SPRINGFIELD — Amid multiple recent challenges to state gun control laws, the Illinois Supreme Court heard arguments on Tuesday concerning the constitutionality of concealed carry licenses and open carry bans.
Under Illinois’ aggravated unlawful use of a weapon statute, individuals are not allowed to carry a firearm in public unless the person has a valid Concealed Carry License. Tyshon Thompson, the defendant, was convicted of violating the statute in March 2022 after having been involved in a highway shooting two years earlier.
Thompson, represented by the state appellate defender’s office, has since challenged the statute as unconstitutional based on the 2022 U.S. Supreme Court case New York State Rifle & Pistol Association v. Bruen. After a lower court affirmed his conviction in June 2023, Thompson appealed the decision.
Most states have some type of licensing process, characterized as either “shall-issue,” meaning they are issued if they meet the criteria set by the law, or “may-issue” licensing done at the discretion of authorities. Shall-issue licensing allows citizens to obtain permits through a non-restrictive process, while may-issue licenses require applicants to give a proper reason for needing a weapon.
In the Bruen case, the U.S. Supreme Court found that may-issue licenses were unconstitutional, ruling the New York law at issue violated the Fourteenth Amendment by making it difficult for people to show “proper cause” in order to exercise their basic Second Amendment right to bear arms. The court also decided states must show that their laws are consistent with the nation’s historical tradition of firearms regulation.
Eric Castañeda, of the state appellate defender’s office, argued Illinois’ concealed carry law was unconstitutional according to the Bruen precedent because of the license’s prerequisites.
One of the requirements for a concealed carry license is another permit — a Firearm Owner’s Identification, or FOID, card. A FOID card allows an Illinois native to purchase and possess firearms and ammunition. Thompson had a FOID card but was still found guilty of violating state law for having a firearm in his vehicle in 2020. He was sentenced to 30 months in prison.
One point of contention for Castañeda was the requirement to obtain two licenses to carry a weapon in public.
“The test provided by Bruen shows that the state has to point you in the direction of a historical analog that is well established,” Castañeda said. “And it simply can’t do that. … There’s simply no historical analog to show a double licensing regime.”
Because of the need for a secondary permit, as well as the required 16-hour training, Castañeda said, Illinois’ requirements for concealed carry were equivalent to a may-issue license.
Castañeda also argued the double licensing requirement did not pass the historical tradition test because there was no equivalent to Illinois’ concealed carry license requirements at the time of the drafting of the Second Amendment, which protects the rights of citizens “to keep and bear arms.”
Assistant Attorney General Garson Fischer, who represented the state, said the concealed carry law was shall-issue in nature. He cited the Bruen decision itself, which referenced 43 states, including Illinois, that have shall-issue licensing processes.
“The court said in no uncertain terms that shall-issue licensing regimes, including explicitly Illinois, are constitutional,” Fischer said.
Fischer also said the defendant never applied for a concealed carry license and would have likely been approved for the license if he had gone through the appropriate steps.
The assistant attorney general noted the historical tradition test does not require an exact copy from the 18th century, but that the purpose of the regulation must have a similar purpose to regulations from that era.
Castañeda made additional arguments against any regulation prohibiting open carry, which is illegal under state law. In a court filing, the defense argued the concealed carry law is “facially unconstitutional as it categorically bans a law-abiding citizen’s Second Amendment right to public open carry a handgun.”
“We think that concealed carry and open carry are two categorically different conducts, one which is protected under the Second Amendment and the other which is not,” Castañeda said. “So the government can regulate concealed carry as it pleases, but the same doesn’t apply for open carry.”
Thompson was convicted for violating a specific part of the aggravated unlawful use of a weapon statute concerning the concealed carry licenses, so it’s unclear if Castañeda’s client has standing to challenge Illinois’ open carry ban.
“What the relevant provision of AUUW (aggravated unlawful use of a weapon) says is that you cannot legally carry a firearm in public unless you have a currently valid concealed carry license,” Fischer said. “It doesn’t say anything about open versus concealed carriage.”
Illinois is not the only state to face challenges under the new Bruen framework. The U.S. Supreme Court recently declined to hear a challenge to a pair of Maryland state firearm regulations after the laws were affirmed by lower courts.
One of the challenged Maryland regulations was a ban on assault rifles, which is similar to an Illinois law that was temporarily struck down as unconstitutional by a federal judge in November. Illinois immediately appealed that decision, and a federal appeals court allowed the law to remain in place until it hears full arguments from both parties.
The other Maryland regulation included a licensing process similar to the dual system in Illinois.
The Illinois Supreme Court did not indicate when a final decision would be issued in the Thompson case.
Ismael M. Belkoura is a graduate student in journalism with Northwestern University’s Medill School of Journalism, Media, Integrated Marketing Communications, and a Fellow in its Medill Illinois News Bureau working in partnership with Capitol News Illinois.
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.
