Illinois v. Moore

The Illinois Supreme Court has upheld the state’s ban on carrying loaded and accessible firearms. This conflicts with the Seventh Circuit’s decision striking down the same statute, but state prosecutors apparently plan to follow the state decision, not the federal one. That is certainly their right for now, though I predict a cert grant in the near future, if the Seventh Circuit doesn’t take this en banc.

But I am troubled by one alternate ground of reasoning in the state’s opinion:

Moreover, defendant’s constitutional challenge additionally suffers because of his status as a felon. Neither Heller, McDonald, nor Moore has suggested the second amendment right to keep and bear arms guarantees a felon’s ability to own and possess a firearm. See Heller, 554 U.S. at 626 (“nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons”); McDonald, 561 U.S. at ___, 130 S. Ct. at 3047 (repeating Heller’s “reassurances” regarding felons); Moore, 702 F. 3d at 940 (finding bans limited to felons do not fall within second amendment protection). Accordingly, we reject defendant’s constitutional claim and affirm his convictions under the AUUW statute.

As I understand it, it’s not as if Illinois actually has a ban “limited to felons.” The Court is just suggesting that even a ban that has nothing to do with a defendant’s felony can never be challenged by a felon. I’m not at all convinced that a defendant’s prior conviction can save a criminal conviction that in no way depended on a defendant’s being a felon.

It’s constitutionally permissible for the state to have an arson statute that forbids burning flags in public. But if you’re charged under an impermissible flag-burning statute, you’re permitted to challenge the conviction, and it’s no answer that you could could have been convicted under a different statute that would have been constitutional.

These kinds of overbreadth/as-applied problems are a little perplexing, and I’m not sure I’m right about how to resolve them. But I am sure that the Illinois Supreme Court is driving through them much too fast.