IL UUW Ruled unconstitutional

[bushmaster1313]

Last sentence of the dissent in Illinois RTKBA case:

In the absence of clearer indication that the Second Amendment codified a generally recognized right to carry arms in public for self defense, I would leave this judgment in the hands of the State of Illinois.

From the Second Amendment:

the right of the people to . . . bear arms shall not be infringed.

Did I hear someone say: "Duh?"

 

[Trent]

I think ISRA is really "jumping the gun" here.

http://www.prnewswire.com/news-rele...ry-advice-to-illinois-citizens-183329771.html

Possession of a valid Illinois Firearm Owner's Identification (FOID) card will be a requirement for all concealed carry permit applicants.

Uhh... really? Do we KNOW what the concealed carry application process will entail yet, or even if there will BE a concealed carry process to follow?

No.

Firearms suitable for concealed carry will soon be in short supply, as will holsters and other accessories.

Extremely doubtful.

The ISRA recommends that persons contemplating applying for a carry permit seek out a qualified instructor who will help them hone their skills – especially with the firearm(s) they plan to use for concealed carry purposes.

We don't yet know what the training requirements will be, what is required by the instructors. If someone pays for and takes a training class today, and the CCW process ends up requiring a certificate or other procedural junk, the people will have to RE take the test.

(not that I'm against training, far from it, but it seems presumptuous to think that any training class offered today would be valid when CCW gets sorted out here.)

Practice…practice…practice. As little as an hour per week of pistol practice will help ensure that the concealed carry permit holder is adequately prepared to deploy a firearm to defend themselves or their family.

No argument here.

 

[Phatty]

I agree Trent. The advice to rush out and buy your carry gear now is also problematic. There's no telling what kind of possible restrictions will be placed on the handguns that people are allowed to carry. Although doubtful (and I really hope not) Illinois could theoretically enact a law like D.C.'s with a list of approved weapons or features. Somebody buying a handgun now for the purpose of carrying in the future could be sorely disappointed when they discover later that it is not a permitted weapon.

Whenever a law is eventually passed, there will be a fairly long delay before it is effective (mostly to give the applicable state agencies time to prepare for it), and that is the time when there is some certainty for the ISRA to start issuing releases like this. Although I don't think it will happen, there is also a chance that the Supreme Court could accept an appeal and stay the 7th Circuit's order until the conclusion of the Supreme Court case.

 

[Iramo94]

If Unlawful Use of Weapons is struck down in it's entirety as unconstitutional, and no legislation is passed to replace it... there's no more machinegun ban in IL.

... Right?

Time to drain the kid's college fund.

 

[NukemJim]

"there's no more machinegun ban in IL.

... Right?"

My understanding is "wrong", that the ban an NFA goodies (Full auto, suppressors, short barreled rifles and shotguns) will still be in full effect.

As always I could be wrong.

NukemJim

 

[Trent]

The reason I was asking is UUW contains the code about possession of machineguns.

Does anyone actually KNOW what the court ordered? I can't find their actual INSTRUCTIONS that were supposedly sent to the state.

(They could have struck it down by Public Act #, or by reference to the specific lines of law, or...?)

If they struck it down by Public Act #, then it's probable that the machinegun ban goes with the rest. Problem is, I cannot FIND the original public act # that created Unlawful Use of a Weapon in the first place, to know if it was grouped in. (Stuff passed before the birth of the Internet isn't in the legislature database, meaning I'd have to dig up and dust off old law books).

Worth noting, Legislative intent on the grouping of firearms is spelled out in 720 ILCS 5/33A-1. It groups machineguns with normal firearms small enough to be concealed on the person as "category 1" dangerous weapons.

(1) "Armed with a dangerous weapon". A person is considered armed with a dangerous weapon for purposes of this Article, when he or she carries on or about his or her person or is otherwise armed with a Category I, Category II, or Category III weapon.

A Category I weapon is a handgun, sawed-off shotgun, sawed-off rifle, any other firearm small enough to be concealed upon the person, semiautomatic firearm, or machine gun.

A Category II weapon is any other rifle, shotgun, spring gun, other firearm, stun gun or taser as defined in paragraph (a) of Section 24-1 of this Code, knife with a blade of at least 3 inches in length, dagger, dirk, switchblade knife, stiletto, axe, hatchet, or other deadly or dangerous weapon or instrument of like character. As used in this subsection (b) "semiautomatic firearm" means a repeating firearm that utilizes a portion of the energy of a firing cartridge to extract the fired cartridge case and chamber the next round and that requires a separate pull of the trigger to fire each cartridge.

(3) A Category III weapon is a bludgeon, black-jack, slungshot, sand-bag, sand-club, metal knuckles, billy, or other dangerous weapon of like character.

 

[Trent]

There's precedent in Illinois for removing acts by public act #;

People v. Cervantes knocked out the ENTIRE public act 88-680 because it violated constitutional procedure; 50+ laws went down in one shot (including gunrunning and other firearms violations).

 

[Phatty]

The particular provisions at issue are mentioned towards the beginning of the 7th Circuit's opinion.

They are:
720 ILCS 5/24-1(a)(4)
720 ILCS 5/24-1(a)(10)
720ILCS 5/24-1.6(a)

The way this works procedurally is that the 7th Circuit issues an opinion with a holding such as "a complete ban on carrying firearms in public is unconstitutional." The case is then remanded back to the federal district court, where the judge is tasked with the assignment of entering an order consistent with the appellate court's opinion. That order will contain the details and specifics. It is the district judge's order that is directed to the state and which the state is required to obey.

Also, the applicable statutes are not wiped off the books or erased. They are still there. The district judge will simply enter an order prohibiting Illinois from enforcing the relevant provisions of the UUW (the three provisions I list above) that operate as a total ban on carrying in public. This is different from state supreme court cases that find a procedural deficiency regarding the passing of a public act and then void the entire act.

 

[Trent]

Gotcha, thanks for the clarification!

 

[JTHunter]

Illinoians - mark your calenders!

Sunday, June 9, 2013!!

 

[Trent]

You did the math? I was wondering what the actual date would be earlier but was too lazy to count it up.

 

[fanchisimo]

I'm curious, what happens to people who were arrested/imprisoned on illegal weapons charges, the ones that were ruled unconstitutional? Since the law was ruled unconstitutional, that means, retroactively, it no longer had the force of law and even if they pass a new law within the 180 days, ex post facto comes into play. They were arrested and charged under an unconstitutional law and possibly imprisoned, what happens to those people?

 

[Phatty]

To clarify the 180-day date, that date does not have an actual immediate effect on the citizens of Illinois. At the expiration of the 180 days, the 7th Circuit will issue its mandate to the district court. Once the district court receives the mandate there will be a bit of delay for the district court to then act on the mandate. The judge will probably ask for submissions from the parties for proposed actions to take in light of the mandate (such as a proposed order of injunction, etc.). The parties will be given x amount of days to submit those, and then there will be a further delay before the court acts on those submissions and actually enters an order directed against the State.

My point is that litigation is slow, really slow. Nothing happens fast. If you are an optimist you should be hoping that a law is passed allowing carry long before the 180 days is up so it won't make a difference.

 

[JTHunter]

Trent - 180 / 7 = 25.7 weeks (25 x 7 = 175 days).
IF you use the day of the decision, 12/11/12, then that is D-Day.
Otherwise, it might be the day after the decision is rendered, ergo, Monday the 10th.

 

[Phatty]

I'm curious, what happens to people who were arrested/imprisoned on illegal weapons charges, the ones that were ruled unconstitutional?

Excellent question. I can say for sure that people who have not yet been convicted will be able to get the case against them dismissed (but only for a charge based on carrying a weapon in public). Also, people that have been convicted and are still in the appellate stage of their case may be able to get the appellate court to reverse the conviction. I don't know enough to tell you whether a guy sitting in prison following a final appeal has any hope, or if a person no longer in prison can get the felony record expunged.

If you happen to get arrested for a carry crime tomorrow, then delay, delay, delay. In reality, except for ardent anti-gun locales, the state's attorneys are not going to be looking to prosecute these crimes. Why waste the time and money on a charge that a federal court has held is unconstitutional and will just get dismissed? But I still don't recommend that anyone run around packing heat in public right now because you could still get arrested by the police and spend a weekend in jail for your trouble and pay your attorney a nice sum of money.

 

[Trent]

I'd considered staring to carry, briefly, before discarding the notion.

The current state law IS still law. And you CAN AND WILL be arrested for violating the state laws still in effect. You'll go to jail, have to bond out, hire a lawyer, and spend a lot of time in court.

And if you end up LOSING, and get convicted of a felony, you'll lose all of your gun rights permanently.

I've been waiting 18 years for this.

I can wait another 6, 8, or 12 months.

 

[rugerman07]

I'm wondering what type of concealed carry law Quinn will come up with. Will it be a SHALL ISSUE or MAY ISSUE law? If it's a may issue there won't be many (if any) permits issued. How much will the permit cost? Will it be so costly that most people won't be able to afford one? Will he enhance gun free zones to the point that defeats the purpose of getting a permit?

 

[fanchisimo]

Phatty, the only thing I think they could do is to treat it almost like when a person in jail is freed due to new evidence or new forensic techniques. My understanding is that the justice system has some formula for compensation due to the time lost due to false imprisonment. I don't know about how many people in Illinois prisons or past inmates would be affected by this, but there seems to be a whole lot of ways this could affect issues. What if an UUW violation led to other charges, IE drug possession? Would the additional charge have to be vacated because it was discovered by way of the UUW? I'm just glad I don't live in Illinois, but my curiousity must be fed. Lol.

 

[Kerf]

Someone could research the Wilmette case where I believe a guy was arrested and imprisoned for warding off an intruder from his home with a handgun. I believe he was found guilty of possession of a handgun and was currently serving his sentence when the Heller decision came down. I think he was immediately released from prison after serving quite some time (18 months?) when Wilmette through in the towel on their gun ban law, along with Evanston,Mt. Prospect, etc. Anyone recall this better than I do? Shouldn’t be hard.

 

[ilbob]

Someone could research the Wilmette case where I believe a guy was arrested and imprisoned for warding off an intruder from his home with a handgun. I believe he was found guilty of possession of a handgun and was currently serving his sentence when the Heller decision came down. I think he was immediately released from prison after serving quite some time (18 months?) when Wilmette through in the towel on their gun ban law, along with Evanston,Mt. Prospect, etc. Anyone recall this better than I do? Shouldn’t be hard.

he was charged under a local ordinance. such ordinances are limited by the state constitution to a penalty not to exceed 6 months so he did not spend 18 months in jail.

the case led to a state law preempting such local ordinances when a firearm is used in self defense. I don't recall what happened but I don't think he did any time.

 

[jawman]

This is good news for Illinois, but it is still an uphill battle. HB148 is not good for fellow gun owners who want to concealed carry. It has too many restrictions and needs to be revised.

I think to do nothing and let the 180 days expire is a bad idea as then it could be up to local governments deciding their own laws instead of having a state-wide law.

I also don't plan on buying any CC gear yet because that will be a waste of money. We have no idea what the new law will be. Just like certain pistols can be CA or MA compliant, the same could apply to Illinois so I can't see any reason on purchasing anything for concealed carry until we know what the restrictions will be.

 

[TyGuy]

CCW gear isn't a waste of money if you have a Utah or Florida permit.

 

[jawman]

CCW gear isn't a waste of money if you have a Utah or Florida permit.

You do realize that this thread is specifically talking about concealed carry in Illinois, one of the worst anti-gun states (if not the worst) in the country? I personally think that to buy a handgun right now for future concealed carry in Illinois based on the recent UUW ruling is not a good idea because that handgun may not meet the requirements and restrictions that are yet to be ironed out, and I wouldn't want to own a small handgun suited for concealed carry that is illegal to carry in my home state, where 99.999% of my carrying will take place. I'm going to wait until everything is said and done before I get all excited and start buying a new handgun. But that's just me.

 

[TyGuy]

I live in Illinois, see under my user name. I carry wherever I legally can, which in the midwest is pretty much everywhere except Michigan. I've carried, outside of Illinois, for years no. Were my gear purchases a waste? No. Contrary to what IL politicians think there is more to the USA beyond the border of IL.

 

[TyGuy]

Also, I haven't been to every state, but I haven't seen any handgun specific restrictions as far as CCW goes. Yes, some states have laws against printing, but I've never seen a list of acceptable and unacceptable carry pistols. Did I miss something?