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Illinois Supreme Court Confirms Old Illinois Gun Law Unconstitutional

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Article first appeared at Ammoland.com

Ammoland – The Illinois has reconfirmed its ruling from 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 courthousenews.com:

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.  Because the UUW has the exception for those who have a concealed carry permit, it meets the minimum requirements of the Seventh Circuit decision.

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.

c2016 by Dean Weingarten: Permission to share is granted when this notice is included.Link to Gun Watch

About Dean Weingarten;

Dean Weingarten has been a peace officer, a military officer, was on the University of Wisconsin Pistol Team for four years, and was first certified to teach firearms safety in 1973. He taught the Arizona concealed carry course for fifteen years until the goal of constitutional carry was attained. He has degrees in meteorology and mining engineering, and recently retired from the Department of Defense after a 30 year career in Army Research, Development, Testing, and Evaluation.

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