New Laws & Cases of Interest

Federal Court Holds Chicago Gun Ban Unconstitutional

Illinois Association of Firearm Realtailers v. Chicago (US Dist. Ct NDIL 10C04184)

Federal District Court Judge Chang held the Chicago City Ordinance banning the legal sale or transfer of guns and firearms (including gifts within families) and the Chicago Zoning and Land Use Ordiance outlawing the use of property for sale of guns and firearms unconstitutional.  The opinion states:

"Three Chicago residents and an association of Illinois firearms dealers brought this suit against the City of Chicago (Mayor Rahm Emanuel is sued in his official capacity, which is the same as suing the City), challenging the constitutionality of City ordinances that ban virtually all sales and transfers of firearms inside the City’s limits. R. 80, Second Am. Compl. The ban covers federally licensed firearms dealers; even validly licensed dealers cannot sell firearms in Chicago. The ban covers gifts amongst family members; only through inheritance can someone transfer a firearm to a family member. Chicago does all this in the name of reducing gun violence. That is one of the fundamental duties of government: to protect its citizens. The stark reality facing the City each year is thousands of shooting victims and hundreds of murders committed with a gun. But on the other side of this case is another feature of government: certain fundamental rights are protected by the Constitution, put outside government’s reach, including the right to keep and bear arms for self-defense under the Second Amendment. This right must also include the right to acquire a firearm, although that acquisition right is far from absolute: there are many long-standing restrictions on who may acquire firearms (for examples, felons and the mentally ill have long been banned) and there are many restrictions on the sales of arms (for example, licensing requirements for commercial sales). But Chicago’s ordinance goes too far in outright banning legal buyers and legal dealers from engaging in lawful acquisitions and lawful sales of firearms, and at the same time the evidence does not support that the complete ban sufficiently furthers the purposes that the ordinance tries to serve. For the specific reasons explained later in this opinion, the ordinances are declared unconstitutional."

The court repeated the case law explaining citizens Second Amendment rights. "In District of Columbia v. Heller, the Supreme Court concluded that the Second Amendment codifies a preexisting “individual right to possess and carry weapons in case of confrontation.” 554 U.S. 570, 592 (2008). Heller struck down the District of Columbia’s prohibition on the possession of usable handguns in the home because the law banned “the quintessential self-defense weapon” in the place where the “need for defense of self, family, and property is most acute.” Id. at 628-29, 635."  "Two years later, in McDonald v. City of Chicago, the Supreme Court held that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment right to possess a handgun in the home for self-defense against state and local governments. 130 S. Ct. at 3050."  In Ezell v. City of Chicago, 651 F.3d 684, the plaintiff's challenged the City of Chicago ordinance requiring one hour of firing range training as a prerequisite to lawful gun and firearm ownership while simultaneously prohibiting virtually all firing ranges from operating in the City. Id. at 689-90.  After reviewing the law and the undisputed facts the Court held "City has not demonstrated that allowing gun sales and transfers within city limits creates such genuine and serious risks to public safety that flatly prohibiting them is justified. If the City is concerned about reducing criminal access to firearms, either through legitimate retail transactions or via thefts from gun stores, it may enact more appropriately tailored measures."

The entire opinion is thirty pages long and contains extensive legal reasoning.  It is well worth reading.

Concealed Carry Law & Permit Regulations Take Effect

New Law and Regulations

In July of last year as a result of a Federal Appellate Court decision (Moore v. Madigan, 702 F.3d 933 (7th Cir., 2012)) Illinois was forced to pass the last concealed carry law in the nation (Public Act 98-63, 430 ILCS 66).  Now law-abiding citizens in all 50 states in the nation have the right to carry firearms concealed on their persons for the purpose of personal protection and self-defense.  After a long and drawn out process the Illinois State Police have finally implemented the application process.  The proposed rules were published October 11, 2013.  The State Police website for information, instruction and concealed carry permit applications sets forth the eligibility requirements.  To be eligible to obtain a concealed carry permit an Illinois resident must:

• Be at least 21 years old;
• Have a valid Firearm Owner’s Identification card;
• Not have been convicted or found guilty of a misdemeanor involving the threat of physical force or violence to any person within the past 5 years;
• Not have 2 or more violations related to driving while under the influence of alcohol, other drugs, intoxicating compounds within the past 5 years;
• Not be subject to a pending arrest warrant, prosecution or proceeding for an offense or action that could lead to disqualification to own or possess a firearm; and
• Not have been in a residential or court-ordered treatment for alcoholism, alcohol detoxification, or drug treatment within the past 5 years.

Persons who meet the above criteria are then subjected to a review by law enforcement agencies that may still object to the issuance of a permit. (Section 15)

Prior to applying the Illinois State Police website states that the person should have the following:

• 16 hours of Concealed Carry firearms training provided by an ISP approved Instructor.
• Electronic Copy of my training certificate(s). You will be required to upload your electronic certificate during the application process.
• An Illinois Digital I.D.
• A Valid Driver’s License or State Identification card.
• A valid FOID card.
• A head and shoulder electronic photograph taken within the last 30 days.
• Be able to provide the last ten years of residency.
• Fingerprints – Electronic fingerprints will expedite your application! Specify to the Live Scan vendor that your fingerprint application is for the Concealed Carry application (ORI = IL920707Z, Purpose Code = CCW).

NOTE: Applicants will be assigned a transaction control number (TCN) at the time of fingerprinting and will be required to retain that TCN to complete the application.

• $150.00 payable with a credit card or electronic check.

For more information see and the Illinois State Police’s website for concealed carry applications.

New Traffic & Other Laws Take Effect January 1, 2014

New Speed Limit LAW

On rural, four-lane highways, Illinois Department of Transportation crews will be installing signs moving the top speed limit from 65 miles per hour to 70 mph.  However the police recommend that you continue to drive the posted speed limit until the new signs are posted.

Hands free Cell Phones

The police will be cracking down on motorists who do not comply with the new law requiring use of hands free cell phones.  The law prohibits the use of a mobile phone where (1) it requires using at least one hand to hold the phone (2) dialing or answering the phone by using more than a single button (3) or reaching for the device so as be no longer seated and belted.

Medical marijuana

Illinois has become the 20th state to legalize the use of marijuana for medical purposes on January 1, 2014 however that doesn't mean that the program will begin soon.  The State must go through the lengthy process of making rules to regulate the law and set out how the program will work.  The new law establishes tweenty-two growing centers where the pot will be grown.  The law calls for the actual sales through 60 dispensaries located throughout the state.

To qualify, users must prove they have one of about three dozen ailments in order to receive a card from state health regulators.  The list of conditions for which medical marijuana is approved is lengthy and appears below this article.

The fact that the new law will make marijuana use legal for properly registered individuals does not mean that they can drive their vehicles while they are impaired from the use of marijuana, although it does remove such registered persons from the automatic conviction provisions that apply to drivers with any amount of marijuana in their system regardless of impairment (625 ILCS 5/11-501(a)(6)).  I predict that this will lead to a constitutional challenge of this provision on an equal protection basis.  See Love v. State, 517 S.E.2d 53, 271 Ga. 398 (Ga., 1999)

The new law does not allow police officers to demand field sobriety tests of registered individuals simply based upon their status as being registered, but requires the officer to have "an independent, cannabis-related factual basis giving reasonable suspicion that the person is driving under the influence of cannabis." (625 ILCS 5/11-501.2(a-5)).  The purpose of the field sobriety tests is to determine the effect of "the use of cannabis on a person's capacity to think and act with ordinary care". (625 ILCS 5/11-501.2(a-5))

The new law provides that if a person who is registered as a medical marijuana user under the act refuses to submit to field sobriety tests or fails those tests their drivers license may be suspended or revoked by the Secretary of State.

The law also makes it a crime to use or possess "medical marijuana" in a motor vehicle "upon a highway in this State except in a sealed, tamper-evident medical cannabis container." (625 ILCS 5/11-502.1)  A violation of this section is a Class A misdemeanor and subject the violator to the loss of their medical cannabis card or medical cannabis caregiver status for up to two years.

A PDF file of the complete legislation as enacted may be downloaded here.

Conditions for which a medical marijuana card may be issued under the new law:

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