By Peter Hancock
Capitol News Illinois
phancock@capitolnewsillinois.com
The Illinois Supreme Court began weighing arguments Tuesday in a case that challenges the state’s ability to prohibit people with nonviolent felony convictions from possessing a firearm.
At issue is whether state laws governing the possession of firearms conflicts with the latest U.S. Supreme Court standard on the Second Amendment, which says laws that limit a person’s right to bear arms must be consistent with the nation’s “historical tradition of firearm regulation.”
“The Second Amendment protects a core constitutional right, the right to bear arms,” Elizabeth Cook, of the State Appellate Defender’s office, told the court Tuesday. “… Just as we would agree that a former felon has the right to a jury trial or the right to free speech, so we should presume that every free American is a member of ‘the people’ and entitled to full constitutional protection, including the right to bear arms.”
Although the issue before the court concerns only one individual and how he was affected by the state law prohibiting anyone with a felony conviction from possessing a firearm, a ruling in his favor could set a precedent for other people with nonviolent felony convictions.
The case involves James Benson, who was arrested in Cook County following a domestic dispute with his girlfriend on Christmas Eve in 2021. During the altercation, a .40 caliber handgun was fired, although there was conflicting testimony about who fired the gun and who owned it.
Benson was eventually convicted of misdemeanor battery, reckless discharge of a firearm and unlawful possession of a firearm by a felon. The latter charge stemmed from Benson’s earlier conviction in 2015 for aggravated unlawful use of a weapon without a Firearm Owner’s Identification card, a felony.
In his appeal, Benson argues the statute prohibiting people with felony convictions from possessing firearms is unconstitutional, but only as it was applied in his case.
Under Illinois law, it is illegal for anyone “to knowingly possess … any firearm or any firearm ammunition if the person has been convicted of a felony under the laws of this State or any other jurisdiction.”
He was sentenced to three-year terms on the battery and reckless discharge convictions and four years for the unlawful possession charge, all to be served concurrently.
In 2022, the U.S. Supreme Court handed down a landmark ruling in Bruen v. New York State Rifle & Pistol Association that established a two-part test for reviewing gun control regulations. The first step asks whether the law infringes on conduct that is protected under the plain text of the Second Amendment, which says, “… the right of the people to keep and bear arms shall not be infringed.”
If a law or regulation does infringe on protected activity, the second step is to consider whether the regulation is consistent with the historical tradition of regulating firearms.
Assistant attorney general Garson Fischer argued the state law is consistent with historical precedents.
“And we know it is because dating back to colonial times, penalties (for unlawful possession of a weapon) far more severe than mere disarmament were imposed on all felons, including nonviolent felons, people convicted of things like counterfeiting and forgery,” Fischer told the court.
Cook, with the appellate defender’s office, acknowledged there is a long history of regulation in America aimed at keeping weapons out of the hands of people who have demonstrated they pose a danger of violence. But she said there is no rational reason for taking away someone’s constitutional right to bear arms for nonviolent offenses just because they are classified as felonies.
“In Illinois, we have a lot of felonies that are not characterized by dangerousness,” she said. “For example, eavesdropping, driving on a revoked license, transporting hazardous waste without a permit, home repair fraud — these things are all felonies that do not carry any threat of physical violence to another person.”
Fischer, however, argued that Illinois law allows people with previous felony convictions to obtain a FOID card by petitioning a court and demonstrating they do not pose a danger to the community.
“The time to do that would have been before he again illegally possessed a firearm, by taking advantage of the mechanism in the FOID card act to petition for the restoration of one’s firearm rights,” he said.
But Cook countered that process is also constitutionally questionable under the Bruen decision because the decision to grant or not grant a petitioner’s request under that process is completely discretionary.
The court took the case under review but did not indicate when a decision would be issued.
Capitol News Illinois is a nonprofit, nonpartisan news service that distributes state government coverage to hundreds of news outlets statewide. It is funded primarily by the Illinois Press Foundation and the Robert R. McCormick Foundation.