal bills while they're playing with free money,” Vandermyde said.
The bill's House sponsor, Democratic Rep. Jennifer Gong-Gershowitz, of Glenview, emphasized that the measure doesn't cherry pick firearms for business deception or fraud.
“This doesn’t single out the firearm industry,” Gong-Gershowitz said. “It just makes very clear that the firearm industry is also prohibited just like every other industry from engaging in unfair or deceptive sales and marketing.”