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Archive for the ‘right to bear arms’ tag

The Second Amendment and Criminal Law

June 22nd, 2015 at 4:22 pm

Illinois criminal attorney, Illinois defense lawyer, Illinois gun laws,Guns are a part of American culture. Unlike many other western nations, our country, for better or worse, has a strong connection to firearms. Aside from our having what is likely the best armed military in the world, we also have a heavily armed population and a constitutional provision that will keep our society that way. The Second Amendment guarantees us the right to “bear arms.”  Despite this constitutional right, men and women across our state and our nation find themselves charged with crimes for possessing guns. How is that possible?

What Does the Second Amendment Say?

The Second Amendment is one of the shorter amendments to our constitution. In its entirety it says, “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” Although it is short, it has led to significant confusion over the years. Some people read this language on its face to mean that individual citizens have a right to gun ownership, while others read it to mean that individual states need to have the ability to arm their militias.

What Does the Second Amendment Mean?

In 1939 it seemed that the Amendment was about the militia part, and not about individual gun rights. That year the United States Supreme Court adopted the collective rights approach in allowing Congress to regulate sawed-off shotguns. This interpretation was the law of the land up until 2008 when the United States Supreme Court ruled that the Second Amendment established an individual right for citizens to possess firearms. Then in 2010 the Court ruled that states could not infringe on this right any more than the federal government can.

If People Have an Individual Right to Bear Arms, then Why Are People Locked Up for Possessing Guns?

If we have the constitutional right to possess guns, why do people get locked up for possessing guns? Part of the answer is that some of our laws have not changed or have not been adequately changed to comply with the United States Supreme Court’s’ holdings, and some people are still being prosecuted under these outdated laws. But that is only part of the issue. Certain limitations on gun ownership are still allowed even though the constitution says that the right “shall not be infringed.” For example,  convicted felons and certain mentally ill people are currently allowed to be stripped of their gun rights. This is similar to how felons in some states are striped of their rights to vote and to act as jurors. Other restrictions that are allowed include those that are similar to the “time, place, and manner” restrictions placed on your right to free speech. Guns can be banned from certain areas and licensing requirements can be put in place for those who want to carry their guns in public. This is similar to how protesters can be required to obtain permits to protest in certain areas.

Call the Law Offices of Christopher M. Cosley

Even if you never commit a violent act you may find yourself charged with a gun crime. You can also find yourself charged with a crime after you have justifiably used a firearm in self-defense or in defense of another. If this happens to you, you will need the assistance of an experienced Rolling Meadows criminal defense attorney. Call us at the Law Offices of Christopher M. Cosley at (847)394-3200. We will fight for you and help you to obtain the best possible outcome in your situation.

Right to Bear Arms: Illinois Rules Age Restriction on Gun Possession Does Not Violate the Second Amendment

January 16th, 2015 at 7:31 am

Illinois defense attorney, violent crime, Illinois criminal lawyer, gun lawsGun crimes are one of the most contentious types of crimes there are in our society. On one hand gun, violence kills far too many members of our society, particularly young people. On the other hand, our constitution give us the right to bear arms. Issues of gun control seem to come up on both the state and federal level each year. Now the Illinois court of appeals has issued an important decision that seems to prioritize the need for gun control over the constitutional right to possess a gun.

Illinois Court Rules Against 18-Year Old’s Right to Bear Arms

The Illinois Court of Appeals recently addressed whether an 18-year-old has a right to bear arms that is protected by the Second Amendment. The case is called People v. Fields. The State charged Demonte Fields with aggravated unlawful use of a weapon (AUUW). Ultimately the trial court convicted Fields after a bench trial and sentenced him to probation. Fields appealed, arguing that his conviction should be vacated because the statute prohibiting the possession of a handgun while under 21 years of age is unconstitutional. The Court of Appeals did not agree, and it upheld his conviction.

Fields was charged with AUUW because he was alleged to have, while not on his own land or in his own abode or fixed place of business, knowingly carried a firearm while he was under 21 years of age. In a previous case, People v. Aguilar, the Illinois Supreme Court ruled that Illinois’ flat ban on carrying ready-to-use guns outside of the home was unconstitutional on its face because it violated the Second Amendment’s right to bear arms. Fields used this case to argue that the statute under which is was convicted is also unconstitutional. He claimed that as an 18-year-old at the time of the offense, he is a member of the community and guaranteed rights under the second amendment.

Court Compares 18-Year Olds to Felons and the Mentally Ill

The Court disagreed with Fields. In its opinion it explained that the courts have long said that the right to bear arms is subject to long-standing categorical prohibitions like prohibitions on the rights of felons and the mentally ill when it comes to possessing guns. It then wrote, “[D]efendant contends 18-, 19-, and 20-year-old adults are part of the virtuous citizenry and cannot be categorically disarmed like convicted felons, children, or the mentally ill. We disagree.” It went on to explain that the 21-year age limit is historically supported. It determined that people between ages 18 and 20 are less responsible and mature than other adults and that protecting the public and police officers by denying this group firearms protects a substantial or important government interest. It also decided that 18 to 20-year-olds can be discriminated against when it comes to Second Amendment rights because of the age group’s alleged high risk of being involved in gang activity. As a result, these non-felon, non-mentally ill adults can be convicted of a serious crime if they possess a gun in public in Illinois. It remains to be seen whether the Illinois Supreme Court or the United States Supreme Court will address this ruling.

Criminal Defense Attorney

If you or someone you love is accused of a crime, you will need the help of an experienced criminal defense lawyer. Contact the dedicated Rolling Meadows criminal defense attorneys at the Law Offices of Christopher M. Cosley and schedule a consultation. Whether its a traffic matter or a serious felony, we can help.

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