GUN POSSESSION IN ILLINOIS:
WHO CAN HAVE THEM, WHO CAN’T, & WHAT HAPPENS IF YOU DO (Illegally)
Illinois is perhaps the most restrictive state in the country when it comes to gun rights and illegal firearm possession. Unlike some states, you cannot buy or carry a firearm in public without obtaining specific licenses issued by the Illinois State Police. What’s more, those caught illegally carrying a firearm face severe punishments and mandatory minimum sentencing. As outlined below, only certain individuals in Illinois are allowed to own and carry a gun. Further, for those charged with illegally possessing a firearm, the name, nature, and specifics of criminal gun possession in Illinois can be confusing.
So who can and can’t legally own and/or carry a firearm in Illinois? Below is an outline of requirements and restrictions to obtaining a FOID card under 430 ILCS 65, as well as an overview of the types of offenses one can be charged with if arrested for illegally possessing a gun in Illinois.
Who Can’t Have Guns In Illinois?
- Persons without a FOID card**;
- Convicted felons; 720 ILCS 5/24-1.1;
- Persons convicted of domestic battery; 430 ILCS 65/4(2)(vii);
- Persons convicted w/in the last 5 years of:
○ Battery
○ Assault
○ Aggravated Assault
○ Violation of Order of Protection; 430 ILCS 65/4(2)(viii); - Persons are currently subject to an order of protection. 430 ILCS 65/4(2)(vii).
- Persons under 18 with no misdemeanor convictions or juvenile adjudications; 720 ILCS 5/24-3.1(a)(1);
- Non-residents who are not licensed to possess a firearm in their home state; 430 ILCS 65/2(a)(2)(10);
- A “narcotics” addict; 720 ILCS 5/24-3.1(a)(3);
- A person who has been a patient in a mental hospital within the last 5 years; 720 ILCS 5/24-3.1(a)(4);
- A person with a mental disability; 720 ILCS 5/24-3.1(a)(5);
- A person with an “explosive bullet”; 720 ILCS 5/24-3.1(a)(6);
- A person is likely to act in a manner dangerous to public safety due to the circumstances of their conviction, their criminal history, and their reputation. 430 ILCS 65/10(c)(2);
- A person who the court finds granting a FOID card is contrary to the public interest; 430 ILCS 65/10(c)(3);
- A person who the court finds granting a FOID card is contrary to federal law; 430 ILCS 65/10(c)(4).
If you fall into one of the many above categories, you will not be able to get a FOID card. For Illinois residents, no FOID means no guns. Period. Any one of the above situations will cause the Illinois State Police to deny your application for a FOID card.
What You’re Facing If Arrested With A Gun:
In Illinois, illegal gun possession is called unlawful use of a weapon and the category of offense can range from a class A misdemeanor to a Class X felony. If certain factors are present, most often the lack of a FOID or CCL card, gun possession is known as Aggravated Unlawful Use of a Weapon. The range of punishment for these types of offenses depends on whether or not the person has a valid Concealed Carry License or FOID card, as well as their prior criminal record. Below is an overview of how Unlawful Use of a Weapon/Aggravated Unlawful Use of a Weapon can be charged and the punishment range.
Arrested for a gun but:
- Have a CCL & violating how you can carry: 430 ILCS 66/70(e)
○ First violation: Class B Misdemeanor
○ 2nd Violation: Class A Misdemeanor
○ 3rd Violation: Class A Misdemeanor: permanent revocation of Concealed Carry License - Have FOID no CCL:
○ Aggravated Unlawful Use of a Weapon-No FOID card, class 4 felony, 1-3 years IDOC or up to 30 months of probation. - NO CCL/FOID:
○ Aggravated Unlawful Use of a Weapon: Cl. 4 Felony- 1-3 years IDOC- NOT ELIGIBLE FOR PROBATION - NO CCL/FOID & YOU’RE A FELON:
○ Aggravated Unlawful Use of a Weapon: Cl. 3 Felony: mandatory: 2-10 years IDOC (@50%)
■ UNLESS********* - 3-14 years IDOC (@50%), if prior for:
○ Forcible Felony:
○ FOID Act Viol Sec 24
○ Cl. 2 or greater Drug Offense
○ Stalking or Aggravated Stalking - Prior Felony Conviction for 7-14 years IDOC (@50%):
- Aggravated Unlawful Use of a Weapon
- Unlawful use or possession of a weapon by a felon
- First Degree Murder
- Attempted First Degree Murder with a firearm
- Aggravated Kidnapping with a firearm
- Aggravated Battery with a firearm
- Aggravated Criminal Sexual Assault
- Predatory Criminal Sexual Assault
- Armed Robbery
- Vehicular Hijacking
- Aggravated Vehicular Hijacking
- Home Invasion
- Aggravated Discharge of a Firearm
- Aggravated Discharge of a Machine Gun/Firearm with Silencer
- Unlawful Use of a Firearm Projectiles
- Manufacture, sale, or transfer of bullets/shells-armor piercing
- Unlawful Sale or Delivery of Firearms
- Unlawful Discharge of Firearm Projectiles
- Unlawful Sale or Delivery of Firearms on School Premises
- Unlawful Purchase of a Firearm
- Use of a Stolen Firearm in the Commission of an offense
- Possession of a Stolen Firearm
- Aggravated Possession of a Stolen Firearm
- Gunrunning
- Defacing identification marks of firearms
- Armed Violence
- 730 ILCS 5/5-4.5-110
- IF you are on Parole for ANY FELONY OFFENSE at the time of arrest:
- 2 felony: 3-7 years IDOC (@50%)
ARMED HABITUAL CRIMINAL
Armed Habitual Criminal is one of, if not the, most serious gun charge under Illinois law. Under this statute, a person is facing class X sentencing. With sentencing, 6-30 years IDOC. Importantly, it is served at 85%, as compared to the normal 50% of most of the above charges. Possibly the most significant aspect of Armed Habitual Criminal is the extreme sentencing enhancement. The enhancement is based on the Defendant’s prior criminal convictions. The State simply has to prove unlawful possession of the handgun and the sentencing provisions of Armed Habitual Criminal apply if charged.
Under 720 ILCS 5/24-1.7, you can be charged with Armed Habitual Criminal if you are charged with gun possession/Aggravated Unlawful Use of a Weapon and you have the TWO of the following convictions in your background:
- A forcible felony as defined in Section 2-8 of the Illinois Criminal Code; or
- Unlawful Use of a Weapon by a Felon; Aggravated Unlawful Use of a Weapon; Aggravated Discharge of a firearm; Vehicular Hijacking; Aggravated Vehicular Hijacking; Aggravated Battery of a Child-section 12-4.3; intimidation; aggravated intimidation; gunrunning; home invasion; or aggravated battery with a firearm-section 14-2; or
- Any violation of the Illinois Controlled Substances Act or Illinois Cannabis Control Act is a class 3 felony or higher.
CONCLUSION
Whether you are charged with a misdemeanor unlawful use of a weapon or Armed Habitual Criminal, gun possession in Illinois is no joke. From loss of your FOID & 2nd amendment privileges and/or probation to serious IDOC time, the consequences of this type of conviction are hardly a laughing matter. In this situation, you need lawyers who not only know the gun laws in Illinois but know how to fight them. At Robert Callahan & Associates, we have represented thousands of clients for Aggravated and Unlawful Use of a Weapon and similar charges for nearly three decades. Call us today for a free consultation at 312 322 9000.