AUUW in Illinois is a gun possession charge.

Illinois is a conceal and carry state.

That being said, criminal gun possession under the right circumstances is constitutional. (Too much too soon? Visit the Illinois criminal law refresher page.)

Unfortunately, there is not one simple statute on the books that criminalizes gun possession. There is a variety of statutes used by law enforcement and prosecutors.

Hierarchy Of Gun Possession Crimes In Illinois

Here is the basic UUW statute in Illinois:

Illinois UUW Basic Gun Possession Charge

A person commits the offense of unlawful use of weapons when he knowingly: Carries or possesses in any vehicle or concealed on or about his person except when on his land or in his own abode, legal dwelling, or fixed place of business, or on the land or in the legal dwelling of another person as an invitee with that person’s permission, any pistol, revolver, stun gun or taser or other firearm, except that this subsection (a) (4) does not apply to or affect transportation of weapons that meet one of the following conditions:
(i) are broken down in a non-functioning state; or
(ii) are not immediately accessible; or
(iii) are unloaded and enclosed in a case, firearm carrying box, shipping box, or other container by a person who has been issued a currently valid Firearm Owner’s Identification Card; or
(iv) are carried or possessed in accordance with the Firearm Concealed Carry Act by a person who has been issued a currently valid license under the Firearm Concealed Carry Act;”

720 ILCS 5/24-1(a)(4).

Then we have the AUUW gun charge…

The Illinois AUUW Gun Charge

A person commits the offense of aggravated unlawful use of a weapon when he or she knowingly:
(1) Carries on or about his or her person or in any vehicle or concealed on or about his or her person except when on his or her land or in his or her abode, legal dwelling, or fixed place of business, or on the land or in the legal dwelling of another person as an invitee with that person’s permission, any pistol, revolver, stun gun or taser or other firearm; and
(3) One of the following factors is present:

(A) the firearm, other than a pistol, revolver, or handgun, possessed was uncased, loaded, and immediately accessible at the time of the offense; or
(A-5) the pistol, revolver, or handgun possessed was uncased, loaded, and immediately accessible at the time of the offense and the person possessing the pistol, revolver, or handgun has not been issued a currently valid license under the Firearm Concealed Carry Act; or
(B) the firearm, other than a pistol, revolver, or handgun, possessed was uncased, unloaded, and the ammunition for the weapon was immediately accessible at the time of the offense; or
(B-5) the pistol, revolver, or handgun possessed was uncased, unloaded, and the ammunition for the weapon was immediately accessible at the time of the offense and the person possessing the pistol, revolver, or handgun has not been issued a currently valid license under the Firearm Concealed Carry Act; or
(C) the person possessing the firearm has not been issued a currently valid Firearm Owner’s Identification Card; or…(I) the person possessing the weapon was under 21 years of age and in possession of a handgun, unless the person under 21 is engaged in lawful activities under the Wildlife Code or described in subsection 24-2(b)(1), (b)(3), or 24-2(f).”

720 ILCS 5/24-1.6(a).

Important Things To Know About UUW and AUUW In Illinois

You can see the difference between AUUW and UUW is basically that a weapon has to be uncased and immediately accessible to sustain a conviction for AUUW.

However, both statutes are careful to exclude possession of a handgun by an individual who has a valid Conceal & Carry license and is legally complying with that law.

From here the statutes elevate in class level and seriousness of the charge. There are no constitutional restrictions that criminalize and prohibit gun possession for certain classes of people.

The Illinois UUW Felon Charge

Felons are prohibited from possessing guns under 720 ILCS 5/24-1.1. (Unlawful use or possession of weapons by felons or persons in the custody of the Department of Corrections facilities.)

It says,

It is unlawful for a person to knowingly possess on or about his person or on his land or in his own abode or fixed place of business any weapon prohibited under Section 24-1 of this Act or any firearm or any firearm ammunition if the person has been convicted of a felony under the laws of this State or any other jurisdiction. This Section shall not apply if the person has been granted relief by the Director of the Department of State Police under Section 10 of the Firearm Owners Identification Card Act.”

720 ILCS 5/24-1.1(a).

You should notice UUW Felon has no exceptions for possessing in your own home and there is no conceal & carry exception.

Unlawful Possession Of A Firearm By A Street Gang Member

Suddenly, the gun possession crimes becomes more logically with gang member gun charges. This section is labeled “Unlawful possession of a firearm by a street gan member,” and provides that,

A person commits unlawful possession of a firearm by a street gang member when he or she knowingly:

(1) possesses, carries, or conceals on or about his or her person a firearm and firearm ammunition while on any street, road, alley, gangway, sidewalk, or any other lands, except when inside his or her own abode or inside his or her fixed place of business, and has not been issued a currently valid Firearm Owner’s Identification Card and is a member of a street gang; or

(2) possesses or carries in any vehicle a firearm and firearm ammunition which are both immediately accessible at the time of the offense while on any street, road, alley, or any other lands, except when inside his or her own abode or garage, and has not been issued a currently valid Firearm Owner’s Identification Card and is a member of a street gang.

720 ILCS 5/24-1.8(a).

See Also

• People v. Gayfield, 2014 IL App (4th) 120216-B (March). Episode 008 (Duration 7:18) (Illinois Gun Laws Include Different Versions Of UUW: Nothing Is Logical About Criminal Code)
• People v. Cunningham, 2019 IL App (1st) 160709 (March). Episode 611 (Duration 9:18) (Is It Constitutional To Ban Guns From Public Housing?)
• People v. Webb, 2019 IL 122951 (March). Episode 610 (Duration 6:17) (UUW Provision Banning Stun Guns Is Shot Down As Unconstitutional)
• People v. Green, 2018 IL App (1st) 143874 (June). Episode 512 (Duration 6:09) (Gun Laws Banning Firearms 1,000 Feet From Protected Places Are Unconstitutional)
• People v. Holmes, 2017 IL 120407 (July). Episode 387 (Duration 10:12) (Since Guns Are Legal To Own Can An Officer Stop You Just For Seeing Your Gun??)
• People v. Bell, 2018 IL App (1st) 153373 (June). Episode 513 (Duration 7:40) (Gun Laws Banning Firearms In Protected Places Are 100% Constitutional)
• People v. Shinaul, 2017 IL 120162 (February). Episode 311 (Duration 4:52) (State Not Allowed To Re-Open Old Counts When Aguilar UUW Is Vacated)
• People v. Billups, 2016 IL App (1st) 134006 (May). Episode 188 (Duration 4:52) (Can an Invalidated Aguilar Conviction be Used in Aggravation in a Sentencing?)
• People v. McFadden, 2016 IL 117424 (June). Episode 187 (Duration 5:17) (Old Aguilar Gun Convictions Can’t Be Used As Predicates For More Serious Crimes)
• In re N.G., 2018 IL 121939 (August). Episode 524 (Duration 22:24) (On Second Thought The State Should Help Root Out And Vacate Bad Gun Convictions)
• People v. Tolbert, 2016 IL 117846 (January). Episode 137 (Duration 3:45) (AUUW liability by a person under 21 can be avoided if the minor is “on the land or in the legal dwelling of another person as an invitee with that person’s permission.”)
• People v. Burns, 2015 IL 117387 (December). Episode 119 (Duration: 6:54) (Aguilar Did Facially Strike Down Specific Sections of AUUW – No Person (Not Even Felons) Can Be Convicted)
• People v. Holmes, 2015 IL App (1st) 141256 (November). Episode 108 (Duration 4:30) (If Aguilar Says Some Gun Possession Is Legal Then Can The Police Stop You If They See A Gun?)
• People v. Williams, 2015 IL 117470 (November 2015). Episode 109 (Duration: 4:33) (Proportionate Penalties Challenge To AUUW No FOID Section Fails)
• People v. Mosley, 2015 IL 115872 (February). Episode 060 (Duration 14:33) (Aggravated Unlawful Use of a Weapon – 720 ILCS 5/24-1.6 Revisited by Illinois Supreme Court)
• People v. Whalum, 2014 IL App (1st) 110959-B (September). (Some Unlawful Use of a Weapon by a Felon Charges DO Require Notice Under 725 ILCS 5/111-3(c))
• People v. Pryor, 2014 IL App (1st) 121792-B (July). (The Unlawful Use of a Weapon by a Felon Notice Requirement Under 725 ILCS 5/111-3(c))
• People v. Gayfield – Episode 008 (Duration 7:18) – Illinois Gun Laws Include Different Versions Of UUW: Nothing Is Logical About Criminal Code

• People v. Agular, 2013 IL 1122116 (September) (certain provisions of Illinois UUW are unconstitutional)
• People v. Marin, 342 Ill.App.3d 716 (1st Dist. 2003) (UUW requires no actual criminal intent, however guns are not innocent and frequency of innocent possession is statistically low)
• People v. Austin, 349 Ill.App.3d 766 (1st Dist. 2004) (UUW does not have a culpable mental state but the charge belies innocent conduct)
• People v. Velez, 783 N.E.2d 226 (2nd Dist. 2003) (statute prohibiting switchblade knives applies equally to functioning and malfunctioning knives)
• People v. Perez, 97 Ill.App.3d 278 (1st Dist. 1981) (no self defense for UUW when defendant says he had to carry a gun in gang territory, court said he also could have just avoided the area)
• People v. James, 180 Ill.App.3d 461 (1st Dist. 1989) (affirmative defense of necessity for UUW Felon was not available since defendant created the situation that lead to so many people want to kill him)
• People v. Crowder, 753 N.E.2d 1165 (2nd Dist. 2001) (state doesn’t have to prove the gun was operable but does have to prove it was a firearm)
• People v. Hester, 649 N.E.2d 1351 (4th Dist. 1995) (no error to give non-IPI that inoperability of the firearm was immaterial)
• People v. White, 627 N.E.2d 383 (1993) (UUW Felon sufficient when evidence was that the object possessed the outward appearance and characteristics of a firearm even if inoperable)
• People v. Williams, 640 N.E.2d 1275 (4th Dist. 1994) (evidence as to whether the gun was loaded is irrelevant to a conviction of unlawful use of a weapon)
• People v. Smith, 374 N.E.2d 472 (1978) (inaccessibility of a firearm is not an affirmative defense but a statutory exemption that means the state never has the burden of proving the non-existence of the exemption, defendant must raise and prove the issue by a preponderance of the evidence)
• People v. Sims, 1994 Ill.App.Lexis 467 (3rd Dist. 1994) (constructive possession of a gun)
• People v. O’Neal, 35 Ill.App.3d 89 (1st Dist. 1975) (constructive possession of a gun)
• See also constructive possession in drug cases
• People v. Ingram, 389 Ill.App.3d 897 (2nd Dist. 2009) (joint possession of a gun proven, fact that back seat occupant had access did not defeat defendant’s possession of the gun)
• People v. Diggins, Oct 2009, Illinois Supreme Court, (gun case might include a center console or glove box)
• People v. Green, 50 Ill.App.3d 980 (2nd Dist. 1977) (bb gun is not a firearm but a pellet gun might be)
• People v. Runge, 346 Ill.App.3d 500 (3rd Dist. 2004) (mace is not a weapon but unjustifiable macing may be a battery)
• In re S.M., 347 Ill.App.3d 620 (1st Dist. 2004) (unlawful possession of a firearm is a specific intent crime, maybe…)
• People v. Spivey, 351 Ill.App.3d 763 (4th Dist. 2004) (UUW does not require a culpable mental state)
• See also People v. Carpenter, 368 Ill.App.3d 288 and In re M.T. 221 Ill.2d 517, People v. Tolliver, 147 Ill.2d 397, and People v. Wright, 194 Ill.2d 1 for other cases dealing with criminal mental states.
• People v. Grant, 339 Ill.App.3d 792 (1st Dist. 2003) (UUW doe not require a culpable mental state, means a Good Samaritan who encounters a weapon in the street and who then takes it in his car has committed a crime)