Illinois Court Strikes Down School Zone Gun Ban as Unconstitutional

In People 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 moved into and out of a van. A teacher, Dan Svoboda, noticed him and notified an assistant principle. The principle approached green and and asked if he was a police officer. Green said no, that he was a security guard. Svoboda 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 floorboards of the passenger seat.

Green was convicted of unlawful use of a weapon (UUW), 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 struck down the UUW law as unconstitutional, in Moore. Green was convicted of UUW within 1,000 feet of a school, a separate law.

Another case, Chairez, was pending while Green appealed. In Chairez, the Supreme Court of Illinois found that a statute banning firearms within 1,000 feet of a park was unconstitutional.  Citing Chairez, the Illinois appellate court 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 goes 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 applied to the bans of guns within a 1,000 foot of a park or a school apply equally to the clearly unconstitutional Federal Gun Free School Zone ban enacted first in 1990, then again in 1995 with minor modifications, when the first 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 the federal government did not have the power to enact it under the Commerce Clause.

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 the swing vote, Justice Kennedy. Ruth Bader Ginsberg is showing her years. Rumors of retirement float around Justice Kennedy. A replacement of either with an originalist and textualist 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.

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