Second Amendment law in Illinois received greater clarity as applied to stun guns and tasers. In People v. Webb, the state’s Supreme Court held as facially unconstitutional a provision of the state’s Unlawful Use of Weapons statute (UUW) (720 ILCS 5/24-1(a)(4) (West 2016)) that made it impossible to bear stun guns and tasers without breaking the law. People v. Webb, 2019 IL 122951.
What’s At Issue
At issue was the interplay between two state laws: section 24-1(a)(4) of the UUW statute and the Firearm Concealed Carry Act, (Concealed Carry Act) (430 ILCS 66/1 et seq. (West 2016). The UUW provision as written prohibited the possession of a stun gun or taser, among other firearms, unless the person carrying such weapon had been issued a valid license under the Concealed Carry Act. The Concealed Carry Act provides the conditions that must be met in order for the state to issue a firearm license to an applicant. The Court noted that the Concealed Carry Act defines the term handgun and that within that definition, the Act specifically excludes stun guns and tasers. People v. Webb, 2019 IL 122951, ¶ 15.
The Analysis
In its analysis, the Court first agreed with the State that stun guns and tasers are afforded second amendment protection. The Court acknowledged the seminal Heller case in which the U.S. Supreme Court defined the second amendment’s phrase “bearable arms.” District of Columbia v. Heller, 554 U.S. 570 (2008). The Court then agreed with the Michigan case People v. Yanna that “stun guns and tasers are bearable arms within the meaning of the second amendment.” People v. Webb, 2019 IL 122951, ¶ 11 citing People v. Yanna, 824 N.W.2d 241, 244 (Mich. Ct. App. 2012). The Court explained that stun guns and tasers are consistent with Heller’s definition of bearable arms in that they, “…may be taken into one’s hands and used both for defense or ‘to cast at or strike another.’” Id.
The Court rejected the State’s argument that the UUW provision in contention is merely regulatory and not a complete ban on such instruments. The Court provided a two-part explanation. First, because the Concealed Carry Act’s definition of handgun specifically excludes a stun gun or taser, a concealed carry license cannot be issued for those particular weapons. Since a license cannot be issued, then a person carrying either of those instruments would invariably commit the offense of unlawful use of a weapon. Id. at ¶ 18. The consequence of this is an unconstitutional prohibition of bearing a stun gun or taser.
The Court also noted the exemption provision (720 ILCS 24-2(a-5)) to the UUW statute. The exemption provision states that the UUW statute does not “apply to…any person carrying a concealed pistol, revolver, or handgun and the person has been issued a currently valid license” under the Concealed Carry Act. 720 ILCS 24-2(a-5). The Court explained that when the exemption provision and section 24-1(a)(4) are read together, the exemption provision “makes clear that only those weapons that can be licensed under the [Concealed] Carry Act are meant to be excluded from the reach of the UUW statute.” Id. at ¶ 19.
The Court then held that section 24-1(a)(4) “sets forth a comprehensive ban that categorically prohibits possession and carriage of stun guns and tasers in public.” Id. at ¶ 21. As a consequence, the Court held that the part of section 24-1(a)(4) that prohibits possession and carriage of stun guns and tasers was “facially unconstitutional under the second amendment.” Id.
Practical Implications
Looking ahead, individuals wanting to possess or carry a stun gun or taser in Illinois must comply with the Concealed Carry Act and obtain a proper firearm license for such weapons. If they don’t comply, then they could be arrested for violating the UUW statute and not having a valid Firearm Owners Identification Card that is provided through the Concealed Carry Act. Both of these offenses are Class A Misdemeanors carrying a sentence of up to one year in prison and/or a $2500 fine. Violators could also be subject to municipal code violations depending upon where the arrest occurs.
Looking back, for individuals convicted of violating this section of the UUW statute in terms of possessing a stun gun or taser, there is a bright light ahead. Prior to Webb, anyone convicted on this basis could only have this conviction sealed. Because of the Webb holding, such offenders can now file a motion to vacate judgment. Once granted, the conviction becomes a mere arrest and the individual can then petition the court to have this arrest expunged from his/her criminal record. In Illinois, expungement is the better of the two post-conviction relief remedies. Click here to read our blog pose that explains the practical differences between the two.
Summary
The Illinois Supreme Court recognized that stun guns and tasers fall within the protection of the second amendment. Since a portion of section 24-1(a)(4) of the UUW statute prohibited possessing or carrying stun guns or tasers because a firearm license could not be obtained for these, that portion does not comport with the second amendment and is, thus, facially unconstitutional. Therefore, anyone arrested and convicted for committing the offense of unlawful use of a weapon, with that weapon being a stun gun or taser, may motion the court to vacate judgment and then petition the court to expunge the record. Moreover, anyone wishing to possess or carry a stun gun or taser must obtain a firearm license from the state to avoid violating the UUW statute.
Related: Read here Janaan Hashim’s Illinois Bar Journal article on the 2017 expansion of Illinois’ sealing of records law.
Disclaimer: The above is provided for informational purposes only and is not intended to serve as legal advice. Seek legal advice only from an attorney. To contact us click here.
