The thousand-foot rule

Recently the Illinois Supreme Court issued a seminal ruling examining the constitutionality of the Illinois statute addressing the crime of unlawful use of weapons within 1,000 feet of a public park. Such a violation is subject to an enhanced charge as a class 3 felony. 720 ILCS 5/24-1(a)(4), (c)(1.5). This section in the unlawful use of a weapon (UUW) law was successfully challenged as an illegal intrusion on the right to bear arms, as guaranteed by the Second Amendment of the U.S. Constitution. People v. Chairez, 2018 IL 121417, February 1, 2018.

The Court examined a recent line of cases from the U.S. Supreme Court beginning with District of Columbia v. Heller, 554 U.S. 570, 592 (2008), that recognized a guaranteed individual right to possess and carry weapons in case of confrontation based on the Second Amendment. Heller cautioned that the right is not unlimited. Id. at 626. Heller was quickly followed by the Court revisiting the topic and announcing that the Second Amendment’s guarantee of the right to bear arms was applicable to the states through the Fourteenth Amendment. McDonald v. City of Chicago, 561 U.S. 742, 750 (2010). The Court pointed out that the Seventh Circuit enhanced and broadened Heller and McDonald rulings by invalidating other sections of the UUW statute that were unconstitutional since they prohibited carrying ready-to-use firearms outside of a person’s home. Moore v. Madigan, 702 F.3d 933, 942 (7th Cir. 2012). Ultimately, the Court recognized that Chicago has over 600 parks, and applying the 1,000-foot restriction zone would virtually preclude a person from driving within the city of Chicago while in possession of a firearm. Chairez, 2018 IL 121417, ¶ 55.

The Illinois Supreme Court addressed the defendant’s constitutional challenge with a two part test. The first part asks the question if the restriction in the law is within the historical protection of the Second Amendment at the time it was ratified. Clearly the 1,000-foot rule is an ambiguous restriction. In such cases the court applies a “heightened means-ends scrutiny” test to consider the government’s justification for the restriction of the right to keep and bear arms. Chairez, 2018 IL 121417, ¶ 21.

The court then examined a series of cases which held limitations placed upon Second Amendment rights as unconstitutional: Moore, at 942 found unconstitutional a prohibition upon carrying a ready-to-use firearm outside a person’s home; People v. Aguilar, 2013 IL 112116, ¶ 21, found unconstitutional a prohibition on carrying a firearm on one’s person or in any vehicle outside the home uncased, loaded, and immediately accessible; People v. Mosley, 2015 IL 115872 ¶ 25, extended the Aguilar protection to carrying a loaded weapon in the public way and stated the Second Amendment protects an individual’s right to carry a ready-to-use gun outside the home with certain restrictions.

The Court applied recent cases to the challenged UUW law which prohibits possessing a firearm within 1,000 feet of a public park, the Court considered the State’s argument that the restriction was not in violation of the Second Amendment because it was merely following a statement in Heller, 554 U.S. 626. Laws forbidding the carrying of firearms in sensitive places such as schools and government buildings do not violate the Second Amendment rights of those prosecuted.

Notwithstanding the obvious answer to the first part that the 1,000-foot restriction is unconstitutional, the Court continued to the second part—making a determination of the level of scrutiny to be used in the examination of the challenged law. The Court dismissed the rational basis test and adopted a heightened level of scrutiny test. The State had argued for an intermediate scrutiny test to uphold the statute’s ban on possessing a firearm within 1,000 feet of a public park to further an important government objective in preventing harm to children and other vulnerable populations. Chairez, 2018 IL 121417, ¶ 34. The Court settled on a hybrid test stating that, Mosley and Aguilar asserted that the argument is not strict versus intermediate scrutiny but rather how rigorously to apply intermediate scrutiny, to Second Amendment cases. This approach allows this Court to evaluate the restriction the government has chosen to enact and compare with the public-benefits the restriction seeks to achieve.

The Court preferred a final analysis to determine the breadth of the law and the severity of its burden on the Second Amendment. The State insisted that the core protection of the Second Amendment is “in defense of hearth and home”. The statute is not a ban on carrying arms for self-defense in public. In discarding this test as misplaced, the Court stated that the 1,000-foot restriction not only directly implicates the core right to self-defense by banning possession of firearms in public, but does so in a severe manner that covers a vast number of areas where individuals enjoy second amendment rights. Chairez, 2018 IL 121417, ¶ 48.

The Court referred to the prohibition as one that does not provide an exception for law-abiding individuals. Chairez, 2018 IL 121417, ¶ 49. In satisfying an elevated intermediate scrutiny test, the State failed to establish a close fit between the 1,000-foot firearm restriction around a public park and the actual public interest it serves. The State cannot assert that guns are dangerous and it has a duty to protect children, but must rather provide evidentiary support for its claims that the 1,000-foot prohibition would reduce the risks it identifies. Chairez, 2018 IL 121417, ¶ 54.

The statute challenged in this litigation has been amended to allow for some exceptions to carrying firearms within 1,000 feet of a school. Concealed carry is one such exception.

The UUW statute contains several other sections with the 1,000-foot prohibition that the Supreme Court did not address. The Court relied on its interpretation of the rules of statutory construction that allows it to sever the challenged section alone. The Court determined that the invalid section dealing with the 1,000-foot rule and public parks was not inseparably connected to the remaining portions of the statute.

This UUW statute will most like be revisited because the 1,000-foot provision continues to apply to “public transportation facility” that includes in its definition bus stops. Another section applies the 1,000-foot rule to residential property owned, operated or managed by a public housing agency. How does a person walking, driving, riding a bike, etc. know where such properties are located? Or worse, where 1,000 feet begins in relation to said property.

Justice Karmeier said it best: “Innocent behavior could swiftly be transformed into culpable conduct if an individual unknowingly crosses into a firearm restriction zone.” One of the things that make Chicago great is its parks and schools, laws that communalize closeness cause confusion and traps for the innocent and unknowing. I have often wondered how 1,000 feet would be measured. 