by James G. Wargo (Spring 2018)
The Illinois Supreme Court unanimously held that the State’s law prohibiting a firearm within 1,000 feet of a public park was unconstitutional in the recent case of People v. Chairez, 2018 IL 121417. The court concluded that the firearms prohibition constituted a “severe burden” on the right of self-defense recognized under the Second Amendment. In declaring the statute unconstitutional, the court concluded that the State failed to establish a strong public-interest justification and a close fit to that end.
On April 24, 2013, defendant Julio Chairez pled guilty to possessing a firearm within 1,000 feet of a public park in Aurora, which is a direct violation of Section 24-1(c)(1.5) of the unlawful use of a weapon (“UUW”) statute under the Illinois Criminal Code. (720 ILCS 5/24-1 (c) (1.5)). On November 5, 2015, Chairez filed a petition to vacate his conviction on the grounds that the UUW statute was unconstitutional under the Second Amendment. Chairez argued that the prohibition against carrying a firearm within 1,000 feet of so many locations – including a school, public housing, a public park, a courthouse, and a public transportation facility — effectively barred a person from carrying a firearm in public.
The circuit court judge declared Section 24-1(c)(1.5) of the UUW statute unconstitutional. The judge reasoned that the “thousand-foot language” in the statute amounted to a “near comprehensive ban” that would have the practical effect of prohibiting a person from leaving his house with a “licensed firearm because he would constantly be in jeopardy of accidently and unknowingly entering within a thousand feet of a school, public park, public transportation facility” or public housing. The State filed an appeal from the court’s ruling directly to the Illinois Supreme Court.
On appeal, the Illinois Supreme Court agreed that the prohibition against possessing a firearm within 1,000 feet of a public park was facially unconstitutional. However, the court only affirmed the public park prohibition, noting that Chairez lacked standing to challenge the constitutionality of the offenses for which he was not charged. In other words, he could not challenge the other restrictions in the UUW statute that prohibited the possession of a firearm on a public way.
The court was guided in its analysis by the United States Supreme Court’s decision in District of Columbia v. Heller, 554 U.S. 570 (2008). Specifically, the Court in Heller held that the Second Amendment guarantees the “individual right to possess and carry weapons in case of confrontation.” However, the Supreme Court cautioned that even though the Second Amendment guarantees the right to bear arms, that right is “not unlimited” and it does not confer a right “to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” The Court cited several examples of lawful regulations, including “longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”
To decide the case, the Illinois Supreme Court applied the two-part approach adopted in Wilson v. County of Cook, 2012 IL 112026. Under the first step, the court determines whether the challenged statute imposes a burden on conduct that fell “within the scope of the Second Amendment’s protection at the time of ratification.” If not, then the “regulated activity” is unprotected and is not subject to further review. However, if the “historical evidence is inconclusive or suggests that the regulated activity is not categorically unprotected,” the court proceeds to the second step of the inquiry: applying “heightened means-ends scrutiny.” Under this standard, the court considers “the strength of the government’s justification for restricting or regulating the exercise” of Second Amendment rights.
In regard to the first step, the State argued that the Second Amendment does not protect possession of a firearm within 1,000 feet of a public park. The prohibition is a presumptively valid restriction because public parks constitute a “sensitive place” similar to a school or governmental building. The court declined to decide whether the restriction fell outside the protection of the Second Amendment, focusing instead on the second step. Specifically, the court agreed with other courts that assume some level of scrutiny must be applied to even a “presumptively lawful” regulation under Heller.
Upon moving to step two, the court cited the United States Court of Appeals for the Seventh Circuit, which noted that any severe burden on the right of an “armed self-defense” will require “an extremely strong public-interest justification and a close fit between the government’s means and its ends.” Ezell v. City of Chicago, 651 F.3d 684 (7th Cir. 2011). According to the Illinois Supreme Court, the UUW statute creates a “severe burden,” because the right of self-defense is close to the core of the Second Amendment’s protections. Therefore, the State needed to establish a close connection between the prohibition around public parks and the actual public interest served by the law.
The court rejected the State’s arguments that a compelling interest in public safety was “served by reducing firearm possession within 1,000 feet of a public park,” thereby keeping children and others safe. The State provided no evidence to support its claims that banning guns near a public park would reduce that danger. Accordingly, the court held that the law prohibiting possession of a firearm within 1,000 feet of a public park was facially unconstitutional.
Finally, the court found the unconstitutional ban on firearms near parks severable from the remaining provisions of the UUW statute. Therefore, the remaining 1,000-foot firearm restriction zones involving schools, courthouses, public transportation facilities, and public housing remain enforceable.
As of the publication date, the decision in Chairez has not been released for publication in permanent law reports. Therefore, the opinion is subject to revision or withdrawal.