Is It Constitutional To Ban Guns From Public Housing?

People v. Cunningham, 2019 IL App (1st) 160709 (March). Episode 611 (Duration 9:18)

Defendant gets 3 years for shooting himself in the leg in a housing project; this UUW version is constitutional.

See Also These Prior Constitutionality Cases Episode 610 - People v. Webb, 2019 IL 122951 (March) (UUW Provision Banning Stun Guns Is Shot Down) Episode  387 – People v. Holmes, 2017 IL 120407 (July) (Can Police Stop You If They See A Gun?) Episode 457 – People v. Chairez, 2018 IL 121417 (February) (possessing a firearm within 1000 feet of a public park in violation of section 24-1(a)(4), (c)(1.5) of the UUW statute is facially unconstitutional) Episode 513 – People v. Bell, 2018 IL App (1st) 153373 (June) (Gun Laws Banning Firearms In Protected Places Are 100% Constitutional-This Was A Park) Episode 512 – People v. Green, 2018 IL App (1st) 143874 (June) (Gun Laws Banning Firearms 1,000 Feet From Protected Places Are Unconstitutional - School Was The Place In Question)  Episode 060 – People v. Mosley, 2015 IL 115872 (February) (Aggravated Unlawful Use of a Weapon – 720 ILCS 5/24-1.6 Revisited by Illinois Supreme Court Nonprobationable Class 4 AUUW Invalidated) Episode 524 – In re N.G., 2018 IL 121939 (August) (Illinois Supreme Court Admits They Got McFadden Wrong Proceed To Vacate Those AUUW’s) Gist

The State charged defendant with unlawful use of a weapon and reckless discharge of a firearm based on defendant having shot himself in the leg.

Charges

The charging instrument stated the State sought to have defendant sentenced as a Class 3 felon because the incident took place in an apartment owned by the Chicago Housing Authority and used as public housing.

UUW Public Housing

Section 24-1(a)(4), (c)(1.5) (in public housing) of the Criminal Code of 2012 (Criminal Code) which reads, in pertinent part, as follows:

“(a) A person commits the offense of unlawful use of weapons when he knowingly: * * * (4) Carries or possesses in any vehicle or concealed on or about his person except when on his land or in his own abode, legal dwelling, or fixed place of business, or on the land or in the legal dwelling of another person as an invitee with that person’s permission, any pistol, revolver, stun gun or taser or other firearm, except that this subsection (a) (4) does not apply to or affect transportation of weapons that meet one of the following conditions:

(i) are broken down in a non-functioning state; or
(ii) are not immediately accessible; or
(iii) are unloaded and enclosed in a case, firearm carrying box, shipping box, or other container by a person who has been issued a currently valid Firearm Owner’s Identification Card; or
(iv) are carried or possessed in accordance with the Firearm Concealed Carry Act by a person who has been issued a currently valid license under the Firearm Concealed Carry Act; or...* * *

(c) Violations in specific places. * * * (1.5) A person who violates subsection 24-1(a)(4) *** in residential property owned, operated, or managed by a public housing agency or leased by a public housing agency as part of a scattered site or mixed-income development *** or on any public way within 1,000 feet of the real property comprising any *** residential property owned, operated, or managed by a public housing agency or leased by a public housing agency as part of a scattered site or mixed-income development commits a Class 3 felony.”

720 ILCS 5/24-1(a)(4), (c)(1.5).

Facts

Defendant was messing around with a gun at his buddies house.

The responsible lady of the house she lived in her apartment with her boyfriend and daughter. When She arrived home on the day defendant was shot, defendant, her boyfriend, and two others were in the apartment. The women saw them running from the area of two back bedrooms.

Defendant exclaimed, “I’m shot, I’m shot.”

When she returned to the living room she saw defendant lying on the floor bleeding from his right leg. She then took the gun from her boyfriend and put it in a different apartment in the building.

When the police got there she was evasive at first but eventually retrieved the gun and gave it to police.

Did Defendant Live There?

At the time defendant was shot he had been staying in her apartment for about one week, but defendant did not pay any rent or bills.

Defendant Confesses

Once at the hospital defendant apologized to the Sergeant for not telling him the truth earlier and stated he (defendant) had shot himself.

Guilty

The court found defendant guilty of UUW and reckless discharge of a firearm and sentenced him to three years’ imprisonment for UUW and a concurrent term of two years’ imprisonment for reckless discharge.

Issue

Defendant argues Chairez demonstrates that section 24-1(a)(4), (c)(1.5) (in public housing) is facially unconstitutional because Chairez establishes that to survive a constitutional challenge the State “must make a strong showing of a substantial justification for subsection (c)(1.5), as well as a close fit between a law that bans firearms in public housing residences and its end: the safety of those residents and invitees.”

The Chairez Standard

The Chairez court stated that answering the question of whether a portion of the UUW statute is constitutional “involves a two-part approach.” Id. ¶ 21.

First, we conduct a textual and historical analysis of the second amendment to determine whether the challenged law imposes a burden on conduct that was understood to be within the scope of the second amendment’s protection at the time of ratification. If the conduct falls outside of the scope of the second amendment, then the regulated activity is categorically unprotected, and the law is not subject to further second amendment review.

Second, if the historical evidence is inconclusive or suggests that the regulated activity is not categorically unprotected, then we apply the appropriate level of heightened means-ends scrutiny and consider the strength of the government’s justification for restricting or regulating the exercise of second amendment rights. 

Clearly Some Bans & Restrictions Are Proper

The scope of the second amendment’s protection is not unlimited.

Some “presumptively lawful regulatory measures” (Heller, 554 U.S. at 627 n 26) include “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” (Heller, 554 U.S. at 626-27).

But Illinois courts will apply the appropriate level of heightened means-ends scrutiny and consider the strength of the government’s justification for restricting or regulating the exercise of second amendment rights under the second step, even where a “presumptively lawful regulation” is involved.

Under this approach, the second step of the inquiry requires the court to examine the strength of the government’s justifications for restricting certain firearm activity by evaluating the restriction the government has chosen to enact and the public-benefits ends it seeks to achieve. 

A severe burden on the core Second Amendment right of armed self-defense will require an extremely strong public-interest justification and a close fit between the government’s means and its end. However, laws restricting activity lying closer to the margins of the Second Amendment right, laws that merely regulate rather than restrict, and modest burdens on the right may be more easily justified.

Thus, the heightened means-end inquiry is a sliding scale that is neither fixed nor static.

Thus, a substantial curtailment of the right of armed self-defense requires a greater showing of justification than merely that the public might benefit on balance from such a curtailment. Conversely, when a state bans guns merely in particular places, such as public schools, a person can preserve an undiminished right of self-defense by not entering those places; since that’s a lesser burden, the state doesn’t need to prove so strong a need.

The 720 ILCS 5/24-1(a)(4) Exception

Section 24-1(a)(4) provides an exception for persons in their “own abode [or] legal dwelling.” 720 ILCS 5/24- 1(a)(4).

Therefore, the statute at issue in this case could not be applied to a resident of public housing. On the face of section 24-1(a)(4), (c)(1.5), residents of public housing are not prohibited from carrying or possessing a firearm “in residential property owned *** by a public housing agency.” 720 ILCS 5/24-1(a)(4), (c)(1.5).

Residents of public housing, to whom the statute at issue does not apply. As such this case is more akin to a ban on guns merely in particular places. It is a specific ban on the carriage of guns by nonresidents in public housing.

Strong State Interest

The State argues the provision at issue “is substantially related to the important government interest in preventing harm to families, children, seniors, persons with disabilities and other vulnerable populations who reside in public housing.” The State argues that, like the public park in Bell, the law only prohibits firearms “in” a public housing building and, like public parks, public housing buildings are areas where large numbers of people, including children, congregate, and for all the same reasons and the same rationale, the prohibition on possessing firearms in Chicago Housing Authority (CHA) buildings is a reasonable measure to secure public safety.

Not A Categorical Ban

The statutory provision at issue in this case does impose some burden on visitors’ to public housing second amendment rights. However, this burden is not a categorical ban on the carrying of firearms in public and therefore a “more rigorous showing” under heightened.

There is more than a “rational” fit between “protecting the safety of residents, guests, and others who are present from time to time at housing facilities” and limiting the number of guns on public housing properties, thereby limiting potential violence.

Holding

The law and the State’s justification for the provision at issue are not so unreasonable as to fail intermediate scrutiny.

The state’s aim is to protect vulnerable populations in public housing facilities and it has done so with a modest and easily avoidable burden on its citizens’ second amendment rights. We hold the statutory provision at issue in this case survives the heightened intermediate scrutiny that is applicable in this instance and, thus, defendant’s facial challenge to the statute fails.

On A Side Note...

Here, the evidence adduced at trial is insufficient to prove defendant acted recklessly beyond a reasonable doubt.

The reckless discharge conviction is vacated.

The record contains no facts from which to reasonably infer defendant consciously disregarded a substantial and unjustifiable risk to the bodily safety of an individual. 

See Also Episode 531 - People v. Peel, 2018 IL App (4th) 160100 (August) (Another Idiot With A Gun – Reckless Discharge?) Episode 313 - People v. Grant, 2017 IL App (1st) 142956 (February) (Reckless Discharge Requires Endangering The Bodily Safety Of “An Individual”) Episode 215 - People v. Olivieri, 2016 IL App (1st) 152137 (August) (Sympathetic Nervous System Reaction Wins The Day In This Gun Case) Episode 066 - People v. Moreno, 2015 IL App (3d) 130119 (March) (What’s so wrong about about a little firearm discharging during the holidays?)