Exclusively Practicing Criminal Defense for
Two Decades
David Olshansky

Weapon Charges

When it comes to weapons such as guns and firearms, opinions are strongly divided among the general public. The anti-gun campaigners want a complete ban on firearms of all kinds. The pro-gun lobby is equally passionate about their rights to bear arms.

With an increasing number of incidents of mass shootings across the country, the legislators have put more stringent controls on guns. Laws concerning the possession, display and use of weapons are collectively covered through weapon charges.

State Legislation

Weapons charges are covered under various sections including 720 ILCS 5/24. The law covers four distinct weapon charges, namely;

  • Possession of a weapon by a felon
  • Armed habitual criminal
  • Unlawful use of a weapon
  • Aggravated use of a weapon

To obtain and possess a weapon in Illinois, a person needs a Firearm Owners Identification Card (FOID). There are certain requirements for getting registered as a Firearm owner such as being over 21 years old and no previous convictions.

In order to carry a gun outside their home, a person must also obtain a ‘conceal and carry’ permit from the Illinois State Police.

A person must have a valid FOID card, no previous convictions and must not have been found guilty of the use or threat of using physical force or any kind of violence within the past five years of applying.


Most types of weapon charges result in a trial under Class A misdemeanor which is punishable by up to one year in prison and a fine of $2,500. Subsequent violations after the first are charged as a Class 4 felony punishable by 1 – 3 years in prison.

A person who possesses, purchases, sells or carries a firearm when they are not eligible to obtain a FOID can be charged with a Class 3 felony which is punishable by 2 – 5 years in prison. Examples of people who are not eligible for a FOID include ex convicts and minors etc.


Weapon charges include a large number of offenses involving weapons and firearms. Committing a felony while in possession of a weapon or firearm aggravates the offense in most cases.

Even if a person does not commit a felony, the mere possession or trade of a weapon in public can result in aggravated charges unless it takes place at a private residence or a place of business meant for such trade or possession.

A person carrying a gun must have an FOID and a person found without the card can be charged with aggravated unlawful weapon violation.

A person can also be charged for the offense if the firearm is loaded, out of its case and readily accessible or if the person commits a misdemeanor involving the use or threat of violence.

Examples and Court Cases

A man was recently sentenced to three years in prison on weapon charges.

Jeremy Upton 26 was arrested at the end of a high-speed car chase after he tried to flee from police officers. When the police searched him, they found a handgun in his possession. The man had a previous felony conviction and it is illegal for ex convicts to carry weapons.

Upton had pleaded guilty to the charge of weapon possession by a felon.

Weapon charges are quite serious on their own as they can lead to jail time of one to five years based on the severity of the crime. However, possession of a firearm while committing a felony can significantly increase the sentence for a person.

Consider the case of a man from Peoria who was sentenced to 11 years in prison on drug and weapons related offenses last year.

Marvin Dunnigan 26, was found guilty for possession of more than 100 grams of heroin with intent to distribute. He was also convicted for possession of a firearm during a drug-trafficking crime. The man had a .40 caliber handgun in his possession when arrested.

Dunnigan had pleaded guilty to both charges and must serve 85 percent of his sentence before being eligible for parole.

Possible Legal Defenses

Weapon charges rely on three factors. The person accused of the offense must be in possession of a weapon or firearm knowingly.

This opens up three possibilities for defense.

First, the defendant can argue that they were not aware of the presence of the firearm. Consider a case where a person drives one of his friends home. The friend is carrying a handgun, which he is legally allowed to carry, but forgets the weapon in the car.

The driver gets stopped later for a minor traffic violation and the police officer sees the weapon on the back seat of the car. The police arrest the driver and charge him for unlawful possession of a weapon. It is a perfectly legal defense to argue that the driver did not have the knowledge about the firearm in their car.

The second defense is to ask for suppression of evidence. The Fourth Amendment protects citizens from illegal stop and searches. Any evidence obtained through an illegal search can suppressed and removed from consideration during a trial.

In the example above, let’s suppose that the handgun was inside the dashboard. After stopping the driver for a minor traffic violation, the police officer opens the dashboard and finds the gun. A good defense team can argue that the officer did not have probable cause to search the vehicle and the case may be dismissed.

The third defense is to argue lack of possession. In the example above, suppose that the driver was taking his friend home and the police stop the duo for a minor traffic violation. The officer sees the gun on the passenger and arrests both of them for possession.

The driver can argue that he was not personally in possession of the weapon and lacked control over it, which is a legal defense.