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Monday, September 16, 2013

Second Amendment Applies Outside the Home

After the U.S. Supreme Court issued its opinion in McDonald v. City of Chicago striking down Chicago's handgun restrictions as violating the Second Amendment right to keep a handgun in the home, one question remained in Illinois - does the Second Amendment extend outside the home?  Last week, the Illinois Supreme Court answered yes to that question in People v. Aguilar, 2013 IL 112116 (September 12, 2013). 

 In People v. Aguilar, a criminal defendant challenged his convictions under the Illinois aggravated unlawful use of weapons (AUUW) statute (720 ILCS 5/24-1.6(a)(1), (a)(3)(A) (West 2008)), arguing the laws violated his Second Amendment right to keep and bear arms. These statutes categorically prohibit the possession and use of an operable firearm for self-defense outside the home. Many Illinois appellate court panels have upheld the constitutionality of these statutes, finding that the U.S. Supreme Court decisions in Dist. of Columbia v. Heller and McDonald v. City of Chicago did not expressly recognize that the Second Amendment right applies outside the home. This view was rejected by the Seventh Circuit in Moore v. Madigan, but at least one Illinois appellate court concluded that the Moore “decision is not binding on Illinois courts.” People v. Moore, 2013 IL App (1st) 110793 ¶ 17.

In reversing the defendant’s AUUW conviction, the Illinois Supreme Court adopted the Seventh Circuit’s view in Moore v. Madigan, striking down these provisions of the AUUW statute because the Heller and McDonald decisions recognized a Second Amendment right to self-defense, which is “most acute” inside the home, but not necessarily limited to the home.
Next, the Illinois Supreme Court considered the defendant’s unlawful conviction for unlawful possession of a firearm by a minor. (720 ILCS 5/24-3.1(a)(1)). As recognized in Heller, the Second Amendment right is not unlimited, and the Illinois Supreme Court concluded that the possession of firearms by minors falls outside the scope of the Second Amendment right.

The Aguilar decision ends a split of authority between Illinois state courts and the Seventh Circuit. Going forward, Illinois gun regulations will likely be evaluated under the Second Amendment framework developed in federal courts, regardless of whether the challenge takes place in state or federal court.
Post Authored by Dan Bolin, Ancel Glink


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