America is a nation of arms. Firearms. Whether you personally love or hate firearms, the fact is there are more firearms than people in the United States.[1] After the U.S. Supreme Court cases of District v. Heller and McDonald v. Chicago, gun ownership was seemingly cemented into U.S. law. But what if you carry a stun gun or taser in your pocket walking down a street? How about in your backpack? What if you are in a forest preserve? How about your car? Is a Taser protected under the Second amendment? Can you get charged with Unlawful Use of a Weapon (UUW) for possessing a stun gun?
According to the Illinois Supreme Court, stun guns and tasers can be carried anywhere in Illinois. For now. Don’t be surprised if the Illinois Legislature changes this at the behest of various special interest lobbyists paying more attention to this new case than the politicians themselves.
But until they do, if you want to carry a taser or stun gun, go right ahead. You’ve got the law on your side.
How Did This Happen:
Isaiah Webb had the audacity to have a stun gun on him during a traffic stop. Ronald Greco took his to a forest preserve in his backpack. Both got charged by the Dupage County State’s Attorney with Unlawful Use of a Weapon. Their attorneys filed motions to dismiss challenging their cases under the Second amendment. The Dupage County Judge agreed with the Defense. So did the Illinois Supreme Court.[2]
WHY?
Plainly, the Second amendment guarantees your right to “bear arms.” Everyone acknowledges that. Even if they don’t agree with it. The real hot button issue is what those “arms” are? As the United States Supreme Court explained in 2008, “[t]he 18th-century meaning is no different from the meaning today.”[3] But wait, they didn’t know about “assault rifles” at that time. Of course they didn’t. They hadn’t been invented. But the founders didn’t say you have a right to carry a gun. It’s a right to bear “arms.” As with everything in law, the devil is in the details.
So the question really is: What are ARMS?
More specifically, what did that that word mean when the US constitution was founded? To determine this, the United States Supreme Court literally looked up what the definition of the “arms” was at the time of the founding.
- 1771: Samuel Johnson’s Dictionary:
- “arms” = “any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another.”[4]
- In 1773: TImothy Cunningham’s
legal dictionary:
- “arms” = “weapons of offence, or armour of defence.”[5]
But how does that turn a musket into a AR-15? George Washington didn’t use a AR-15 to mow down the British at Yorktown. He carried a flintlock pistol. His also carried an ivory hilted hanger, otherwise known as a sword.[6] He had a gun and a blade. He had either/or, he had arms.
Legally & definitionally speaking, he had two objects that:
- May be taken into one’s hands (bear ams) and;
- Can be used in defense and/or
- “Useth to cast at or strike another”[7]
These components define the term “arms” in the constitution. But that doesn’t mean any & all “arms” are protected by the Second Amendment. We all know you can’t yell fire in a crowded theater and claim you were simply exercising your First Amendment right.
The Second Amendment is no different. “Like most rights, the right secured by the Second Amendment is not unlimited.”[8] Despite the plain language of the Second amendment’s “right to bear arms,” the actual legal explanation is not so cut and dry. Heller made clear that you don’t have a right to own or carry “any bearable arm” for “any manner whatsoever and for whatever purpose.”[9]
The legal standard for “arms” laid out in Heller were “arms” that “are in common use and typically possessed by law-abiding citizens for lawful purposes.”[10] What is a “typically possessed” “arm”? That’s something courts around the country have been trying to determine post-Heller.
Webb & the Illinois Supreme Court
What the Illinois Supreme Court did determine in People v. Webb is that tasers and stun guns are:
- Arms; &
- Typical
- & constitutional.[11]
Is a stun gun or taser an “arm”? Can you “useth in wrath to cast at or strike another.” Check. Is for defense? Check? Can you buy them on Amazon? Check.
Unlawful Use of a Weapon
720 ILCS 5/24-1.4
That was the charge brought against Mr. Webb & Mr. Greco for carrying these electric “arms.” The problem, as the State and Cops saw it, wasn’t just that they had tasers. It was that they were “concealing” them on their person and in a backpack. They argued that because of this, these men needed a concealed carry permit to possess these “arms” in this manner. Problem was the Illinois Firearm Concealed Carry Act explicitly states its licenses are for handguns. Not to mention the language in the Firearm Concealed Carry Act clearly excluding stun guns and tasers (“[h]andgun does not include: (1) a stun gun or taser.”[12]
Recognizing the fatal flaws in the State’s arguments, the Illinois Supreme Court found the section of the Unlawful Use of Weapons Act “that prohibits the carriage or possession of stun guns and tasers is facially unconstitutional under the second amendment.”[13]
CONCLUSION
Stun guns and tasers come in a range of voltages, from 300 volts to millions of volts. Typical Police tasers have 50,000 volts.[14] Most experts say it’s not about the volts, it's about the amps.[15] Either way, keep your stun gun away from me. Put it in your pocket or your backpack, that’s all good, so sayeth the Highest Court in the Illinois. You can’t get arrested for Unlawful Use of Weapons (UUW). That’s the law.
If you’ve been charged with UUW, you need an experienced criminal defense lawyer. No matter the type of “arm,” from handgun to stun gun, assault rifle to pocket knife, we know how to vigorously defend your case and restore your rights. Call Robert Callahan & Associates for any questions you may have about a pending unlawful use of weapons charge, or any criminal charge. Speak to a lawyer today.
[1]https://www.washingtonpost.com/news/wonk/wp/2018/06/19/there-are-more-guns-than-people-in-the-united-states-according-to-a-new-study-of-global-firearm-ownership/?utm_term=.e548a4ad533e
[2] People v. Webb, 2019 IL 122951.
[3] District of Columbia v. Heller, 554 U.S. 570, 625 (2010).
[4] Heller at 581.
[5] Id.
[6] https://www.mountvernon.org/preservation/collections/general-washingtons-military-equipment/
[7] Heller at 581.
[8] Id at 626.
[9] Id.
[10]Id at 626.
[11] Webb at ❡21.
[12] Webb at ❡15; 720 ILCS 5/24-1; 430 ILCS 66/10 ❡ 5.
[13] Webb ❡21.
[14] https://www.cbc.ca/news/canada/facts-about-stun-guns-and-their-use-in-canada-1.810288
[15] https://www.sabrered.com/stun-guns-and-voltage-myth