The Second Amendment and People Who Have Past Misdemeanor Convictions for Nonviolent Gun Possession

Chicago law bans gun possession without a license, and provides that licenses may not be issued to anyone who has “been convicted by a court in any jurisdiction of … an unlawful use of a weapon that is a firearm.” Shawn Gowder has a misdemeanor conviction for “unlawful use of a weapon” based on simple possession of a gun; the conviction dates back from 1995 (it was originally a felony but was later redefined a misdemeanor because of a state court decision holding that struck down the law making the conviction a felony on state single-subject-clause grounds).

Gowder sued, and today a federal district court (Gowder v. City of Chicago (N.D. Ill. June 19, 2012)) held that the law violated Gowder’s Second Amendment rights. While the Supreme Court has stated that felons may be barred from possessing guns, and the Seventh Circuit held the same about people who have violent misdemeanor convictions, the district court held that nonviolent misdemeanants with convictions for nonviolent gun possession offenses do not permanently lose their Second Amendment rights. I think this is likely correct, and will likely be upheld on appeal (though that’s always hard to tell).

The court also held that the Chicago ordinance was unconstitutionally vague, because it wouldn’t be clear to a reasonable citizen that “unlawful use of a weapon” includes simple possession offenses, especially given that the phrase is defined differently in the laws of different states. But on this point, I think the district court likely erred.

“Unlawful use of a weapon” is defined by an Illinois statute to include simple possession of the sort for which Gowder had been convicted — in fact, his 1995 conviction was under that very statute — so the Chicago ordinance can and should be interpreted to refer to that statute. And so interpreted, the ordinance wouldn’t be unconstitutionally vague as to Gowder and as to anyone else who has such a conviction in Illinois, though indeed it would be unconstitutional on Second Amendment grounds as applied to people like Gowder, for the reasons that the judge gave in his Second Amendment discussion. (It might conceivably be unconstitutionally vague as to people who have convictions in other states for crimes that neither clearly fit nor clearly don’t fit within the Illinois definition of “unlawful use of a weapon.” But even if that happens in some situations — and I’m not sure it ever would — that is reason to hold the statute unconstitutional vague as to such a person and situation, not a reason to hold it unconstitutionally vague on its face.)

To be sure, it may well be unfair to put ordinary citizens in a position where they have to know that the phrase “unlawful use of a weapon” includes mere possession, and it may well be that the ordinance should be written more clearly. (On the other hand, presumably Gowder knows that his conviction was for “unlawful use of weapons,” since that’s the name of the crime of which he was convicted.)

But, rightly or wrongly, the void-for-vagueness doctrine doesn’t cure such potential unfairness: A statute is evaluated not just on its face, but together with whatever clarifying interpretations have been imposed by courts, or could reasonably be imposed by this court. And interpreting a reference to “unlawful use of weapons” in an ordinance of an Illinois city using the definition of “unlawful use of weapons” in an Illinois state statute is precisely the sort of clarifying construction that courts could and should impose (even if other states defined the phrase differently).

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