People v. Burns

In 2011, defendant was convicted under the aggravated unlawful use of a weapon statute (AUUW) (720 ILCS 5/24-1.6(a)(1), (a)(3)(A)) and sentenced to 10 years’ imprisonment. That statute was found to be unconstitutional in 2013 (Aguilar case). The appellate court affirmed defendant’s conviction, finding that, in Aguilar, the Illinois Supreme Court limited its finding of unconstitutionality to the “Class 4 form” of the offense and that the “Class 2 form,” applicable to felons, like defendant, was constitutional and enforceable. The Illinois Supreme Court reversed. A “Class 2 form” of AUUW does not exist. There is only one offense of AUUW based on section 24-1.6(a)(1)(a)(3)(A) and a prior felony conviction is not an element of that offense. A prior felony conviction is a sentencing factor which elevates the offense from a Class 4 felony to a Class 2 felony. On its face, the provision constitutes a flat ban on carrying ready-to-use guns outside the home and amounts to a wholesale ban on the exercise of a personal right that is specifically guaranteed by the U.S. Constitution, as construed by the Supreme Court. Because the prohibition is not limited to a particular subset of persons, such as felons, the statute, as written, is unconstitutional on its face. View "People v. Burns" on Justia Law