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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