2013 IL 112116

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

(Docket No. 112116)

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.

 ALBERTO AGUILAR, Appellant.

Opinion filed September 12, 2013.—Modified upon denial of

rehearing December 19, 2013.

JUSTICE THOMAS delivered the judgment of the court, with

opinion.

Justices Freeman, Kilbride, Karmeier, and Burke concurred in the

judgment and opinion.

Chief Justice Garman dissented upon denial of rehearing, with

opinion.

Justice Theis dissented upon denial of rehearing, with opinion.

OPINION

¶ 1 The principal issue in this case is whether the Class 4 form of

section 24-1.6(a)(1), (a)(3)(A), (d) of the Illinois aggravated unlawful

use of weapons (AUUW) statute (720 ILCS 5/24-1.6(a)(1), (a)(3)(A),

(d) (West 2008)) violates the right to keep and bear arms, as

guaranteed by the second amendment to the United States

Constitution (U.S. Const., amend. II). We hold that it does.

¶ 2 BACKGROUND

¶ 3 The facts are not in dispute. Officer Thomas Harris of the

Chicago police department testified that, on the evening of June 12,

2008, he was on surveillance duty near 4217 West 25th Place. Officer
Harris observed a group of male teenagers screaming, making

gestures, and throwing bottles at passing vehicles. This group

included defendant, who Officer Harris noticed was holding the right

side of his waist area. After watching the group walk into a nearby

alley, Officer Harris radioed other officers who were nearby.

¶ 4 Officer John Dolan testified that, after receiving a radio

communication from Officer Harris, he and Officers Wagner and

Triantafillo traveled to 4217 West 25th Place. Once there, Officer

Dolan watched several individuals walk into the backyard. The

officers followed, and Officer Dolan heard defendant yell an

expletive. Officer Dolan then saw that defendant had a gun in his

right hand. Defendant dropped the gun to the ground, and Officer

Dolan took defendant into custody while another officer recovered

the gun. When Officer Dolan examined the gun, he saw that the serial

number had been scratched off and that it was loaded with three live

rounds of ammunition. Officer Dolan learned later that defendant did

not live at 4217 West 25th Place.

¶ 5 Defense witness Romero Diaz testified that he lived at 4217 West

25th Place and that defendant was his friend. Diaz explained that, on

the evening in question, he was with defendant and another friend in

his backyard waiting for defendant’s mother to pick up defendant,

when three or four police officers entered the backyard with

flashlights and ordered him and his friends to the ground. When

defendant hesitated to comply, one of the officers tackled him to the

ground. According to Diaz, defendant did not have a gun and did not

drop a gun to the ground when the officers entered the backyard.

¶ 6 Defendant testified that, on the night of June 12, 2008, he was

with friends at the corner of 26th Street and Keeler Avenue. After

spending about 45 minutes there, he and another friend walked to

Diaz’s backyard. While defendant was waiting there for his mother

to pick him up, three police officers entered the yard with flashlights

and guns drawn. One officer yelled at defendant to get on the ground,

and when defendant moved slowly, another of the officers tackled

defendant. The officers then searched the yard, showed defendant a

gun, and accused him of dropping it. Defendant denied ever having

a gun that evening, and he denied dropping a gun to the ground.

¶ 7 After weighing the credibility of the witnesses, the trial court

found defendant guilty of both the Class 4 form of section 24-

1.6(a)(1), (a)(3), (d) and unlawful possession of a firearm (UPF) (720

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ILCS 5/24-3.1(a)(1) (West 2008)). The trial court sentenced

defendant to 24 months’ probation for the AUUW conviction and did

not impose sentence on the UPF conviction.

¶ 8 Defendant appealed, and the appellate court affirmed with one

justice dissenting. 408 Ill. App. 3d 136. We allowed defendant’s

petition for leave to appeal. Ill. S. Ct. R. 315 (eff. Feb. 26, 2010).1

¶ 9 DISCUSSION

¶ 10 Standing

¶ 11 In this case, we are asked to decide whether the two statutes

under which defendant stands convicted—namely, 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 statute—violate the right to keep and bear arms, as guaranteed

by the second amendment to the United States Constitution. Before

we get to those questions, however, we must quickly dispose of the

State’s argument that defendant lacks standing to contest the

constitutionality of these statutes. In support of this argument, the

State invokes the familiar principle that, in order to have standing to

contest the constitutionality of a statutory provision, the party

bringing that challenge must show that he falls within the class of

persons aggrieved by the alleged unconstitutionality. See, e.g.,

People v. Bombacino, 51 Ill. 2d 17, 20 (1972). According to the

State, this principle means that, in this case, before defendant can

argue that either of these statutes violates the second amendment, he

first must be able to show that he was engaged in conduct that enjoys

second amendment protection. Yet there is no way defendant can do

this, the State maintains, because defendant himself concedes that the

conduct involved in this case, namely, possessing a loaded, defaced,

and illegally modified handgun on another person’s property without

consent, enjoys no such protection. Thus, the State insists, defendant

has no standing to bring a second amendment challenge.

¶ 12 We reject the State’s argument. The State assumes that defendant

is arguing that the enforcement of sections 24-1.6(a)(1), (a)(3)(A), (d)

and 24-3.1(a)(1) in this particular case violates his personal right to

keep and bear arms, as guaranteed by the second amendment. But

We also allowed several briefs amici curiae to be filed on behalf of 1

both defendant and the State. Ill. S. Ct. R. 345 (eff. Sept. 20, 2010). 

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that is not what defendant is arguing. Rather, he is arguing that these

statutes themselves facially violate the second amendment, and that

consequently neither statute can be enforced against anyone,

defendant included. See, e.g., People v. Manuel, 94 Ill. 2d 242, 244-

45 (1983) (a defendant cannot be prosecuted under a criminal statute

that is unconstitutional in its entirety, as such a statute is void ab

initio). This is a very different argument from the one the State

assumes, and one that defendant undoubtedly has the standing to

make. “One has standing to challenge the validity of a statute if he

has sustained or if he is in immediate danger of sustaining some

direct injury as a result of enforcement of the statute.” People v.

Mayberry, 63 Ill. 2d 1, 8 (1976). Here, the challenged statutes were

enforced against defendant in the form of a criminal prosecution

initiated by the People of the State of Illinois, and the “direct injury”

he sustained was the entry of two felony convictions for which he

was sentenced to 24 months’ probation. If anyone has standing to

challenge the validity of these sections, it is defendant. Or to put it

another way, if defendant does not have standing to challenge the

validity of these sections, then no one does. The State’s standing

objection is rejected.

¶ 13 Second Amendment

¶ 14 Class 4 AUUW

¶ 15 We now turn to the main issue, namely, the constitutionality of

the two statutes at issue. We begin with the Class 4 form of section

24-1.6(a)(1), (a)(3)(A), (d), which states:

“(a) 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 or fixed

place of business any pistol, revolver, stun gun or taser or

other firearm; [and]

***

(3) One of the following factors is present:

(A) the firearm possessed was uncased, loaded

and immediately accessible at the time of the offense;

***

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* * *

(d) Sentence. Aggravated unlawful use of a weapon is a

Class 4 felony ***.” 720 ILCS 5/24-1.6(a)(1), (a)(3)(A), (d)

(West 2008).

Statutes are presumed constitutional, and the party challenging the

constitutionality of a statute carries the burden of proving that the

statute is unconstitutional. People v. Hollins, 2012 IL 112754, ¶ 13.

Moreover, this court has a duty to construe the statute in a manner

that upholds the statute’s validity and constitutionality, if it can

reasonably be done. Id. The constitutionality of a statute is a question

of law that we review de novo. Id.

¶ 16 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.” U.S. Const., amend.

II. In District of Columbia v. Heller, 554 U.S. 570 (2008), the

Supreme Court undertook its first-ever “in-depth examination” of the

second amendment’s meaning. Id. at 635. After a lengthy historical

discussion, the Court ultimately concluded that the second

amendment “guarantee[s] the individual right to possess and carry

weapons in case of confrontation” (id. at 592); that “central to” this

right is “the inherent right of self-defense” (id. at 628); that “the

home” is “where the need for defense of self, family, and property is

most acute” (id. at 628); and that, “above all other interests,” the

second amendment elevates “the right of law abiding, responsible

citizens to use arms in defense of hearth and home” (id. at 635).

Based on this understanding, the Court held that a District of

Columbia law banning handgun possession in the home violated the

second amendment. Id. at 635.

¶ 17 Two years later, in McDonald v. City of Chicago, 561 U.S. ___,

___, 130 S. Ct. 3020, 3050 (2010), the Supreme Court held that the

second amendment right recognized in Heller is applicable to the

states through the due process clause of the fourteenth amendment.

In so holding, the Court reiterated that “the Second Amendment

protects the right to keep and bear arms for the purpose of selfdefense” (id. at ___, 130 S. Ct. at 3026); that “individual self-defense

is ‘the central component’ of the Second Amendment right”

(emphasis in original) (id. at ___, 130 S. Ct. at 3036 (quoting Heller,

554 U.S. at 599)); and that “[s]elf-defense is a basic right, recognized

by many legal systems from ancient times to the present day” (id. at

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___, 130 S. Ct. at 3036).

¶ 18 The issue before us today is whether the Class 4 form of section

24-1.6(a)(1), (a)(3)(A), (d) violates the second amendment right to

keep and bear arms, as construed by the United States Supreme Court

in Heller and McDonald. We are not the first court to consider this

question. On the contrary, the constitutionality of this section has

been considered by several panels of our appellate court. See, e.g.,

People v. Moore, 2013 IL App (1st) 110793; People v. Montyce H.,

2011 IL App (1st) 101788; People v. Mimes, 2011 IL App (1st)

082747; People v. Williams, 405 Ill. App. 3d 958 (2010); People v.

Dawson, 403 Ill. App. 3d 499 (2010). Uniformly, these courts have

held that the Class 4 form of section 24-1.6(a)(1), (a)(3)(A), (d)

passes constitutional muster. According to these decisions, despite

their broad and lengthy historical discussions concerning the scope

and meaning of the second amendment, neither Heller nor McDonald

expressly recognizes a right to keep and bear arms outside the home.

Rather, the core holding of both cases is that “the Second

Amendment protects the right to possess a handgun in the home for

the purpose of self-defense.” (Emphasis added.) McDonald, 561 U.S.

at ___, 130 S. Ct. at 3050. And because the Class 4 form of section

24-1.6(a)(1), (a)(3)(A), (d) prohibits only the possession of operable

handguns outside the home, it does not run afoul of the second

amendment, as presently construed by the United States Supreme

Court. See, e.g., Moore, 2013 IL App (1st) 110793, ¶¶ 15-18;

Montyce H., 2011 IL App (1st) 101788, ¶¶ 27-28; Dawson, 403 Ill.

App. 3d at 505-10.

¶ 19 In stark contrast to these Illinois decisions stands the Seventh

Circuit Court of Appeals’ recent decision in Moore v. Madigan, 702

F.3d 933 (7th Cir. 2012). In Moore, the court held that the Class 4

form of section 24-1.6(a)(1), (a)(3)(A), (d) is effectively “a flat ban

on carrying ready-to-use guns outside the home” (id. at 940) and that,

as such, it violates the second amendment right to keep and bear

arms, as construed in Heller and McDonald (id. at 942). In reaching

this result, Moore relied not on the specific holding of Heller—i.e.,

that the second amendment protects the right to possess a handgun in

the home for the purpose of self-defense—but rather on the broad

principles that informed that holding. According to Moore, the clear

implication of Heller’s extensive historical analysis is that “the

constitutional right of armed self-defense is broader than the right to

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have a gun in one’s home.” Id. at 935. Moore notes, for example, that

“[t]he first sentence of the McDonald opinion states that ‘two years

ago, in District of Columbia v. Heller, we held that the Second

Amendment protects the right to keep and bear arms for the purpose

of self-defense.’ ” Id. at 935 (quoting McDonald, 561 U.S. at ___,

130 S. Ct. at 3026). Moreover, Moore explains that, although both

Heller and McDonald state that the need for self-defense is “most

acute” in the home, that “doesn’t mean it is not acute outside the

home.” Id. (quoting McDonald, 561 U.S. at ___, 130 S. Ct. at 3036,

and Heller, 554 U.S. at 628). On the contrary:

“Heller repeatedly invokes a broader Second Amendment

right than the right to have a gun in one’s home, as when it

says that the amendment ‘guarantee[s] the individual right to

possess and carry weapons in case of confrontation.’

[Citation.] Confrontations are not limited to the home.” Id. at

935-36 (quoting Heller, 554 U.S. at 592).

Finally, Moore notes that the second amendment guarantees not only

the right to “keep” arms, but also the right to “bear” arms, and that

these rights are not the same:

“The right to ‘bear’ as distinct from the right to ‘keep’ arms

is unlikely to refer to the home. To speak of ‘bearing’ arms

within one’s home would at all times have been an awkward

usage. A right to bear arms thus implies a right to carry a

loaded gun outside the home.” Id. at 936.

In other words, Moore concludes, “[t]he Supreme Court has decided

that the [second] amendment confers a right to bear arms for

self-defense, which is as important outside the home as inside.” Id.

at 942. As a result, Moore held that Illinois’ “flat ban on carrying

ready-to-use guns outside the home,” as embodied in the Class 4

form of section 24-1.6(a)(1), (a)(3)(A), (d), is unconstitutional on its

face. Id. at 940.2

¶ 20 After reviewing these two lines of authority—the Illinois 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 convinced that the Seventh Circuit’s analysis is the

correct one. As the Seventh Circuit correctly noted, neither Heller nor

The State of Illinois did not appeal from the decision in Moore.

2

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McDonald expressly limits the second amendment’s protections to

the home. On the contrary, both decisions contain language strongly

suggesting if not outright confirming that the second amendment

right to keep and bear arms extends beyond the home. Moreover, if

Heller means what it says, and “individual self-defense” is indeed

“the central component” of the second amendment right to keep and

bear arms (Heller, 554 U.S. at 599), then it would make little sense

to restrict that right to the home, as “[c]onfrontations are not limited

to the home.” Moore, 702 F.3d at 935-36. Indeed, Heller itself

recognizes as much when it states that “the right to have arms ***

was by the time of the founding understood to be an individual right

protecting against both public and private violence.” (Emphasis

added.) Heller, 554 U.S. at 593-94. 

¶ 21 Of course, in concluding that the second amendment protects the

right to possess and use a firearm for self-defense outside the home,

we are in no way saying that such a right is unlimited or is not subject

to meaningful regulation. See infra ¶¶ 26-27. That said, we cannot

escape the reality that, in this case, we are dealing not with a

reasonable regulation but with a comprehensive ban. Again, in the

form presently before us, the Class 4 form of section 24-1.6(a)(1),

(a)(3)(A), (d) categorically prohibits the possession and use of an

operable firearm for self-defense outside the home. In other words,

the Class 4 form of section 24-1.6(a)(1), (a)(3)(A), (d) amounts to a

wholesale statutory ban on the exercise of a personal right that is

specifically named in and guaranteed by the United States

Constitution, as construed by the United States Supreme Court. In no

other context would we permit this, and we will not permit it here

either.

¶ 22 Accordingly, as the Seventh Circuit did in Moore, we here hold

that, on its face, the Class 4 form of section 24-1.6(a)(1), (a)(3)(A),

(d) violates the right to keep and bear arms, as guaranteed by the

second amendment to the United States Constitution. Defendant’s

3

In response to the State’s petition for rehearing in this case, we

3

reiterate and emphasize that our finding of unconstitutionality in this

decision is specifically limited to the Class 4 form of AUUW, as set forth

in section 24-1.6(a)(1), (a)(3)(A), (d) of the AUUW statute. We make no

finding, express or implied, with respect to the constitutionality or

unconstitutionality of any othersection orsubsection of the AUUW statute.

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conviction under that section therefore is reversed.4

¶ 23 Section 24-3.1(a)(1)

¶ 24 Defendant also argues that this court should reverse his UPF

conviction because, like 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 second amendment.

¶ 25 Defendant, who was 17 years old at the time of the offenses

charged in this case, was convicted of violating section 24-3.1(a)(1)

of the Criminal Code of 1961, which provides:

“A person commits the offense of unlawful possession of

firearms or firearm ammunition when:

(1) He is under 18 years of age and has in his

possession any firearm of a size which may be concealed

upon the person[.]” 720 ILCS 5/24-3.1(a)(1) (West

2008).5

According to defendant, at the time the second amendment was

drafted and ratified, the right to keep and bear arms extended to

persons 16 and 17 years of age. In support, defendant relies

principally on the fact that, at the time of this nation’s founding,

many colonies “required those as young as 15 years old to bear arms”

for purposes of militia service. Consequently, defendant argues,

“because Illinois’ ban on handgun possession by 17-year-olds

regulates conduct that traditionally falls within the protection of the

Following the decision in Moore, the General Assembly enacted the 4

Firearm Concealed Carry Act, which inter alia amended the AUUW statute

to allow for a limited right to carry certain firearms in public. See Pub. Act

98-0063 (eff. July 9, 2013), Neither the Firearm Concealed Carry Act nor

the amended AUUW statute is at issue in this case.

Section 24-3.1(c) of the UPF statute contains an express exception for

5

persons under the age 18 who are “participating in any lawful recreational

activity with a firearm such as, but not limited to, practice shooting at

targets upon established public or private target ranges or hunting, trapping,

or fishing in accordance with the Wildlife Code or the Fish and Aquatic

Life Code.” 720 ILCS 5/24-3.1(c) (West 2008).

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second amendment, the validity of the law depends upon the

government’s ability to satisfy heightened constitutional scrutiny.”

Defendant then insists that the State cannot meet this burden because

“Illinois’ unconditional abrogation of a 17-year-old’s constitutional

right to defend himself with a handgun” is in no way tailored to meet

any identifiable state interest. In other words, defendant is arguing

that, as far as the second amendment is concerned, a 17-year-old

minor is on exactly the same constitutional footing as a full-fledged

adult.

¶ 26 We reject this argument. In Heller, the Supreme Court expressly

stated that:

“Like most rights, the right secured by the Second

Amendment is not unlimited. From Blackstone through the

19th-century cases, commentators and courts routinely

explained that the right was not a right to keep and carry any

weapon whatsoever in any manner whatsoever and for

whatever purpose.” Heller, 554 U.S. at 626.

From there, the Court went on to emphasize that “nothing in our

opinion should be taken to cast doubt on longstanding prohibitions on

the possession of firearms by felons and the mentally ill, or laws

forbidding the carrying of firearms in sensitive places such as schools

and government buildings, or laws imposing conditions and

qualifications on the commercial sale of arms.” Id. at 626-27. The

Court then immediately added, by way of footnote, that “[w]e

identify these presumptively lawful regulatory measures only as

examples; our list does not purport to be exhaustive.” Id. at 627 n.26. 

¶ 27 Now admittedly, the list enumerated in Heller does not

specifically include laws prohibiting the possession of firearms by

minors. Nevertheless, several courts have since undertaken a

thorough historical examination of such laws, and all of them have

concluded that, contrary to defendant’s contention, the possession of

handguns by minors is conduct that falls outside the scope of the

second amendment’s protection. See, e.g., National Rifle Ass’n of

America, Inc. v. Bureau of Alcohol, Tobacco, Firearms, Explosives,

700 F.3d 185, 204 (5th Cir. 2012) (concluding that “[m]odern

restrictions on the ability of persons under 21 to purchase

handguns—and the ability of persons under 18 to possess

handguns—seem, to us, to be firmly historically rooted”); United

States v. Rene E., 583 F.3d 8, 16 (1st Cir. 2009) (concluding that the

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“right to keep arms in the founding period did not extend to

juveniles”); Powell v. Tompkins, No. 12-10744-WGY, 2013 WL

765339, at *16 (D. Mass Feb. 28, 2013) (holding that a

Massachusetts law proscribing the carry of firearms by persons under

the age of 21 “comports with the Second Amendment and imposes

no burden on” the right to keep and bear arms). In essence, these

cases explain that, although many colonies permitted or even

required minors to own and possess firearms for purposes of militia

service, nothing like a right for minors to own and possess firearms

has existed at any time in this nation’s history. On the contrary, laws

banning the juvenile possession of firearms have been commonplace

for almost 150 years and both reflect and comport with a

“longstanding practice of prohibiting certain classes of individuals

from possessing firearms—those whose possession poses a particular

danger to the public.” Rene, 583 F.3d at 15. We will not repeat or

rehash the historical evidence set forth in these decisions. Rather, for

present purposes, we need only express our agreement with the

obvious and undeniable conclusion that the possession of handguns

by minors is conduct that falls outside the scope of the second

amendment’s protection.

¶ 28 For these reasons, we reject defendant’s second amendment

challenge to section 24-3.1(a)(1) and affirm his conviction

thereunder.

¶ 29 CONCLUSION

¶ 30 For the reasons set forth above, we reverse defendant’s conviction

under the Class 4 form of section 24-1.6(a)(1), (a)(3)(A), (d), affirm

defendant’s conviction under section 24-3.1(a)(1), and remand to the

trial court for imposition of sentence on the UPF conviction. The

sentence imposed on the UPF conviction shall not exceed the

sentence imposed on the AUUW conviction, and defendant shall

receive credit for time already served on the AUUW conviction.

¶ 31 Affirmed in part, reversed in part, and remanded.

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Dissents Upon Denial of Rehearing

¶ 32 CHIEF JUSTICE GARMAN, dissenting:

¶ 33 I respectfully dissent from the denial of rehearing because I

believe that the court would benefit from having the issue raised by

the State in its petition for rehearing fully briefed and argued by the

parties. I reach this conclusion because the State has fundamentally

redefined the issue presented in this case. This might, in other

circumstances, weigh against rehearing, but given the constitutional

nature of the issue and the potential far-reaching consequences of our

decision, I would prefer to resolve this question after more

deliberation.

¶ 34 “A person commits the offense of aggravated unlawful use of a

weapon when he or she knowingly” commits either of two

enumerated acts (720 ILCS 5/24-1.6(a)(1), (a)(2) (West 2008)), in

combination with one of nine listed conditions (720 ILCS 5/24-

1.6(a)(3)(A)-(I)). Taking these sections together, the statute defines

18 possible separate offenses.

¶ 35 Appellant/defendant Aguilar was convicted of AUUW under

sections (a)(1) and (a)(3)(A), in combination. He argued—and the

court agreed—that these sections, taken together, are facially

unconstitutional.

¶ 36 In its petition for rehearing, the State argues that these sections

are not facially unconstitutional because they can be applied to felons

without violating the second amendment. Specifically, the State

points to subsection (d) of the statute, which governs sentencing and

includes four separate categories: (1) first AUUW offense, (2) second

or subsequent AUUW offense, (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 FOID card. 720 ILCS 5/24-1.6(d) (West

2008). Combining these four sentencing provisions with 18 offenses

yields 72 permutations.

¶ 37 The petition further states that allowing the holding to stand

would “erroneously cast doubt on hundreds” of prior convictions and

would “impede currently pending prosecutions for that offense.”

Thus, the State asked that the court either grant rehearing or modify

its opinion to state that the statute is not unconstitutional as applied

to felons or that the question remains open.

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¶ 38 In sum, I would prefer that the court reexamine its reasoning in

this case after due consideration of arguments fully briefed by the

parties.

¶ 39 JUSTICE THEIS, dissenting:

¶ 40 In modifying its decision upon denial of rehearing, the majority

seeks to dramatically alter the issue in this case, adopting an entirely

new way of analyzing the constitutional claim. This court was asked

to analyze the elements of the offense of AUUW to determine

whether the offense withstood a second amendment challenge. We

originally held that based upon the elements of the offense, as stated

in section 24-1.6(a)(1), (a)(3)(A) (720 ILCS 5/24-1.6(a)(1), (a)(3)(A)

(West 2008)), the AUUW statute was facially unconstitutional

because it “categorically prohibits the possession and use of an

operable firearm for self-defense outside the home” and “amounts to

a wholesale statutory ban on the exercise of a personal right that is

specifically named in and guaranteed by the United States

Constitution, as construed by the United States Supreme Court.”

Supra ¶ 21.

¶ 41 Now, in its modified opinion upon denial of rehearing, the

majority considers not only the elements of the offense of AUUW in

determining the constitutionality of the statute, but also incorporates

the sentencing provisions into its constitutional analysis. Without

explanation, the majority has now decided that the class of felony has

some bearing on whether the AUUW statute is constitutional. Thus,

the majority holds that our finding of unconstitutionality is limited to

those sentenced to the “Class 4 form” of the offense. Supra ¶ 20

(citing 720 ILCS 5/24-1.6(a)(1), (a)(3)(A), (d) (West 2008)).

¶ 42 The majority’s new holding has the potential to alter our

constitutional jurisprudence and create a host of potential practical

problems. Additionally, if the class of felony has some bearing on

whether the AUUW statute is constitutional, then I believe the

majority has opened itself up to the arguments made by the State in

its petition for rehearing that the AUUW statute is not invalid in all

of its applications and, therefore, not facially unconstitutional. It is

for these reasons that Irespectfully dissent from the modified opinion

upon denial of rehearing. Too many legitimate questions remain to

deny an opportunity for rehearing in this case.

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¶ 43 At the outset, I am concerned that the sentencing aspect of the

statute was never raised by defendant at any time before the appellate

court or before this court—in his petition for leave to appeal, his

initial brief, his reply brief, or his supplemental brief. Indeed,

defendant’s facial argument, as articulated in his brief, is not

dependent at all upon the class of felony or the sentencing provisions.

It is only dependent upon the elements of the offense:

“A citizen violates the AUUW statute when he knowingly

carries on or about his person or in any vehicle or concealed

on or about his person except when on his land or in his

abode or fixed place of business any pistol, revolver, stun gun

or taser or other firearm and the firearm is uncased, loaded

and immediately accessible. 720 ILCS 5/24-1.6(a)(1), (3)(A)

(West 2008). Every element that comprises the statute, in

conjunction with the others, violates the Second

Amendment’s protection of the right to bear arms for the

purpose of self-defense.” (Emphasis added.)

¶ 44 The majority does not explain why the class of sentence has any

bearing on the constitutional question raised by the defendant.

Instead, it appears to rely on the Seventh Circuit decision in Moore

and the cited appellate court decisions for the proposition that the

constitutional analysis is limited to the “Class 4 form” of the offense

of AUUW. Supra ¶¶ 18, 19. However, nowhere in any of these cases

cited by the majority or in any Illinois case do the words “Class 4

form” of the offense appear, and none of those panels considered the

sentencing scheme as having any bearing on their constitutional

analysis regarding the elements of the offense of AUUW.

Specifically, in Moore, the Seventh Circuit enjoined the enforcement

of the statute, without limiting its holding to those who would be

sentenced as Class 4 felons as opposed to Class 2 felons. See Moore,

702 F.3d at 942. The court in Moore did not need to consider the

class of offense in order to find the conduct prohibited by the statute

unconstitutional. Rather, the court found the statute unenforceable

based upon its consideration of the elements of the offense. See id. at

934.

¶ 45 More importantly, I am concerned about the unintended

consequences of conflating these concepts. I believe this approach

has the very real potential to skew the distinctions between the

elements of an offense and the factors relevant to enhancing a

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sentence. The majority has cited no authority for the proposition that

this court can find an offense facially unconstitutional based on the

elements of the offense, but then limit its effect to a particular class

of sentence. For example, where an offense is unconstitutional, we

have not limited our analysis to first-time offenders. See, e.g., People

v. Madrigal, 241 Ill. 2d 463 (2011); People v. Jordan, 218 Ill. 2d 255

(2006); People v. Woodrum, 223 Ill. 2d 286 (2006). Rather, we have

explained that when we declare a statute facially unconstitutional,

i.e., unconstitutional in all of its applications, the statute is then

unenforceable. People v. Blair, 2013 IL 114122, ¶¶ 28, 30. The

majority does not explain why we can take a different approach in

this case. 

¶ 46 I am also very concerned about the practical consequences of this

approach on future cases. Although I recognize that, in this case, the

AUUW statute has now been amended, how will this type of limited

enforceability apply in other situations? How will law enforcement

handle a situation where an offense has been found to be

unconstitutional, but only as to a particular class of the offense? Does

the officer have to determine whether this is a first offense or if the

individual has a prior conviction before he can make an arrest and

enforce the statute? As the Supreme Court held in Atwater v. City of

Lago Vista, 532 U.S. 318 (2001), this type of inquiry would be too

cumbersome:

“It is not merely that we cannot expect every police officer

to know the details of frequently complex penalty schemes,

see Berkemer v. McCarty, 468 U.S. 420, 431, n.13 (1984)

(‘[O]fficers in the field frequently “have neither the time nor

the competence to determine” the severity of the offense for

which they are considering arresting a person’), but that

penalties for ostensibly identical conduct can vary on account

of facts difficult (if not impossible) to know at the scene of an

arrest. Is this the first offense or is the suspect a repeat

offender? Is the weight of the marijuana a gram above or a

gram below the fine-only line? Where conduct could

implicate more than one criminal prohibition, which one will

the district attorney ultimately decide to charge? And so on.”

Id. at 348-49. 

¶ 47 Additionally, given this new approach, the implication of the

court’s holding is that the so-called “Class 2 form of the offense,”

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which enhances the penalty for felons, could potentially remain

enforceable. 720 ILCS 5/24-1.6(a)(1), (a)(3)(A), (d) (West 2008). If

that is the case, and if the sentencing scheme has some bearing on our

constitutional analysis, as the majority now holds, I believe the State,

in its petition for rehearing, has raised legitimate arguments that the

statute is not unconstitutional in all of its applications. The State

argues that, as demonstrated by the plain language of the AUUW

statute, the legislature contemplated that the statute could be applied

to prohibit the possession of firearms outside the home by felons,

citing section 24-1.6(d) (720 ILCS 5/24-1.6(d) (West 2008) (a

violation of the statute “by a person who has been previously

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 firearms by felons is fully authorized under the second amendment

and, therefore, section 24-1.6(a)(1), (a)(3)(A) has a valid application,

citing Heller and McDonald. Consequently, it argues that this court’s

facial invalidation of the statute is irreconcilable with Heller and

McDonald because it “erroneously abrogates a constitutionally

permissible prohibition on the possession of firearms by felons

outside the home.” See In re Rodney H., 223 Ill. 2d 510, 521 (2006)

(“[a] facial challenge 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 analysis leaves too

many questions unresolved. At the very minimum, the change in the

court’s opinion warrants rehearing and an opportunity for the parties

to argue about whether the court’s new constitutional analysis gives

us cause to reconsider our determination that the statute is facially

unconstitutional in all its applications. For all of these reasons, I

respectfully dissent and would grant rehearing.

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