2015 IL 117470

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

(Docket No. 117470) 

THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. JUAN

WILLIAMS, Appellee. 

Opinion filed November 19, 2015.

JUSTICE FREEMAN delivered the judgment of the court, with opinion. 

Chief Justice Garman and Justices Thomas, Kilbride, Karmeier, Burke, and 

Theis concurred in the judgment and opinion. 

OPINION

¶ 1 In this appeal, we review the circuit court’s order declaring certain sections of 

the aggravated unlawful use of a weapon (AUUW) statute (720 ILCS 5/24-1.6 

(West 2012)) unconstitutional. The circuit court of Cook County found that 

sections 24-1.6(a)(1), (a)(3)(C) and (a)(2), (a)(3)(C) of the AUUW statute, which 

were based on defendant’s lack of a Firearm Owner’s Identification Card (FOID 

card), violated the proportionate penalties clause of the Illinois Constitution. The 

court determined that the offense of AUUW based on the lack of a FOID card was 

identical to a violation of the Firearm Owners Identification Card Act (FOID Card 

Act) (430 ILCS 65/2(a)(1) (West 2012)), and since the penalties for violating the 

two statutes were different, the court declared the AUUW statute unconstitutional 
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and dismissed the charges against defendant. Pursuant to Illinois Supreme Court 

Rule 603 (eff. Feb. 6, 2013), the State’s appeal comes directly to this court. For the 

following reasons, we reverse the judgment of the circuit court and remand the 

cause for further proceedings.

¶ 2 BACKGROUND

¶ 3 In April 2013, defendant was arrested for possessing a firearm while in an 

automobile on a public street in Chicago. At that time, he did not have a currently 

valid FOID card. 1 Defendant was charged by information with six counts of 

AUUW (720 ILCS 5/24-1.6(a)(1), (a)(3)(A), (a)(1), (a)(3)(C) (West 2012); 720 

ILCS 5/24-1.6(a)(2), (a)(3)(A), (a)(2), (a)(3)(C) (West 2012)). Subsequently, as a 

result of our opinion in People v. Aguilar, 2013 IL 112116, the State nol-prossed 

the counts that were based on sections 24-1.6(a)(1), (a)(3)(A) and (a)(2), (a)(3)(A) 

of the AUUW statute. The counts that remained were based on defendant’s lack of 

a FOID card, pursuant to sections 24-1.6(a)(1), (a)(3)(C) and (a)(2), (a)(3)(C) of the 

AUUW statute. 

¶ 4 Defendant subsequently filed a motion entitled “Motion To Declare The 

Sentencing Penalties Under 720 ILCS 5/24-1.6 Unconstitutional As To This 

Defendant.” In the motion, defendant argued that the elements of the AUUW 

statute based on the lack of a FOID card (720 ILCS 5/24-1.6(a)(1), (a)(3)(C), (a)(2), 

(a)(3)(C) (West 2012)) were the same as a violation of the FOID Card Act (430 

ILCS 65/2(a)(1) (West 2012)), but because the statutes had disparate sentencing 

penalties, those sections of the AUUW statute were unconstitutional. 

¶ 5 The circuit court granted defendant’s motion finding that the sentencing 

scheme for AUUW based on the lack of a FOID card violated the proportionate 

penalties clause of the Illinois Constitution. The court determined that the elements 

of the offense of AUUW and a violation of the FOID Card Act were identical, but 

since AUUW was punishable as a Class 4 felony and the FOID Card Act as a Class 

A misdemeanor, their penalties were disproportionate and the AUUW statute was 

unconstitutional. In reaching its determination, the court interpreted our decision in 

Aguilar as eliminating the distinction between possessing a firearm on the street or 

in a vehicle and possessing a firearm in one’s home. The court seemed to base its 

 1

There is no evidence in the record that defendant was not otherwise eligible to obtain a FOID 

card prior to his arrest. 
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understanding on a statement in Aguilar that referred to the Seventh Circuit’s 

decision in Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012), that the second 

amendment’s right to keep and bear arms extends beyond the home. See Aguilar, 

2013 IL 112116, ¶¶ 19-20. The court further determined that the AUUW statute 

was unconstitutional as applied to defendant, as well as facially. Lastly, the court 

concluded that the appropriate remedy was to dismiss the charges against 

defendant. The State’s direct appeal to this court followed. 

¶ 6 ANALYSIS

¶ 7 On appeal, the State contends that the applicable elements of the offense of 

AUUW and a violation of the FOID Card Act are not identical so there can be no 

proportionate penalties violation. Defendant, on the other hand, argues that “the 

statutes are the same, albeit couched in different words,” and urges this court to 

uphold the circuit court’s determination and find a proportionate penalties 

violation. 

¶ 8 A statute is presumed constitutional, and the party challenging the statute bears 

the burden of demonstrating its invalidity. People v. Graves, 207 Ill. 2d 478, 482 

(2003). Whether a statute is constitutional is a question of law that we review 

de novo. Id. 

¶ 9 A proportionality challenge derives from article I, section 11, of the Illinois 

Constitution of 1970. Section 11, which is commonly referred to as the 

proportionate penalties clause, provides that “[a]ll penalties shall be determined 

both according to the seriousness of the offense and with the objective of restoring 

the offender to useful citizenship.” Ill. Const. 1970, art. I, § 11. A defendant can 

raise a proportionate penalties challenge on the basis that the penalty for a 

particular offense is too severe under the “cruel or degrading” standard or that the 

penalty is harsher than the penalty for a different offense that contains identical 

elements. People v. Sharpe, 216 Ill. 2d 481, 521 (2005). The latter challenge, which 

is at issue here, is evaluated using the identical elements test. Graves, 207 Ill. 2d at 

482. The identical elements test considers whether offenses with identical elements 

are given different sentences. Id. 

¶ 10 The identical elements test was first used in People v. Christy, 139 Ill. 2d 172, 

181 (1990). In Christy, we held that when different offenses contain identical 
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elements, “common sense and sound logic would seemingly dictate that their 

penalties be identical.” Id. Since the offenses in Christy had identical elements but 

different sentences, we held that the penalties were unconstitutionally 

disproportionate and the offense with the greater penalty could not stand. Id. We 

have repeatedly reaffirmed these principles and application of the identical 

elements test. See People v. Lewis, 175 Ill. 2d 412, 422 (1996); Sharpe, 216 Ill. 2d 

at 521-22; People v. Clemons, 2012 IL 107821, ¶ 53. 

¶ 11 Here, we first compare sections 24-1.6(a)(1), (a)(3)(C) and (a)(2), (a)(3)(C) of 

the AUUW statute with section 2(a)(1) of the FOID Card Act to determine whether 

the two statutes have identical elements. 

¶ 12 Section 24-1.6 of the AUUW statute provides: 

 “(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, 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[2]; or 

(2) Carries or possesses on or about his or her person, upon any public 

street, alley, or other public lands within the corporate limits of a city, 

village or incorporated town, except when an invitee thereon or therein, for 

the purpose of the display of such weapon or the lawful commerce in 

weapons, or except when on his or her own land or in his or her 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[3]; and 

 (3) One of the following factors is present: 

 2

As this court has previously stated, for purposes of simplicity, hereafter, the language of 

section 24-1.6(a)(1) of the AUUW statute will be summarized as “ ‘carrying on his person or in any 

vehicle, outside the home, a firearm.’ ” People v. Mosley, 2015 IL 115872, ¶ 3 n.1. 3

Similarly, the language of section 24-1.6(a)(2) of the AUUW statute will be summarized as 

“ ‘carrying or possessing on his person, upon any public way, a firearm.’ ” Id. ¶ 3 n.2. 
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* * * 

(C) the person possessing the firearm has not been issued a currently 

valid Firearm Owner’s Identification Card[.]” 720 ILCS 5/24-1.6(a)(1), 

(a)(3)(C), (a)(2), (a)(3)(C) (West 2012).

¶ 13 Section 2(a)(1) of the FOID Card Act provides: 

 “(a)(1) No person may acquire or possess any firearm, stun gun, or taser 

within this State without having in his or her possession a Firearm Owner’s 

Identification Card previously issued in his or her name by the Department of 

State Police under the provisions of this Act.” 430 ILCS 65/2(a)(1) (West 

2012). 

¶ 14 A person violates section 2(a)(1) of the FOID Card Act by acquiring or 

possessing a firearm without also having in his possession a FOID card. A person 

violates section 24-1.6(a)(1), (a)(3)(C) of the AUUW statute by knowingly 

carrying on his person or in any vehicle, outside the home, a firearm without having 

been issued a valid FOID Card. A person violates section 24-1.6(a)(2), (a)(3)(C) of 

the AUUW statute by knowingly carrying or possessing on his person, upon any 

public way, a firearm without having been issued a valid FOID card. Both sections 

24-1.6(a)(1) and (a)(2) of the AUUW statute include a location element that the 

FOID Card Act does not. Section 24-1.6(a)(1) requires proof that a person 

possessed the firearm outside his home. Section 24-1.6(a)(2) requires proof that a 

person possessed the firearm upon any public way. This additional location 

element in the AUUW statute must be proven to establish the offense of AUUW. 

As noted above, the FOID Card Act does not have a location requirement. A person 

who acquires or possesses a firearm without also possessing a valid FOID card 

violates the FOID Card Act regardless of his location. A violation of the FOID Card 

Act can occur in one’s home; however, such conduct would not be a violation of 

AUUW. Because AUUW has this additional location element, we find that the 

offense of AUUW and a violation of the FOID Card Act are not identical. Although 

the State points to additional differences between the two statutes, we need not 

address these in light of our conclusion here. Having determined that the offense of 

AUUW and a violation of the FOID Card Act are not identical, there can be no 

proportionate penalty violation. 

¶ 15 We recognize that the circuit court did not have the benefit of our opinion in 

People v. Mosley, 2015 IL 115872, when it determined that the two statutes were 
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identical. Specifically, Mosley clarified that subsection (a)(3)(C) of the AUUW 

statute was severable from the subsection found unconstitutional in Aguilar, and 

that subsection (a)(3)(C) was constitutional. Id. ¶ 31. Thus, it is clear that the 

location element in sections 24-1.6(a)(1) and (a)(2) of the AUUW statute is

constitutional and enforceable when combined with subsection (a)(3)(C) of the 

AUUW statute. Id. ¶ 61. Defendant ignores these relevant parts of Mosley, instead 

focusing on the sentencing provision in subsection (d)(2) of the AUUW statute.

Subsection (d)(2) has no bearing on subsections 24-1.6(a)(1), (a)(2) and (a)(3)(C) 

of the AUUW statute or whether those elements of the AUUW statute are identical 

to a violation of the FOID Card Act. 

¶ 16 Notwithstanding Mosley, defendant argues that Aguilar is still relevant here.

Defendant maintains that Aguilar agreed with the proposition in Moore that “there 

is no constitutional difference between possessing a firearm inside one’s home 

versus outside the home.” However, defendant misconstrues our holding in 

Aguilar. Our exact language in Aguilar was: “[o]f 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.” Aguilar, 2013 IL 112116, ¶ 21. In Aguilar, we 

held section 24-1.6(a)(1), (a)(3)(A) of the AUUW statute facially unconstitutional. 

Id. ¶ 22. We did not address the constitutionality of any other subsection in the 

statute. Thus, Aguilar is inapplicable here.

¶ 17 Defendant’s additional arguments to the contrary are not persuasive. Defendant 

cites to People v. Christy, 139 Ill. 2d 172 (1990), People v. Lewis, 175 Ill. 2d 412 

(1996), People v. Hauschild, 226 Ill. 2d 63 (2007), and People v. Clemons, 2012 IL 

107821, for support. Defendant argues that the above cases illustrate that “the issue 

is not whether the words of the statute are the same, but whether the elements, albeit 

phrased differently, are the same.” However, these cases do not help defendant. 

They each compare a felony offense to the offense of armed violence and do not 

involve AUUW or the FOID Card Act, the two statutes at issue here. Defendant 

fails to recognize here that the location element in AUUW, which is absent from the 

FOID Card Act, is an additional element that must be proved to establish a violation 

of AUUW. This is not a situation as in the above cases where the words used in the 

statutes were different but they meant the same thing. Since there is no location 

requirement in the FOID Card Act, the two statutes cannot mean the same thing. 

Thus, it is clear that not only are the words in the statutes different, but the elements 

are as well. 
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¶ 18 Defendant also argues that the two statutes have identical elements because a 

person possessing a firearm while not possessing a valid FOID card violates both 

statutes. However, this is not always true. As noted above, a person can violate the 

FOID Card Act by possessing a firearm in his home without also having in his 

possession a FOID card, whereas such conduct would not violate the AUUW 

statute. The offense of AUUW requires proof of the additional element that a 

person be outside his home or on the public way. 

¶ 19 Defendant further contended during oral argument that the AUUW statute was 

only unconstitutional as applied to him, conceding that it was not facially 

unconstitutional. However, a proportionate penalty analysis under the identical 

elements test is not a subjective determination. Sharpe, 216 Ill. 2d at 522. It is an 

objective and “logic-based test to determine whether, consistent with the plain 

language of our constitution, the legislature has satisfied the requirement that a 

penalty must be determined, in part ‘according to the seriousness of the offense.’ ”

Clemons, 2012 IL 107821, ¶ 45 (quoting Ill. Const. 1970, art. I, § 11). The identical 

elements test simply compares the elements of the two offenses to determine if the 

offenses are the same. This objective test does not consider the offenses as applied 

to an individual defendant. 

¶ 20 CONCLUSION

¶ 21 We conclude that the offense of AUUW based on the lack of a FOID card and a 

violation of the FOID Card Act do not have identical elements and thus, there can 

be no proportionate penalty violation. 

¶ 22 The judgment of the circuit court is reversed and the cause is remanded to the 

circuit court with directions to reinstate the charges against defendant. 

¶ 23 Circuit court judgment reversed. 

¶ 24 Cause remanded with directions.