Articles Posted in 2nd Amendment

Published on:

Cgun-and-bullets-1146529-shicago – The Illinois Supreme Court finally issued its opinion addressing a number of aspects of the Illinois Aggravated Unlawful Use of a Weapon Statute, 720 ILCS 5/24-1.6.  The Court found most importantly the mandatory prison sentencing provision unconstitutional under section (d)(2).

Accepting an argument that I advanced in my representation of clients charged with AUUW, the Court agreed that since subsection (a)(3)(A) was held unconstitutional, the sentencing provision  that requires mandatory prison based on section (A) was also unconstitutional.

Simply put, the Court found that the section of the AUUW statute which was previously found to be unconstitutional could not be used as a basis for mandatory imprisonment.

Published on:

glock-1-780299-sA Circuit Court Judge dismissed all remaining charges against a defendant after the Court ruled that the Aggravated Unlawful Use of a Weapon statute violated the proportionate penalties clause of the Illinois Constitution.  The defendant was arrested for possessing a loaded firearm with in a vehicle that was on a public street and was charged with several counts of violating the Aggravated Unlawful use of a Weapon statute including: 720 ILCS 5/24-1/6(a)(1),(3)(A); (a)(1),(3)(C); (a)(2),(3)(A); and (a)(2),(3)(C).

After the Illinois Supreme Court ruled in People v. Aguilar, 2013 IL 112116 (2013), that section 24-1.6(1)(1), (a)(3)(A), violated the right to keep and bears arms as guaranteed by the Second Amendment to the United States Constitution, the Cook County State’s Attorney dismissed those counts.  The remaining counts charged defendant with possessing a firearm without a valid Firearm Owner’s Identification Card (FOID).  Defendant filed a motion to dismiss the remaining counts on the basis that the possession of a firearm without a valid FOID contains the same elements as a violation of the Firearm Owner’s Identification Act430 ILCS 65/2(a)(1).  Because the same acts must be proven for both offenses, the penalties must be the same.  Here the court concluded that the proportional penalties provision of the Illinois Constitution was violated and thus dismissed the remaining charges against defendant.

Below is the Illinois Pattern Jury Instruction of the offense of Failure to Possess a Firearm Owner’s Identification Card.

Continue reading

Published on:

gun-1428502-mStarting January 5, 2014, the Illinois State Police will be issuing applications for Illinois residents to obtain a concealed carry gun license. These licenses will be issued by the State Police. If you want to apply for a concealed carry license, you must have a valid firearm owner’s identification card (FOID), must be at least 21 years old, and must have completed a required training course. There are also many disqualifying factors that would prevent a person from being eligible to obtain a concealed carry license this includes the inability to obtain a FOID card. FOID cards will not be issued to persons who have a felony conviction, are addicted to narcotics, are undocumented immigrant, who have an order of protection filed against them, or who have a domestic battery conviction, for example. Additionally, the concealed carry application requires that the person not have been convicted of a misdemeanor involving the use or threat of force, two or more DUI’s within five years, no pending arrest warrants, or criminal cases, or proceeding that could lead to disqualification, or not have been in residential or court ordered treatment for drugs or alcohol addiction in the previous five years. (Please see the actual statute for a complete list of qualifications and disqualifications. The Illinois Firearm Concealed Carry Act, 430 ILCS 66/1 et seq.)

If you want to obtain a concealed carry permit, in addition to being over 21 and having a valid FOID card, you also need to take a training course from an instructor listed on the State Police website, which can be found by clicking here. You must have 16 hours of training, which includes hitting a target 70% of the time. If you are active, retired or honorably discharged from the military the State Police will grant you 8 hours of training, so you only have to complete eight more hours.

Continue reading

Published on:

guns-526101-sSince the Illinois Supreme Court found certain provisions of the Illinois Unlawful Use of a Weapon statute unconstitutional I started reading “The Roberts Court, the Struggle for the Constitution” by Marcia Coyle.

 

The Second Amendment, which is part of the first ten amendments to the Constitution, is known as the Bill of Rights.  The Second Amendment states: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”  This clause has been broken down into two sections: the preamble, which discusses a well regulated Militia, and the right to bear Arms.  Gun rights opponents focus on the first clause that the right to bears arms it tied to being in a Militia, while gun rights advocates see the right to bear arms as an individual right.  Although I do not view myself as a guns rights advocate or opponent, I believe that the right to bear arms is an individual right and not tied to the Militia phrase.

Continue reading

Published on:

What has the new Illinois gun law really changed for people facing gun charges?  Not much.  A few weeks ago, the Illinois Supreme Court found a specific section of the Illinois Unlawful use of a Weapon statute unconstitutional.  720 ILCS 5/24-1.6

In People v. Aguilar, Docket # 112116,  the Illinois Supreme Court found  a section of the Aggravated Unlawful use of a Weapon statute unconstitutional because it violated the Second Amendment, section 24-1.6(a)(1), (a)(3)(A).  Section (a)(1) generally prohibited carrying a gun on your person or in your vehicle unless you are on your own land, in your own home or business, or you had permission from the owner.  While Section (a)(3)(A) made it a crime if the gun is uncases, loaded, and immediately accessible.

Now that section (3)(A) has been found unconstitutional, it will be interesting to see how the Courts address sentencing since Aggravated UUW is non-probationable if the person is over 18 years old and both section (A) and (C) factors are present.  Continue reading