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FLASH: IL Supreme Court strikes down UUW in IL in 9-0 decision today UPDATED

September 12, 2013

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.

Highlights:

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.

========

 

UPDATE 2:

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.

 

 UPDATE #3:

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.

46 comments on “FLASH: IL Supreme Court strikes down UUW in IL in 9-0 decision today UPDATED

  1. Does that mean I can start open carrying today?

  2. You could, but you would be a lot smarter to carry concealed.

    Like we said in the class, just because you *can* do something doesn’t mean it’s the best thing you *should* do.

    John

    • Meaning no disrespect, but just like a muscle, if you don’t exercise a right it will atrophy. Fortune favors the bold. I live in Alabama and open carry a lot. I have heard the arguement that it makes me a target for crooks/mass shooters, and all I can say is I would rather them shoot at me then my wife or kids (and by the way when I open carry, my wife or whoever I am with is carrying concealed.) In the group in which I hang out, we each carry and train together. Do not cower to these people!

  3. Basically a reaffirmation of the other ruling (Moore/Shepard case) that forced the state to finally come up with a CCW law. Agular’s arrest was in 2008 so it is not a case of being charged with Unlawful Use of a Weapon post CCW law being enacted.
    7th Appeals Court is still scheduled to hear the oral arguments per FOID carry October 3rd.
    Anyone arrested for carrying today (pre-ccw) would probably not be charged for UUW. If you were charged, be ready to go to court. Would probably win but not a sure thing and cost a few bucks along the way.

  4. what has happened to the corrupt, anti-human rights, corrupt (did I mention corrupt?) Illinois that I grew to know and love?

    This almost brings IL into the 20th century.

    • Give it time – things will revert back to business as usual. If you have the power to get away with it, being a corrupt politician is probably a pretty good lifestyle. Our pols won’t give it up easily.

    • Agreed. But I have also lived out of state for most of 20 years now because of crap like that, and moved to Virgina. So I may have to see if I can apply for a out of state concealed weapon permit if it becomes available.

  5. Kent B Douglas on said:

    What exactly are they saying??? In Laymans term.

  6. [See update #2]

    John

  7. Maybe the ISP Will pick up the pace on CCW training and licensing.

  8. OK, clue me in on 1983…

  9. 42 U. S. C. Section 1983 – Every person who under color of any statute, regulation, ordinance, custom or usage of any State or Territory or the District of Columbia, subjects or causes to be subjected, any citizen of the USA or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution or laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, …

  10. Westcidedog on said:

    If I’m reading this correctly, IF you have a valid FOID, there is nothing preventing you from CCW until the new CCW Permit law takes effect. I’m not a lawyer and would love to see some clarification in regards to this ruling.

  11. SpicyPanda on said:

    I don’t know whether to cry tears of joy or just jump up and down squealing like a little child out of sheer happiness that we’ve finally got this!!!

    Thank you to all the wonderful people who have worked so hard to make this day happen and a special thank you to Todd V (NO idea how to spell his last name off the top of my head)…

  12. Current law was not effected. This case is from 2008 before the current statutes were in effect.

    excerpt page #8 footnote #3 from the decision:
    Following the decision in Moore, the General Assembly enacted the 3
    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.

    • SpicyPanda on said:

      So we can’t carry right now (given you are a valid FOID card holder)? I’m starting to get extremely confused

  13. Westcidedog on said:

    It doesn’t negate the FOID statute, just the AGG. UUW statute itself. You’d still need a valid FOID to possess a weapon. The ruling also states that minors, persons under 18, do not enjoy the right to possess or carry firearms.

  14. So, with the new CCW law in effect, but not yet issuing permits, does this decision mean that any holder of a FOID Card can carry concealed now?

  15. If someone could call the federal Dept of Education to send some reading mentors for the IL State Police to give them reading comprehension lessons on the court’s decision. Maybe a good person that knows sign language,also. They could be getting special paper for the CCW licenses (so they can’t be faked from the moslem brotherhood or Syria) (ha ha ha).

  16. Damocles on said:

    Color me confused as well.

  17. So this is kind of confusing can we carry or not ? I want to be 100% sure before I get my butt in a bind or one of my buddies for giving the wrong information .

  18. This is great news. Something we already had under the constitution and Gods law is now recognized in Illinois.
    I was told personally by my State Senator that Universal background checks are mandatory. Its not a voultary like some are reporting.
    i have also been told by ISRA insiders the NRA supported the bill HB1189 over the objections of the ISRA.
    To me this is a 5th column action by the NRA!
    We dont need FOID cards, background checks or 4473 forms.
    The only people that shouldnt have guns are those in prison in a mental hospital or Non-citizens

  19. PrepSteader on said:

    The rullings still miss the point )in fact, they say in writing that they miss the point) regarding what the 2nd is about. The founding fathers did not specify the right to keep and bear primarily for self-protection, but against defense from governmental tyranny. Thus the quote from Madison (paraphrased) that “The beauty of the Second Amendment is that it is unnecessary until the government tries to take it away.”

  20. illini rzr on said:

    So, has anything changed or not? Kinda hard to sort all this out.
    Thanks

  21. After reading this I don’t understand how the state police can refuse to give a foid card on their own discretionary terms. I have been fighting to get mine back for almost 2 years. My lawyer says they had no legal grounds to deny renewal l other than it was their opinion. They say it was because I was accused of domestic battery 18 years ago. I had a foid then and have renewed it since. This time they refused me. If the State police can make their own rules then I feel that my 2nd amendment rites are violated. Is the same thing going to happen with concealed carry. Have heard veterans of Iraq being denied just for serving our country. Im not a criminal or a violent person. I think my lawyer is in over his head. Any body know of one with a big enough set to make a federal case of this because I am more than ready.

    • This is why i am against the FOID card and the 68 GCA. Men like you that have done nothing wrong other than being accused of something are losing their rights.

      Yes veterans are losing their rights as well for the crime of serving their country.

      just wait until Obama care kicks in and see all the people that will lose their rights.

      When are gun owners going to stand up and stop this attack on our rights?

  22. The 2nd Amendment is the law of the land and for any State or Police agency to think that they have the right to overrule what the Supreme Court says and what the Amendment says is terrorism directed towards citizens of any State where this abuse occurs. I say carry your weapons openly along with a photo copy of the results of what the Supreme court said. If the cops go to arrest you remain calm and polite ask them if they can quote the law against your having the right to carry and offer to show them the results of the Supreme courts ruling. Then ask one simple question are they willing to have not only a major law suit against the city/police dept but a personnel attack law suit against each officer that touches you for NOT BREAKING THE LAW. If I lived in the State I’d give it a try they can only go after you once before the court system goes for them.

  23. Uncle Dave on said:

    Guys,

    It will take a half dozen more cases before the mess gets straightened out. Its a step in the right direction. Be happy for it. It took Kentucky another session to force thier state police to get the ball rolling on the permit process, and they don’t have as many dead people voting.

  24. Ron Rico on said:

    Ok Riddle me this Batman. Now, with this ruling, if a person was to carry a loaded weapon on his belt and was to be arrested, What would be the charge?
    Would it be carrying without a license? What is the penalty? Maybe a misdemeanor UUW. How about disorderly conduct? I am not trying to make a joke, but where do we stand now? If we are arrested and go to court, what would we be defending against?

  25. illini rzr on said:

    I’ve been checking all the tv and radio news. Still haven’t heard a thing regarding this Illinois Supreme Court ruling. Is it just not that big of a deal, or are they burying the story?

  26. That’s the $64 question. Just what can you or cannot do under this new ruling, and who is the authority to say so? It’s not enough that they rules the statute unconstitutional, but now, what does that mean for the population carrying weapons.

    If we were to read and interpret what the Supremes have ruled, anyone not prohibited can carry a weapon openly or concealed as they wish with no permit of any kind required. If they have struck down that statute then there is no statute at all governing carry.

    Am I right? Or not.

    • I would say that in the absence of any Constitutional law… the Constitution would serve as your basis for this issue. So in a pure sense, I read it as there are no restrictions (unless of course there are other Constitutional laws on the books for that state in this matter)

  27. God help us all. Now all the “wanna bees’ are goint to carry and act like Wyatt Earp.

  28. illini rzr on said:

    Really? If you watch the news at all, it’s an everyday occurance! We just want the good guys to have a chance to defend life and property for a change.
    Seems the only ones doing all the shooting are the same old cast of characters.

  29. doayamaha on said:

    Mostly saying that any law telling u when you can and cant carry is unconstitutional(really just now figuring it out). However requiring permits so that Illinois can make 2 cents on giving us our constitutional rights back (seems legit). I have never really thought about needing a fire arm, until I had my own family now I will carry when and where I feel like it to protect them.

  30. This was a case based on the UUW law before it was amended by the FCCA. It was a housekeeping case. I think if you were to be busted open or concealed carrying without the proper papers you would be arrested & charged with this UUW and then ISRA, SAF, GSL and NRA will be asking for more contributions to the legal fund to try the test case.

    I don’t want to be a test case.

  31. I keep asking the question how did we get into this mess in the first place. The words “Shall Not Be Infringed” were carefully studied for there meaning when the 2A was written.
    Please read the book by William Rawle “View of the Constitution” The prohibition upon the right to keep and bear arms was meant to apply to the States as well as the feds

  32. Bill Johnson on said:

    Where in the Constitution of the United states & in the Bill of Rights does it say the right to keep & bear arms must be approved by the state or the state police?

    • You and i both know it doesnt.

      The 2A was written as a Commanding Prohibition against the “Entry” and “Encroachment” upon the “Right” to keep and bear arms.

      That is the true meaning of “Shall Not Be Infringed”

      That “Prohibition” applies to the States as well.
      What we have to do [some how] is get people educated in understanding their rights. We also need to get gun groups from making back room deals underminning our Rights

  33. re: Update 3

    “we all agree” just curious who is “we all” and what are their credentials to make the leap that this decision would apply until permits are issued?

  34. I got bold and decided to call the State Supreme Court to ask about the he high court ruling. I simply wanted to ask if the ruling meant what it said. That the ban on concealed carry was unconstitutional. Leave to even the supreme court. I talked to at least 7 or 8 different offices, I even spoke to the court press secretary. They all refused to talk to me. They all went as far to say” we’re not legal clerks or lawyers” you’ll need to talk to a lawyer as to what it means. I then asked for any of the justices offices. I was refused any info on that. I was specifically told neither the justices or their offices will talk to the public.
    So I guess the state supreme court feels its above talking to a commoner.

  35. I grow heartily heartsick at the leftist political concept that the only things we are allowed are those ruled on by a court. The entire construct is fraud and anathema to the very core of this nation’s founding. WE WERE MEANT TO BE FREE. The Constitution was meant to be a limit on Government. Specific domains were granted to government. Even that was seen to be too much central power, to the extent that the Bill of Rights was demanded / appended to spell out our enumerated freedoms and place further explicit limits upon our nacent government. And to top it all off, the 10th amendment explicitly reserves EVERYTHING ELSE not listed FOR THE PEOPLE. Such were the conditions demanded in exchange for the ratification of our Constitution.
    Instead, here we are 224yrs later, the last century+ of progressive perversions having utterly inverted that relationship between U.S. citizens and their government. Now WE are the supplicants, crouching before high courts like Oliver Twist, begging ‘please sir can we have some more FREEDOM.’ It is MORE than enough to fight another revolution over.

    • Amen!
      I’m glad others realize we are not as FREE as we should be!
      When the Founding Fathers wrote the Constitution they believed we were men made in the image of God.
      But todays laws see us as men or other animals. Something that should beg for permission while we live on our knees instead of on our feet

  36. I was convicted of agg uuw in 2008. How does this affect me?