Illinois Court Strikes Down School Zone Gun Ban as Unconstitutional

In People of Illinois vs Green, an Illinois appelate court struck down a state law banning guns within 1,000 feet of a school. The court relied on a previous decision that struck down a ban on guns within 1,000 feet of a park.

Quovadis Green was observed across the street from a school. He was wearing his security guard uniform and had a holstered pistol on his belt. He got into and out of a van. A teacher, Dan Svoboda, notified an assistant principle. The principal approached Green and and asked if he was a police officer. Green said no, he was a security guard. Svoboda then called 911 and reported a “man with a gun.”

Green moved the van to another side of the school. When the police approached him they found he had an empty holster and an unloaded GLOCK pistol in a cooler. A magazine with 16 rounds of ammunition was found on the floorboard of the van.

Green was convicted of unlawful use of a weapon, presumably because the magazine was not in a container. Green possessed a valid Illinois Firearms Owner Identification Card. Firearms are allowed to be transported in Illinois if they are unloaded and in a container. The Illinois Supreme Court had previously struck down the unlawful use of a firearm law as unconstitutional. Green was convicted of unlawful use of a firearm within 1,000 feet of a school, a separate law.

Another case, People of Illinois vs Chairez, was pending while Green appealed. In Chairez, the Illinois Supreme Court found that a statute banning firearms within 1,000 feet of a park was unconstitutional. Citing Chairez, the Illinois appellate court then ruled that the ban on guns within 1,000 feet of a school was also unconstitutional under the Second Amendment.

From the decision:

¶ 23 In arguing to the contrary, the State cites Heller, in which the Supreme Court stated that nothing in its opinion “should be taken to cast doubt on *** laws forbidding the carrying of firearms in sensitive places such as schools and government buildings,” which it described as “presumptively lawful.” District of Columbia v. Heller, 554 U.S. 570, 626-27, n.26 (2008). But the State conflates regulations banning the carriage of weapons in certain sensitive places (e.g., schools and government buildings) with subsection (c)(1.5), which bans carriage near those places. This distinction is significant. A ban on firearms in specific places imposes less of a burden on the right to bear arms than one that extends to an area of approximately three city blocks around those same places. While a gun owner can simply choose not to enter locations deemed sensitive, it is manifestly more difficult to avoid areas within 1000 feet of those locations, particularly given that there is no notification where the restriction zone begins or ends. Indeed, the ban at issue here, just as the ban 1000 feet around public parks at issue in Chairez, effectively operates as a total ban on the carriage of weapons for self-defense outside the home in Chicago. See Chairez, 2018 IL 121417, ¶ 55.3 As such, it runs afoul of Aguilar, in which the supreme court held that the right to carry firearms is particularly important when traveling outside the home. Id. (citing Aguilar, 2013 IL 112116, ¶¶ 19-20).

¶ 24 For these reasons, we conclude that sections 24-1(a)(4), (c)(1.5) and 24-1(a)(10), (c)(1.5), prohibiting possession of a firearm within 1000 feet of a school are facially unconstitutional. We further hold that this portion of the challenged statute is severable from the remaining provisions of the statute. See id ¶ 62

The Court went on to write that laws that ban the carrying of guns in areas precisely adjacent to schools might be constitutional, and would have to be tested in the courts.

The logic the Illinois courts applied to the bans on guns within a 1,000 feet of a park or a school apply equally to the clearly unconstitutional Federal Gun Free School Zone Act of 1990. The federal law was struck down in 1995 by the U.S. Supreme Court in U.S. v. Lopez.

In Lopez, the Court struck down the gun ban on the grounds that Congress did not have the power to enact it under the Commerce Clause.

In 1995 the same law, very slightly modified, was reenacted under strong lobbying by the Clinton administration.

I suspect the 1995 law will eventually come to the attention of the U.S. Supreme Court. Federal prosecutors seem to have been hesitant to charge people under the 1995 law, perhaps for this very reason. The current court has been hesitant to take Second Amendment cases ever since McDonald was heard eight years ago.

President Trump may have an opportunity to change the court from its current make up of four devout leftists, four mostly originalists and textualists, and a swing vote. Ruth Bader Ginsberg is showing her years and rumors of retirement swirl around Justice Kennedy. A replacement of either with an originalist such as Justice Gorsuch could tilt the court back toward the rule of law as it is written.

©2018 by Dean Weingarten: Permission to share is granted when this notice and link are included.

Gun Watch

comments

  1. avatar neiowa says:

    The “assistant principle” obviously had none and a progtard moron. But I’d guess he was a principal.

    Communist Ill takes the lead on gun rights? Who would have thunk it.

    1. avatar Craig in IA says:

      Funny- first thing I though of myself. Guess you’d have to have been educated in IA 40 years ago to know the difference… Today? Not sure, unless homeschooled. 🙂

  2. avatar Illinois_Minion says:

    One down, a gazillion more laws to strike down.

    Constitution does noes not say “Shall not be infringed upon, unless it inconveniences your feelings”

    1. avatar Dave in PTC says:

      Someone on the TTAG blog once wrote:

      “Show us on the teddy bear where freedom touched you.”

      Amazing there was commonsense for once in the court. That assistant principal should get a good spanking.

      1. avatar Scoutino says:

        To make it more ironic, the Czech name ‘Svoboda’ means ‘Freedom’ in English.

  3. avatar LarryinTX says:

    “I suspect the 1995 law will eventually come to the attention of the U.S. Supreme Court.”

    What 1995 law? No “1995 law” was mentioned in the article.

    1. avatar KTR says:

      “The federal law was struck down in 1995 by the U.S. Supreme Court in U.S. v. Lopez.”

      Click the link in the story and it”ll take you right to what you need to read.

      1. avatar Chris Mallory says:

        And it was modified by Congress in 1997.
        Convictions upheld post-Lopez under the revised Gun Free School Zones Act include:

        United States v. Danks (Eighth Circuit 1999)
        United States v. Smith (Sixth Circuit 2005)
        United States v. Dorsey (Ninth Circuit 2005)
        United States v. Nieves-Castaño (First Circuit 2007)
        United States v. Weekes (Third Circuit 2007)
        United States v. Benally (Tenth Circuit 2007)
        United States v. Cruz-Rodriguez (First Circuit 2008)
        Convictions overturned post-Lopez under the revised Gun Free School Zones Act include:

        United States v. Tait (Eleventh Circuit 2000)
        United States v. Haywood (Third Circuit 2002)
        United States v. Guzman-Montanez (First Circuit 2014)

        This is one good reason to have a state issued CDWL. Since then you fit one of the exceptions Congress wrote into the law.

        This was a state case, but I do wonder if the guard’s FOID would count as a license for the Federal law.

        1. avatar Mark N. says:

          Yeah, I don’t know why Dean did not mention the reenactment of the Federal law that avoids the constitutional infirmity of the 1990 law. Kind of important to know.

          Any way, in response to your question about the FOID card, the answer is probably “no” because all Illinoisans are required to have one to purchase or possess firearms, but it is not a concealed carry permit within the meaning of the GFSZA statute. Then again, Illinois is a “shall issue” state.

        2. Thanks for catching the oversight. Fixed it.

        3. avatar Binder says:

          Mark N, did you read the revised law? It basically said that is it now constitutional because The Commerce Clause lets Congress do anything.

  4. avatar Gunner2000 says:

    Boo-F’n-yah!

  5. avatar bobo says:

    color me STUNNED!

    they (The DemRAT run or ruled court) actually made COMMON sense of an existing anti-gun law and came down on the side of the USER???

    What the ACTUAL FUCK!

    the sky is falling

    1. avatar uncommon_sense says:

      While it is quaint to think that the Illinois Appellate Court issued an honorable and just decision because it was the right thing to do, I cannot shake the uneasy feeling that the Illinois Appellate Court issued their decision for some other reason which helps the ruling class.

      In other words I cannot help but believe the Illinois Appellate Court’s decision was based on what was best for the ruling class and just happens to be good for the hoi polloi as well.

      1. avatar California Richard says:

        “We all know that peasant schools with peasant children don’t deserve armed security guards….. But if OUR security guards can’t have guns near schools, then we’ll be unprotected and the proles will have their way with us!”

        https://www.sfgate.com/politics/article/SAN-FRANCISCO-Camp-Pelosi-gears-down-2577483.php

        1. avatar uncommon_sense says:

          And there is the answer!

          Thank you California Richard: I knew there was a reason, I just could not come up with it.

    2. avatar Hannibal says:

      Illinois courts have handed down pro-2nd rulings fairly regularly now. Not because they are pro-2nd, per se, but because Chicago flaunts previous court decisions so blatantly that the court takes offense.

  6. avatar Omer says:

    It was the Illinois court that forced the hand of the legislature, who were afraid of FOID carry open or concealed, to give Illinois shall carry. Even with a typically feckless Democratic governor, they got a bill passed with of Illinois’ version of blue dogs, the rural southern democratic legislators in spite of RINOs a plenty.

  7. avatar former water walker says:

    Shocked and amazed I am…funny but I was in a Homer Glen(Illinois) Big R store last year and they were nasty about enforcing the 1000ft rule. Had to buy a lock box or have a CCL to buy a gun. And quite unfriendly to Cook residents. They are fairly close to me and with the extreme Illinois BS I guess they are again an option. If they’re not idiot’s unaware of the new ruling…they do have some good prices.

    1. avatar Chris Mallory says:

      I am in Kentucky, a local gun store I visit is right across the road from my daughter’s school. The owner has a sign on the door that states that you cannot bring a firearm from your car into the store unless it is cased. He blames the ATF for the sign. He does offer to provide a loaner gun case to anyone that needs one.

    2. They’re like the local bar. They don’t care if you have a fake ID. They’re afraid of the cops busting them and charging them…court costs…lawyer fees…shutting down the business, trying to get a new business license, etc. Once MegaSports required a FOID card just to get in the store. I think it was because some reporter was trying to play “gotcha” with them. i.e. “look how easy it is to get a gun here”.

  8. avatar DDay says:

    Dan Svoboda I hope you fall in a hole and are never heard from again. What a giant POS that guy is.

  9. avatar Gun Owning American says:

    A small bit of common sense for a change.

  10. avatar Mark N. says:

    I assume there will be a contrary opinion in due course from the Ninth Circuit Court of Appeals, the Court that has already held that there is no right to a concealed carry license, despite the fact (conveniently overlooked) that it is illegal to open carry in any urban area both by a specific state statute and by the California GFSZA (which, due to the density of schools in urban areas, makes it literally impossible to carry without entering such a zone to get anywhere in town.) Right now, after oral argument in the Nichols case, the Court is trying to figure out how to hold that the open carry ban of all firearms in urban areas is constitutional. (But even if they overturn the law, it will go en banc to a very liberal and anti-gun panel that will assure the continue viability of the ban.)

    1. avatar Curtis in IL says:

      You’re referring to a Federal Appellate Court.

      This was a state Appellate Court case.

    2. avatar Ed Schrade says:

      There was also a ruling that the 1000 ft. rule violated interstate commerce law because many people traveling thru towns or cities would go thru these 1000 ft. areas. it also violates private property rights of those that reside in these areas. These school superintendents and principals as well as some of the school boards think they are gods and can make any rules they want and create law. I saw a school function that was set up in the middle of the street to simulate an auto accident to encourage safe driving by students. A local officer was in the street observing the event and was smoking a cigarette. the principal told the officer to put out his cigarette because smoking wasn’t allowed on school property or school functions. the officer replied that the school property line was on the other side of the walkway. Principal says you are at a school function, officer says your display is in the middle of a public street and is blocking traffic. Principal walks away. I couldn’t help laughing.

  11. avatar Vic Nighthorse says:

    Commerce clause again. I imagine that there isn’t anything they haven’t tried to use the commerce clause to justify.

    1. avatar tmm says:

      I think that’s called the “Good and Plenty clause” to some folks.

    2. avatar Nick says:

      It was decided decades ago that the commerce clause can cover non-commercial activity that occurs wholly inside a state if the government can draw some ridiculous connection to interstate commerce.

      The case I reference (I don’t recall the name) was a farmer violating the limits on grain production. He was using it for feed, but the government “successfully” argued that it would decrease the amount he bought, meaning it affected insterstate commerce.

      1. avatar Ralph says:

        Wickard v. Filburn, 317 U.S. 111 (1942)

  12. avatar Southern Cross says:

    The 1000 foot rule has to be one of the most stupid rules ever created. While no doubt born of good intentions the avenues for abuse are wider than a 10 lane dual carriageway.

    If I had to avoid being within 1000 feet of a school while driving to and from the range, first it would be a logistical nightmare and second it would take twice to three times the time and distance. Thank heavens the local gun control zealots haven’t thought of this one, yet.

    1. avatar Chris Mallory says:

      Technically the Feds can get you on it. Having a CDWL does exempt you from the Federal law. Or it has so far.

      Shouldn’t be a problem, unless TSA is helping to run a transportation safety checkpoint or you live within 100 miles of the border and you get stopped at a BP checkpoint and your weapon is seen.

      Or I suppose if the locals pulled you over and want to jam you up by referring charges to the Feds. The NRA’s Project Exile.

    2. avatar Ralph says:

      “While no doubt born of good intentions”

      I have no doubt about the Feds intentions, and “good” doesn’t cover it.

  13. avatar GS650G says:

    The thousand foot rule basically makes congested areas gun ban zones.

  14. avatar Joe says:

    My understanding is that uuw was because although he ejected the magazine the pistol still had a round in the chamber. Loaded gun in a car or on your person without a CCW is asking for trouble in Illinois.

    1. avatar CC says:

      No, gun was completely unloaded. Probably why he used the cooler since ejecting a round to go flying somewhere in the car is also a problem. Cooler is a good place to do it.

      His problem was that loaded magazine was not separately “containerized”.

      WE can see what happened, he was not on school grounds nor any intent to be on school grounds. The school employee made it clear he would call the cops and this poor guy was forced to, while sitting in car, un-holster, eject mag, unchamber, retrieve round, containerize gun. Either because of anxiety, lack of time or the complexity he forgot to also containerize loaded mag.

      Any danger was caused by this absurd set of laws.

      1. avatar Binder says:

        Loaded magazine “containerized”. Not separate, could have been in the cooler too. Has been tested in court that the magazine and firearm can be in the same “container”. Putting it in the glove box would have worked too.

  15. avatar RTC says:

    I can’t wait to celebrate RBG taking the “Dirt Nap” …

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