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.—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

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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 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 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

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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

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

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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.3 Defendant’s

3
In response to the State’s petition for rehearing in this case, we
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 other section or subsection 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

4
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.
5
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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 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 I respectfully 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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