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Illinois SB 754: Regulation Tech (as amended) is Unconstitutional
RE: Written Testimony of Kristie Tertel– National Director of Legislative Policy, The Heller Foundation
ATTN: Senate Judiciary Criminal Committee (IL)– Opposition to SB 754: Regulation Tech, As Amended
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April 24, 2023
Dear Honorable Mr. Chairman and ranking members of the Judiciary Criminal Committee-
My name is Kristie Tertel and I am the National Director of Legislative Policy at The Heller Foundation. I have included my non-profit organization’s written testimony in OPPOSITION to SB 754, as amended. The Heller Foundation is a 501c(3) non-profit organization that leads both Colorado and the nation in advocating for our God-given, Constitutionally-entrenched right to bear arms and self-defense. The Second Amendment is a human right. Our tireless work leads the way to setting binding precedent through lawsuits and advocacy for Coloradans and their families. In addition, 2023 marks our 15th year in advancing policy measures to help close the gap between legal and lived equality for all residents of Colorado- and beyond. The Heller Foundation’s ground-breaking work and track record of success proves we have also re-invested time and resources tirelessly throughout the state simply because our organization understands the great importance of adequate, effective representation- not only throughout Colorado; but, across the entire country.
The Heller Foundation OPPOSES SB 754 because it is a waste of already limited resources, time and tax-payer dollars as the bill is fundamentally flawed in intent, purpose and content. Per and in support of Illinois Carry, SB 743 does nothing to prevent the future sale of ‘Tannerite’ as, it is common knowledge, that the two (major) components are aluminum and fertilizer- i.e. ammonium nitrate- and they will both simply be sold separately.
Sponsors in support of the bill testified earlier in the House Committee that the Highland Park Shooter, Robert Crimo, III., had a large quantity of Tannerite in his immediate possession with the intention of using it during the parade. However, a major omission was left out of the initial legislative intent of SB 754, as the shooter was ALREADY in possession of a FOID card prior to and at the time of the shooting. Hence, this bill would not have prevented Crimo from possessing Tannerite. The intent and purpose are entirely obsolete and meaningless to due to this extremely important oversight of the bill’s co-sponsors throughout the state of Illinois.
Another flaw in the reasoning of the content of SB 754, is that the bill has no effect on- even if it applied retroactively, to the Highland Park shooter, as the shooter was not only already in possession of a FOID card, but, logistically, a form of combustion- like a projectile put into motion through the legal use of a firearm- is needed to ignite Tannerite. Henceforth, a FOID card is ALREADY required in Illinois for the Tannerite to have any effect and/or be put to use in a real-world scenario.
Furthermore, The Heller Foundation vehemently opposes SB 754 as it is in direct conflict with the Bruen decision, the Heller decision and the United States Constitution. In addition to Bruen, “The Heller case is clearly one of the most important Second Amendment cases in American history, if not the most important,” notes UCLA Law School professor, Adam Winkler. The Heller Foundation’s Founder and Executive Director, Dick Heller, was the key plaintiff and namesake in the Supreme Court of The United State’s landmark 2008 decision- DC v Heller.
In 2022, the United States Supreme Court declared a ‘new’ standard for Second Amendment jurisprudence in deciding Bruen. Fundamentally, Bruen struck-down the state’s concealed carry law, but also established a new “text, history and tradition” standard by which courts must rule on Second Amendment challenges. Accordingly, the Bruen “text, history and tradition” two-prong test now governs all laws, nationwide, restricting the right to keep and bear arms; and, consequently, invalidates any and all gun laws that fail to meet said standard, infra. This bill fails the Bruen and Heller tests and is therefore unconstitutional for the following reasons.
Prima facie, the first step of the Bruen test requires courts to determine whether the “Plain text” of the Second Amendment in the United States Constitution covers the challenged action. This is definitely the case here. As such, since the ‘text’ does in fact cover the action at issue, and now, the government (IL) bears the burden of showing that the challenged regulation is consistent with the nation’s historical tradition of regulating firearms, as set forth in Heller. SB 754 and it’s co-sponsors have all failed to meet that standard in earlier testimony as well as within the context of the proposed bill, as amended, itself.
Further, the second prong of the Bruen test requires the government to prove that a regulation implicating people, conduct or arms falling within the ‘plain text’ of the Second Amendment is consistent with the American historical tradition of regulating firearms. SB 754 does not meet that requirement.
Consequently, The Heller Foundation urges all members of the Illinois Judiciary Criminal Committee and elected members of the Senate to vote ‘no’ to SB 754. This unconstitutional bill is akin to failing the standards set by the United States Supreme Court in both the 2008 DC v. Heller decision as well as 2022’s NYSRPA v Bruen 6-3 majority decision, insofar as SB 754 violates the 14th Amendment of the United States Constitution through ‘preventing law-abiding citizens with ordinary self-defense needs from exercising their Second Amendment right to keep and bear arms in public.” Bruen’s test reinforces the Heller decision, and as such, SB 754 in unconstitutional on the grounds of requiring a ‘special need’ (for self protection) by requiring a FOID card to buy Tannerite and is in direct violation of the Second Amendment, as well. Moreover, in Heller, Justice Antonin Scalia, wrote in the 5-4 majority opinion, that the Second Amendment is an “individual right of the people to keep and bear arms, shall not be infringed” and the binding precedent set forth in Heller codified this human right, of which, SB 754 is breaching.
Overall, SB 754 is unconstitutional, illegal, immoral, unethical and unsound. The Heller Foundation OPPOSES SB 754 and urges the Illinois Senate and ranking members of the Senate Judiciary Criminal Committee to vote ‘no’ (AGAINST) on SB 754, as amended.
Thank you in advance for any and all consideration on this imminent public policy, Constitutional and human rights matter.
Respectfully Submitted,
Kristie J. Tertel
