In the recently issued decision in Smith & Wesson v. Mexico, the Supreme Court unanimously gave the thumbs down to the Mexican government’s attempt to impose new gun control measures on the firearms industry through the legal system. Now a federal judge in Illinois is following suit, turning away a lawsuit that sought to add new requirements to FFL’s in the state beyond the already draconian measures enacted by the state legislature. 

Shanice Mathews first filed suit against the State of Illinois, the Illinois State Police, and numerous officials back in 2018, with the help of Brady’s legal team. As U.S. District Court Judge Joan B. Gottschall pointed out last Friday, this is her fourth amended complaint seeking injunctive relief, and once again Mathews and her attorneys have been turned away. 

Mathews most recently sought an injunction that would have required FFL’s in Cook County and neighboring counties “keep and produce electronic records showing that the dealers use the Brady checklist or a similar checklist authorized by the Illinois State Police consistent with the ‘Don’t Lie for the Other Guy’ video that such dealer sare required to view as part of their training under [state law].” Additionally, Mathews wanted the state police to “notify dealers in writing that failure to provide such records at the time of relicensing for inspection by ISP will subject the dealers to the disciplinary sanctions set out under 430 ILCS 68-5/85, including the denial of the relicensing of such dealer.”

It’s Mathews (and Brady’s) belief that the requirement would lead to a decrease in straw purchases “from certain firearm dealers near Chicago, and that will in turn reduce the flow of ‘crime guns’ into Chicago.”

Gottschall, an appointee of Bill Clinton who’s served on the bench for 29 years, noted that the state of Illinois already has a list of eleven criteria  that the ISP can use to discipline gun dealers in the state, including not renewing their state-issued dealers license. 

In effect, Mathews asks the court to order defendants to promulgate regulations adding a twelfth criterion to the above list—making non-renewal of a license mandatory (“must”) instead of discretionary (“may”) when the new criterion applies. This request runs squarely into a familiar maxim of statutory construction: expressio unius est exclusio alterius, meaning roughly that an enumeration of criteria in a statute is interpreted to exclude items not on the list. This maxim “expresses the learning of common experience that when people say one thing they do not mean something else.” 

Applying the expressio unius maxim to § 5-85 of the Dealer Certification Act, the list of eleven disciplinary criteria is exclusive, and a twelfth criterion may not be added by a court or an administrative agency like the ISP.

In addition to asking for something the state of Illinois is not allowed to do via court order, Gottschall found that Mathews lacks standing to bring her lawsuit. 

She pleads that children like her son who live in Chicago’s communities of concentrated gun violence are re-traumatized on a weekly, and sometimes daily, basis. It is this ongoing exposure to gun violence that the injunction must appreciably abate. The fourth amended complaint traces this injury to defendants as follows: (1) crime guns flow into Chicago and are sometimes used in D.W.’s and class members’ neighborhoods; (2) some crime guns are obtained in straw purchases; (3) a disproportionate number of the straw purchases occur at seven firearm dealers in Chicago’s suburbs; and (4) defendants fail to regulate those seven dealers in a manner that would decrease the rate of straw purchases. Because, as explained above, defendants have no authority to promulgate the regulations Mathews proposes, D.W.’s injuries and those of the putative class cannot be redressed by the injunction Mathews seeks. Only the Illinois legislature can give defendants the authority to promulgate Mathews’ proposed regulations.

This entire exercise is a waste of time and taxpayer expense. The state of Illinois already licenses gun dealers, and evidence of willful straw purchases isn’t just enough to trigger a revocation, but criminal charges. The same is true at the federal level. What Mathews is seeking is just another bit of red tape to ensnare firearm retailers, and though the Democrats in Springfield may pass a law imposing these new requirements, the courts have no place in writing or establishing new laws. 

Despite the fact that Mathews and her attorneys have now tried and failed to sue the state of Illinois and other defendants four times, Gottschall dismissed the case without prejudice. That means she can file suit yet again, so long as she can find attorneys or gun control groups willing to assist her. Gottschall should have put an end to this lawfare by dismissing the case with prejudice. I doubt the fifth time will be charm for this lawsuit, but I also won’t be surprised if another complaint pops up in the Northern District of Illinois here before long.