2013 IL 112116



### IN T HE
SUPRE M E C OUR T
OF
TH E ST ATE OF IL LI NOI S

(Doc ket No. 112116)
THE P E OP L E OF THE STATE OF I L L I NOI S, Appellee

, v. AL BERTO A GUI L AR, Appellant.

Opinion filed September 12, 2013.

— Modified upon denial of rehearing De cem ber 19, 2013.

J USTI CE THOMAS delivered the judgme nt of the court, with opinion.
J ustices Fr eema

n, Kilbride, Kar

meier, and Bur

ke concur red in the judgme nt and opinion.
Chief J ustice Gar

man dissented upon denial of rehe aring

, with opinion.
J ustice Theis dissented upon de nial of re hear ing, w ith opinion.

OP INION

¶ 1 The princi p al i s s u e i n this case is whether the Class 4 form of

section 24-1.6(a )(1)

, (a) (3)( A), (d) of the I llinois ag g ravated unlawful

use of wea

pons (AUU W) statute (720 I L CS 5/24-1.6(a) (1), (a) (3)( A), (d) (West 2 008)) violates the rig ht to keep and bear arms, as gu ar antee d by the second amendment to the United Sta t es Constit ution (U.S. Const ., amend. I I ). We hold that it does.

¶ 2 BA CKGROUND ¶ 3 The fac ts are not in d i s p u t e. Of fi ce r T h o m as Ha rris of the Chicag o police depa

rtment testified that, on the eve ning of J une 12, 2008, he was on surveillance duty near 4217 West 25th Place. Offic erHar ris obser v ed a g roup of male teena g ers scre aming

, making
g estures, and t h ro wi ng bottles at passing vehicles. This g roup included defe ndant, who Offic er Har ris noticed was holding the rig ht

s i d e of his waist are a. After watching the g roup walk into a n ea rb y alley , Offic er H arr is radioed other office rs who we re ne arby

. ¶ 4 Of

fi cer J ohn Dolan t es t i fi ed t h at , af t er re ce i v i n g a ra d i o communication from Offic er Har ris, he and Officers Wagne r and Triantaf illo trave led to 4217 West 25th Place. Once t h ere , Offic er Dolan watche d sever al indi v i du al s walk into the backyard. The office rs fol l o we d

, and Offic er Dolan hear d defe ndant y ell an expletive. Offic er Dolan then saw that defe ndant had a g un in his rig ht hand. Def

endant dropp ed the g un to the g round, and Offic er Dolan took defe ndant i n t o custody while another office r rec overe d the g un. When Offic er Dolan examined the g un, he saw that the serial number had been scratched off and that it was loaded with three live rounds of ammunition. Offic er Dolan lear ned later that defe ndant did not live at 4217 West 25th P lace

. ¶ 5 Def

ense witness Romero Diaz testified that he lived at 4217 West 25th Place and that defe ndant was his friend. Diaz explained that, on the evening in question, he was with defe ndant and another friend in his backyard waiting for defe ndant’s mother to pick up defe ndant, when three or four police office rs enter ed the backyard with flashlig hts and order ed him and his friends t o t h e g round. When defe ndant hesitated to comply

, one of the office rs tackled him to the
g round. Acc ording to Diaz, defe ndant did not have a gun and did not drop a gun to the g round whe n the offic ers e ntere d the bac ky ard. ¶ 6 Defen d an t t est ified that, on the night of J une 12, 2008, he wa s

with friends at the co rn er o f 26th Street and Kee ler Avenue

. After spending about 45 minutes there

, he and ano t h er friend walked to Diaz’s b acky

ard. Whil e defe ndant was waiting there for his mother
to pick him up, three police office rs enter ed the y ard with flashlig hts and g uns drawn. One office r y elled at defe ndant to g et on the g round, and when defe ndant moved slowly

, another of the officers tackled defe ndant. The office rs t hen searche d the y ard, sho we d d efe ndant a
gun, and accuse d him of dropping it

. Def endant denied ever hav i n g a gun that evening , and he de nied droppinga gun to the g round. ¶ 7 Af

t er weig hing the cre dibilit y of the witnesses, the t ri al co u rt found defe ndant g uilty of both the Class 4 form o f s ec t i o n 24- 1.6(a) (1), (a) (3), (d) and unlawful possession of a firea rm (UPF) (720

-2-I L CS 5/24-3

. 1 (a )(1) (West 2008)). The trial court sentenc ed defe ndant to 24 months’ probation for the AUUW conviction and did not impose sentence on the UPF c onviction. ¶ 8 Def

endant appea led, an d t h e appellate court aff irmed with one justice dissenting. 408 I ll. App. 3d 136. We allowed d ef endant’ s petition for leave to appea l. I ll. S. C t. R. 315 (eff. F eb. 26, 2010). 1

¶ 9 DI SCUS SI ON ¶ 10 Standing ¶ 11 I n t h i s ca s e, we are asked to decide whether the two st at u t es

under which def

endant stands c onvicted—name ly , the Class 4 form of section 24-1.6(a )(1)

, (a) (3)( A), (d) and section 24-3.1(a )(1) of the UPF st atute—violate the r ight to kee p and bear arms, as guar antee d by the s econd amendment to the U n ited States Constit ution. Be fore
we ge t to those questio n s , howeve r, we must quickly dispose of t he State’s argument that defe ndant lacks standing to contest the constit utionality of these statutes. In support of this arg ument, the State invokes the familiar principle that, in order to have standing to contest the constituti o n al i ty of a statutory provision, the party bri n ging that challeng e must show that he falls within the class of
p ersons ag g rieve d by the alleg ed unconstitutionalit y

. See, e.g. , P eo p l e v. Bombacino

, 51 I ll. 2d 17, 20 (1972). Acc ording to t h e State, th is principle means that, in this case , befor e defe ndant can argue that either of these statutes violates the second amendment, he first must be able to show that he was eng ag ed in conduct that enjoy s second amendment protec tion. Yet there is no way defe ndant can do this, the State maintains, beca use defe ndant himself conce des that the conduct involved in this case , namely

, possessing a loaded, defa ced, and illega lly modified handgun on another person’ s proper ty without consent, enjoy s no such protec tion. Thus, the State insists

, defe ndant has no standingto bring a sec ond amendment c halleng e. ¶ 12 We reje ct the State’s argument. The State assumes that defe ndant

is arg uing that the enfor ceme nt of sections 24-1.6(a )(1)

, (a) (3)( A), (d) and 24-3.1(a)( 1) i n t his particula r case viol ates his persona l rig ht to keep and bear arms, as g uara nteed by th e s ec o n d amendment. But

We al so al low ed se ve ra l brie fs amic i cur iae to be fi le d on behal f of 1 bot h defe ndant and the Stat e. I ll . S. Ct. R. 3 45 (ef f. Sept . 20, 201 0).

-3-that is not what defe ndant is arguing. Rather, he is arguing that these
statutes themselv es fac ially violate the second amendment, and that
conseque ntly neither sta tute can be enfor ced ag ainst anyone , defe ndant included. See, e.g. , People v. Manuel

, 94 I ll. 2d 242, 244- 45 (1983) (a defe ndant cannot be prosec uted under a criminal statute that is unconstitutional in its entirety

, as such a statute is void ab initio ). This is a very d i fferent argument from the one the State
assumes, and one that defe ndant undoub tedly has the standing to make. “One has standing to challeng e the validity of a s tatute if he has sustained or if he is in i m mediate dang er of sustaining some d i rec t injury as a result of enfor ceme nt of the statute.” Peop l e v. Maybe rry , 63 I ll. 2d 1, 8 (1976). Here

, the challeng ed st atu t es wer e enfor ced ag ainst defe ndant in the form of a criminal p ro s ec ution initiated by the People of the State of I llinois

, and the “dire ct injury ” he sustained was the entry of two fe lony convictions for which he

was sentenc ed to 24 months’ probation. I f anyone has standing to challeng e the validity of these sections, it is defe ndant. Or to put it another way , if defe ndant does not have standing to challenge the validity of these sections, then no one d o es. The State’s standing objection is rejec ted.

¶ 13 Second Amendme nt ¶ 14 Class 4 AUUW ¶ 15 W e n o w turn to the main issue, namely

, the constitutionalit y of the t wo s tat u t es at i ssue. W e begin with the C lass 4 form of section 24-1.6(a )(1) , (a) (3)( A), (d) , which states:

“(a ) A person commits the offe nse of ag g ravated unlawful use of a wea pon when he or she knowing ly : (1) Carrie s on or about his or her person or in any vehicle or conce aled on or about his or her person except when on his or h er land or in his or her abode or fix ed place of business any pistol, revolve r, stun g un or taser or other fir ear

m; [ and]

*** (3) One of the followingfac tors is present: (A) the firea

rm possessed was un cased, loaded and immediately acc essible at the time of the offe nse;

***

-4-* * * (d) Sentenc e. Aggravated unlawful use of a wea pon is a Class 4 felony ***.” 720 I L CS 5/24-1.6(a) (1), (a)( 3)(A)

, (d) (West 2008).
Statutes are presume d constitutional, and the party challeng ing the constitutionalit y of a statute car ries the burden of p ro v i ng that the statute is unconstituti onal. People v . Hollins , 2012 I L112754, ¶ 13. Moreove r, this court has a duty to construe the statute in a manner that upholds the statute’s vali d i t y and constitutionalit y , if it can

rea sonably be done. Id

. The constitutionalit y of a statute is a question of law that we re view de novo

. Id

. ¶ 16 T h e s ec o n d amendment provides: “A well regulat ed M i l i t i a,

being nece ssary to the secur ity of a fre e State, the rig ht of the people to keep a nd bear Arms, shall not be infring ed.” U .S. Const ., amend. I I

. In District of Columbia v. He l l er , 554 U.S. 570 (2008), the Supreme Court undertook its first-eve r “in-de pth examination” of the second amen d m en t’s meaning

. Id

. at 635. After a lengthy historical discussion, the Court ultimately conclude d that the second amendment “guara

ntee[s] the individual righ t to possess and car ry

wea pons in case of confrontation” ( id

. at 592); that “ce ntral t o” thi s rig ht is “the inhere nt rig ht of self-de fense ” ( id

. at 628); that “the home” is “whe re the need for defe nse of self, family

, and proper ty is
most acute ” ( id

. at 628); and th at , “above all other interests,” the second amendment elevates “the rig ht of law ab iding, responsible citizens to use ar m s in defe nse of hear th and home” ( id

. at 635). Ba sed on this understanding

, the Court held that a Di s t rict of Columbi a law banning handgun possession in the home violated the second a mendment. Id . at 635. ¶ 17 Two y ear s later, in McD onald v

. City of Chi cago , 561 U.S. ___,

___, 130 S. Ct. 3020, 3050 (2010), the Supreme Court held t hat the second amendment rig ht rec og nized in He l l er is applicable to the
states throug h the due proce ss clause of t h e fourtee nth amendment. In so holdin g , the Court reiter ated that “the Second Amendment protec ts the rig ht to keep and bear ar ms for the purpose of selfdefe nse” ( id

. at ___, 130 S. Ct. at 3026); that “individual self-de fense is ‘the central compone nt ’ of the Second Amendment rig ht” (empha sis in orig inal) ( id

. at ___, 130 S. Ct. at 3036 (quoting Heller

, 554 U.S. at 599)); and that “[s] elf-de fense is a basic rig ht, rec og nized by many leg al sy stems from anc ient times to the pre sent day” ( id . at

-5-___, 130 S. Ct . at 3036).

¶ 18 The issue be fore us today is whether the Class 4 form of se ction

24-1.6(a )(1)

, (a) (3)( A), (d) violat es the second amendment rig ht to keep and bear arms, as construed by the United States Supreme Court i n He l l er and McD onald

. We are not the first court to consider t h i s question. On the contra

ry , the co n s tituti onality of this section has been considere d by sever al panels of our appellate court. See, e.g. , People v . Moore , 2013 I L App (1st) 110793; People v. Montyc e H.
, 2011 I L App (1st) 1 0 1 788; People v. Mimes
, 2011 I L App (1st) 082747; People v. W

illiams

, 405 I ll. App. 3d 958 (2010); People v. Dawson
, 403 I ll. App. 3d 499 (2010). Uniformly

, thes e co u rts have held that the Class 4 form of section 24-1.6(a )(1), (a )(3) (A), (d)
passes constitutional muster. Acc ording to thes e decisions, despite their broad and leng thy his t o ri ca l discussions conce rning the scope and meaning of the second amendment, neither Heller nor McD onald expressly rec og nizes a rig ht to keep and bear arms outside the home

. Rather, the core holding of both case s is that “the Seco n d Amendment prote cts the right t o possess a handgun in the home for the purpose of self-de fense .” (Emphasis added.) McD onald

, 561 U.S. at ___, 130 S. Ct. at 3050. And because the Cla s s 4 form of section 24-1.6(a )(1)

, (a) (3)( A), (d) prohibits only the possession of opera ble handguns outside the home

, it does not run af o u l of the second amendment, as prese ntly construed b y the United States Supreme Co u rt

. S ee, e.g. , Moore
, 2013 I L App (1st) 110793, ¶¶ 15-18; Montyc e H.
, 2011 I L App (1st) 101788, ¶¶ 27-28; Da wson , 403 I ll. App. 3d at 505-10. ¶ 19 In stark contra st to these I l l i n o i s d ec i s i ons stands the Seventh

Circuit Court of Appea ls’ rec ent decision in Moore v. Madigan

, 702 F.3d 933 (7th Cir. 2012). In Moor e , t h e co urt held that the Class 4 form of section 24-1.6(a )(1)

, (a) (3)(A), (d) is eff ectively “a flat ban

on car ry ing rea dy -to-use g uns outside the home” ( id. at 940) and that,

as such, it violates the second amendment ri g ht to keep and bear
arms, as construed in Heller and McD onald ( id

. at 942). In rea ching this result, Moore relied not o n t h e specific holding of Heller—i.e.

, that the second amendment protec ts the rig ht to possess a handgun in
t he home for the purpose of self-de fense —but rathe r on t h e b ro ad principles that informed that holding. Acc ording to Moore
, the clea r implication of Heller ’s ex t en s i ve historical analy sis is that “the constitutional rig ht of arme d self-de fense is broade r than the rig ht to

-6-have a g un in one’s home.” Id

. at 935. Moore notes, for example, that “[t] he first sentenc e of the McD onald opinion states t hat ‘two yea rs ag o, in District of Columbia v. He l l er , we held that the Second Amendment protec ts the rig ht to keep and bear arms for the purpose of self-de fense

. ’ ” Id

. at 935 (quoting McD onald

, 561 U.S. at ___, 130 S. Ct. at 3026). Moreove r, Moore ex p l ai n s t hat, althoug h both Heller and McD onald stat e t h at the need for self-de fense is “most
acute ” in the home, that “does n ’t mean it is not acute outside the home.” Id

. (quoting McD onald

, 561 U.S. at ___, 130 S. Ct. at 3036, and Heller , 554 U.S. at 628). On the c ontrary :

“ Heller repe atedly invokes a broade r Second Amendment ri gh t t h an t he rig ht to have a g un in one’s home, as when it
say s that the amendment ‘guara ntee[s] the individual rig ht to possess and car

ry wea pons in case of confr ontation.’ [C itation.] Confrontations are not limit ed to the home.” Id. at 935-36 (quoting Heller , 554 U.S. at 592). Finally

, Moore notes that the second amendment g uara ntees not only the rig ht to “kee p” arms, but also the rig ht to “bea r” ar ms, and that these rig hts are not the sa me: “The rig ht to ‘bea

r’ as distinct from the righ t to ‘kee p’ arms is u n l i k el y to ref

er to the home. To speak of ‘bea ring ’ arms within one’s home would at all times have been an awkwa rd
usag e. A rig ht to b ea r ar m s thus implies a rig ht to car ry a loaded gun outside the home.” Id . at 936.
In other words, Moore conclude s, “[t] he Supreme Court has decide d
t h at the [second] amendment confe rs a rig ht to bear arms for self-de fense

, which is as important ou t s i d e t h e home as inside.” Id

. at 942. As a resul t , Moore held that I llinois ’ “flat ban on car rying

rea dy -to-use g uns outsi de the home,” as embodied in the Class 4 form of section 24-1.6(a )(1)

, (a) (3)( A), (d), is unconstitutional on its fac e. Id . at 940. 2 ¶ 20 After revie wing these two lines of authority —th e I l l i n ois cases holding that the Class 4 form of section 24-1.6(a )(1), (a) (3)( A), (d) is constitutional, and the Seventh Circuit’s decision holding that it is
not—we are convince d that the Seventh Circui t ’s analy sis is the

corr ect one. As the Seventh Circuit corr ectly noted, neither Heller nor

The State of

I ll ino is did not a

ppeal fro m

the de ci si on in Moore

. 2

-7-McD onald expressly limit s the second amendment’ s protec tions to the home. On the contra

ry , both decisions contain languag e strong ly
sug g esting if not outrig ht confirming that the second amendment rig h t t o keep and bear arms extends beyond the hom e. Moreover, if Heller means wh at i t say s, and “individual self-de fense ” is indeed “the centr al component” of the second amendment rig ht to keep and bear arms (Heller

, 554 U.S. at 5 9 9 ), then i t would make lit tle sense to restric t that rig ht to the home, as “[c]onfrontations are not limit ed
to the home.” Mo o r e , 7 02 F.3d at 935-36. Indeed, Heller itself

rec og nizes as much when it states that “the rig ht to have arms ***

was by the time of the founding understood to be an individual rig ht protec ting ag ainst both public and private violence.” (Emphasis added.) Heller , 554 U.S. at 593-94. ¶ 21 Of course , in concluding that the second amendment protec ts the

rig ht to possess and use a firea rm for self-de fense outside the home,

we are in no way saying that such a rig ht is unlimit ed or is not subject
to meaning ful regulation. See i nfra ¶¶ 26-27. That said, we cannot

esca pe the re al i t y t h at, in this case , we are dealing not with a

rea sonable regulation but with a compre hensive ban. Ag ain, in the form prese ntly befor e us, the Class 4 form of s ec t i o n 24-1.6(a )(1)

, (a) (3)( A), (d) cate g orica lly prohibits the possession and use of an opera ble fi rea rm for self-de fense outside the home. In other words, the Class 4 form of se ction 24-1.6(a )(1) , (a) (3)( A), (d) amounts to a wholesale statutory ban on the exercise o f a persona l rig ht that is specific ally named i n and g uara nteed by the United States Constit ution, as construed by the United States Supreme Court. In no

o t h er context would we permit this, and we will not permit i t h er e either. ¶ 22 Acc ording ly

, as t he S eventh Ci rcuit di d i n Moore
, we here hold

that, on its fac e, the Class 4 form o f s ec tion 24-1.6(a )(1)

, (a) (3)( A), (d) violates t h e rig ht to keep and bear arms, as g uara nteed by the second amendment to the United States Consti tu t i on. Def endant’ s 3

I n re spo nse to the State ’s petiti on for re hea ri ng in this ca se , w e 3

re it er at e and em

phasi ze that our fi nding of unco nsti tuti on al it y in this dec is io n is spe ci fi ca ll y li m it ed to the Cla ss 4 form of A U U W, as se t fo rt h in se ct io n 24- 1.6(a) (1), (a )( 3)(A)

, (d) of the AUUW st at u te

. We m ak e no fi nding, expre ss or im

plie d, w it

h re spe ct to the co nsti tuti ona li ty or

unco nsti tuti ona li ty of any ot her se ct io n or subse ct io n of the AUUW st at ute.

-8-conviction under that section there fore is rever sed. 4

¶ 23 Section 24-3.1(a )(1) ¶ 24 Def

endant also argues that this court should re v er s e h i s UP F conviction beca

u s e, l ike the Class 4 form of section 24-1.6(a )(1)

, (a )( 3 )(A), (d), the statute upon which his UPF conviction is based violates the sec ond amendment. ¶ 25 Def

endant, who was 17 y ear s o l d at t h e t i m e o f t h e offe nses char g ed in this case , was convicted of violating se ction 24-3.1(a )(1) of the Criminal Code of 1961, whic h provides:
“A person commits the offe nse of u n l awf ul possession of firea rms or fire arm ammuniti on when: (1) He is under 18 y ear s of age and has in his possession any firea

rm of a siz e which may be conce aled
upon the person[.]” 720 I L CS 5/24-3.1(a) (1) (West 2008). 5
Acc ording to defe ndant, at the time the second amendm en t was draf ted and ratifi ed

, t h e rig ht to keep and bear arms extended to persons 16 and 17 y ear s of ag e. In support , d efe ndant relies principally on the fac t that, at the time of this n at i o n ’s founding

, many colonies “re quired those as y oung as 15 year s old to bear arms” for purposes of milit ia service. C o n sequently

, defe ndant arg ues, “bec ause I llinois ’ ban on handgun possession by 17-y ear -olds
regulates conduc t that traditionally falls wit hin the protec tion of the

Fol lo w ing the dec is io n in Moore
, the Gene ra l Ass em bly ena ct ed the 4 Fire ar m Conc ea le d Car

ry Act
, which inte r alia am ended the AUUW st at ute to al lo w fo r a li m it ed ri ght to ca rr y ce rt ai n fir ea

rm s in public. See Pub. Act 98- 0063 (e ff

. July 9, 2013 ), Nei ther the Fire ar m Conc ea le d Car

ry Act nor the a m ended AUUW

st at ute i s at is sue in this ca se

.

Sec ti on 24- 3.1(c) of the UPF st at ute co ntai ns an expre ss exc epti on fo r 5
per so ns u nder the ag e 18 who ar e “ par ti cipati ng in any la

w ful rec re at io nal

ac ti vi ty w it

h a fi re ar m suc h as , but not li m it ed to , pra ct ic e sho ot ing at ta rg et s upon es ta

blis hed public or priv at e ta rg et ra nge s or hunting, tr apping

, or fi shing in ac co rda

nce w ith th e Wil dlif

e Code or the Fis h and Aquati c L if e Co de.” 720 I L CS 5/24- 3.1(c) (We st 200 8).

-9-second amendment, the validity of the law depends up on the
g overnme nt’s ability to satisfy heig htened constitutional scrutiny .” Def endant then insists that the State cannot meet this burden beca use “I llinois ’ unconditi onal abrog ation of a 17-y ear -old’s co nstitut ional rig ht to defe nd himself with a handgun” is in no way tailored to meet any ident i fi able state interest. In other words, defe ndant is arguing that

, as far as the second amendment is conce rned, a 17-year -old minor is on ex actly

the same c onstitut ional footing as a full-fledg ed adult. ¶ 26 We reje ct this argument. In Heller

, the Supreme Court expressly

stated that:
“L i k e most rig hts, the rig ht secur ed by the Second Amendment is n ot unlimit ed. Fr om Bla ckstone throug h the 19th-century case s, commentators and courts routinely explained that the rig ht w as not a rig ht to keep and car ry any

wea pon whatsoev er in any manner whatsoeve r and for whateve r purpose .” Heller , 554 U.S. at 626.
Fr o m t here

, the Court went on to emphasize that “nothing in o u r opinion should be taken to cast doubt on longsta nding prohibitions on the possession of firea

rm s b y fe l o ns and the mentally ill, or laws forbidding the car

rying of firea

rms in sensitive place s such as schools and g overnme nt buildings, or laws imposing conditions and qualifications on the commerc ial sale of ar m s

. ” Id

. at 626-27. The Court then immediately added, by way of footnot e, that “[w]e identify these presumptively lawful regulatory m ea sures only as examples; our list does not purport to be exhaustive.” Id. at 627 n.26. ¶ 27 No w ad m i t t ed l y , t h e l i s t en u m er at ed i n Heller do es n o t

specific ally include laws proh i b iting the possession of firea rms by minors. Neve rtheless, sever al courts have si n ce undertaken a thoroug h h i s torical examination of such laws, and all of them have conclude d that, contra

ry to defe ndant’s contention, the possession of h an d gu n s by minors is conduct that falls outside the scope of th e second amendment’ s protec tion. See, e.g. , Nationa l R i fle Ass’n of America, Inc. v. Bureau of A lcohol, Tobacco, Firearms, Explosives

, 700 F.3d 185, 2 0 4 (5th Cir. 2012) (conc luding that “[m] odern restric tions on the ability of persons under 21 to purch as e handguns—and the ability of persons under 18 t o p ossess handguns—see m, to us, to be firmly historically rooted” ); United States v. Rene E.
, 583 F.3d 8, 16 (1st Cir. 2009) (conc luding that the

-10-“rig ht to keep arms in the foundin g p er i o d did not extend to juveniles”); Powell v. Tompkins

, No. 12-10744-W GY
, 2013 WL 7 6 5339, at *16 (D. Mass Fe b. 28, 2013) (holding t h at a Massac husetts law proscr ibing the car ry of firea rms by persons under the ag e of 21 “compor

ts with th e Second Amendment and imposes

no burden on” the rig ht to keep and bear arms). In essenc e, these

cases explain that, althoug h many colonies permitted or even required minors to own and possess firea rms for purposes of milit ia service

, nothing like a right for minors to own and posse ss firea rms has exis ted at any time in this nation’s history

. On the contra ry , laws banning the juvenile possession of firea rms have been commonplace for almost 150 y ear s and both ref lect and co m p o rt with a “long standing prac tice of prohibiting ce rt ain classes of individuals from possessing firea

rms—those whose possession poses a particula r dang er to the public.” Rene
, 583 F.3d at 1 5

. W e wi ll not repe at or reha sh the historical evidenc e set forth in these decisions. Rather, for
prese nt purposes, we need only express our ag ree ment with the obvious and undeniable conclusion that t he possession of handguns by minors is conduct that falls outside the s co pe of the second amendment’ s protection. ¶ 28 Fo r t h es e re as o n s , we reje ct defe ndant’s second a m en d m en t challeng e to section 24-3.1(a )( 1 ) and aff irm his conviction there under.

¶ 29 CONCL USI ON ¶ 30 F or the rea sons set forth above, we reve rse defe ndant’s convic tion

under the Class 4 form of section 24-1.6(a )(1)

, (a) (3)( A), (d), aff irm defe ndant’s conviction under section 24-3.1(a )(1)

, and rema nd to the trial court for imposit ion of sentenc e on th e UP F conviction. The
sentenc e impos ed o n the UPF conviction shall not exceed the
sentenc e imposed on the AUUW conviction, and defe ndant shall

rec eive c redit for

time alrea dy

serve d on the AUUW conviction.

¶ 31 Affir

med in part, re verse d in part, and r emande d.

-11-Dissents Upon Denial of Rehear ing

¶ 32 CHI EF JUSTI CE GARMAN, dissenting: ¶ 33 I re s p ec t fu l l y d i s s en t fr om the denial of rehe aring beca use I believe that the court would benef it from having the issue raised by the State in its petiti on for rehea ring fully briefe d and argued by the parties. I rea ch thi s conclus i o n b eca use t he S tate has fundame ntally rede fined the issue prese nted in this case

. This might, in o ther circ umstances, weig h ag ainst rehe aring

, but g iven the constitutional
nature of the issue and the potential far -re aching conseque nces of our decision, I would pref

er to resolve this question aft er more deliberation. ¶ 34 “A per s o n comm its the offe nse of ag g ravated unlawful use of a

we ap o n when he or she knowing ly ” commits either of tw o enumerated acts (720 I L CS 5/24-1.6(a) (1), (a) (2) (West 2008 ))

, i n combination with one of nine listed condit i o ns (720 I L CS 5/24- 1.6(a) (3)( A)-( I )). Taking these sections toge ther, the statute d ef ines 18 possible separate offe nses. ¶ 35 Appellant / d ef en d an t Agu i l ar was convicted of AUUW under sections (a) (1) and (a) (3)( A), in combination. He arg ued—and the
court ag ree d—that t h es e sections, taken toge ther, are fac ially unconstitutional. ¶ 36 In its petition for rehe aring

, t h e S t ate argues that these sec tions

are not fac ially unconstitutional beca use they can be applied to felons without violating the second amendment. Specifical l y , the State points to subsection (d) of the statute, which g overns sentenc ing and includes four separ ate cate g ories: (1) first AUUW offe nse, (2) second

or subsequent AUUW offe nse, (3) AUUW by a convicted felon, and (4) AUUW committed while in possession of body armor by a person who has not been issued an FOI D car d. 720 I L CS 5/24-1.6(d) (West 2008). Combini ng these four sentenc ing provisions with 18 offe nses yields 72 permutations. ¶ 37 T h e petition further states that allowing the h o l d i n g t o s t an d

would “er roneously cast doubt on hundreds” of prior convictions and would “impede curr ently pending prosec utions for that offe nse.” Thus, the State aske d that the cour t either g rant re hear ing or modify its opinion t o state t hat t he st atute is not unconstitutional as applied to felons or that the que stion remains open.

-12-¶ 38 In sum, I would pref er that the court ree x amine i t s re as o n ing in this case afte r due considerati o n o f arguments fully briefe d by the parties.

¶ 39 J USTI CE THEI S, dissenting: ¶ 40 In modifying its decision upon denial of rehearing

, the majority

seeks to drama

tically alter the issue in this case , adopting an entirely

new way of analy

zing the constitutional claim. This court was asked
to analy ze the elements of the offe nse of AUUW to determ i n e whether the o ff

ense withstood a second amendment challeng e. We orig inally held that based upon the elements of the offe nse, as stated in section 24-1.6(a )(1)

, (a) (3)( A) (720 I L CS 5/24-1.6(a) (1), (a) (3)( A) (West 2008)), the AUUW statute was fac iall y unconstitutional beca use it “ca

teg orica lly prohibits the possession and use of an opera ble firea rm for self-de fense outside the home” and “amounts to

a wholesale statutory ban on the exercise of a personal ri gh t t h at is

s p ecifically named in and g uara nteed by the United Stat es C o nstitut ion, as construed by the United States Supreme Cou rt

. ” Supra ¶ 21. ¶ 41 No w, i n i ts modified opinion upon denial of re h ea ri n g, t h e

majority considers not only the elements of the offe nse of AUUW in deter mining the constitutionalit y of the statute, but also incorporates the sentenc ing provisions into its constitutional analy sis. Wit hout explanation, the majority has now decide d that the class of felony has

some bear ing on whether the AUUW statute is c onstitut ional. Thus, the majority holds that our finding of unconstitutionalit y is limit ed to those sentenc ed to the “Cl as s 4 form” of the offe nse. Supra ¶ 20 (citing720 I L CS 5/ 24-1.6(a )(1) , (a) (3)( A), (d) (West 2008)). ¶ 42 The majority ’s n ew h o l d i n g h as t h e p o t en t i al t o alt er our

constitutional jurisprudenc e and cre ate a host of pot en t ial prac tical problems. Addit ionally

, if the class of felony has some bear ing on whether the AUUW statute is constitutional, t h en I believe the majority has opened itse l f up to the arg uments made by the S tate in its petition for rehea

ring that the AUUW statute is not invalid in all of its applications and, t h er efor e, not fac ially unconstitutional. I t is for these rea sons that I respe ctfully dissent from the modified opinion
upon denial of rehe aring

. Too many leg itimate questions rema in to deny an opportunity

for r ehea ringin this case.

-13-¶ 43 At the outset, I am co n ce rn ed t hat the sentenc ing aspec t of the
statute was never raised by defe ndant at any time befor e the appellate
court or befo re this court—in his petition for leave to appea l, his initial brief, his reply brief, o r his supplemental brief. Indeed, defe ndant’s fac ial argument, as articulated in his brief, is not depende nt at all upon the class of felony or the sentenc ing provisions. I t is only depende nt upon the elements of the offe nse: “A citizen violates the AUUW statute when he knowing ly

car ries on or a

bout his person or

in any vehicle or

conce aled

on or about his person except when on his land or in his abode or fix ed place of business any pistol, revolve r, stun g un

or taser or other firea

rm and the firea

rm is uncase d, loaded and immediately acc essible. 720 I L CS 5/24-1.6(a) (1), (3)( A) (West 2008). Eve ry elem en t that comprises the statute , in

co n j u n ct i o n wi t h t h e o t h er s , v i olates the Second Amendment’s protec tion of the rig ht to bear arms for the purpose of

self-de fense .” (Empha sis added.) ¶ 44 The majority does not e x plain why the class of sentenc e has a ny bear ing on the constituti o n al question raised by the defe ndant. Inst ea d, it appea

rs to rely on the Seventh Circuit decision in Moore and the cited appellate court decisions for the prop o s i t i on that the constitutional analy sis is limit ed to the “Class 4 form” of the offe nse of AUUW. Supra ¶¶ 18, 19. Howeve r, nowher e in any of these case s cited by the majority or in any I llinois case do the words “C l ass 4 form” of the offe nse appea r, and none of those panels considere d the
sentenc ing s cheme as having any bear ing on their constitutional analy s i s rega

rding the elements of the offe nse of AUUW. Specifica lly

, in Moore
, the Seventh Circuit enjoined the enfor ceme nt of the statute, without limit ing its holding to t h o s e who would be
sentenc ed as Class 4 felons as opposed to Class 2 felons. See Moore
, 7 02 F.3d at 942. The court in Moore did not need to consi d er t h e class of offe nse in order to find the conduct prohibited by the statute unconstitutional. Rather, the court found the statute unenfor cea ble based upon its considera

tion of the elements of the offe nse. See id. at 934. ¶ 45 M o re i m p o rt an t l y , I am co n ce rn ed ab o u t t h e u n i n t en d ed

conseque nces of conflating these conce pts. I believe this approa ch has the very rea l potential to skew the distinctions betwee n the el em ents of an offe nse and the fac tors rele vant to enhanc ing a

-14-sentenc e. The majority has cited no authority for the proposition that this court can find an offe nse fa ci ally unconstitutional based on the elements of the offense, but then l imit its eff ect to a particular class of sentenc e. For example, wher e an offe nse is unconstitutional, we have not limit ed our analy sis to first-time offe nders. See, e.g ., People

v. Madrigal

, 241 I ll. 2d 463 (2011); People v. Jordan

, 218 I ll. 2d 255 (2006); People v. W

oodrum

, 223 I ll. 2d 286 (2006). Rather, we have explained that when we decla re a statute fac ially u n co n s t itutional, i.e
., unconstitutional in all of i t s applications, the statute is then unenfo rc eable

. People v. Blair

, 2013 I L 114122, ¶¶ 28, 30. The majority does not explain why we ca n take a differ ent approa ch in this case. ¶ 46 I am also very conce rned about the prac tical conseque nces of this

approa ch on future case s. Although I rec og nize that, in this case , the AUUW statute has now been amende d, how will this ty pe of limit ed enfor cea bility apply in other situations? How wi ll law enfor ceme nt handle a situation wher e an o ff en se has been found to be unconstitutional, but only as to a particula r class of the offe nse? Does the office r have to deter

mine whether this is a first offe nse or if the individual has a prior conviction befor e he can m ak e an arr est and enfor ce the statute? As the Supreme Court held in Atwater v. City of Lago Vista
, 5 3 2 U.S. 318 (2001), this ty pe of inquiry would be too cumber some: “It is not mere ly that we cannot expect ever y police office r to know the details o f frequently complex penalty scheme s,

see Berke mer v. McCarty
, 4 68 U.S. 420, 431, n.13 (1984) (‘[O]fficer s in the field fre quently “have neither the time nor the competence to deter

mine” the sever ity of t he off ense f or whi ch t hey are considering arr esting a person’ ), but that penalties for ostensibly identical conduct can vary on acc ount of fac ts difficult (if not impossibl e) to know at the scene of an

arr est. I s this the first offe nse or is the s u s pect a repe at offe nder? I s t h e we ight of the marijuana a g ram above or a g ram below the fine-only line? Whe re conduct could implicate more than one criminal prohibition, which one will the district attorney ultimately decide to char g e? And so on.” Id. at 348-49. ¶ 47 Additi o n al l y , gi v en t h i s new approa ch, the implication of the

court’s holding is that the so-ca lle d “C l ass 2 form of the offe nse,”

-15-which enhanc es the penalty for felons, could potenti ally rema in enfor cea ble. 720 I L CS 5/ 24-1.6(a )(1) , (a) (3)( A), (d) (West 2008)

. I f that is the case , and if the sentenc ing scheme has some bear ing on our constitutional analy sis, as the majority now holds, I believe the State, in its petit ion for rehe aring

, has ra ised leg itimate arguments that the
statute is not unconstitutional in all of its applications. The State
argues that, as demonstrated by t he plain languag e of the AUUW statute, the leg islature contemplated that the statute could be applied
to prohibit the possession of firea rms outside the home by felons, citing section 24-1.6(d) (720 I L CS 5/24-1.6(d) (West 2008 ) (a violation of the statute “by a person who has been p re viously convicted of a felony in this State or another jurisdiction is a Class 2 felony”))

. The State maintains that this prohibition on the possession of firea rms by felons is fully authorized under the second amendment and, there fore

, section 24-1.6(a )(1)

, (a) (3)( A) has a valid application, citing Heller and McD onald

. Consequently

, it argues that this court’s fac ial invalidation of the statute is irrec oncilable with Heller and McDonal d beca

use it “er

roneously abrog ates a constitutionally permissible prohibition on the possession o f fi rea rms by felons outside the home.” See In re Rodney H
., 223 I ll. 2d 510, 521 (2006) (“[a] fa ci al ch alleng e to a statute must fail if it could be validly applied in any

instance” ). ¶ 48 The decision in this cause is of momentous import to the litigants

and to the people of this state. The majority ’s new analy sis leave s too many questions unresolved. At the very minimum

, the chang e in the court’s opinion war

rants rehe aring and an opportunity for the parties to argue about whe ther the court’s new constitutional a naly sis g ives

us cause t o rec onsider our deter mination that the statute is fac ially unconstitutional in all its applications. For all of th es e rea sons, I
respe ctfully

dissent and would g rant re hear ing.

-16-