Illinois Ban on Carry Ruled Unconstitutional (See Page 7)

In response to Tom, I have a problem with the government declaring any private place a "sensitive place." If it wants to do so for its own property, that's one thing, but the owners of private property should have the right to determine for themselves whether to ban cc. the government has no business reqgulating churches, nor is there any apparent need for it to intrude into this private realm. We cannot allow the exception to swallow the rule, notwithstanding that the dissenters in Madigan certainly encourage such (mis)conduct.

In response to press1280, there is no "clock" per se on requesting a stay, but it cannot start until the court has jurisdiction over the matter. Until a petition for cert is filed, SCOTUS has no jurisdiction. Yes, Madigan could ask the Seventh to extend its stay, but unless ther is some showing of progress on a bill, I think such relief would be unlikely. But that's just my opinion--as others have noted, the Seventh seems to be getting increasingly irritated by Chicago's and Illinois' foot dragging.
 
Some of the updates that I've read about bills or amendments to bills filed in Illinois would prohibit carry in these "sensitive" places:

your vehicle
restaurants
truck stops
any place that has video gaming to include but not limited to casinos
church, temple, or other place of worship
zoos
parks
amusement parks
museums
schools, colleges, daycare
state government buildings
libraries
hospitals and clinics, to include veternarian offices
public transportation
any other private property unless express permission is given

to include parking lots for any of the above mentioned places and any adjacent or nearby areas (not well defined)

Now think about that... outside of your own property where could you carry?

It's a re-creation of the existing Illinois UUW/AUUW law via "sensitive places" - one location at a time until almost all locations outside of your own home have been covered.
 
Yea I saw the amendments proposed by (you guessed it) Chicago politicians. Unfortunately if these pass then many will probably be upheld by the courts, at least temporarily. If the place restriction is one that's found in another state, that gives it enough cover. On a public sidewalk, though, would be pushing it. I hope the downstate pols hold firm and don't make much (if anything) off-limits.
 
The whole idea of "sensitive places" is absurd, and I am extremely disappointed that Justice Scalia gave credence to the idea. The effect of labeling a location "sensitive" simply labels it "easy victims inside".

Other than an airplane in flight and a nuclear power plant, I can't immediately think of anywhere that a stray bullet would cause any more havoc than any "non-sensitive" place. Churches, hospitals, schools, stadiums are not "sensitive".
 
My personal opinion is that a "sensitive" site should be required to have armed security, restricted access, and metal detectors; lacking those, it should not be "sensitive."
 
I think most of us can agree on at least a few sensitive places that should be off-limits for carry by the general public -- jails and prisons (visiting hours), family law courtrooms, and others.
 
@KyJim those places are crawling with armed LEO's. The federal courthouse in Rockford, even though at the time I visited court was not in session, no judges present etc still had about 10 armed LEO's around.

That said, how many prosecutors, judges, witnesses etc have been gunned down right outside a courthouse? Didn't a prosecutor in Texas or Arizona just get gunned down a couple of months ago on his way out of court?

I support Prisons and Courthouses as GFZ's but there should be a mechanism like a coat check but for guns where you can carry up to a point, have your gun "checked in" to a secure guarded storage area then get it back before leaving the building.


I do NOT support any type of schools as GFZ's; even the ones with armed guards or LEO's on site do not have very good coverage unless you are talking about the School where the Presidents children go.
My HS In Florida had 2 or 3 SRO's on a given a day, for a school that was about 300 yards x 200 yards, with 2500 students.
 
Patriot86 -- Believe me, I am not pressing for inclusion of places as "sensitive places." I was responding primarily to the notion that there should be absolutely no "sensitive places." The list should be short and the government required to show a compelling need and that there is not a less restrictive alternative. If the judges are intellectually honest, they should find very few places that would be "sensitive places."

BTW, I do recall a local situation a number of years ago where one lawyer shot another in a courtroom during misdemeanor pleas (wife of one cheating with the other). The deputies didn't stop the shooter. The judge, who played major college football, tackled the shooter and subdued him. It was right after this that we started seeing metal detectors in courthouses.
 
KyJim, I think Thomas Provenzano shooting up the courthouse in Orlando, FL in 1984 had more to do with metal detectors and gun bans in courthouses.

From wikipedia http://en.wikipedia.org/wiki/Thomas_Harrison_Provenzano

Provenzano was sentenced to death for a shooting at the Orange County Courthouse in Orlando, Florida in 1984 that killed 60-year-old bailiff William Arnie Wilkerson. Another bailiff, 53-year-old Harry Dalton, suffered brain damage and was partially paralyzed, dying from his injuries 7 years later. Provenzano also shot correctional officer Mark Parker, 19, who was hit in the spine and ended up being paralyzed from the neck down. Parker eventually died in March 2009 due to complications from his injuries.
Click to expand...
 
KyJim, I think Thomas Provenzano shooting up the courthouse in Orlando, FL in 1984 had more to do with metal detectors and gun bans in courthouses.
Click to expand...
Maybe nationally, but not in this state. I remember it well. The judge was a neighbor at the time.
 
A portion of Illinois gun law ruled unconstitutional by Cook Co Circuit

I can't find the actual court docs but on 3/15, in the case of People v. Donta Mosley, 12-CR-5646-01, Judge Michael Brown found two provisions of 720 ILCS 5/24-1.6 6(d)(2) unconstitutional.


That is the section on classifying the offense as a felony and a minimum sentence of 1 year:

a first offense of aggravated unlawful use of a weapon committed with a firearm by a person 18 years of age or older where the factors listed in both items (A) and (C) of paragraph (3) of subsection (a) are present is a Class 4 felony, for which the person shall be sentenced to a term of imprisonment of not less than one year and not more than 3 years.
Click to expand...

The problem with the provision is 2 fold according to Judge Brown, 18-20 year olds aren't allowed to obtain or sign their own FOID cards, under the FOID statute they need a parent or gaurdian to obtain a FOID for them.

I haven't read the opinion yet - I'm not even sure it will ever be available online. But what I think the judge is saying is that a law cannot treat a person as an adult under its sentencing provisions while not treating that same person as an adult under it's other provisions.

Or another way of putting it is that you cannot sentence someone as an adult for failing to comply with a statute, when the statute itself disqualifies their compliance because it doesn't categorize them as an adult.

The second problem with the law according to Judge Brown is that the punishment is disproportionate.

He also makes a general reference in the opinion that the AUUW law is unconstitutional on it's face and as applied.

I don't have the printed decision so I'm not sure what the last comment really means, but there are 2 sections of the law in Illinois

1) Unlawfull Use of a Weapon (UUW)

(720 ILCS 5/24-1) (from Ch. 38, par. 24-1)

2) Aggravated Unlawfull Use of a Weapon (AUUW)

(720 ILCS 5/24-1.6)

It seems that Judge Brown just ruled AUUW uncostitutional which might mean that only the UUW portion of the law remains.

There are provisions under UUW for felonies - such as possesion of a firearm on school property, a courthouse, a place that serves alcohol and some other caveats, but for the most part violating Illinois UUW law in most cases would be only a misdemeanor.
 
The court's holding that the punishment was disproportionate was based on state law grounds, not the federal constitution. The 8th Amendment's ban on cruel and unusual punishment is not involved (as the trial court noted).

The trial judge also ruled that the law prevented a 20-year old from getting a FOID and it would therefore violate due process to charge him with having a firearm without an FOID. An alternate interpretation is that this is exactly what the Illinois legislature intended -- to make it unlawful for anyone under 21 years of age to possess a handgun. I would think the state might consider appealing the decision if this were the only issue. They may not since the case has no precedential value (at least as far as I know).
 
Cook County Circuit Court decision that seems to say Moore does't apply to IL AUUW

http://www.state.il.us/court/Opinions/AppellateCourt/2013/1stDistrict/1110793.pdf

II. Second Amendment

¶ 15 In addition, defendant argues his conviction under the AUUW statute violates his right to keep and bear arms under the second amendment of the United States Constitution.

After the filing of this appeal, however, the Seventh Circuit Court of Appeals issued an opinion finding Illinois's AUUW statute unconstitutional. See Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012).1 Nonetheless, the decision is not binding on Illinois courts. People v. Stansberry, 47 Ill. 2d 541, 544-45 (1971). Without a ruling from the United States Supreme Court, a split often exists between the lower federal courts.2 Id. at 545. As the United States Supreme Court has not yet ruled on this question, the Seventh Circuit's decision in Moore constitutes at most persuasive authority.

Regarding the constitutionality of the AUUW statute, we do not find the Seventh Circuit's reasoning in Moore persuasive. We find it important to note again that the Court in "Heller and McDonald specifically limited its rulings to interpreting the second amendment's protection of the right to possess a handgun in the home for self-defense purposes, not the right to possess handguns outside of the home." Aguilar, 408 Ill. App. 3d at 148. Accordingly, we do not agree with the Seventh Circuit that the right to self-defense delineated in Heller and McDonald encompasses a right to carry a loaded, readily accessible firearm in public areas. Given the line of contrary precedent in Illinois courts on this issue, we see no reason to adopt the decision in Moore.
Click to expand...

The first time this notion came up - Paul Castiglione, policy director for the Cook County State’s Attorney’s office, told lawmakers there is no need for a new law.

“Only the Illinois Supreme Court can declare a statue from (the legislature) unconstitutional,” Castiglione told lawmakers Tuesday. “I heard (someone) say that after 180 days our UUW (unlawful use of weapon) statute is unconstitutional. Not so.”
Click to expand...

It seemed a bit farcical, but now we have a judge saying somethig similar in an opinion. If they were saying that Moore doesn't give a convicted felon the right to carry a handgun - I could see that, but that doesn't seem to be what the judge is saying.
 
No, the state courts don't have to follow a federal circuit court of appeals. However, that doesn't mean the federal courts are without teeth. If officials violate an injunction (say, Chicago), it and those acting in active concert or participation with it can be held in contempt. A violation of the 2nd Amendment could also lead to a civil judgment with damages and attorney fees -- at least in regard to local governmental entities and officials. The 11th amendment makes money judgments in those cases against state government more problematic but it has been a while since I reviewed any of that case law so I won't try to discuss it.

The worst problem is that someone could get convicted of a criminal offense in state court and, after unsuccessful appeals in state court, go to federal district court seeking a writ of habeas corpus because the constitution was violated. However, the state would defend by arguing that the state court's interpretation of the law's constitutionality was not contrary to clearly established Supreme Court precedent or a clearly unreasonable application of Supreme Court precedent. The state interpretation must be objectively unreasonable. It may be wrong but not objectively unreasonable. The fact that some of the circuit courts of appeal have ruled contrary to the 7th Circuit's interpretation would give Illinois ammo to make this argument.
 
Last edited:
I'm sure this will be appealed.
Click to expand...

An appeal would end up in front of either Judge Meyerscough or Judge Stiehl right?

That would be interesting especially if it was Myerscough.

But really - I seriously doubt that Moore can be construed to allow a convicted felon to carry a firearm.

I guess the argument is that since the entire law was ruled unconstitutional - so then were the provisions concerning felons with firearms.

I would have thought the illinois legislature could have created a simple law prohibiting convicted felons from carrying firearms relatively quickly - but it looks like they've been wasting their time haggling over creating gun-free VFWs, libraries, truckstops and gun-free hosptial parking lots.
 
You must log in or register to reply here.
Back
Top