People v. Webb, 2019 IL 122951 (March). Episode 610 (Duration 6:17)

Another version of UUW is held unconstitutional; this time it’s the one banning tasers.

Charges

Defendant was charged by misdemeanor complaint with violating section 24-1(a)(4) of the UUW statute (720 ILCS 5/24-1(a)(4)) after he was discovered carrying a stun gun in his jacket pocket while in his vehicle on a public street.

Gist

He was charged by misdemeanor complaint with violating section 24-1(a)(4) after he was found carrying a stun gun in his backpack in a forest preserve, a public place.

Issue

At issue is the constitutionality of the portion of section 24-1(a)(4) of the UUW statute relating to stun guns and tasers.

Illinois Unlawful Use of Weapons (UUW) Statute

This provision states, in pertinent part:

“(a) A person commits the offense of unlawful use of weapons when he knowingly: * * * (4) Carries or possesses in any vehicle or concealed on or about his person except when on his land or in his own abode, legal dwelling, or fixed place of business, or on the land or in the legal dwelling of another person as an invitee with that person’s permission, any pistol, revolver, stun gun or taser[2] or other firearm, except that this subsection (a) (4) does not apply to or affect transportation of weapons that meet one of the following conditions: * * * (iv) are carried or possessed in accordance with the Firearm Concealed Carry Act by a person who has been issued a currently valid license under the Firearm Concealed Carry Act[.]”

720 ILCS 5/24-1(a)(4)(iv).

“A ‘stun gun or taser’, as used in this paragraph (a) means (i) any device which is powered by electrical charging units, such as, batteries, and which fires one or several barbs attached to a length of wire and which, upon hitting a human, can send out a current capable of disrupting the person’s nervous system in such a manner as to render him incapable of normal functioning or (ii) any device which is powered by electrical charging units, such as batteries, and which, upon contact with a human or clothing worn by a human, can send out current capable of disrupting the person’s nervous system in such a manner as to render him incapable of normal functioning[.]”

720 ILCS 5/24-1(a)(10).

The Second Amendment

The second amendment to the United States Constitution provides,

“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.”

U.S. Const., amend. II.

A Brief History Before Aguilar

In District of Columbia v. Heller, 554 U.S. 570 (2008), and McDonald v. City of Chicago, 561 U.S. 742 (2010), the Supreme Court of the United States held that the second amendment secures for individuals the right to keep and bear arms and that, through the fourteenth amendment to the United States Constitution (U.S. Const., amend. XIV), this right is fully applicable to the states.

Then came Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012) and People v. Aguilar, 2013 IL 112116 (holding the provision of the aggravated unlawful use of a weapon statute that categorically prohibited the possession and use of any operable firearm for self-defense outside the home violated the second amendment).

See also Mosley, 2015 IL 115872 (holding unconstitutional under the second amendment the portion of the aggravated unlawful use of a weapon statute that criminalized the possession of an uncased, loaded firearm on a public way).

In determining whether a statutory provision violates the second amendment we first consider whether the provision imposes a burden on conduct that falls within the scope of the amendment. People v. Chairez, 2018 IL 121417, ¶ 21.

Second Step Analysis

If it does not, our analysis comes to an end. 

Otherwise, we move to the second step of the inquiry, in which we must determine and apply the appropriate level of constitutional scrutiny.

In this case, the State concedes that stun guns and tasers are bearable arms that fall within the protection afforded by the second amendment. We agree. In Heller, 554 U.S. at 582, the Supreme Court rejected the idea that the second amendment extends only to “those arms in existence in the 18th century.” Instead, “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.”

Heller defined “bearable arms”: Stun guns and tasers may be taken into one’s hands and used both for defense or “to cast at or strike another.” Clearly, stun guns and tasers are bearable arms within the meaning of the second amendment. People v. Yanna, 824 N.W.2d 241, 244 (Mich. Ct. App. 2012).

Accordingly, the State concedes that stun guns and tasers are bearable arms that fall within the scope of the second amendment.

But The Section Has A Conceal & Carry Exception

Subparagraph (iv) of section 24-1(a)(4) excludes from the offense of UUW only those weapons that are carried or possessed “in accordance” with the Carry Act by a person who has been issued a concealed carry license.

To be “in accordance” with a statute means to be in agreement or conformance with that law.

In our view, the most natural reading of the requirement that weapons be carried or possessed “in accordance” with the Carry Act is that the weapons, themselves, are of the type for which a valid concealed carry license may be issued under the Carry Act.

Indeed, any other reading would lead to absurd results.

Under the State’s reading of the statute, as long as a person has a concealed carry license for a handgun, that person may carry any other weapon, including a rifle or shotgun, and still be acting “in accordance” with the Carry Act, even though the Carry Act is specifically limited to handguns and does not allow for the concealed carry of rifles or shotguns.

We do not think the State’s interpretation is what the legislature intended.

You Can’t Get A Conceal & Carry License For A Stun Gun

Our conclusion that stun guns and tasers cannot be carried or possessed “in accordance” with the Carry Act because a concealed carry license cannot be issued for those weapons is further supported by section 24-2(a-5) of the UUW statute.

This provision states that section 24-1(a)(4) of the UUW statute does not “apply to or affect any person carrying a concealed pistol, revolver, or handgun and the person has been issued a currently valid license under the Firearm Concealed Carry Act at the time of the commission of the offense.” 720 ILCS 5/24-2(a-5).

When read together with section 24-1(a)(4), section 24-2(a-5) makes clear that only those weapons that can be licensed under the Carry Act are meant to be excluded from the reach of the UUW statute.

Holding

Given the foregoing, we reject the State’s argument that section 24-1(a)(4) is merely a regulation of stun guns and tasers. Rather, that provision sets forth a comprehensive ban that categorically prohibits possession and carriage of stun guns and tasers in public.

Thus, that provision necessarily cannot stand.

Accordingly, we hold the portion of section 24-1(a)(4) that prohibits the carriage or possession of stun guns and tasers is facially unconstitutional under the second amendment.

See Also

• Episode 387 – People v. Holmes, 2017 IL 120407 (July)(Does Aguilar Mean Stops Based On Seeing A Gun Are Unconstitutional?)
• Episode 457 – People v. Chairez, 2018 IL 121417 (February) (possessing a firearm within 1000 feet of a public park in violation of section 24-1(a)(4), (c)(1.5) of the UUW statute is facially unconstitutional)
• Episode 512 – People v. Green, 2018 IL App (1st) 143874 (June) (Gun Laws Banning Firearms 1,000 Feet From Protected Places Are Unconstitutional) 
• Episode 513 – People v. Bell, 2018 IL App (1st) 153373 (June) (Gun Laws Banning Firearms In Protected Places Are 100% Constitutional)
• Episode 524 – In re N.G., 2018 IL 121939 (August) (Illinois Supreme Court Admits They Got McFadden Wrong Proceed To Vacate Those AUUW’s)
• Episode 060 – People v. Mosley, 2015 IL 115872 (February) (Aggravated Unlawful Use of a Weapon – 720 ILCS 5/24-1.6 Revisited by Illinois Supreme Court)
• Episode 008 – People v. Gayfied, 2014 IL App (4th) 120216-B (July) (only some districts support the extension of bans under AUUW)