Jump to content


Photo

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


This topic has been archived. This means that you cannot reply to this topic.
71 replies to this topic

#1 Molly B.

    IllinoisCarry spokesperson

  • Moderator
  • 15,268 posts
  • Joined: 18-April 05

Posted 22 January 2016 - 01:38 PM

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.

 

Attached File  People vs Burns.pdf   92.88KB   223 downloads
 

 

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.

 


"It does not take a majority to prevail ... but rather an irate, tireless minority, keen on setting brushfires of freedom in the minds of men." --Samuel Adams

#2 Molly B.

    IllinoisCarry spokesperson

  • Moderator
  • 15,268 posts
  • Joined: 18-April 05

Posted 22 January 2016 - 01:40 PM

Just now reviewing IL Supreme Court rulings from the last month.  This ruling was handed down Dec. 17th.  Did not see a prior posting of this.


"It does not take a majority to prevail ... but rather an irate, tireless minority, keen on setting brushfires of freedom in the minds of men." --Samuel Adams

#3 Molly B.

    IllinoisCarry spokesperson

  • Moderator
  • 15,268 posts
  • Joined: 18-April 05

Posted 22 January 2016 - 01:52 PM

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.


"It does not take a majority to prevail ... but rather an irate, tireless minority, keen on setting brushfires of freedom in the minds of men." --Samuel Adams

#4 lee n. field

    Member

  • Supporting Members Team
  • 1,942 posts
  • Joined: 14-April 04

Posted 22 January 2016 - 01:57 PM

so what does this mean for us?


"Woe to you who desire the day of the LORD!
Why would you have the day of the LORD?
It is darkness, and not light,"

#5 gLockedandLoaded

    Member

  • Members
  • 1,693 posts
  • Joined: 26-February 13

Posted 22 January 2016 - 02:04 PM

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. 



#6 Davey

    Member

  • Members
  • 3,216 posts
  • Joined: 02-November 10

Posted 22 January 2016 - 02:17 PM

Okay I need help on this one.  English please!



#7 mic6010

    Member

  • Members
  • 1,583 posts
  • Joined: 04-January 14

Posted 22 January 2016 - 02:16 PM

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.


"Living in Chicago, it used to be, 'don't go out at night,' or 'be more careful at night'. Now it's turned into a place where it doesn't matter if it's day or night."  - John Hendricks.


#8 defaultdotxbe

    Member

  • Members
  • 5,160 posts
  • Joined: 17-February 11

Posted 22 January 2016 - 02:18 PM

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


"The cheek of every American must tingle with shame as he reads the silly,
flat, and dishwatery utterances of the man who has to be pointed out to
intelligent foreigners as the President of the United States."
-Chicago Times review of Lincoln's Gettysburg Address.


#9 Davey

    Member

  • Members
  • 3,216 posts
  • Joined: 02-November 10

Posted 22 January 2016 - 02:24 PM

 

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?



#10 ChicagoRonin70

    The Landlord of the Flies!

  • Supporting Members Team
  • 3,256 posts
  • Joined: 02-August 14

Posted 22 January 2016 - 02:45 PM

So, what exactly does this mean for law-abiding firearm owners? How does it affect us specifically?


"A well educated Media, being necessary for the preservation of a free State, the right of the people to keep and read books, shall not be infringed."

 

"A well regulated Militia, being necessary for the security of a free State, the right of the people to keep and bear arms, shall not be infringed."

 

“One can never underestimate the idiocy of those determined to be offended by things that don't affect their real lives in the slightest.” —Me
 
“Hatred is the sharpest sword; the desire for peace is armor made of willow leaves in the face of an enemy who despises you, as neither alone will stop a strike that is aimed at your neck.” —Samurai proverb
 
“An armed society is a polite society. Manners are good when one may have to back up his acts with his life.” —Robert Heinlein
 
“I reserve the right to take any action necessary to maintain the equilibrium in which I've chosen to exist.” —Me
 
"It ain't braggin' if you done it." —Will Rogers

 

Gb1XExdm.jpg
 
 

 
 
 
 


#11 gLockedandLoaded

    Member

  • Members
  • 1,693 posts
  • Joined: 26-February 13

Posted 22 January 2016 - 02:45 PM

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.


Edited by gLockedandLoaded, 22 January 2016 - 02:49 PM.


#12 johnsxdm

    Member

  • Members
  • 1,097 posts
  • Joined: 09-December 12

Posted 22 January 2016 - 02:49 PM

Where is Skinny when you need him??

#13 tbone+p9mm

  • Members
  • 29 posts
  • Joined: 11-March 10

Posted 22 January 2016 - 02:52 PM

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.


Edited by tbone+p9mm, 22 January 2016 - 02:52 PM.


#14 Patriots & Tyrants

    Member

  • Supporting Members Team
  • 4,275 posts
  • Joined: 05-May 11

Posted 22 January 2016 - 03:05 PM

SO............does this mean everyone ever convicted of AUUW has their sentences thrown out totally? or changed to just plain ole UUW?



#15 gLockedandLoaded

    Member

  • Members
  • 1,693 posts
  • Joined: 26-February 13

Posted 22 January 2016 - 03:07 PM

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.



#16 MrTriple

    Member

  • Members
  • 1,889 posts
  • Joined: 22-April 13

Posted 22 January 2016 - 03:07 PM

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?
"The point of [so-called "assault weapon" bans]...is not to ban firearms that are dangerous, it's to ban firearms that gun owners want to own because the people making the laws don't like gun owners. If we want to buy non-semiauto AR-style rifles, they'll ban those too, and for the same reason."

-Hapless

#17 defaultdotxbe

    Member

  • Members
  • 5,160 posts
  • Joined: 17-February 11

Posted 22 January 2016 - 03:05 PM


 

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


"The cheek of every American must tingle with shame as he reads the silly,
flat, and dishwatery utterances of the man who has to be pointed out to
intelligent foreigners as the President of the United States."
-Chicago Times review of Lincoln's Gettysburg Address.


#18 tbone+p9mm

  • Members
  • 29 posts
  • Joined: 11-March 10

Posted 22 January 2016 - 03:27 PM

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 ****.


Edited by tbone+p9mm, 22 January 2016 - 03:37 PM.


#19 tbone+p9mm

  • Members
  • 29 posts
  • Joined: 11-March 10

Posted 22 January 2016 - 03:36 PM

How much would it cost for this to go before a judge ? and start a decision against the FOID card crime ?



#20 ChicagoRonin70

    The Landlord of the Flies!

  • Supporting Members Team
  • 3,256 posts
  • Joined: 02-August 14

Posted 22 January 2016 - 03:38 PM

 

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...showtopic=23408


"A well educated Media, being necessary for the preservation of a free State, the right of the people to keep and read books, shall not be infringed."

 

"A well regulated Militia, being necessary for the security of a free State, the right of the people to keep and bear arms, shall not be infringed."

 

“One can never underestimate the idiocy of those determined to be offended by things that don't affect their real lives in the slightest.” —Me
 
“Hatred is the sharpest sword; the desire for peace is armor made of willow leaves in the face of an enemy who despises you, as neither alone will stop a strike that is aimed at your neck.” —Samurai proverb
 
“An armed society is a polite society. Manners are good when one may have to back up his acts with his life.” —Robert Heinlein
 
“I reserve the right to take any action necessary to maintain the equilibrium in which I've chosen to exist.” —Me
 
"It ain't braggin' if you done it." —Will Rogers

 

Gb1XExdm.jpg
 
 

 
 
 
 


#21 tbone+p9mm

  • Members
  • 29 posts
  • Joined: 11-March 10

Posted 22 January 2016 - 03:51 PM

Do you really think that the funds can't be raised to put a stop to this crime that ILLINOIS is doing?, seriously I'm just asking.



#22 KarlJ

    Member

  • Members
  • 2,121 posts
  • Joined: 20-November 12

Posted 22 January 2016 - 03:55 PM

Sure would be nice to get rid of FOID
New Jersey has something similar don't they?

I'm not sure I understand the effect of this ruling but I'm hoping it's another road block taken down

Edited by KarlJ, 22 January 2016 - 03:57 PM.

"Waiting periods are only a step.
Registration is only a step.
The prohibition of private firearms is the goal."

Janet Reno

U.S. Attorney General

1993-12-10

"If the personal freedoms guaranteed by the Constitution inhibit the governments ability to govern the people, we should look to limit those guarantees."

Bill Clinton

1993-08-12

#23 GWBH

    Ripcord... This is Alabama - Fire For Effect, Over...

  • Members
  • 6,053 posts
  • Joined: 30-January 08

Posted 22 January 2016 - 03:59 PM

New Jersey has something similar don't they?

 

Yes - along with Hawaii and Massachusetts.


Fire Support Base Ripcord Association - the heroes of the Vietnam War have their names on a wall in Washington, DC
http://www.ripcordassociation.com/

Phil Compton "ishmo", "L" Company 75th Infantry (RANGER) 101st Airborne Division (VietNam 1968 - 1969 / 1970 - 1971 )
A good man, a good soldier, a patriot and a true friend.

PFC Patrick J. Bohan, 101 Pathfinder Detachment, 101st Airborne Division, KIA, July 10, 1970, on FSB Ripcord
 


#24 Molly B.

    IllinoisCarry spokesperson

  • Moderator
  • 15,268 posts
  • Joined: 18-April 05

Posted 22 January 2016 - 04:04 PM

So far all the judicial rulings allow that 'some regulation" is possible.  That could and probably does encompass the FOID.  doesn't mean we can pursue getting rid of it, we just do not have the foundation for it yet.


"It does not take a majority to prevail ... but rather an irate, tireless minority, keen on setting brushfires of freedom in the minds of men." --Samuel Adams

#25 tbone+p9mm

  • Members
  • 29 posts
  • Joined: 11-March 10

Posted 22 January 2016 - 04:09 PM

If anyone has any idea how to get something started I'd like to know as I have some time to devote to the idea of how to VOID the FOID.  I'd be proud to say I had something to do with it.



#26 DoverGunner

    Member

  • Members
  • 2,848 posts
  • Joined: 13-March 13

Posted 22 January 2016 - 04:28 PM

Where is Skinny when you need him??

My thoughts Exactly



#27 Gamma

    Member

  • Members
  • 2,414 posts
  • Joined: 29-December 13

Posted 22 January 2016 - 04:36 PM

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.


Edited by Gamma, 22 January 2016 - 04:42 PM.

Illinois' FCCA is a prime example of the maxim that sufficiently advanced incompetence is indistinguishable from malice.

#28 wtr100

    Member

  • Members
  • 6,374 posts
  • Joined: 08-April 09

Posted 22 January 2016 - 04:42 PM

Considering SAF / NRA / ISRA is silent on it is suspect while it's good news it's also not earth shaking


Have your musket clean as a whistle, hatchet scoured, 60 rounds powder and ball and be ready to march at a minute's warning

ISRA Life Member
NRA Life Member
NRA Certified Instructor Rifle, Pistol, Shotgun
NRA Certified Chief Range Safety Officer
ISP Approved Concealed Carry Instructor


#29 Molly B.

    IllinoisCarry spokesperson

  • Moderator
  • 15,268 posts
  • Joined: 18-April 05

Posted 22 January 2016 - 05:00 PM

Considering SAF / NRA / ISRA is silent on it is suspect while it's good news it's also not earth shaking

 

They just recently became aware of it, they are studying it.


"It does not take a majority to prevail ... but rather an irate, tireless minority, keen on setting brushfires of freedom in the minds of men." --Samuel Adams

#30 Molly B.

    IllinoisCarry spokesperson

  • Moderator
  • 15,268 posts
  • Joined: 18-April 05

Posted 22 January 2016 - 05:02 PM

Considering SAF / NRA / ISRA is silent on it is suspect while it's good news it's also not earth shaking

 

 

I think it could be very important for someone who has an unconstitutional felony on their record . . .


"It does not take a majority to prevail ... but rather an irate, tireless minority, keen on setting brushfires of freedom in the minds of men." --Samuel Adams