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.

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  1. How long till they do what they do with sex offenders and extend the ban to parks then designate all these pockets around town as parks effectively banning guns from the entire area? And then bystanders are wondering why there are miniparks right in in the center of a divider in some random spot in the middle of the street.

    1. Uh, they already did that, and it was struck down. It was even discussed in the post above.

    2. Things like this are done with sex offenders. See John Ronson’s “The Butterfly Effect” (I think, maybe one of his other books) talking about a kid put on the sex offender list and cities which place parks, schools, etc. To prevent sex offenders from living in the city.

      Don’t know if this type of law has been struck down or in what jurisdictions.

  2. I get SO frustrated at these courts who are supposed to be full of smart people, who constantly use the FOOTNOTE in Heller, the “presumptively lawful” remark, as their justification that any gun-control law on the books is perfectly legal. When Heller was first published, I read an excellent analysis which observed that the question of legality of these “presumptively lawful” regulations was completely out of scope of Heller, and thus, the court could do nothing BUT presume that they were lawful… because they were not under consideration! The footnote was not a declaration, but merely an observation that the question was not on the plate.

    That one small footnote must be the most widely quoted and misinterpreted footnote in the history of the Supreme Court!

    1. It’s not a matter of smart or not smart. They’re acting in bad faith. It’s all there is to it.

      1. They are not acting in bad faith. They are acting in blind faith. Their apriori assumptions are cast in iron and set in concrete and they will not test them and will never concede error. Therefore, they are right, and dissenters are not only wrong but we are the ones acting in bad faith by questioning their unquestionable rectitude.

    2. Things like the federal Volstead Act and the Virginia 1924 Racial Integrity act were “presumptively lawful”.

      “Presumptively lawful” does not mean “good” or “beneficial” or “constitutional”. It simply means that a law passed by the legislature is presumed to be lawful and good intent. Several “presumptively lawful” laws including the Virginia 1924 Racial Integrity Act and the Florida 1902 firearms permit act were eventually found to be unconstitutional when challenged in federal or state court by plaintiffs with legal standing, etc.

      Pushing “presumptively lawful” gun bans may be the undoing of the gun control movement.

      By the way, I live on the TN/VA border. Tennessee law on transport of guns in a vehicle requires concealed carry and treats open carry as criminal based on one set of hypotheticals. Virginia law on transport of guns in a vehicle requires open carry and treats concealed transport as criminal based on diametrically opposed hypotheticals. These contradictory laws are “presumptively lawful”. You must develop your double-think skills to understand what “presumptively lawful” means.

      presumptively gets redlined like spellcheck is asking Is that word?

    3. “any gun-control law on the books is perfectly legal”

      No. But, Scalia going out of his way to list certain types of regulations as presumptively lawful (including talk about sensitive places like schools and courthouses) surely means certain gun regulations are legal.

      The First Amendment does not mean whatever you say or practice in your religion or whatever it is protected. There are limits. The footnote flagged some general limits as did other portions of the opinion.

      1. “surely means…”

        Not the most convincing of arguments.

        1. It is more of a statement — it is clear & every lower court opinion that applied the ruling so held — that the opinion includes various examples of regulations that are allowed. It helps if you read the whole comment and not just two words.

          1. I read the whole comment, thanks. That doesn’t make the two words any more correct. The fact is that in Heller, Scalia “presumed” simply because there was nothing else he could do. Those other laws were not on trial, and there was no basis for him to make ANY statement about them one way or the other, beyond to presume that the status quo – that they were legal at that time – was intact.

  3. Of course, the court fails to generalize its reasoning. Public ways adjacent to schools or parks are so widespread in a typical city as to make travel within a city without using one absurdly difficult. And if anything, a person traveling by a school with a gun on their way to someplace else is even less a threat than if stationary, so the rational zone should be even smaller.

    1. I live in a major city myself. There is a school right near my home. It can easily be avoided by using a parallel street though it might take a few extra minutes. Of course, the need to travel pass it while carrying a gun is another matter too. Certain schools are harder to bypass given their location. But, in my city, one doesn’t readily come to mind though probably there are some. I do see some point in differentiating between a car “parked” or slowly driving pass (drive by shootings is a thing) and passing by forty miles an our or something.

      1. I live with 450 feet of the local school (well within 1000 ft under GFSZA) and have owned guns since 1964, frequently taking them to family property in the mountains or to local shooting ranges for target practice or to attend match events. The way the newspapers described the GFSZA the day after it passed in 1990, I had been made a felon overnight. As soon as I left my property, onto the city street that also passes the school, I was within the Gun-Free School Zone. It was unavoidable.

        18 U.S.C. ? 922(q) stated:

        (A) It shall be unlawful for any individual knowingly to possess a firearm that has moved in or that otherwise affects interstate or foreign commerce at a place that the individual knows, or has reasonable cause to believe, is a school zone.

        It turns out there was an exemption (loophole) that applied to me:

        (B) Subparagraph (A) does not apply to the possession of a firearm?
        (i) on private property not part of school grounds;
        (ii) if the individual possessing the firearm is licensed to do so by the State in which the school zone is located …
        (iii) [firearm] that is: (I) not loaded; and (II) in a locked container, or a locked firearms rack that is on a motor vehicle;

        It was one incentive to get a carry permit. But I know how gun control advocates feel about loopholes: gotta close’em.

        1. I know how gun regulation advocates feel about loopholes — some warrant tightening while others are just how laws are in real life, being compromises in real life playing out in real life conditions.

      2. Due to a creek and some oddly positioned roads near my home, with schools at critical intersections, such a requirement would create a North-east/southwest wall that could would require driving 5-10 miles north and then back south to get around. If day cares are included, then that wall would extend much of the length of the city. Such a requirement is thoroughly unworkable.

        1. I’m not sure about the requirement of traveling this route with a firearm and there are various driving regulations that limit certain vehicles from certain areas or require them to drive around them in extended loops. But, reference was made to a “typical” city and “absurdly difficult,” not some possibility of exception in various cases which if necessary can be dealt with as regulations tend to do.

    1. …. leaves open various regulations …..

      1. No it doesn’t.

        1. Yes, it does & it did in Patrick Henry, the 1st’s time too.

          The same with the First Amendment.

  4. 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.

    because he is lawfully authorized to carry a weapon.

    The State did not even claim that Green was a gangbanger.

    1. The state has an interest in safety, but its rules still need to be narrowly tailored (I don’t buy the intermediate scrutiny BS). And none of these ever are.

    2. Quovadis Green (a uniformed armed security guard with a Illinois FOID that requires background check) was observed in a maroon van near a school by teacher Dan Svoboda. Assistant principal Carter Carey asked Green if he was a police officer. Green informed Carey that he was a security guard. Carey went back to the school and called 911 to report a man with a gun near the school. Police responded and arrested Green. With a first name like Quovadis he was lucky he was not summarily executed by Illinois police responding to a MWAG report.

  5. If the First Amendment gets “strict scrutiny”, then there is no logical reason to apply a lower standard to the Second Amendment. Its just elite bias against guns.

    The 1A is not more important because it is first.

  6. 2nd Amendment: A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

    No court decision needed. All federal and state gun control is illegal and unconstitutional. The 14th Amendment saw to that.

    1. Actually, it means all federal gun control is unconstitutional. The incorporation doctrine is federal judge nade up nonsense.

      1. Bingham Bingham Bingham!!!

      2. That’s fair, as long as you apply that to all uses of the incorporation doctrine, and don’t make special rules which say that it counts as made-up for guns but is good law for just about everything else.

        And I suspect the consequences of doing that are not something gun control proponents would like,

      3. The 14th Amendment created a minimum standard of rights protections for all states. This includes gun rights protections that all states must abide by.

        The incorporation doctrine is not nonsense but even if it is, the 14th Amendment changes all that to force the states to abide by the original BoR.

        Since the 2nd Amendment prohibits any gun control laws, no state can have gun control laws either.

        1. Except that the second amendment, like the first, fourth, and fifth can be overridden by the legislature pretty much at will. For the children.

          Carry permits and associated fees and fingerprints
          Asset forfeiture without even charges, let alone conviction
          Car, cell phone, other digital devices, TSA fondling
          The hits just keep coming; back after this – – – –

          1. While, you are definitely correct that government is currently doing that, we need to stop allowing this.

    2. I assume you don’t bother reading the articles here, and just post the same comment in every thread. No need to think.

      1. Don’t you post the same thing here? Nothing but highlighting how concise my legal argument is.

        You’re welcome.

  7. I’m just wondering about the thinking of a teacher who sees a security guard & has “concerns” of this kind.

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