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People vs Burns - aggravated unlawful use of a weapon - Unconstitutional


Molly B.

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IL Supreme Court rules in People vs Burns:

 

¶ 31 CONCLUSION
¶ 32 For the foregoing reasons, we find the offense of aggravated unlawful use of a weapon, as set forth in section 24-1.6(a)(1), (a)(3)(A) of the AUUW statute, facially unconstitutional. As a result, the provision is not enforceable against anyone, including defendant. Accordingly, we vacate defendant’s conviction and sentence for aggravated unlawful use of a weapon.

For the complete ruling, click here.

 

People vs Burns.pdf

 

Supreme Court Summaries

Opinions filed December 17, 2015

 

 

 

People v. Burns, 2015 IL 117387

 

Appellate citation: 2013 IL App (1st) 120929

 

JUSTICE BURKE delivered the judgment of the court, with opinion.

Justices Freeman, Kilbride, Karmeier, and Theis concurred in the judgment and opinion.

Chief Justice Garman specially concurred, with opinion, joined by Justice Thomas.

In 2009, Chicago police who were responding to reports of gunfire near 73rd and Blackstone saw this defendant, with a gun in his hand, exit the car in which he was sitting. He threw the handgun back into the vehicle and fled on foot, throwing another object to the ground as he ran. That object was discovered to be a magazine or “clip,” loaded with 9-millimeter rounds. The gun recovered from the car had no clip, but had one live 9-millimeter round in the chamber, and the clip retrieved during the chase fit the gun recovered from the car. The defendant was arrested.

 

Burns’ Cook County bench trial began in late 2011, and, in early 2012, he was convicted of aggravated unlawful use of a weapon based on the statute outlawing possession of an uncased, loaded and readily accessible firearm in a vehicle. Because he had a prior felony conviction for possession of a controlled substance, at sentencing a 10-year term as a Class X offender was imposed.

 

Burns sought direct review in the appellate court, and, on September 12, 2013, while his appeal was pending, the Illinois Supreme Court decided People v. Aguilar, which reversed a conviction under the same statute that had just been used to convict Burns. In Aguilar, the supreme court held that a statute which operates as a flat ban on carrying ready-to-use guns outside the home is facially unconstitutional as in violation of the right to bear arms guaranteed by the second amendment.

 

Burns had raised the Aguilar decision in the appellate court, but his conviction was affirmed in 2013. The appellate court said that, despite Aguilar, the challenged statute remained enforceable because felons (like this defendant) lack second amendment rights. The defendant appealed again.

In this decision, the Illinois Supreme Court noted that the legislature may constitutionally prohibit felons from carrying readily accessible weapons in select circumstances, and, in fact, has done so by specific statute, but it did not do so in the enactment challenged here.

 

At the trial, the State was not required to prove a prior felony conviction as an offense element and it did not do so. The matter of being previously convicted of a felony was addressed at sentencing. The challenged statute, as written, is a flat ban on carrying ready-to-use guns outside the home, without being limited to a subset of persons, such as felons. It is, thus, facially unconstitutional as written.

 

In this decision, the supreme court followed Aguilar, noting, however, that some of the language used in the modified opinion had inappropriately referred to the Class 2 and Class 4 forms of the offense at issue. No such offenses exist. This language, however, cannot be viewed as limiting the Aguilar holding of facial unconstitutionality.

 

The challenged statute is unconstitutional on its face and is not enforceable against anyone, including this defendant. His conviction and sentence were vacated. The appellate court was reversed.

 

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25 It is precisely because the prohibition is not limited to a particular subset of persons,

such as felons, that the statute, as written, is unconstitutional on its face.

 

¶ 29 It would appear, therefore, that the legislature could constitutionally prohibit

felons from carrying readily accessible guns outside the home. See also McDonald,

561 U.S. at 786; Moore, 702 F.3d at 940. In fact, Illinois already has legislation

which prohibits felons from possessing guns at all. See 720 ILCS 5/24-1.1 (West

2008) (Unlawful Use of a Weapon by a Felon). But that is not what the legislature

proscribes in section 24-1.6(a)(1), (a)(3)(A) of the AUUW statute. The 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. An unconstitutional statute does not

“become constitutional” simply because it is applied to a particular category of

persons who could have been regulated, had the legislature seen fit to do so.

 

I would imagine we will see legislation to address this.

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Yeah I don't know. It seems to me that just having a gun should not be a crime. "Keep and bear....." I don't know how else you can interpret that. As long as you are not a prohibited person, you should be able to have a gun.

 

Now if you point a gun at someone or someone else's stuff, that's a different story.

 

I just continue to struggle seeing how the FOID system is constitutional at all.

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Okay I need help on this one. English please!

Since AUUW was ruled unconstitutional (Sheppard/Moore) people convicted under it previously can have their convictions vacated

 

Sent from my SM-G920P using Tapatalk

 

 

I get the feeling this case is more than just that. Wouldn't vacation always have been possible?

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Whose a "prohibited person" ? They make up new "prohibited people" every day and for any old reason. It varys state by state even.

None of it is constitutional. All we have is a list of privileges that apply at certain times to certain groups of people.

 

 

Well yes, but a felon would have an easy time getting put on a prohibited list.

 

Trust me though, I agree with you. Essentially the FOID system automatically makes everyone a prohibited person until the state issues its little permission card.

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Okay I need help on this one. English please!

 

Since AUUW was ruled unconstitutional (Sheppard/Moore) people convicted under it previously can have their convictions vacated

Sent from my SM-G920P using Tapatalk

 

 

 

 

I get the feeling this case is more than just that. Wouldn't vacation always have been possible?

In theory, but this case is as it applies to a felon, not just someone who could otherwise legally possess a firearm

 

Sent from my SM-G920P using Tapatalk

 

 

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I too have to ask at what point do we begin to understand that having to have a FOID card is unconstitutional ? , am I WRONG.

 

Here is something interesting in the brief:

 

"On September 12, 2013, while defendant’s appeal was still pending, this court

issued its decision in Aguilar, 2013 IL 112116. In Aguilar, the defendant was

convicted of AUUW pursuant to section 24-1.6(a)(1), (a)(3)(A) of the statute,

which was a Class 4 felony pursuant to section (d) of the statute. We reversed the

defendant’s conviction for AUUW, holding that section 24-1.6(a)(1), (a)(3)(A) is

facially unconstitutional because it operates as a flat ban on the right to keep and

bear arms, as guaranteed by the second amendment to the United States

Constitution."

 

I'm sorry, but isn't that exactly what the FOID SYSTEM DOES?!?!

 

Unless you have our state's permission, the second amendment doesn't apply to you.

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I too have to ask at what point do we begin to understand that having to have a FOID card is unconstitutional ? , am I WRONG.

I'm surprised nobody's tried suing the state on this very issue. We've only seen lawsuits where FOID cards were not issued to eligible individuals, why not a lawsuit over the unconstitutionality of the whole FOID scheme?

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I just can't belive that any court would be able to explain why IL. has the right to make me beg them for permission the be able to defend myself when there is no way the LEO's in the state can protect me. I live 20 miles from any town, My family is dead and there gone before the police can even get here. I know this for a fact as I've had to call them before and it takes 20 min. for them to respond. NO ****.

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I too have to ask at what point do we begin to understand that having to have a FOID card is unconstitutional ? , am I WRONG.

I'm surprised nobody's tried suing the state on this very issue. We've only seen lawsuits where FOID cards were not issued to eligible individuals, why not a lawsuit over the unconstitutionality of the whole FOID scheme?

 

 

According to this thread, someone did, but it didn't really go anywhere do to lack of funds:

 

http://illinoiscarry.com/forum/index.php?showtopic=23408

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If that statute is facially unconstitutional and therefore void, doesn't that mean that "constitutional concealed carry" is effectively in place? If you're carrying a concealed firearm what else would you be charged with?

 

ETA:

More implications just came to mind. As an FCCA licensee, you have fewer rights than someone without a carry license. To wit, someone with FOID only could conceivably carry on public transit or in other areas prohibited to carry licensees. Carry restricted areas only applies to FCCA licensees.

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