Illinois Firearm Concealed Carry Act, 430 ILCS 66/ (“FCCA”)
A December 2012, the U.S. Court of Appeals for the Seventh Circuit decision
(Moore v. Madigan) struck down a longstanding prohibition on
concealed carry of firearms in Illinois. On July 9, 2014, to comply with the
federal court's ruling, the Illinois legislature enacted the FCCA. It granted
eligible, qualified persons the right to carry concealed handguns under certain
conditions and with specific exceptions. The following statute excerpts are
particularly germane:
Section 5. Definitions. "Handgun" means any device which is designed
to expel a projectile of 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.
Section 15. Violations. (f) ... Except
as otherwise provided in this subsection, nothing in this subsection prohibits
the licensee from being subjected to penalties for violations other than those
specified in this Act.
Section 90. Preemption. The regulation, licensing, possession, registration,
and transportation of handguns and ammunition for handguns by licensees are
exclusive powers and functions of the State. Any ordinance or regulation, or
portion thereof, enacted on or before the effective date of this Act that
purports to impose regulations or restrictions on licensees or handguns and
ammunition for handguns in a manner inconsistent with this Act shall be invalid
... This section is a denial and limitation of home rule powers and functions
under subsection (h) of Section 6 of Article VII of the Illinois Constitution.
Illinois Firearm Owners Identification Act, 430 ILCS
65/ ("FOID")
Is the statutory understructure for the FCCA and Illinois firearm-related
criminal laws. Concurrent with the FCCA's enactment, the FOID Act was
necessarily amended to incorporate the FCCA preemption clause and other
provisions, most importantly Sec. 13.1. Preemption:
(a) Except as otherwise provided in the Firearm Concealed Carry Act and
subsections (b) and (c) of this Section, the provisions of any ordinance
enacted by any municipality which requires registration or imposes greater
restrictions or limitations on the acquisition, possession and transfer of
firearms than are imposed by this Act, are not invalidated or affected by this
Act.
(b) Notwithstanding subsection (a) of this Section, the regulation, licensing,
possession, and registration of handguns and ammunition for a handgun, and the
transportation of any firearm and ammunition ... are exclusive powers and
functions of this State.
(c) Notwithstanding subsection (a) of this Section, the regulation of the
possession or ownership of assault weapons are exclusive powers and functions
of this State. Any ordinance or regulation, or portion of that ordinance or
regulation, that purports to regulate the possession or ownership of assault
weapons in a manner that is inconsistent with this Act, shall be invalid unless
the ordinance or regulation is enacted on, before, or within 10 days after the
effective date of this amendatory Act ... For the purposes of this subsection,
"assault weapons" means firearms designated by either make or model
or by a test or list of cosmetic features that cumulatively would place the
firearm into a definition of "assault weapon" under the ordinance.
(d) For the purposes of this Section, "handgun" has the meaning
ascribed to it in Section 5 of the Firearm Concealed Carry Act.
(e) This Section is a denial and limitation of home rule powers and functions
under subsection (h) of Section 6 of Article VII of the Illinois Constitution.
State of Illinois Constitution, Article VII. Section 6
Grants certain powers to home rule units (counties and most municipalities)
that transcend state law, including: (a) ... a home rule unit may exercise any
power and perform any function pertaining to its government and affairs
including ... the power to regulate for the protection of the public health,
safety, morals and welfare. (c) If a home rule county ordinance
conflicts with an ordinance of a municipality, the municipal ordinance shall
prevail within its jurisdiction. (h) "The General Assembly may provide
specifically by law for the exclusive exercise by the State of any power or
function of a home rule unit. (m) Powers and functions of home rule units shall be construed
liberally.
Cook County "Blair Holt Assault Weapons Ban" and similar other
bans in Illinois
Ignoring or contravening the Illinois legislature's clear intent, the
FOID/FCCA definition of "handgun," and these Acts' preemption clauses
pertaining to handguns and assault weapons, the Cook County Board (within the
10 day window granted under the FCCA) capitalized upon its home rule powers by
strengthening its earlier-adopted "Blair Holt" ordinance (Chapter 54,
Article III, Division 4, Ord. 13-O-32, enacted 7-17-2013). The
especially relevant elements of the ordinance are:
Sec. 54-210. - Applicability. (a) The provisions included in this division apply to all
persons in Cook County including, but not limited to, persons licensed under
this article.
Sec. 54-211. - Definitions.
"Assault weapon" does not include any firearm that has been made
permanently inoperable, or satisfies the definition of "antique
firearm" ...
Large-capacity
magazine means any ammunition feeding device with the capacity to accept more
than ten rounds, but shall not be construed to include the following: 1)
A feeding device that has been permanently altered so that it cannot
accommodate more than ten rounds. 2) A 22-caliber tube ammunition feeding
device.
Sec. 54-212. - Assault weapons, and large-capacity magazines; sale prohibited;
exceptions. (a) It shall be unlawful for any person to manufacture, sell,
offer or display for sale, give, lend, transfer ownership of, acquire, carry or
possess any assault weapon or large capacity magazine in Cook County. This
subsection shall not apply to ... Transportation of assault weapons or large
capacity magazine if such weapons are broken down and in a nonfunctioning state
and are not immediately accessible to any person.
Sec. 54-214. - Violation; penalty. (a) Any person found in violation of
this division shall be fined not less than $5,000.00 and not more than
$10,000.00 and may be sentenced for a term not to exceed more than six months
imprisonment. Any subsequent violation of this division shall be punishable
by a fine of not less than $10,000.00 and not more than $15,000.00 and may be
sentenced for a term not to exceed more than six months imprisonment. (Ord. No.
15-4167, 9-9-2015.)
To circumvent the Concealed Carry and
FOID Acts, Cook County employed a disingenuous, convoluted, and incorrect
characterization and categorization of "large capacity magazines"
(LCMs) as assault weapons. Consider the following facts:
- A magazine is merely the cartridge feeding mechanism for a
semiautomatic firearm. A magazine, per se, doesn't and can't cause an
explosion or projectile (bullet) expulsion.
- A magazine alone doesn't meet the State's definitions of either
firearm or handgun.
- A magazine isn't listed as a weapon under the Illinois Unlawful Use
of Weapons statute.
- The county's apparent regard of magazines as "assault
weapons" is incompatible with the State's ascribed definition:
"firearms designated by either make or model or by a test or list of
cosmetic features that cumulatively would place the firearm into a
definition of assault weapon." A magazine is neither a make, model,
test, list nor cosmetic feature.
As such, based upon state law (and
common sense), magazines shouldn't be subject to county power.
In addition to Cook County, Highland
Park, Deerfield, Highwood, Markham, Oak Park, Orland Park, Rosemont and several
other communities also imposed ten-round magazine capacity limitations and “assault
weapons” bans within the FOID's 10-day grace period.
Under the Illinois Constitution, where county and municipal ordinances
conflict, municipal law prevails. To the best of my knowledge, no city or
village has officially preempted Cook County's LCM ban.
Court Rulings
Context: The U.S. Supreme Court and Federal Appeals courts
have ultimate authority in determining the legality of statutes and
ordinances.
In Dec. 2013, plaintiffs Dr. Arie S. Friedman and the Illinois State
Rifle Association brought an action in the U.S. District Court to enjoin the
city of Highland Park, Illinois from enforcing an ordinance nearly identical to
Cook County’s AWB ordinance. In Sept. 2014, the U.S. District Court rejected
the plaintiffs' argument.
In Aug. 2018, the U.S. District Court for the Northern District of Illinois (Wilson
v. Cook County, Case No. 17 CV 7002), essentially reaffirming the 2015
federal appeals court ruling in Friedman v. City of Highland Park, upheld Cook
County's Assault Weapon Ban.
In Aug. 2019, the U.S. Court of Appeals, Seventh Circuit, affirmed
the Aug. 2018 decision of the U.S. District Court for the Northern
District of Illinois (Wilson v. Cook County, Case No. 17 CV 7002),
upholding Cook County's Assault Weapon Ban.
In January 2023, Herrera v.
Raoul was filed in U.S. District Court Northern District of Illinois
challenging the constitutionality of, and requesting an injunction against, the
Cook County and Chicago bans on magazine capacity and AR-15 style rifles. The
District Court denied plaintiff’s requests. The Herrera case was joined with
another similar, Barnett v. Raoul, in the U.S. Court of Appeals
for the 7th Circuit. On Nov. 3, 2023, that Court also upheld the
bans on magazine capacity and AR-15 style rifles.
In August 2021, another challenge to
the Cook County assault weapons ban, Viramontes v. Cook County Illinois
was filed in U.S. District Court, Northern District of Illinois, Eastern
Division. On March 1, 2024, the Court ruled in favor of the Defendants,
upholding the Cook County ordinance. On March 15, 2024, Plaintiffs filed an
appeal to the U.S. Court of Appeals for the 7th Circuit; the case is
pending.
Unfortunately, prevailing court
rulings support the bans in Cook County, Highland Park, and similar others elsewhere
in Illinois. And it’s important to note that no court rulings have exempted Illinois
Concealed Carry Licensees from Cook County’s or other communities' “large-capacity
magazine” bans.
Ordinance Enforcement
Somewhat surprisingly, there's been no
noteworthy, standalone LCM or assault weapon prosecution by Cook County. (The
State's Attorney certainly has bigger fish to fry.) However, in June 2018, the
Cook County Sheriff's Office acknowledged their responsibility to enforce the
ordinance, and intention to more vigorously do so. And Chicago Police
officers have been directed to indicate magazine capacity on arrest reports.
It's unlikely you'd be caught with or arrested for a LCM (many police officers
are unaware of or ignore the county ordinance). However, if found with a LCM or
assault weapon, you might be charged with an ordinance violation and have to
defend against prosecution. A first offense conviction could cost as much as
six months' incarceration and a $10,000 fine. You'd also likely incur
substantial attorney's fees, bail bond costs, along with other serious
hardships. Given the prospective penalty, do you really want to risk noncompliance?
Chicago Restrictions
On July 17, 2013, within the 10-day municipal preemption authority granted
under the Illinois Concealed Carry and FOID Acts, Chicago similarly enacted
bans on assault weapons. Section 8-20-010 of the Municipal Code enumerates
certain firearm makes and models as "assault weapons." Later in the
same section, but not included in the assault weapon category, "high
capacity magazine" is defined as having an "overall capacity of more
than 15 rounds."
Section 8-20-075 declares the sale, manufacture, transfer or possession of
assault weapons to be unlawful. Section 8-20-085 (b) specifically prohibits the
sale or possession of "any high capacity magazine or tubular magazine
extension for a shotgun carried, possessed, displayed, sold or otherwise
transferred in violation of this section is hereby declared to be contraband
and shall be seized by and forfeited to the city." The
ordinance formatting and language are unclear and quite confusing. High
capacity magazine is defined, but it could reasonably be construed that the
city's ban seems to be specifically and solely related to shotguns.
Section 8-20-300 (a) provides that any person who violates Sections 8-20-075 or 8-20-085 "shall
be fined not less than $1000.00 nor more than $5000.00 and be incarcerated for
a term not less than 90 days nor more than 180 days." In addition to
ARs, the ordinance bans laser light accessories, threaded barrels, silencers
(mufflers), and flash suppressors.
Chicago Police Department directives pertaining to the IL Firearm Concealed
Carry Act make no mention of the county's magazine capacity restriction. Thus
far, very few related arrests or prosecutions have occurred and it's highly
unlikely you'd be caught or charged. But bear in mind that firearm crimes
occurring in Chicago are usually handled by the Cook County State's Attorney.
Their office (especially in the current anti-gun climate) could begin
aggressively prosecuting LCM offenders. And bear in mind that beyond city
limits you'd be subject to arrest and prosecution for the county's 10-round
magazine capacity restriction.
State of Illinois Restrictions
On January 10, 2023, Illinois enacted the “Protect Illinois
Communities Act” (House Bill 5471 with Senate Amendment 3). Among other
provisions, the Act bans the purchase, possession, delivery, and sale of any
“large capacity ammunition feeding device.” Included in its definitions is “1)
a magazine, belt, drum, feed strip, or similar device that has a capacity of, or that can be readily restored or converted to accept,
more than 10 rounds of ammunition for long guns and more than 15 rounds
of ammunition for handguns; or (2) any
combination of parts from which a device described in paragraph (1) can be
assembled.” The magazine ban becomes effective April 10, 2023.
The Act includes these exemptions:
does not apply to a person's possession of a large capacity ammunition feeding
device if the person lawfully possessed that large capacity ammunition feeding
device before the effective date of this amendatory Act of the 102nd General
Assembly, provided that the person shall possess such device only: on
private property owned or immediately controlled by the person; on private
property that is not open to the public with the express permission of the
person who owns or immediately controls such property; while on the premises of
a licensed firearms dealer or gunsmith for the purpose of lawful repair; while
engaged in the legal use of the large capacity ammunition feeding device at a
properly licensed firing range or sport shooting competition venue; or (5)
while traveling to or from these locations, provided that the large capacity
ammunition feeding device is stored unloaded and enclosed in a case, firearm
carrying box, shipping box, or other container. A person authorized under this
Section to possess a large capacity ammunition feeding device may transfer the
large capacity ammunition feeding device only to an heir, an individual
residing in another state maintaining it in another state, or a dealer licensed
as a federal firearms dealer under Section 923 of the federal Gun Control Act
of 1968.
Other exceptions are
made for qualified law enforcement officers, private security contractors, and
certain other duly authorized personnel. A person who knowingly violates a
provision of the Act commits a petty offense with a fine of $1000 for each
violation.
While PICA is state law, it does not exempt Illinois
Concealed Carry Licensees or regular FOID cardholders. Nor does it exclude or
nullify applicable existing home rule unit restrictions. The ten-round magazine capacity limitations previously
imposed by Cook County, Deerfield, Highland Park, Highwood, Markham, Oak Park,
Orland Park, Rosemont and several other communities remain in effect. These local
ordinances have seldom been enforced; given PICA, future enforcement is even
more unlikely. Nevertheless, consider the risks and penalties of
noncompliance.
Status - June 2024
The Blair Holt ban prevails throughout Cook County, unless
and until any of three conditions occur: the County Board modifies or
repeals it; 2) a municipal ordinance, declaration or other official provision
expressly allows LCMs and AR-15 style firearms within its jurisdiction; 3) The
U.S. Appeals Court or U.S. Supreme Court overturns the Blair Holt ordinance
(and/or similar laws in other jurisdictions).
Recommendation
Remember, the preemption clauses of 430 ILCS 65/13.1
and 430 ILCS 66/90 do not exempt Illinois Concealed Carry Licensees from Cook
County or other home rule unit ordinances.
I urge clients, colleagues and others (especially concealed
carry licensees) to comply with home rule restrictions. Bear in mind there's currently no federal, state or Cook
County limitation on the number of magazines you can own or carry.
