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Attorney Reveals if Open Carry in Illinois is Legal with this One Weird Trick!

Posted by Steven H. Fagan | Aug 16, 2018 | 0 Comments

Maybe you've seen headlines recently such as “9th Circuit panel finds a constitutional right to openly carry a gun,” “U.S. Appeals Court: Constitution Gives Right To Carry Gun In Public,” or “Appeals court rules Constitution protects right to openly carry gun in public.” These headlines are designed to grab attention and shock a person into reading the article, but they can be misleading when it comes to understanding the July 24, 2018 decision in Young v. Hawaii and what it means for people outside Hawaii. This post will briefly discuss the case in light of what, if anything, it means for Illinois criminal law and the right to carry firearms under Illinois gun laws.

Young v. Hawaii is an interesting case about the extent of Second-Amendment rights and whether Hawaii violated those rights in refusing George Young's applications for a license to carry (open or concealed) on the big island. This is the first time that the 9th Circuit has directly addressed the question of “whether the Second Amendment encompasses a right to carry firearms openly in public for self-defense.” The 2-1 decision declared Hawaii's law unconstitutional in violation of the core right to self-defense recognized by the Second Amendment.

This is not, however, a nationally-binding ruling that means any state law against open carry is now rendered unconstitutional. It does not overrule or rewrite Illinois firearm laws.

The 9th Circuit Federal Court of Appeals ruling is only controlling over a specific region of the United States, encompassing Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, the Northern Mariana Islands, Oregon, and Washington. It is not controlling over states and territories outside that list. Illinois is part of the 7th Circuit (controlling Illinois, Indiana, and Wisconsin), which means that any ruling by the 9th is not binding on Illinois.

While there are arguments within the ruling that may be academically interesting, and provide persuasive fodder for challenges to Illinois gun laws, Illinois courts look to controlling cases such as Moore v. Madigan – a 7th Circuit case from 2012 that led to the Illinois legislature drafting new laws allowing licensed concealed carry. Before then, concealed carry in Illinois was forbidden with extremely limited and restrictive exceptions. Now, Illinois is a “shall-issue” state, meaning that if the application for a concealed carry permit is filled out correctly and the applicant meets the criteria for approval, including criminal background checks and required educations and training, the state must issue a license to the applicant.

While Moore struck down the ban and forced the Illinois legislature to draft new laws, it did not take away the state's right to license and restrict the right to carry in public. Open carry is not legal in Illinois, and concealed carry without a valid concealed-carry license and a valid Firearm Owner's ID card is similarly illegal. These laws have not been found unconstitutional, and will be enforced as valid Illinois law. If Young v. Hawaii is appealed to the United States Supreme Court and the case is selected to be heard, there may be future developments from such an appeal that could affect firearm carry law throughout the country. However, the ruling as it stands does not change Illinois law or enforcement.


-this post was prepared with indispensable assistance of Northern Illinois Law School Student Avi Fagan  

About the Author

Steven H. Fagan

Steve Fagan earned his law degree from Chicago-Kent College of Law, is a member of the NCDD, NACDL, ISBA and a founding member of the DUIDLA. He is published and has taught CLE for lawyers on subjects such as sex offenses, DUI and criminal defense, focuses on trial work and Real Estate closings


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