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People v. Mimes


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The opinion is here:

http://scholar.googl...&hl=en&as_sdt=2,14&as_vis=1

 

some highlights of the case:

 

The trial court found defendant guilty of attempted first degree murder, aggravated battery with a firearm, and two counts of AUUW. Specifically, defendant's AUUW convictions were based on findings that he (1) knowingly carried on his person an uncased, loaded and accessible firearm while not on his own land or in his own abode or fixed place of business (720 ILCS 5/24-1.6(a)(1), (a)(3)(A) (West 2004)), and (2) possessed an uncased, loaded and accessible firearm upon public land (720 ILCS 5/24-1.6(a)(2), (a)(3)(A) (West 2004)). The trial court found defendant not guilty on six other counts of AUUW because the State failed to prove he was involved in gang-related activity, did not have a FOID card or was under 21 years of age.

 

Because the challenged AUUW provisions burden conduct within the scope of the second amendment guarantee, we evaluate the prohibition under the appropriate standard of constitutional scrutiny. The State argues that rational review is appropriate because the statute does not infringe upon a fundamental right. For support, the State cites Kalodimos v. Village of Morton Grove, 103 Ill. 2d 483, 509, 511 (1984), where the Illinois Supreme Court applied a rational basis review and held that the right to possess a firearm was not a fundamental right and an ordinance banning possession of operable handguns did not violate the Illinois Constitution but, rather, was a permissible exercise of police power. We note, however, that the analysis and holding in Kalodimos have been impliedly overruled by Heller and McDonald. The law now establishes that the second amendment guarantee of the individual right to bear arms is a fundamental right incorporated to the states and is not subject to rational basis review.Defendant argues that strict scrutiny should govern because a fundamental right is at issue. To satisfy strict scrutiny, the means employed by the legislature must be necessary to a compelling state interest, and the statute must be narrowly tailored, using the least restrictive means available to attain its purposes. United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 813 (2000).We find that second amendment challenges, like first amendment challenges, can trigger more than one particular standard of scrutiny. The first amendment right to free speech is an enumerated fundamental right, yet it is subject to several standards of scrutiny depending on the type of speech and level of prohibition at issue. See United States v. Marzzarella, 614 F.3d 85, 96-98 (3d Cir. 2010) (discussing the application of intermediate scrutiny to content-neutral time, place and manner restrictions, or to regulations on nonmisleading commercial speech). Perhaps strict scrutiny may have applied to the severe prohibition on the particular fundamental right at issue in Heller. Heller involved a total ban on having an operable handgun in one's home for the lawful purpose of self-defense, conduct that is at the core of the second amendment right. At issue here, however, are place and manner limits on carrying handguns outside of one's home and on public land, conduct that is not at the core of the second amendment right. As the Heller Court acknowledged, "the right secured by the Second Amendment is not unlimited" and "was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose." Heller, 554 U.S. at 626.

 

Illinois is not bound to interpret the Illinois Constitution provisions in lockstep with the Supreme Court's interpretation of the federal constitution. People v. Mitchell, 165 Ill. 2d 211, 217 (1995). However, while states are free to provide more protection than the U.S. Constitution requires, states may not provide less. Simmons v. South Carolina, 512 U.S. 154, 174 (1994) (Souter, J., concurring, joined by Stevens, J.); California v. Ramos, 463 U.S. 992, 1014 (1983). Defendant cites no authority to persuade us that the protection of his right to bear arms under the Illinois Constitution is greater than that afforded under the second amendment.

 

 

Contrary to defendant's assertion that the AUUW imposes a "blanket prohibition" on carrying firearms outside the home, the statute is limited to preventing the carrying of loaded, uncased and accessible firearms in public on the street. Certainly, the prohibited place at issue here, i.e., in public on the street, is broad. Nevertheless, the prohibition is justified by the potential deadly consequences to innocent members of the general public when someone carrying a loaded and accessible gun is either mistaken about his need for self-defense or just a poor shot.

 

We are not persuaded by defendant's implication that allowing an individual to carry a loaded and immediately accessible firearm in public for the lawful purpose of self-defense is not very different from that same individual's fundamental right to have a loaded and accessible handgun at home for the lawful purpose of self-defense. In his home, an individual generally may be better able to accurately assess a threat to his safety due to his familiarity with his surroundings and knowledge of his household's occupants. In public, however, there is no comparable familiarity or knowledge, and, thus, an increased danger that an individual carrying a loaded firearm will jump to inaccurate conclusions about the need to use a firearm for self-defense. The extensive training law enforcement officers undergo concerning the use of firearms attests to the degree of difficulty and level of skill necessary to competently assess potential threats in public situations and moderate the use of force.

 

 

 

The good news is that even lower courts are starting to see that SCOTUS killed Kalodimos. Now we just need our Supreme Court to say so.

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Justice Lampkin is actually a very good judge, this is a first district case, so she pretty much has to follow People v. Aguilar, which already found that the UUW statutes are constitutional earlier this year in the First District. This is precisely why we have Federal courts.

 

I listened to the oral argument in People v. Aguilar, the public defender did a horrible job. The issue isn't that concealed weapons are banned, the issue is that carrying of ALL weapons are banned. This is why we have attorneys like Gura and Sigale...

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Contrary to defendant's assertion that the AUUW imposes a "blanket prohibition" on carrying firearms outside the home, the statute is limited to preventing the carrying of loaded, uncased and accessible firearms in public on the street.

I do believe the court just said fanny pack carry is legal.

 

That would depend upon what the court deems as "accessible" - would it not? We know a loaded magazine, next to a firearm, is not considered a loaded weapon. We know a "case" need not be a locking firearms case. But do we know what Illinois' courts consider "accessible"?

 

I'm trying to recall if there have been any fanny pack carry cases. All I can think of is SAK and the enclosed holster arrest.

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Contrary to defendant's assertion that the AUUW imposes a "blanket prohibition" on carrying firearms outside the home, the statute is limited to preventing the carrying of loaded, uncased and accessible firearms in public on the street.

I do believe the court just said fanny pack carry is legal.

 

That would depend upon what the court deems as "accessible" - would it not? We know a loaded magazine, next to a firearm, is not considered a loaded weapon. We know a "case" need not be a locking firearms case. But do we know what Illinois' courts consider "accessible"?

 

I'm trying to recall if there have been any fanny pack carry cases. All I can think of is SAK and the enclosed holster arrest.

 

IMHO, it would be better if the courts ruled fanny pack illegal. Then truly ALL forms of carry would be banned. Fanny pack could work against us. It's already an issue in some states.

 

AB

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just for fun, posting this....

 

http://www.freakingnews.com/Pictures/2/Celebrity-Mimes.jpg

 

Here's the set-up:

 

A friend was hosting a party on his farm in Warren, Illinois. Part of the evening would be devoted to a hayride into town involving several stops at the local bars. During the trip back to the party, everyone broke into a rousing course of Old MacDonald had a Farm.... "Old Macdonald had a farm, E-I-E-I-O. And on his farm he had a cow, E-I-E-I-O. With a "moo-moo" here and a "moo-moo" there ..." and so forth....

 

When it came around to me - I had an irresistible notion to sing "....and on his farm he had some MIMES.....E-I-E-I-O."

 

Think about it . . . hilarity ensued!!

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Contrary to defendant's assertion that the AUUW imposes a "blanket prohibition" on carrying firearms outside the home, the statute is limited to preventing the carrying of loaded, uncased and accessible firearms in public on the street.

I do believe the court just said fanny pack carry is legal.

 

That would depend upon what the court deems as "accessible" - would it not? We know a loaded magazine, next to a firearm, is not considered a loaded weapon. We know a "case" need not be a locking firearms case. But do we know what Illinois' courts consider "accessible"?

 

I'm trying to recall if there have been any fanny pack carry cases. All I can think of is SAK and the enclosed holster arrest.

 

I think it hinges on the word "and". If all 3 criteria are not met, then the firearm is not "loaded, uncased and accessible".

 

And no, Abolt, I'm not suggesting we go too far down this road. Its just an observation in case someone was putting together a defense between now and the time some court rules UUW and AgUUW unconstitutional. Dicta in Heller said something to the effect that to bear arms means to carry on the person or in the pocket in case of confrontation. Requiring that the firearm be unloaded doesn't quite live up to that.

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The dissent in people v aguilar correctly resolved this issue, even though the attorney botched the oral argument. I listened to this oral argument last night, this public defender did no better. The judge even noted, "You aren't on the briefs counsel" meaning the attorney doing the arguing didn't even draft the appellate briefs. It pains me to listen to this poor lawyering. All he needed to do was argue the dissent in Aguilar and cite some of the recent federal cases. (yes, this is pre ezell) he could have even cited the wisconsin case that found their ban invalid, granted it would have been less persuasive than Aguilar, but it would have been something!
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In his home, an individual generally may be better able to accurately assess a threat to his safety due to his familiarity with his surroundings and knowledge of his household's occupants. In public, however, there is no comparable familiarity or knowledge, and, thus, an increased danger that an individual carrying a loaded firearm will jump to inaccurate conclusions about the need to use a firearm for self-defense.

 

What the hey!!!?!? So I lose all common sense and intelligence when I walk out my front door? I don't think so...

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In his home, an individual generally may be better able to accurately assess a threat to his safety due to his familiarity with his surroundings and knowledge of his household's occupants. In public, however, there is no comparable familiarity or knowledge, and, thus, an increased danger that an individual carrying a loaded firearm will jump to inaccurate conclusions about the need to use a firearm for self-defense.

 

What the hey!!!?!? So I lose all common sense and intelligence when I walk out my front door? I don't think so...

i just think it all comes down to there scared and they want to control us.

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With the phrase "subject to police power" why have a right to keep and bear arms in the IL constitution at all?

 

I reckon this would have gone differently if Supreme Court would have/will rule that "keep and bear" also means outside the home.

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Illinois' 22nd amendment is basically an oxymoron. It says subject to government regulation of health safety and welfare, the right to keep and bear arms shall not be infringed. It makes no sense. Maybe there is a 10th amendment argument here, who knows?

 

I've stated this before but will go ahead and restate it. "Subject to the Police Power" in Article 22 of the IL Constitution is surplussage. All rights are subject to the police power. For instance, a city can require a permit in order for you to hold a parade. A city can limit free speech by time and place restrictions such as in courtrooms or residential neighborhoods when kids are sleeping, etc.

 

Those are all exhibitions of a state's police powers limiting a right.

 

There is no need to amend Article 22. There is no need to complain about Article 22.

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This is all true. I feel like I read a case that used the police power intro to gut the 22nd amendment, was it the Morton Grove case? Now I have to look it up. Grr.

 

Under Morton, the scope of acceptable police powers was very broad, as the court determined that there wasn't an individual right being infringed.

 

Now the scope of acceptable police powers is constricting. However, it will never go away completely.

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FF got it right. The Court said:

 

Illinois is not bound to interpret the Illinois Constitution provisions in lockstep with the Supreme Court's interpretation of the federal constitution. People v. Mitchell, 165 Ill. 2d 211, 217 (1995). However, while states are free to provide more protection than the U.S. Constitution requires, states may not provide less. Simmons v. South Carolina, 512 U.S. 154, 174 (1994) (Souter, J., concurring, joined by Stevens, J.); California v. Ramos, 463 U.S. 992, 1014 (1983). Defendant cites no authority to persuade us that the protection of his right to bear arms under the Illinois Constitution is greater than that afforded under the second amendment.

 

 

The got it right with the State constitution can not have less protection for a right than the Federal constitution, so the "subject to...." clause should be rendered meaningless. We just need the Court in Shepard to say so.

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Contrary to defendant's assertion that the AUUW imposes a "blanket prohibition" on carrying firearms outside the home, the statute is limited to preventing the carrying of loaded, uncased and accessible firearms in public on the street.

I do believe the court just said fanny pack carry is legal.

 

Regarding Fanny Pack Carry, check out this case:

 

People v. Bruner http://law.justia.com/cases/illinois/court-of-appeals-fourth-appellate-district/1996/4951016.html (precedent)

 

It contains a clear review of the law and the specific exception to site.

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Nice cite, masconfusion. Thanks for posting it.

 

One thing I would like to quote from Bruner to address the concern raised by Abolt in post #7 is:

 

The State suggests this ex-

emption, as interpreted by defendant, would actually provide a

"concealed carry" law. We note concealed carry laws deal with

the concealed possession of a weapon in a holster and do not

provide the weapon must be unloaded. See Fla. Stat. Ann. 790.06

(West Supp. 1996); Tex. Rev. Civ. Stat. Ann. art. 4413(29ee)

(Vernon Supp. 1997). The exemption here specifically provides

the weapon must be unloaded and in a case.

Further to that, this and my earlier post deal with a manner by which to legally transport a firearm which is not the same as the right to bear arms in case of confrontation.

 

I'm not posting against you at all - I just don't want anyone to take either of these cases as a proper defense in Shepard or Moore.

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Contrary to defendant's assertion that the AUUW imposes a "blanket prohibition" on carrying firearms outside the home, the statute is limited to preventing the carrying of loaded, uncased and accessible firearms in public on the street.

I do believe the court just said fanny pack carry is legal.

 

Regarding Fanny Pack Carry, check out this case:

 

People v. Bruner http://law.justia.com/cases/illinois/court-of-appeals-fourth-appellate-district/1996/4951016.html (precedent)

 

It contains a clear review of the law and the specific exception to site.

 

The remedy for the mischief noted by the trial court is a matter

for the legislature.

 

i love that part

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