The Right to Bear Arms: Overview of New Second Amendment Law

Until recently, the Supreme Court was largely silent on the right to bear arms under the Second Amendment. Then, starting in 2008, the Court issued a series of opinions that drastically altered the way in which courts analyze Second Amendment issues. This blog post provides a brief overview of those recent Supreme Court cases and discusses how the Illinois Supreme Court has applied the law in two recent criminal cases.

The Supreme Court's Second Amendment Analysis

The Second Amendment provides: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” It was not until 2008, in District of Columbia v. Heller, that the Supreme Court held that the Second Amendment protects the private right of individuals to keep arms for self-defense rather than only the right to maintain a militia. Then, two years later in McDonald v. City of Chicago, the Court applied the same reasoning to strike down a state-level handgun ban. Heller and McDonald held only that the Second Amendment protected the possession of guns in the home. It wasn’t until 2022, in New York State Rifle & Pistol Association v. Bruen, that the Supreme Court held that the government must “justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation.”  

The Illinois Supreme Court's Application

The Illinois Supreme Court recently applied these Supreme Court opinions in two criminal cases. First, in People v. Ramirez, 2023 IL 128123, the police recovered a 20-gauge Benelli shotgun, a Mossberg shotgun, a 9-millimeter handgun, and ammunition after executing a search warrant at Ramirez’s home. As a result, Ramirez was charged with possessing a shotgun whose serial number was “changed, altered, removed or obliterated” in violation of 720 ILCS 5/24-5(b) because the serial number on the Benelli shotgun was scratched off. After a bench trial, Ramirez was found guilty and sentenced to two years’ probation even though there was no evidence that he knew the serial number was scratched off. The trial court concluded that the State did not have to prove that Ramirez knew that the serial number was defaced.

On appeal, Ramirez argued that the state was required to prove that he knew the serial number was defaced. Overruling contrary precedent, the Illinois Supreme Court agreed. The court found that the State must prove the mens rea of knowledge because “[t]he fact of the defacement is what makes the possession of the firearm a crime.”

The court could have stopped there without addressing the constitutional issue. But, it continued, finding that its “construction of section 24-5(b) is necessary to avoid this provision impermissibly burdening the federal constitutional right to keep and bear arms.” Citing to Bruen, the court noted that any regulation must be “consistent with the Nation’s historical tradition of firearm regulation.” Defaced firearms, the court noted, are not covered by the Second Amendment because “they are not typically used by law-abiding citizens for lawful purposes.” The state, however, must prove that the defendant knew the serial number was defaced to “ensure[] that the provision comports with the second amendment.”

More recently, the Illinois Supreme Court applied Bruen and Heller in People v. Thompson, 2025 IL 129965. After an exchange of gunfire between two vehicles, police pulled over the vehicle driven by Thompson and found a loaded handgun in the glove compartment. Testing revealed gunshot residue on Thompson’s hands, and ballistics evidence matched the handgun to the shooting. Although Thompson had a Firearm Owner’s Identification (FOID) card, he did not have a concealed carry license (CCL). He was convicted of aggravated unlawful use of a weapon (AAUW) in violation of 720 ILCS 5/24-1.6(a)(1), (a)(3)(A-5) and sentenced to 30 months’ imprisonment.

On appeal, Thompson argued that the AAUW statue was unconstitutional under Bruen’s “text-and-history standard” and infringed on his right to bear arms. He argued that Illinois’s “double licensing regime that mandates CCLs and FOID cards” was contrary to Bruen’s requirement that regulations be consistent with historical restrictions. The court rejected this argument. It noted that Illinois’s “shall-issue” licensing decisions, unlike the “may-issue” licensing scheme held unconstitutional in Bruen, “turns on objective criteria, not on a licensing official’s subjective opinion or an applicant’s showing of some additional need for self-defense.” Bruen, the court noted, had also stated that shall-issue licensing schemes are consistent with the Second Amendment because they “are designed to ensure only that those bearing arms in the jurisdiction are, in fact “law-abiding, responsible citizens.”.

Conclusion

The Supreme Court’s new Second Amendment standard that firearm restrictions be analyzed under “the Nation’s historical tradition of firearm regulation” will undoubtedly bring numerous challenges to criminal statutes in lower courts.

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