March 28, 2019

Illinois Supreme Court Finds Statute Regulating Stun Guns and Tasers Unconstitutional

A Portion of the State's Unlawful Use of Weapons Statute Violates Second Amendment
Holland & Knight Alert
Lisa M. Kpor | Barbara A. Adams

HIGHLIGHTS:

  • In People v. Webb, the Illinois Supreme Court found that an Illinois statute prohibiting the carriage or possession of a stun gun or taser in public violated the Second Amendment.
  • The Court applied a two-part test to the constitutional inquiry by first considering whether the statute imposed a burden on conduct falling within the scope of the Second Amendment and then examining whether the statute created a burden on the exercise of Second Amendment rights as applied to stun guns and tasers.
  • The Court rejected the government's argument that the interplay between the statute and the Illinois Firearm Concealed Carry Act made the provision regulating stun guns and tasers constitutionally permissible.

The Illinois Supreme Court, in an opinion released on March 21, 2019, held in People v. Webb that a portion of the Illinois unlawful use of weapons (UUW) statute that prohibits the carriage or possession of stun guns and tasers was unconstitutional on its face under the Second Amendment of the U.S. Constitution.

Case Background and Trial Court Actions

Two men were charged, in two separate cases, with the unlawful use of weapons. One defendant was charged with violating Section (a)(4) of the UUW statute for carrying a stun gun in his jacket pocket while in his vehicle on a public street. The other defendant was charged with violating the same statute for carrying a stun gun in his backpack in a forest preserve, which is also a public place.

The trial court in DuPage County dismissed both charges and held that "the portion of 720 ILCS 5/24-1(a)(4) relating to the ban on stun guns and tasers constitutes an unconstitutional infringement of the rights of citizens to bear arms under the Second Amendment."

The Illinois Supreme Court's Ruling and Reasoning

The relevant portion of the UUW statute (720 ILCS 5/24-1(a)(4)) prohibits persons from carrying or possessing stun guns and tasers in public places unless such weapons are carried or possessed in accordance with the Illinois Firearm Concealed Carry Act (Carry Act). To determine whether Section (a)(4) violated the Second Amendment, the Court applied a two-part test by first considering whether this provision imposed a burden on conduct protected by the Second Amendment and then determining whether the burden on Second Amendment rights exceeded constitutional limitations.

First, the government conceded that stun guns and tasers are "bearable arms" within the scope of protections afforded by the Second Amendment. The Court noted that any argument to the contrary would have been futile because, under the U.S. Supreme Court's ruling in District of Columbia v. Heller, 554 U.S. 570 (2008), the Second Amendment extends to all instruments that constitute bearable arms, even those that were not in existence at the time of the adoption of the Second Amendment in the 18th century. Thus, Section (a)(4) did burden conduct protected by the Second Amendment.

Second, the government's key argument was that Section (a)(4)'s regulation of stun guns and tasers was not an improper burden on Second Amendment rights because Section (a)(4) had an exception for weapons carried or possessed in accordance with the Carry Act.

The Carry Act allows an individual to obtain a license to carry a "concealed firearm" in certain circumstances. The Carry Act defines a concealed firearm as a loaded or unloaded handgun, but the definition explicitly excludes a stun gun or taser from coverage under the Carry Act. The government argued that a person who was otherwise licensed under the Carry Act to carry a handgun could also carry a concealed stun gun or taser.

The Court rejected this argument, concluding that a stun gun or taser cannot be carried or possessed in accordance with the Carry Act because a concealed carry license cannot be issued for a stun gun or taser. Thus, the exception to Section (a)(4) does not operate as an exception for stun guns and tasers because neither weapon meets the Carry Act's definition of "concealed firearm." As a result, the Court concluded that Section (a)(4) was not simply a regulation of stun guns and tasers. Instead, Section (a)(4) set forth "a comprehensive ban that categorically prohibits possession and carriage of stun guns and tasers in public" in violation of the Second Amendment and found that portion of Section (a)(4) unconstitutional as it affects guns and tasers. The Court affirmed the trial court's judgment and dismissal of the charges against the defendants.

Practical Implications

Some municipal and county codes regulate or ban the possession of stun guns and tasers in public areas. To the extent such ordinances are in conflict with the Illinois Supreme Court's opinion in People v. Webb, they should be reviewed and amended to comply with the court's guidance regarding the Second Amendment.

Holland & Knight attorneys on our Illinois Land Use and Local Government Team are available and ready to assist in the evaluation of any existing regulations and ordinances. We are also available to assist Illinois municipalities and counties in the development of new local policies addressing stun guns and tasers.


Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem. Moreover, the laws of each jurisdiction are different and are constantly changing. If you have specific questions regarding a particular fact situation, we urge you to consult competent legal counsel.


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