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CHICAGO (CBS) – A federal judge has thrown out part of the city’s gun law, finding a section of the ordinance is too vague and unconstitutional.
U.S. District Judge Samuel Der-Yeghiayan ruled in favor of Chicago resident Shawn Gowder, who was denied a permit to possess a gun in Chicago, due to a past conviction for unlawful use of a weapon.
In 2010, the U.S. Supreme Court struck down the city’s ban on handgun possession within city limits, and then-Mayor Richard M. Daley and the City Council later passed a new gun ordinance, allowing city residents to possess handguns only within their own homes, and requiring them to first obtain city firearm permits.
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Gowder was denied a city firearm permit, because the city’s gun ordinance prohibits anyone from getting a city firearm permit if they have been convicted of a violent crime, two or more DUI offenses, or unlawful use of a weapon involving a firearm. Gowder had a misdemeanor unlawful use of a weapon conviction on his record.
But Gowder sued the city, arguing the section barring anyone with an unlawful use of a weapon conviction from obtaining a city firearm permit was too vague, “because it does not define the term ‘unlawful use of a weapon.’”
Gowder’s attorneys argued that section could apply to non-violent cases, in which a person was convicted simply of illegally possessing a gun.
Der-Yeghiayan agreed in a ruling issued on Tuesday, holding the portion of the city’s gun ordinance regarding previous unlawful use of a weapon convictions “is unconstitutionally void for vagueness” and “violates Gowder’s right to keep and bear arms under the Second Amendment of the United States Constitution.”
“I was just grateful that this opportunity came around, and I was the right person, for the right time, for the right case,” Gowder said after Tuesday’s ruling. “This victory is not only for me, but it’s for all law-abiding citizens with a misdemeanor conviction.”
The judge noted that state law does not prohibit someone from obtaining an Illinois Firearm Owners identification card due to a misdemeanor conviction of unlawful use of a weapon.
Der-Yeghiayan also noted that individual states define “unlawful use of a weapon” differently, noting that in some states, simply carrying a firearm in public counts as “unlawful use of a weapon,” while other states require an intent to unlawfully use a weapon before a person can be charged with “unlawful use of a weapon.”
The judge wrote that Chicago’s gun ordinance “does not provide a person of ordinary intelligence a reasonable opportunity to know what is prohibited, in that it does not define the term ‘unlawful use of a weapon.’”
“It appears that the City of Chicago merely borrowed from an Illinois criminal statute the term “unlawful use of a weapon,” which sounds extremely serious on its face, but in reality can include simple unlawful possession,” Der-Yeghiayan wrote. “A person of ordinary intelligence, such as Gowder, would not clearly understand who is barred from obtaining a Chicago Firearm Permit.”
The judge also wrote that an ordinary person would likely believe “unlawful use of a weapon” would mean actually using a firearm for an illegal purpose, not simply possessing a gun.
“The Chicago Firearm Ordinance basically provides that anyone convicted of a nonviolent misdemeanor offense relating to a firearm is forever barred from exercising his constitutional right to possess a firearm in his own home for self-defense,” Der-Yeghiayan wrote. “There is something incongruent about a non-violent person, who is not a felon, but who is convicted of a misdemeanor offense of simple possession of a firearm, being forever barred from exercising his constitutional right to defend himself in his own home in Chicago against felons or violent criminals.”
The judge’s ruling does not affect any of the other sections of the city’s gun ordinance.
A spokesperson for the city’s Law Department said the city is disappointed with the ruling, and officials will advise police how to proceed with enforcement of the law.
Gowder said he plans to purchase a gun, and to fight for concealed carry legislation in Illinois.