Illinois Supreme Court Holds a Gun Ban Unconstitutional

People v. Aguilar. Unanimous decision, all seven justices concur. At issue was this statute:

Illinois Statutes, section 24-1.6(a)(1), (a)(3)(A), which states:

“(a) A person commits the offense of aggravated unlawful use of a weapon when he or she knowingly:

(1) Carries on or about his or her person or in any vehicle or concealed on or about his or her person except when on his or her land or in his or her abode or fixed place of business any pistol, revolver, stun gun or taser or other firearm; [and]

*** (3) One of the following factors is present:

(A) the firearm possessed was uncased, loaded and immediately accessible at the time of the offense[.]” 720 ILCS 5/24-1.6(a)(1), (a)(3)(A) (West 2008).

The statute quoted above is referred to by the Court as the AUUA for “Aggravated Unlawful Use of a Weapon.”   After citing and discussing the text of the Second Amendment and both District of Columbia v. Heller, 554 U.S. 570 (2008) and McDonald v. City of Chicago, 561 U.S. ___, ___, 130 S. Ct. 3020, 3050 (2010), and noting that several panels of the Illinois Court of Appeals have previously held that the AUUA passes Constitutional muster, the Court said:

In stark contrast to these Illinois decisions stands the Seventh [Federal] 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.”

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 ready- to-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.

Then the Illinois Supreme Court delivered the coup de grace to the case at hand:

After reviewing these two lines of authority—the Illinois cases holding that [AUUA]  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.

The Court backed up its conclusion with additional reference to Heller, McDonald and Moore:

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.”

Need I remind you dear reader, this is Illinois! This is the highest court in Illinois recognizing that the right of self defense is a natural right endowed upon all human beings by their creator and not by the government. The job of government is not to give people such rights, but to refrain from infringing upon these rights that all people have naturally by virtue of having been born as a human being.