From a comment to this article: “More wasted taxpayer money deciding constitutional law that has already been decided by the Bill of Rights and has never been amended in the Constitution.
All gun control is [an] unconstitutional violation of the People’s right to keep and bear Arms. These judges should be impeached by violating their oaths of office to uphold the Constitution.”
From Illinois Appellate Court Judge David Ellis’s concurring opinion two weeks ago in People v. Lee:
I believe that the State is required to prove that the defendant [who is charged with possessing a firearm with a defaced serial number] knew that the firearm he possessed [had a defaced serial number]. The seminal case holding otherwise, People v. Stanley, 397 Ill. App. 3d 598 (2009), was wrong when it was decided and is even more obviously wrong today, in a world where the mere possession of a firearm, without more, cannot be constitutionally prohibited. We should say so.
Section 24-5(b) of the Criminal Code provides that “A person who possesses any firearm upon which any … serial number has been changed, altered, removed, or obliterated commits a Class 3 felony.” As written, the statute thus takes the form of a “strict” or “absolute” liability offense: It has no explicit mens rea requirement.
The legislature can create absolute liability for a felony, but only if it “clearly indicates” its intent to do so. 720 ILCS 5/4-9. That intent will not be inferred from the “mere absence” of a mens rea requirement in the statute. People v. Gean, 143 Ill. 2d 281 (1991). As Stanley correctly noted, there is no clear statement of that intent in section 24-5(b). Thus, we must presume that the legislature did not intend to impose absolute liability for possessing a defaced firearm.
To avoid absolute liability, a mens rea must be inferred into the statute. For a possessory offense, we must infer at least a mental state of knowledge. 720 ILCS 5/4-2 (possession must be knowing to qualify as voluntary act, as required for criminal liability); see also Gean, 143 Ill. 2d at 288 (“knowledge is the appropriate mental element” to infer into possessory offense). The question is which element(s) of the statute the knowledge requirement must govern. I would hold that the offense requires proof that defendant knew the firearm in his possession was defaced….
Stanley was wrongly decided for at least two reasons. First, its reasoning was indefensible. It held that knowledge of the defacement is not required because defacement “is not an element of the offense” in the first place. So if defacement is not an element, there is only one place to infer the knowledge requirement: with respect to the mere act of possessing a firearm.
by Eugene Volokh
