Little Reminder Why Gun Bans Aren’t So Easy

People v. Chairez, 2018 IL 121417 (February). Episode 457 (Duration 10:04)

Another UUW provision is struck down.

Gist

On April 24, 2013, pursuant to a negotiated plea agreement, defendant Julio Chairez pled guilty in the circuit court of Kane County to possessing a firearm within 1000 feet of Virgil Gilman Trail, a park in Aurora, Illinois, in exchange for the State’s agreement to file a nolle prosequi for several other charges and the recommendation that defendant receive a sentence of two years’ probation.

Issue

At issue in this appeal is the constitutionality of section 24-1(a)(4), (c)(1.5) of the unlawful use of a weapon (UUW) statute (720 ILCS 5/24-1(a)(4), (c)(1.5) (West 2012)), which, in pertinent part, prohibits an individual from carrying or possessing a firearm within 1000 feet of a public park.

The Statute

At the time of the proceedings herein, the UUW statute provided:

“§ 24-1. Unlawful Use of Weapons. (a) A person commits the offense of unlawful use of weapons when he knowingly: * * * (4) Carries or possesses in any vehicle or concealed on or about his person except when on his land or in his own abode, legal dwelling, or fixed place of business, or on the land or in the legal dwelling of another person as an invitee with that person’s permission, any pistol, revolver, stun gun or taser or other firearm, except that this subsection (a)(4) does not apply to or affect transportation of weapons that meet one of the following conditions:

(i) are broken down in a non-functioning state; or
(ii) are not immediately accessible; or
(iii) are unloaded and enclosed in a case, firearm carrying box, shipping box, or other container by a person who has been issued a currently valid Firearm Owner’s Identification Card[.] *** * * *

(c) Violations in specific places. *** (1.5) A person who violates subsection 24-1(a)(4) *** on any public way within 1,000 feet of the real property comprising any school, public park, courthouse, public transportation facility, or residential property owned, operated, or managed by a public housing agency or leased by a public housing agency as part of a scattered site or mixed-income development commits a Class 3 felony.”

720 ILCS 5/24-1(a)(4), (c)(1.5) (West 2012).

The Second Amendment

The second amendment to the United States Constitution provides that

“[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.”

U.S. Const., amend. II.

Through the fourteenth amendment to the United States Constitution (U.S. Const., amend. XIV), this right is “fully applicable to the States.” McDonald v. City of Chicago, 561 U.S. 742, 750 (2010).

The Case Law

In District of Columbia v. Heller, 554 U.S. 570, 592 (2008), the United States Supreme Court determined that there is a guaranteed “individual right to possess and carry weapons in case of confrontation,” based on the second amendment. However, Heller instructs that even though the second amendment guarantees an individual right to bear arms, that right is “not unlimited.”

Adopting the reasoning in Moore v. Madigan, 702 F.3d 933, 942 (7th Cir. 2012), this court in People v. Aguilar, 2013 IL 112116, ¶ 21, recognized that “the second amendment protects the right to possess and use a firearm for self-defense outside the home.”

As such, we held the offense set forth in section 24-1.6(a)(1), (a)(3)(A) of the AUUW statute, which prohibited carrying on one’s person or in any vehicle, outside the home, an uncased, loaded, and immediately accessible firearm, to be unconstitutional on its face.

Two years later, in Mosley, 2015 IL 115872, ¶ 25, we extended Aguilar’s finding of facial unconstitutionality to another portion of the AUUW statute, section 24-1.6(a)(2), (a)(3)(A) (720 ILCS 5/24-1.6(a)(2), (a)(3)(A) (West 2012)), which prohibited carrying an uncased, loaded, and immediately accessible firearm on a public way.

This court has already said that section 24-1.6(a)(1), (a)(3)(A) of the AUUW statute is facially unconstitutional “without limitation” (id. ¶ 29) because “[t]he 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” (id. ¶ 25). As such, we held there is only one offense of AUUW based on section 24-1.6(a)(1), (a)(3)(A), and a prior felony conviction that enhances the felony classification at sentencing is not an element of that offense but, rather, a sentencing factor which enhances the penalty from a Class 4 felony to a Class 2 felony. People v. Burns, 2015 IL 117387.

Collectively, this court has held that the second amendment protects an individual’s right to carry a ready-to-use gun outside the home, subject to certain regulations.

What About Bans Within 1000 Feet Of A Park?

The question, then, is whether the offense of possessing a firearm within 1000 feet of a public park, as set forth under section 24-1(a)(4), (c)(1.5) of the UUW statute, impermissibly encroaches on conduct at the core of the second amendment right to armed self-defense and whose right it affects.

There Is A Constitutional Test

In sum, what is taught from these cases is that step two of our second amendment analysis begins with a balance of considerations where the quantity and persuasiveness of the State’s evidence required to justify the challenged restrictions varies depending on how much it affects the core second amendment right to armed self-defense and whose right it affects.

The rigor of this means-end analysis “depends on ‘how close the law comes to the core of the Second Amendment right and the severity of the law’s burden on the right.’” The closer in proximity the restricted activity is to the core of the second amendment right and the more people affected by the restriction, the more rigorous the means-end review.

If the State cannot proffer evidence establishing both the law’s strong public-interest justification and its close fit to this end, the law must be held unconstitutional.

Analysis

Applying this framework to the law at issue here requires an initial determination of where on the sliding scale of intermediate scrutiny the law should be analyzed. To answer this question, our first task is to determine the breadth of the law and the severity of its burden on the second amendment.

We find that the 1000-foot firearm restriction at issue more closely resembles the restrictions at issue in Ezell I, Ezell II, Moore, and Aguilar. In fact, the 1000-foot firearm restriction not only directly implicates the core right to self-defense, it does so more severely than the regulations at issue in the Ezell cases.

That is so because section 24-1(a)(4), (c)(1.5) of the UUW statute prohibits the carriage of weapons in public for self-defense, thereby reaching the core of the second amendment.

While in the Ezell cases, the laws only affected a right (maintain firearm proficiency) that was merely a “corollary” to the right to possess firearms for self-defense. Although the firearm restriction at issue is not a comprehensive statewide ban, like in Moore or Aguilar, the restriction is not minimal. The firearm restriction not only covers a vast number of public areas across the state, it encompasses areas this court held in Mosley to be areas where an individual enjoys second amendment protection, i.e., public ways. See Mosley, 2015 IL 115872, ¶ 25.

Big Burden

As to the second variable on the sliding scale, the severity of the law’s burden on the right, the law at issue affects the gun rights of the entire law-abiding population of Illinois like the laws in Moore, Ezell, Aguilar, and Mosley. As in those cases, the law functions as a categorical prohibition without providing an exception for law-abiding individuals. It is therefore a severe burden on the recognized second amendment right of self-defense.

All of this suggests that elevated intermediate scrutiny should apply.

Government's Burden

And under this more rigorous review, the government bears the burden of showing a very strong public-interest justification and a close fit between the government’s means and its end, as well as proving that the “public’s interests are strong enough to justify so substantial an encumbrance on individual Second Amendment rights.”

That means the State must establish a close fit between the 1000-foot firearm restriction around a public park and the actual public interests it serves.

No Legitimate Public Interest

Turning to the State’s proffered public-interest justifications, the State claims a compelling interest in public safety is served by reducing firearm possession within 1000 feet of a public park. In support, the State relies heavily on an analysis of school violence and the 1000-foot firearm ban surrounding schools.

For instance, the State references the federal Gun Free School Zones Act of 1990, which restricts firearm possession within 1000 feet of school grounds. 18 U.S.C. § 921(a)(25) (2012). The State claims that it was in the atmosphere behind the passage of the Gun Free School Zones Act—a rise in school violence in the late 1980s—that the General Assembly passed the law extending the existing restriction on drugs within 1000 feet of schools, public parks, and public housing to also ban firearms from these locations.

The State attempts to relate the reasoning behind the gun-free school zones to public parks, stating that because there is a substantial and distinctive interest in protecting those in parks due to a large number of children who frequent these places, prohibiting firearms near public parks is substantially related to the important government interest in protecting these children and others.

According to the State, the goal of the 1000-foot firearm restriction around public parks is to extend the distance where a shooter might fire a weapon.

Specific Evidence Required

We certainly accept the general proposition that preventing crime and protecting children are important public concerns. After all, “[g]uns are inherently dangerous instrumentalities.” The State, however, cannot simply invoke these interests in a general manner and expect to satisfy its burden.

There must be sufficient evidence to support the State’s rationale.

In sum, based on the record, the State provides no evidentiary support for its claims that prohibiting firearms within 1000 feet of a public park would reduce the risks it identifies. Without specific data or other meaningful evidence, we see no direct correlation between the information the State provides and its assertion that a 1000-foot firearm ban around a public park protects children, as well as other vulnerable persons, from firearm violence.

The State merely speculates that the proximity of firearms within 1000 feet threatens the health and safety of those in the public park. The lack of a valid explanation for how the law actually achieves its goal of protecting children and vulnerable populations from gun violence amounts to a failure by the State to justify the restriction on gun possession within 1000 feet of a public park.

It's Basically A Complete Ban

There is another flaw in the State’s position.

The State claims that the restriction is not overly burdensome because there are areas throughout Illinois where one could exercise their core second amendment right. Indeed an individual can preserve an undiminished right of self-defense by not entering one of the restricted areas.

But the State conceded at oral argument that the 1000-foot firearm restriction zone around a public park would effectively prohibit the possession of a firearm for self-defense within a vast majority of the acreage in the city of Chicago because there are more than 600 parks in the city.

Aside from the sheer number of locations and public areas that would qualify under the law, not only in the City of Chicago, but throughout Illinois, the most troubling aspect is the lack of any notification where the 1000-foot restriction zone starts and where it would end.

Innocent behavior could swiftly be transformed into culpable conduct if an individual unknowingly crosses into a firearm restriction zone. The result could create a chilling effect on the second amendment when an otherwise law-abiding individual may inadvertently violate the 1000-foot firearm-restricted zones by just turning a street corner.

Likewise, in response to a question at oral argument, the State conceded that an individual who lives within 1000 feet of a public park would violate section 24-1(a)(4), (c)(1.5) every time that individual possessed a firearm for self-defense and walked to his or her vehicle parked on a public street. To remain in compliance with the law, the State said that the individual would need to disassemble his or her firearm and place it in a case before entering the restricted zone. This requirement, however, renders the ability to defend oneself inoperable and is in direct contradiction to this court’s decisions in Aguilar, which recognized that the right to carry firearms for self-defense may be especially important when traveling outside of the home, and perhaps even more important than while at home.

Moreover, the State’s proposition conflicts with Heller’s decision that struck down the requirement that firearms be kept “unloaded and disassembled or bound by a trigger lock” because it “makes it impossible for citizens to use them for the core lawful purpose of self-defense.” (Internal quotation marks omitted.) Heller, 554 U.S. at 630. Thus, the State’s suggestion runs counter to established law.

Holding

For these reasons, the State has not established the required means-end fit between the challenged law and its justifications. Accordingly, we hold that possessing a firearm within 1000 feet of a public park in violation of section 24-1(a)(4), (c)(1.5) of the UUW statute is facially unconstitutional.

Removing this single location offense does not undermine the completeness of the remaining locations in section 24-1(c)(1.5). The remaining specific locations are capable of being executed without the offense of possessing a firearm within 1000 feet of a public park.

We, therefore, find the unconstitutional portion of the statute at issue severable from the remaining portions of the statute. For the reasons set forth above, we affirm the circuit court’s judgment vacating defendant’s Class 3 felony conviction of UUW in violation of section 24-1(a)(4), (c)(1.5) within 1000 feet of a public park, which we find to be unconstitutional. We vacate the circuit court’s judgment to the extent that it declared portions of section 24-1(a)(4), (c)(1.5) of the UUW statute not at issue in this case unconstitutional.

See Also

To help get a handle on Illinois Gun Laws see also:

• People v. Burns (Aguilar Did Facially Strike Down Specific Sections of AUUW – No Person (Not Even Felons) Can Be Convicted)
• People v. Whalum, 2014 IL App (1st) 110959 (September 2014)
• People v. Mosley, 2015 IL 115872 (February 2015)
• The Unlawful Use of a Weapon by a Felon Notice Requirement Under 725 ILCS 5/111-3(c) Doe Not Exist
• Illinois Gun Laws Are a Big Mess
• AUUW Gun Conviction Vacated in the 4th District under Aguilar Even When Defendant Was a Felon!
• Aggravated Unlawful Use of a Weapon – 720 ILCS 5/24-1.6 Revisited by Illinois Supreme Court
• People v. Williams, 2015 IL 117470 (November 2015) (Proportionate Penalties Challenge To AUUW No FOID Section Fails)