Who Cannot Own Or Carry A Firearm In Illinois?
Those are set by statute in each state. In Illinois, in order to qualify to get a gun card, you have to not have been in a mental institution. You can’t be a convicted felon, you can’t have had a domestic violence order of protection ordered against you and that’s one of the horrible things for those ex-parte orders of protection, somebody can go in and get it for you and drop the next day, you may have a problem ever getting your gun card again for the rest of your life. If you have an order of protection, you can’t have a gun or a gun card. If you’ve been on the mental institution, you don’t qualify, if you’re a prior felon, it’s a whole separate offense called Unlawful Use of Weapons by the felon. Obviously, if you are the felon, you can’t have it either in certain misdemeanors that would prohibit you from having any type of gun, which would be a domestic violence, that type of thing order of protection.
What Happens When A Weapon Is Used In The Commission Of A Crime?
Very simply, let’s say I come up to you say and I say, “Give me all your money”, and I’m just standing there with my first in my pocket, or I’m saying, “I’m going to punch you in the nose if you don’t give me your money”. That’s a robbery. Of course, if I have a gun or a knife, it then becomes armed robbery, so it would go from a Class III felony where you’re looking at 2 to 5 years to a class X felony if you’re armed with a gun, class I weapon, and you’ll be charged with a class X felony. Also, there are a number of charges that fall under the lineage of armed violence. An armed violence just says if you commit any felony while under the possession of a weapon, it turns into armed violence. Now, there are two types of armed violence, one is with a class I category weapon like a pistol or a gun or a rifle, the other is if it’s with a knife in excess of 3 inches in the blade, that is not a class X.
But the armed violence with class X felonies that have a minimum of 15 years in prison. So, they have some very, very harsh laws that let’s say you had a half a gram of cocaine in your pocket and you have a gun in your car and you’re sitting in your car. I actually had this scenario where the cocaine was under the seat and the gun was in the trunk, well the prosecutor’s able to convince the judge that that’s a constructive possession because, 1) he had the intention to get to the item, and 2) he had the ability to get to the item. So, you put those two things together and all-of-a-sudden, we have someone that’s looking at 15 years minimum in prison even though they call it Armed Violence, he wasn’t physically armed but he had constructive possession of it.
So, the statute says, “While armed”, and while armed goes back to was it in his possession, possession goes back to it’s either on you or it’s constructive possession, it’s somewhere where you have the ability to exercise control over that item and you must also have the intent to exercise that control. So, let’s say you jump into your buddy’s car and you’ve got that same half-gram of cocaine in your back pocket and he gets pulled over, the cop pulls everybody out and you’re getting arrested for the cocaine and they find a gun in the trunk. Well, they’re going to certainly charge you with armed violence because, 1) do you have the ability to get to it, 2) do you the ability to get to the trunk like anybody else, you open the trunk. The question would then become did you have the intent to exercise control over it, and in that scenario, it will be no because you didn’t know that the gun was even in there.
You had the ability to get to it but no, you had no intent to do it because you didn’t know it was there. So, anytime you have a gun, it highly aggravates the situation no matter what it is. So, it can be something as innocuous as driving while license revoked and you’d even know you’re revoked but let’s say you’re revoked and you got a gun somewhere nearby, all of a sudden, you’re looking at armed violence is ridiculous that armed violence, yes, I understand the statute being very severe for someone committing like a forcible felony with the gun but it shouldn’t be something when it’s a passive felony like a small possession of a controlled substance. Let’s say a guy had a Viagra in his pocket without a prescription, that’s unlawful possession of a controlled substance.
If there’s a gun in the back of a car, the guy’s looking at 15 years in prison. So, some very, very harsh laws on the books dealing with guns and some are way out of proportion of what they should be but there is always some archaic laws that haven’t caught up with what reality is and that’s what you have to deal with.
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