Illinois Gun Crime Laws: Parts of the Aggravated Unlawful Use of a Weapon Statute May Be Unconstitutional

 Posted on March 03, 2015 in Criminal Defense

Thousands of people have been prosecuted in Illinois for having guns. Up until the last couple of years, Illinois was the lone holdout state that did not even allow for concealed carry permits. Our gun crime laws are harsh. However, in addition to being harsh, as it turns out, some of them are also unconstitutional. When a criminal law is held unconstitutional, then prosecutors are no longer allowed to prosecute people under that law.

What Gun Law is Unconstitutional?

Illinois law includes a crime called “aggravated unlawful use of a weapon.” This statute makes it illegal to possess a firearm under various different sets of circumstances. Some of this law is still enforceable. But other portions of it are unconstitutional because they violate the Second Amendment’s right to bear arms. For example, the portion of the law that makes it always a crime to carry an uncased, loaded, immediately accessible firearm on your person or in a vehicle goes too far. It acts as a comprehensive ban on the use of firearms for self-defense outside the home, thus rendering it unconstitutional. Similarly, the part of the law that prohibits all carrying of such guns on public ways is unconstitutional for the same reason.

Reasonable Restrictions are Permitted

While these outright bans on gun possession are not constitutional, the other portions of Illinois gun law that act more as restrictions on the right to bear arms are usually held to be constitutional. Under Illinois law this includes things like the requirement that a gun carrier have a FOID card and prohibitions on 19- and 20 year-olds receiving the documentation required to possess firearms. It also includes common exceptions to the right to bear arms such as laws that say people with felony convictions, people with certain mental health histories, intoxicated people, and fugitives of the law cannot lawfully possess guns. People who are or have recently been subject to an order of protection are also usually prohibited from having guns both under state law and federal law.

What is a FOID Card?

A FOID card is not the same as a concealed carry permit. FOID cards are somewhat unique to Illinois and they are used to identify those individuals who are eligible to possess and obtain firearms and ammunition. Illinois residents who own or possess firearms generally are required to have a FOID card. There is a separate application process from the concealed carry application process. Once one has a FOID card it is good for 10 years, assuming the applicant remains otherwise eligible to possess firearms.

Call the Law Offices of Christopher M. Cosley

When you are charged with a crime, you need an experienced Rolling Meadows criminal defense attorney on your side. Call the Law Offices of Christopher M. Cosley. We are here to fight for you. Reach out to us today at (847)394-3200.