People v. Aguilar

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.

JUSTICE THOMAS delivered the judgment of the court, with
opinion.
Chief Justice Kilbride and Justices Freeman, Garman, Karmeier,
Burke, and Theis concurred in the judgment and opinion.

OPINION

¶1 The principal issue in this case is whether section 24-1.6(a)(1),
(a)(3)(A) of the Illinois aggravated unlawful use of weapons
(AUUW) statute (720 ILCS 5/24-1.6(a)(1), (a)(3)(A) (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 AUUW (720 ILCS 5/24-1.6(a)(1), (a)(3)(A)
(West 2008)) and unlawful possession of a firearm (UPF) (720 ILCS
5/24-3.1(a)(1) (West 2008)). The trial court sentenced defendant to

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 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, section 24-1.6(a)(1),
(a)(3)(A) of the AUUW statute 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) 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 that is

1
We also allowed several briefs amici curiae to be filed on behalf of
both defendant and the State. Ill. S. Ct. R. 345 (eff. Sept. 20, 2010).

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 not what defendant is arguing. Rather, he is arguing that sections 24-
1.6(a)(1), (a)(3)(A) and 24-3.1(a)(1) 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, sections
24-1.6(a)(1), (a)(3)(A) and 24-3.1(a)(1) 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 Section 24-1.6(a)(1), (a)(3)(A)
¶ 15 We now turn to the main issue, namely, the constitutionality of
the two statutes at issue. We begin with section 24-1.6(a)(1),
(a)(3)(A), 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

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 offense[.]” 720 ILCS 5/24-1.6(a)(1), (a)(3)(A) (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 self-
defense” (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
___, 130 S. Ct. at 3036).

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¶ 18 The issue before us today is whether section 24-1.6(a)(1),
(a)(3)(A) 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 section 24-1.6(a)(1), (a)(3)(A) 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 section 24-1.6(a)(1), (a)(3)(A) 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 section 24-1.6(a)(1), (a)(3)(A) 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 section 24-
1.6(a)(1), (a)(3)(A) 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 have a gun in one’s
home.” Id. at 935. Moore notes, for example, that “[t]he first sentence

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 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 section 24-1.6(a)(1),
(a)(3)(A), is unconstitutional on its face. Id at 940.2
¶ 20 After reviewing these two lines of authority—the Illinois cases
holding that section 24-1.6(a)(1), (a)(3)(A) 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 McDonald expressly limits
the second amendment’s protections to the home. On the contrary,

2
The State of Illinois did not appeal from the decision in Moore.

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 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, section 24-1.6(a)(1), (a)(3)(A) categorically
prohibits the possession and use of an operable firearm for self-
defense outside the home. In other words, section 24-1.6(a)(1),
(a)(3)(A) 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, section 24-1.6(a)(1), (a)(3)(A) violates the right to
keep and bear arms, as guaranteed by the second amendment to the
United States Constitution. Defendant’s conviction under that section
therefore is reversed.3

3
Following the decision in Moore, the General Assembly enacted the
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.

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¶ 23 Section 24-3.1(a)(1)
¶ 24 Defendant also argues that this court should reverse his UPF
conviction because, like section 24-1.6(a)(1), (a)(3)(A), 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).4
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 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.

4
Section 24-3.1(c) of the UPF statute contains an express exception for
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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¶ 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
“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

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 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 section 24-1.6(a)(1), (a)(3)(A), 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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