New Lawsuit Challenges Illinois Waiting Period for Gun Sales

The National Rifle Association, National Shooting Sports Foundation, Illinois State Rifle Association, and several gun sellers and gun owners in the state of Illinois have filed a new federal lawsuit taking on the state’s 72-hour waiting period for gun sales. 

The lawsuit, known as Pearlstine v. Raoul, argues that the three-day waiting period is an “unadorned effort to delay the exercise of Second Amendment rights, on the theory that people who seek to acquire firearms are likely animated by violent intentions that may subside if they are forced to ‘cool off’ for three days.”

Similar challenges have been brought against waiting periods in Maine, New Mexico, Colorado, Vermont, California, and Florida in recent years, and a split among the appellate courts is developing as these cases progress. The Tenth Circuit Court of Appeals ruled New Mexico’s 10-day waiting period a violation of the Second Amendment, for example, while the First Circuit overturned an injunction against Maine’s 3-day waiting period after concluding that waiting periods regulate pre-purchase commercial sales and do not directly violate the Second Amendment. 

The new lawsuit in Illinois seeks to head off the argument used by the First Circuit by challenging the idea that a waiting period only imposes a condition or qualification on the commercial sale of a firearm.

Laws that simply prohibit the transfer of a firearm for a period of time—whether permanently or temporarily—do not impose a condition on the sale of arms at all. In point of fact, Black’s Law Dictionary explicitly defines the term “condition precedent” to exclude “a lapse of time.” Condition, Black’s Law Dictionary (12th ed. 2024) (“An act or event, other than a lapse of time, that must exist or occur before a duty to perform something promised arises.” (emphasis added)). In short, a law that outright forbids a law-abiding citizen from taking possession of a firearm is a prohibition of, not a condition on, sale, regardless of how long the prohibition lasts—as the Tenth Circuit made clear in holding New Mexico’s materially identical statute unconstitutional.

Even if the courts consider the waiting period requirement a condition on commercial sales, though, the plaintiffs contend that it is still at odds with the Second Amendment because it’s a condition that’s put towards abusive ends. 

20 ILCS 5/24-3(A)(g) does not restrict sales based on some objective quality tethered to who the legislature thinks is a responsible citizen—e.g., whether she is of a certain age or has passed a background check. So, unlike laws prohibiting sales to minors or prohibiting possession by felons, Illinois’s cooling off law does not distinguish from the general public either people found to pose a threat based on individualized conduct or a subset of people who as a class are thought particularly likely to act violently or impulsively. Instead, 720 ILCS 5/24-3(A)(g) “broadly restrict[s] arms use by the public generally,” based on the view that everyone who wants to exercise their Second Amendment rights should be treated with suspicion. That is precisely what it means for a law that restricts arms-bearing conduct to be “put toward an abusive end.”

The lawsuit even quotes a recent Seventh Circuit (which has jurisdiction over Illinois) decision in United States v. Rose, where the appellate court said if the state wants to disarm someone—even if only for a “limit[ed]” “time”—then it must establish “the defendant’s current danger to others” through “individualized proof.”

The state’s waiting period doesn’t do that. Instead, as the plaintiffs point out, it treats every gun buyer as if they are a danger to themselves or others, hence the supposed need for a “cooling off” period. 

I hesitate to call any lawsuit a slam dunk, especially in a circuit that’s been pretty hostile towards the Second Amendment, but the All-Star team of attorneys representing the plaintiffs (comprised of David Sigale, Michael McCoy of Mountain States Legal Foundation, Erin Murphy of Clement and Murphy, and NRA-ILA’s Joseph Greenlee) has put forth an argument that is basically impossible for the state to refute. Sure, Illinois will have its own arguments (my guess is they’ll be largely cribbed from the First Circuit opinion reinstating Maine’s waiting period), but the plaintiffs have done an excellent job of heading off the defendants and pointing out the fallacies in the arguments Illinois is likely to use.