Folks, this is big.
Illinois prohibition on carrying firearms outside the home was struck down today by the Illinois State Supreme Court in 9-0 decision People v. Aguilar.
As far as we know, this is the first time a state supreme court in the United States has ruled the right to keep and bear arms applies outside the four corners of a residence.
The issue before us today is whether section 24-1.6(a)(1),
(a)(3)(A) violates the second amendment right to keep and bear arms,
as construed by the United States Supreme Court in Heller and
McDonald. We are not the first court to consider this question. On the
contrary, the constitutionality of section 24-1.6(a)(1), (a)(3)(A) has
been considered by several panels of our appellate court. See, e.g.,
People v. Moore, 2013 IL App (1st) 110793; People v. Montyce H.,
2011 IL App (1st) 101788; People v. Mimes, 2011 IL App (1st)
082747; People v. Williams, 405 Ill. App. 3d 958 (2010); People v.
Dawson, 403 Ill. App. 3d 499 (2010). Uniformly, these courts have
held that section 24-1.6(a)(1), (a)(3)(A) passes constitutional muster.
According to these decisions, despite their broad and lengthy
historical discussions concerning the scope and meaning of the
second amendment, neither Heller nor McDonald expressly
recognizes a right to keep and bear arms outside the home. Rather, the
core holding of both cases is that “the Second Amendment protects
the right to possess a handgun in the home for the purpose of selfdefense.”
(Emphasis added.) McDonald, 561 U.S. at ___, 130 S. Ct.
at 3050. And because section 24-1.6(a)(1), (a)(3)(A) prohibits only
the possession of operable handguns outside the home, it does not run
afoul of the second amendment, as presently construed by the United
States Supreme Court. See, e.g., Moore, 2013 IL App (1st) 110793,
¶¶ 15-18; Montyce H., 2011 IL App (1st) 101788, ¶¶ 27-28; Dawson,
403 Ill. App. 3d at 505-10.
¶ 19 In stark contrast to these Illinois decisions stands the Seventh
Circuit Court of Appeals’ recent decision in Moore v. Madigan, 702
F.3d 933 (7th Cir. 2012). In Moore, the court held that section 24-
1.6(a)(1), (a)(3)(A) is effectively “a flat ban on carrying ready-to-use
guns outside the home” (id. at 940) and that, as such, it violates the
second amendment right to keep and bear arms, as construed in
Heller and McDonald (id. at 942). In reaching this result, Moore
relied not on the specific holding of Heller—i.e., that the second
amendment protects the right to possess a handgun in the home for
the purpose of self-defense—but rather on the broad principles that
informed that holding. According to Moore, the clear implication of
Heller’s extensive historical analysis is that “the constitutional right
of armed self-defense is broader than the right to have a gun in one’s
home.” Id. at 935. Moore notes, for example, that “[t]he first sentence
of the McDonald opinion states that ‘two years ago, in District of
Columbia v. Heller, we held that the Second Amendment protects the
right to keep and bear arms for the purpose of self-defense.’ ” Id. at
935 (quoting McDonald, 561 U.S. at ___, 130 S. Ct. at 3026).
Moreover, Moore explains that, although both Heller and McDonald
state that the need for self-defense is “most acute” in the home, that
“doesn’t mean it is not acute outside the home.” Id. (quoting
McDonald, 561 U.S. at ___, 130 S. Ct. at 3036, and Heller, 554 U.S.
at 628). On the contrary:
“Heller repeatedly invokes a broader Second Amendment
right than the right to have a gun in one’s home, as when it
says that the amendment ‘guarantee[s] the individual right to
possess and carry weapons in case of confrontation.’
[Citation.] Confrontations are not limited to the home.” Id. at
935-36 (quoting Heller, 554 U.S. at 592).
Finally, Moore notes that the second amendment guarantees not only
the right to “keep” arms, but also the right to “bear” arms, and that
these rights are not the same:
“The right to ‘bear’ as distinct from the right to ‘keep’ arms
is unlikely to refer to the home. To speak of ‘bearing’ arms
within one’s home would at all times have been an awkward
usage. A right to bear arms thus implies a right to carry a
loaded gun outside the home.” Id. at 936.
In other words, Moore concludes, “[t]he Supreme Court has decided
that the [second] amendment confers a right to bear arms for
self-defense, which is as important outside the home as inside.” Id. at
942. As a result, Moore held that Illinois’ “flat ban on carrying readyto-
use guns outside the home,” as embodied in section 24-1.6(a)(1),
(a)(3)(A), is unconstitutional on its face. Id at 940.2
¶ 20 After reviewing these two lines of authority—the Illinois cases
holding that section 24-1.6(a)(1), (a)(3)(A) is constitutional, and the
Seventh Circuit’s decision holding that it is not—we are convinced
that the Seventh Circuit’s analysis is the correct one. As the Seventh
Circuit correctly noted, neither Heller nor McDonald expressly limits
the second amendment’s protections to the home. On the contrary,both decisions contain language strongly suggesting if not outright
confirming that the second amendment right to keep and bear arms
extends beyond the home. Moreover, if Heller means what it says,
and “individual self-defense” is indeed “the central component” of
the second amendment right to keep and bear arms (Heller, 554 U.S.
at 599), then it would make little sense to restrict that right to the
home, as “[c]onfrontations are not limited to the home.” Moore, 702
F.3d at 935-36. Indeed, Heller itself recognizes as much when it
states that “the right to have arms *** was by the time of the founding understood to be an individual right protecting against both public and private violence.” (Emphasis added.) Heller, 554 U.S. at 593-94.
¶ 21 Of course, in concluding that the second amendment protects the
right to possess and use a firearm for self-defense outside the home,
we are in no way saying that such a right is unlimited or is not subject
to meaningful regulation. See infra ¶¶ 26-27. That said, we cannot
escape the reality that, in this case, we are dealing not with a
reasonable regulation but with a comprehensive ban. Again, in the
form presently before us, section 24-1.6(a)(1), (a)(3)(A) categorically
prohibits the possession and use of an operable firearm for selfdefense
outside the home. In other words, section 24-1.6(a)(1),
(a)(3)(A) amounts to a wholesale statutory ban on the exercise of a personal right that is specifically named in and guaranteed by the United States Constitution, as construed by the United States Supreme Court. In no other context would we permit this, and we will not permit it here either.
¶ 22 Accordingly, as the Seventh Circuit did in Moore, we here hold that, on its face, section 24-1.6(a)(1), (a)(3)(A) violates the right to keep and bear arms, as guaranteed by the second amendment to the United States Constitution. Defendant’s conviction under that section therefore is reversed.3
It is our opinion that the Supreme Court has said today that until and unless the Illinois State Police begin issuing carry licenses, Illinois has a flat prohibition on carry of firearms outside the home and that, ladies and gentlemen, has just been recognized and determined to be in violation of the right to keep and bear arms as guaranteed by the second amendment to the United States Constitution.
We’re going to back off our earlier statement that the decision strikes the Aggravated Unlawful Use of Weapons statute as amended with the Firearm Concealed Carry Act.
However, given the State Police are not issuing licenses, we’d say a strong argument could be made that nothing has changed until the licenses are issued.
A footnote from the Aguilar decision:
Following the decision 3 in Moore, the General Assembly enacted the
Firearm Concealed Carry Act, which inter alia amended the AUUW statute
to allow for a limited right to carry certain firearms in public. See Pub. Act
98-0063 (eff. July 9, 2013), Neither the Firearm Concealed Carry Act nor
the amended AUUW statute is at issue in this case.
After further consulting powers that be, we all agree
1. The FCCA changed nothing in the AUUW statute aside from a mechanism for concealed carry licenses. So all of the original text, especially while licenses aren’t being issued, is unchanged.
2. Nobody wants to be the test case, but we think it would make a good test case.
Basically, it’s loosely analogous to fanny pack carry. Officials say they will arrest you for it, and that scares 99 and 44/100% of gun owners into not exercising their rights.
For what it’s worth.