The Volokh Conspiracy

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Illinois Court Strikes Down Ban on Carrying Guns Within 1000 Feet of School, But Is Apparently Open to Narrower Bans


From People v. Green, decided Thursday by the Illinois Appellate Court:

On November 20, 2012, around 3:15 p.m., Dan Svoboda, a teacher at Senn High School, observed a maroon van parked across the street from the school. Green was standing outside the van wearing a black security uniform. He appeared to be carrying a gun in a holster on his hip. Svoboda observed the gun twice over a 10-minute period.

Carter Carey, an assistant principal at Senn, also saw Green standing outside the van. Svoboda informed Carey that Green was carrying a gun. Carey then walked across the street to speak to Green, who had entered the passenger side of the van. Carey identified himself as the assistant principal of the school and stated that he had "some concerns." He asked Green whether he was a police officer, to which Green replied that he was a security guard. Carey then walked back across the street….

The trial court found Green guilty of … possessing a loaded, accessible firearm in a vehicle … and on a public street. [That statute was later struck down by the Illinois Supreme Court on Second Amendment grounds.-EV] Because the court found that Green committed these offenses within 1000 feet of a school, he was sentenced to one year of probation as a Class 3 felony offender….

On February 1, 2018, our supreme court decided People v. Chairez, where it found … [law banning carrying] firearms within 1000 feet of a public park … unconstitutional….

Our supreme court has adopted a two-step framework for analyzing a second amendment challenge. First, we must consider whether the restricted activity is protected by the second amendment. If we answer this question in the affirmative [as the state concedes in this case -EV], only then do we proceed to the second step of the inquiry, which involves applying "the appropriate level of scrutiny" and considering the strength of the state's justification for regulating or restricting the activity….

[The Illinois Supreme Court in Chairez] held that second amendment challenges were subject to intermediate scrutiny, but how "rigorously" to apply that scrutiny depends on "how much [the challenged restriction] affects the core second amendment right to armed selfdefense and whose right it affects." The court found that the 1000-foot firearm restriction surrounding public parks implicated the "core right to self-defense" and affected "the gun rights of the entire law-abiding population of Illinois." Accordingly, the court applied "elevated intermediate scrutiny" to the challenged regulation, holding that the State had the burden to show a "very-strong" public-interest justification for the regulation and a close fit between the law's means and its ends….

Here, just as in Chairez, the State's public-interest justification for the firearm restriction within 1000 feet of a school is to prevent crime and protect children, both of which the supreme court acknowledged are "important public concerns." The State argues that the 1000 foot ban is closely tailored to meet this goal, citing various statistics in support of its proposition. For example, the State points out that between 1988 and 1989, immediately before the UUW statute was first enacted, 8 elementary school students were killed and 43 people were injured in school shootings. And in the 1992-93 school year, after the UUW statute was enacted, 158 guns were confiscated on or near public school grounds in Chicago. This trend has not abated in recent years, as a Department of Justice study estimated that between 2007 and 2011 approximately 12,600 acts of gun violence occurred in schools in the United States.

Significantly, the supreme court rejected the relevance of this identical data in Chairez, stating "we see no direct correlation between the information the State provides and its assertion that a 1000-foot firearm ban around a public park protects children, as well as other vulnerable persons, from firearm violence. The State merely speculates that the proximity of firearms within 1000 feet threatens the health and safety of those in the public park." The State's arguments here are based on the same rationale rejected in Chairez.

To be sure, the data the State provides more directly relates to gun violence in schools, but the State still fails to show that the 1000-foot firearm ban mitigates that violence. The data does not reflect that the gun violence plaguing our schools was perpetrated within 1000 feet of the schools (as opposed to inside the schools themselves) or that the perpetrators of that violence were the law abiding adults whose conduct the statute regulates. Accordingly, the State has not shown a close fit between the restriction on gun possession within 1000 feet of a school and the protection of children. See id.

In arguing to the contrary, the State cites Heller, in which the Supreme Court stated that nothing in its opinion "should be taken to cast doubt on … laws forbidding the carrying of firearms in sensitive places such as schools and government buildings," which it described as "presumptively lawful." But the State conflates regulations banning the carriage of weapons in certain sensitive places (e.g., schools and government buildings) with [the law involved here], which bans carriage near those places. This distinction is significant. A ban on firearms in specific places imposes less of a burden on the right to bear arms than one that extends to an area of approximately three city blocks around those same places. While a gun owner can simply choose not to enter locations deemed sensitive, it is manifestly more difficult to avoid areas within 1000 feet of those locations, particularly given that there is no notification where the restriction zone begins or ends. Indeed, the ban at issue here, just as the ban 1000 feet around public parks at issue in Chairez, effectively operates as a total ban on the carriage of weapons for self-defense outside the home in Chicago. As such, it runs afoul of Aguilar, in which the supreme court held that the right to carry firearms is particularly important when traveling outside the home.

For these reasons, we conclude that [the statutes] prohibiting possession of a firearm within 1000 feet of a school are facially unconstitutional….

Nonetheless, the court criticizes the new Illinois law that allows carrying by concealed carry license holders near a school (the law was enacted after the events in this case), and seems to suggest that a narrower zone around schools in which guns are forbidden—perhaps focused "on public ways adjacent to school property"—may be both wise and constitutional:

Our holding today is narrow in that it addresses only the pre-2015 version of the UUW statute. The current version of the statute excepts from its reach those who have a valid license under the Firearm Concealed Carry Act. Significantly, the Firearm Concealed Carry Act continues to prohibit the possession of firearms in "[a]ny building, real property, and parking area under the control of a public or private elementary or secondary school," even for those with valid licenses. At oral argument, counsel for Green did not take issue with the reasonableness of these prohibitions. And so the limited issue presented here is what burdens the legislature may impose on the rights of law-abiding citizens to bear arms on public ways adjacent to school property.

Illinois law, as it presently stands, contains no provisions that define a perimeter around sensitive places, like parks and schools, where even those authorized to carry weapons in public may not enter. If not addressed, the price of the right of law-abiding citizens to carry weapons in public will render it necessary to make fortresses out of places like schools, hospitals, churches, and public housing, with little positive effect on public safety. A bullet fired by an armed security guard can as easily kill a child, patient, or worshiper as one fired by a criminal. And although Green was lawfully authorized to carry a weapon, we can conceive of no reason why his right to do so should outweigh the State's interest in the safety of school children on public ways adjacent to school property, particularly at dismissal time.

It is imperative for the legislature to undertake a nuanced, evidence-based study of measures designed to protect our citizens from gun violence in the vicinity of sensitive public places without unnecessarily burdening the exercise of the second amendment rights of those lawfully authorized to carry weapons in public.

Indeed, the court seems to take the view that bans even around (and therefore certainly in) public housing and many other buildings, governmental and otherwise, would be constitutional—though not zones so large as to cover almost all of the city (or perhaps even much of the city?). For some differing views from other courts and a state attorney general about guns and public housing, see this post.