People v. Webb

2019 IL 122951
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket Nos. 122951, 122952)
THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. ISIAH J. WEBB,
Appellee.—THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.
RONALD A. GRECO, Appellee.
Opinion filed March 21, 2019.
JUSTICE BURKE delivered the judgment of the court, with opinion.
Chief Justice Karmeier and Justices Thomas, Kilbride, Garman, Theis, and
Neville concurred in the judgment and opinion.
OPINION
¶1 Section 24-1(a)(4) of the unlawful use of weapons (UUW) statute (720 ILCS
5/24-1(a)(4) (West 2016)) provides, in part, that it is unlawful for a person to
possess or carry a stun gun or taser in a vehicle or in public. In two separate cases,
the circuit court of Du Page County held this provision unconstitutional under the
second amendment to the United States Constitution (U.S. Const., amend. II). The
State appealed both judgments directly to this court pursuant to Illinois Supreme
Court Rule 603 (eff. Feb. 6, 2013), and we consolidated the cases for review. For
the reasons that follow, we affirm the judgments of the circuit court.
¶2 BACKGROUND
¶3 Defendant, Isiah J. Webb, 1 was charged by misdemeanor complaint with
violating section 24-1(a)(4) of the UUW statute (720 ILCS 5/24-1(a)(4) (West
2016)) after he was discovered carrying a stun gun in his jacket pocket while in his
vehicle on a public street. Defendant, Ronald A. Greco, was charged by
misdemeanor complaint with violating section 24-1(a)(4) after he was found
carrying a stun gun in his backpack in a forest preserve, a public place. Both
defendants filed motions to dismiss the charges, arguing section 24-1(a)(4)
operated as a complete ban on the carriage of stun guns and tasers in public and
was, for this reason, unconstitutional under the second amendment.
¶4 The circuit court agreed with defendants, in separate but identical orders. Citing
Caetano v. Massachusetts, 577 U.S. ___, 136 S. Ct. 1027 (2016) (per curiam), the
circuit court first concluded that stun guns and tasers are bearable arms entitled to
the protection of the second amendment. The court then rejected the State’s
argument that, when read together with the Firearm Concealed Carry Act (Carry
Act) (430 ILCS 66/1 et seq. (West 2016)), section 24-1(a)(4) of the UUW does not
impose a complete ban on stun guns and tasers but, instead, creates a
constitutionally permissible regulation. Finally, the circuit court concluded that
section 24-1(a)(4)’s complete ban is unconstitutional under this court’s decisions in
People v. Aguilar, 2013 IL 112116, and People v. Mosley, 2015 IL 115872. The
court explained: “Given the similarities in the nature and purpose of firearms and
stun guns or tasers as instruments of personal self-defense, *** stun guns/tasers are
entitled to a least as much protection under the Second Amendment as that afforded
firearms, particularly since stun guns are by their specific nature far less lethal than
firearms.” The court then held that, “because stun guns and tasers are akin to
firearms for purposes of Second Amendment analysis, because the Firearm
1
The initial criminal complaint and certain orders of the trial court in Webb’s case spelled his
first name “Isaiah,” but his motion to dismiss, his trial counsel’s entry of appearance, and his brief
before this court spell his name as “Isiah.”
-2-
Concealed Carry Act does not apply as a defense to stun gun or taser possession,
and because the constitutional analysis in Aguilar and Mosley applies to the similar
language of the offense at issue here, *** 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 court also found the portion of section 24-1(a)(4) held unconstitutional to be
severable from the rest of the statute. These appeals followed.
¶5 ANALYSIS
¶6 At issue is the constitutionality of the portion of section 24-1(a)(4) of the UUW
statute relating to stun guns and tasers. This provision states, in pertinent part:
“(a) A person commits the offense of unlawful use of weapons when he
knowingly:
***
(4) Carries or possesses in any vehicle or concealed on or about his
person except when on his land or in his own abode, legal dwelling, or fixed
place of business, or on the land or in the legal dwelling of another person as
an invitee with that person’s permission, any pistol, revolver, stun gun or
taser[2] or other firearm, except that this subsection (a) (4) does not apply to
or affect transportation of weapons that meet one of the following
conditions:
***
(iv) are carried or possessed in accordance with the Firearm
Concealed Carry Act by a person who has been issued a currently valid
2
“A ‘stun gun or taser’, as used in this paragraph (a) means (i) any device which is powered by
electrical charging units, such as, batteries, and which fires one or several barbs attached to a length
of wire and which, upon hitting a human, can send out a current capable of disrupting the person’s
nervous system in such a manner as to render him incapable of normal functioning or (ii) any device
which is powered by electrical charging units, such as batteries, and which, upon contact with a
human or clothing worn by a human, can send out current capable of disrupting the person’s nervous
system in such a manner as to render him incapable of normal functioning[.]” 720 ILCS
5/24-1(a)(10) (West 2016).
-3-
license under the Firearm Concealed Carry Act[.]” 720 ILCS
5/24-1(a)(4)(iv) (West 2016).
¶7 Statutes are presumed to be constitutional, and courts must construe legislative
enactments so as to affirm their constitutionality if reasonably possible. People v.
Howard, 2017 IL 120443, ¶ 24. The party challenging the validity of a statute has
the burden of clearly establishing its constitutional invalidity. Id. Whether a statute
is unconstitutional presents a question of law, which we review de novo. Id.
¶8 The second amendment to the United States Constitution provides, “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.” U.S. Const., amend. II. In
District of Columbia v. Heller, 554 U.S. 570 (2008), and McDonald v. City of
Chicago, 561 U.S. 742 (2010), the Supreme Court of the United States held that the
second amendment secures for individuals the right to keep and bear arms and that,
through the fourteenth amendment to the United States Constitution (U.S. Const.,
amend. XIV), this right is fully applicable to the states.
¶9 In determining whether a statutory provision violates the second amendment
we first consider whether the provision imposes a burden on conduct that falls
within the scope of the amendment. People v. Chairez, 2018 IL 121417, ¶ 21. If it
does not, our analysis comes to an end. Id. Otherwise, we move to the second step
of the inquiry, in which we must determine and apply the appropriate level of
constitutional scrutiny. Id.
¶ 10 In this case, the State concedes that stun guns and tasers are bearable arms that
fall within the protection afforded by the second amendment. We agree. In Heller,
554 U.S. at 582, the Supreme Court rejected the idea that the second amendment
extends only to “those arms in existence in the 18th century.” Instead, “the Second
Amendment extends, prima facie, to all instruments that constitute bearable arms,
even those that were not in existence at the time of the founding.” Id. Heller defined
“bearable arms”:
“The 18th-century meaning is no different from the meaning today. The 1773
edition of Samuel Johnson’s dictionary defined ‘arms’ as ‘[w]eapons of
offence, or armour of defence.’ 1 Dictionary of the English Language 106 (4th
ed.) (reprinted 1978) (hereinafter Johnson). Timothy Cunningham’s important
-4-
1771 legal dictionary defined ‘arms’ as ‘any thing that a man wears for his
defence, or takes into his hands, or useth in wrath to cast at or strike another.’ ”
Id. at 581.
¶ 11 Stun guns and tasers may be taken into one’s hands and used both for defense or
“to cast at or strike another.” Clearly, stun guns and tasers are bearable arms within
the meaning of the second amendment. People v. Yanna, 824 N.W.2d 241, 244
(Mich. Ct. App. 2012).
¶ 12 Heller also explained, however, that “[l]ike most rights, the right secured by the
Second Amendment is not unlimited.” Heller, 554 U.S. at 626. The Court made
clear that an individual does not have a right to keep and carry any bearable arm
“whatsoever in any manner whatsoever and for whatever purpose.” Id.
Specifically, the Court stated that the second amendment protects only the sorts of
weapons that are in common use and “typically possessed by law-abiding citizens
for lawful purposes.” Id. at 625.
¶ 13 Any attempt by the State to rebut the prima facie presumption of second
amendment protection afforded stun guns and tasers on the grounds that the
weapons are uncommon or not typically possessed by law-abiding citizens for
lawful purposes would be futile. See Caetano, 577 U.S. at ___, 136 S. Ct. at 1027
(rejecting the contention that stun guns and tasers are dangerous and unusual
because they were not in common use at the time the second amendment was
enacted); Ramirez v. Commonwealth, 94 N.E.3d 809 (Mass. 2018) (holding that
stun guns and tasers are arms within the protection of the second amendment);
Yanna, 824 N.W.2d at 144 (holding that stun guns and tasers are protected by the
second amendment and noting that “[h]undreds of thousands of Tasers and stun
guns have been sold to private citizens”); Caetano, 577 U.S. at ___, 136 S. Ct. at
1033 (Alito, J., specially concurring, joined by Thomas, J.) (“While less popular
than handguns, stun guns are widely owned and accepted as a legitimate means of
self-defense across the country.”). Accordingly, the State concedes that stun guns
and tasers are bearable arms that fall within the scope of the second amendment.
¶ 14 Despite this concession, the State nevertheless contends that the circuit court
erred in declaring section 24-1(a)(4) unconstitutional. According to the State, the
circuit court’s error was in finding that section 24-1(a)(4) imposes a complete ban
on the carriage of stun guns and tasers in public. The State asserts that the statute
-5-
does not impose such a ban but, instead, merely regulates stun guns and tasers in a
way that is constitutionally permissible under the second amendment. In support of
this contention, the State points to the interplay between section 24-1(a)(4)(iv) of
the UUW statute and the Carry Act (430 ILCS 66/1 et seq. (West 2016)).
¶ 15 Section 24-1(a)(4)(iv) of the UUW statute states that the prohibition set forth in
that provision does not apply to weapons “carried or possessed in accordance with
the Firearm Concealed Carry Act by a person who has been issued a currently valid
license under the Firearm Concealed Carry Act.” 720 ILCS 5/24-1(a)(4)(iv) (West
2016). The Carry Act provides, in part, that an applicant shall be issued a license to
carry a “concealed firearm” if certain conditions are met. 430 ILCS 66/10 (West
2016). A “concealed firearm,” in turn, means “a loaded or unloaded handgun
carried on or about a person completely or mostly concealed from view of the
public or on or about a person within a vehicle.” Id. § 5. Finally, a “handgun” is
defined as
“any device which is designed to expel a projectile or projectiles by the action
of an explosion, expansion of gas, or escape of gas that is designed to be held
and fired by the use of a single hand. ‘Handgun’ does not include:
(1) a stun gun or taser[.]” Id.
¶ 16 The State acknowledges that, under the plain language of the Carry Act, a
person cannot be issued a concealed carry license for a stun gun or taser. However,
the State maintains this fact is of no moment. The State contends that, if a person is
issued a concealed carry license for a handgun (not a stun gun or taser) and then
carries his stun gun or taser in a completely or partially concealed manner and
otherwise complies with any restrictions enumerated in the Carry Act, then he is
carrying or possessing the stun gun or taser “in accordance” with the concealed
carry law and, therefore, doing so legally under the UUW statute. In this way,
according to the State, the UUW statute merely regulates the carriage of stun guns
and tasers in public, as opposed to banning such carriage completely. We disagree.
¶ 17 When interpreting a statute, our primary objective is to ascertain and give effect
to the intent of the legislature. J&J Ventures Gaming, LLC v. Wild, Inc., 2016 IL
119870, ¶ 25. The most reliable indicator of legislative intent is the language of the
statute itself, which must be given its plain and ordinary meaning. Id. “[T]he words
-6-
and phrases in a statute must be construed in light of the statute as a whole, ‘ “with
each provision construed in connection with every other section.” ’ ” Corbett v.
County of Lake, 2017 IL 121536, ¶ 27 (quoting Eden Retirement Center, Inc. v.
Department of Revenue, 213 Ill. 2d 273, 291 (2004), quoting Paris v. Feder, 179 Ill.
2d 173, 177 (1997)). In addition, when construing our statutes, we presume the
legislature did not intend to create absurd, inconvenient, or unjust results. Coram v.
State of Illinois, 2013 IL 113867, ¶ 57.
¶ 18 Subparagraph (iv) of section 24-1(a)(4) excludes from the offense of UUW
only those weapons that are carried or possessed “in accordance” with the Carry
Act by a person who has been issued a concealed carry license. To be “in
accordance” with a statute means to be in agreement or conformance with that law.
See Webster’s Third New International Dictionary 12 (1993). In our view, the most
natural reading of the requirement that weapons be carried or possessed “in
accordance” with the Carry Act is that the weapons, themselves, are of the type for
which a valid concealed carry license may be issued under the Carry Act. Indeed,
any other reading would lead to absurd results. Under the State’s reading of the
statute, as long as a person has a concealed carry license for a handgun, that person
may carry any other weapon, including a rifle or shotgun, and still be acting “in
accordance” with the Carry Act, even though the Carry Act is specifically limited
to handguns and does not allow for the concealed carry of rifles or shotguns. We do
not think the State’s interpretation is what the legislature intended.
¶ 19 Our conclusion that stun guns and tasers cannot be carried or possessed “in
accordance” with the Carry Act because a concealed carry license cannot be issued
for those weapons is further supported by section 24-2(a-5) of the UUW statute.
This provision states that section 24-1(a)(4) of the UUW statute does not “apply to
or affect any person carrying a concealed pistol, revolver, or handgun and the
person has been issued a currently valid license under the Firearm Concealed Carry
Act at the time of the commission of the offense.” 720 ILCS 5/24-2(a-5) (West
2016). 3 When read together with section 24-1(a)(4), section 24-2(a-5) makes clear
that only those weapons that can be licensed under the Carry Act are meant to be
excluded from the reach of the UUW statute.
3
This subparagraph was added July 9, 2013, the same day the Carry Act became effective. See
Pub. Act 98-63 § 155 (eff. July 9, 2013).
-7-
¶ 20 Given the foregoing, we reject the State’s argument that section 24-1(a)(4) is
merely a regulation of stun guns and tasers. Rather, that provision sets forth a
comprehensive ban that categorically prohibits possession and carriage of stun
guns and tasers in public.
¶ 21 The State does not contend that stun guns and tasers—which it concedes are
bearable arms under the purview of the second amendment—may be subjected to a
categorical ban. Because we have concluded that section 24-1(a)(4) constitutes a
categorical ban on those weapons, that provision necessarily cannot stand. See
Aguilar, 2013 IL 112116 (holding the provision of the aggravated unlawful use of a
weapon statute that categorically prohibited the possession and use of any operable
firearm for self-defense outside the home violated the second amendment); Moore
v. Madigan, 702 F.3d 933 (7th Cir. 2012); Mosley, 2015 IL 115872 (holding
unconstitutional under the second amendment the portion of the aggravated
unlawful use of a weapon statute that criminalized the possession of an uncased,
loaded firearm on a public way). Accordingly, we hold the portion of section
24-1(a)(4) that prohibits the carriage or possession of stun guns and tasers is
facially unconstitutional under the second amendment.
¶ 22 CONCLUSION
¶ 23 For the foregoing reasons, the judgments of the circuit court are affirmed.
¶ 24 Circuit court judgments affirmed.
-8-