Saturday, January 30, 2016

Illinois Supreme Court Confirms old Illinois Gun Law Unconstitutional

The Illinois has reconfirmed its ruling in 2013 that a basic Illinois weapon law is facially unconstitutional.  It ruled in People vs Burns that the Aguilar decision stands and was correct.  From
While a state may prohibit felons from carrying readily accessible guns despite the Second Amendment - and in fact Illinois has a law forbidding felons from possessing any kind of firearm - the AUUW law applies to everyone.
In reversing the appellate court ruling and vacating the conviction and sentence, Justice Anne Burke wrote for the court: "The offense, as enacted by the Legislature, does not include as an element of the offense the fact that the offender has a prior felony conviction. An unconstitutional statute does not 'become constitutional' simply because it is applied to a particular category of persons who could have been regulated, had the Legislature seen fit to do so.

The Legislature may not pass broad laws and leave it to the courts to decide to whom the statute may constitutionally apply, Burke said in the Jan. 22 opinion

It took me a bit to unravel this ruling.  Under the old Illinois law, it was illegal to carry a weapon in public, period.  There was no shall issue concealed carry law.  The law contested in the Illinois Court system was Aggravated Unlawful Use of a Weapon, the AUUW.  That law was ruled unconstitutional under the Second Amendment by the Illinois Supreme Court in 2013 in the People v. Aguilar case.

There is another law, Unlawful Use of a Weapon, the UUW.  The UUW law was changed in 2013 to allow for the exception to carry with a concealed carry license. Here is the exception in the law for people with a concealed carry permit:
  (iv) are carried or possessed in accordance with the Firearm Concealed Carry Act by a person who has been issued a currently valid license under the Firearm Concealed Carry Act.
The addition of the above exception means that the UUW does not suffer from the fatal, unconstitutional, flaw discussed in the Aquilar decision, because there is a legal way to carry weapons for self defense outside the home in Illinois. The Illinois Supreme Court decision was based on the Seventh Circuit Court of Appeals decision in Moore v. Madigan, which ruled that Illinois cannot ban the carry of firearms outside the home for the purposes of self defense.

The decision of the Illinois Supreme Court in People vs Burns mostly affirms the decision in Aguilar.  It does not change anything in the UUW.  The AUUW is dead, the UUW is intact.  The invalidation of the AUUW may open up an opportunity for the legislature to reform some more of Illinois' concealed carry law, which has some silly and stupid restrictions; but it does not invalidate Illinois' ban on open carry or concealed carry without a license. 

©2016 by Dean Weingarten: Permission to share is granted when this notice and link are included.  Link to Gun Watch


Anonymous said...

I would like to point out that the codes referred to here, every word if it, was tossed out by the 7th circuit. Every letter, every comma, every bit of it. That was what the Moore decision did, after all the stays and the sidestepping and the whining, the code was tossed from the record. Not just a little bit, not just what is referred to here in this decision - ALL of it.

So how then can this be happening now if it was tossed? Well, it is time for harsh realty - and the honest facing of it. Here is the baseline truth, the straight truth. With the help of the NRA, its partnership with the Democrats, every word of the struck down code was actually reinstated, yes that's right reinstated along with a exemption. What is the exemption to the pathetic and absolute prohibition - which is now under judicial assault now ironically- called "concealed carry law".

The NRA made a smokeybackroom last minute deal to get its precious preemption and permission slip structure and it gave up putting right back in code the exact thing that the court struck down as unconstitution and is now nibbling at AGAIN!

The NRA had a chance to stand FOR Constitutional Carry, but it chose not to and actually openly opposed it and argued openly opposed to it through its Lobbyist TV. (He was roundly booed for it too by the way).

What happened then, and is still happening now in Illinois, is a demonstration that the NRA means what it says when it stands for due process incorporation and state preemption. It openly admits and actively works for state level control OVER the Individual right to keep and bear arms enumerated. People just refuse to believe it, no matter how much it is explained to them. The problem is they do not WANT to believe the NRA is actually a gun CONTROL organization. So they don't, no matter how much evidence is placed before their eyes.

Wisconsin heros proved that if there is no code prohibiting a particular thing, then it cannot be claimed illegal, not even as disorderly conduct. They shot Wisconsin from prohibition to current SCOTUS precedent in a matter of months, just by having the courage to go outside the NRA and its auspices. Here to the south, the NRA snookered all gun owners who believed in them. Some of us knew better, but we were just run off as troublemakers. Yeah, troublemakers indeed. Trouble for the gun controllers.

Check the facts if you do not believe me. This is the exact code that the 7th struck down....and when you find that it was, ask yourself how it made its way back into code to be a problem now. Creation of the permission slip structure is how. And then you can ask yourself this - how is it possible that when it all played out, how is it the NRA went NEUTRAL on a bill that absolutely prohibits the carriage of rifles. Ahem. National RIFLE Association....uh huh. Try No Rights Allowed....just state issued permissions. Oh, and as for that carriage of rifles? Yeah, the state denies its permission absolutely, just as it does openly carrying a handgun.

Anonymous said...

This situation is not puzzling at all, when one has the courage to look at the objective facts. Now, maybe it is different in other areas of the country, but this is the truth about the NRA here in Illinois. It is not a friend of the Second Amendment, indeed it is a destroyer of it, an agent used by government to literally con people into accepting the best "deal" it could get. You know, like trading already struck down code for its precious state preemption and carry permission slip structure that just happens to contain training mandates that, you know, the NRA just happens to provide. Coincidentally. Oh, and lots of room for more "litigation". Gee, it is almost like that was the plan all along.

I hope they are all happy with their 30 pieces of silver. We have a bigger mess than we have ever had. Concealed carry is a joke, as demonstrated by tiny participation, open carry is still a felony (even though we were promised it would not be thrown under the bus but then we got thrown under the bus anyway) and everything that existed before was literally reincarnated PLUS even MORE gun control added.

Pardon me if I do not "thank" the NRA for it. Indeed, it is blame I assign to it openly. Why? Because the straight truth is it is the fault of the NRA because it did what did here. They got to own it.