2018 IL App (1st) 152249
FIRST DISTRICT
FIFTH DIVISION
June 22, 2018
No. 1-15-2249
) Appeal from the
THE PEOPLE OF THE STATE OF ILLINOIS, ) Circuit Court of
) Cook County
Plaintiff-Appellee, )
)
v. ) No. 13 CR 9003
)
ERICK MARTIN, )
) Honorable
Defendant-Appellant. ) Thomas M. Davy,
) Judge Presiding.
PRESIDING JUSTICE REYES delivered the judgment of the court, with opinion.
Justices Lampkin and Rochford concurred in the judgment and opinion.
OPINION
¶1 Following a bench trial, defendant Erick Martin was convicted of (1) armed habitual
criminal, (2) unlawful use of a weapon by a felon, and (3) six counts of aggravated unlawful use
of a weapon. These convictions were merged into the single offense of armed habitual criminal,
and the trial court imposed the minimum six-year term of imprisonment. Defendant’s sole
contention on appeal is that the armed habitual criminal statute is unconstitutional as applied to
him, where his underlying felony offenses were nonviolent and more than 20 years old. For the
reasons that follow, we affirm the judgment of the circuit court.
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¶2 BACKGROUND
¶3 Defendant was charged with multiple offenses including armed habitual criminal (720
ILCS 5/24-1.7(a) (West 2012)), unlawful use of a weapon by a felon (id. § 24-1.1(a)) and six
counts of aggravated unlawful use of a weapon (id. §§ 24-1.6(a)(1), (3)(A), (C); 24-1.6(a)(2),
(3)(C)) based, in part, on his possession of a .357 blue steel revolver without a firearm owner’s
identification (FOID) card. Defendant waived his right to a jury and elected to proceed by way of
a bench trial.
¶4 At trial, two officers, Steve Jarosz and Ryan Harty of the Chicago Police Department,
testified regarding their interaction with defendant and their recovery of a blue steel .357
revolver on April 24, 2013. According to Jarosz, while on patrol they observed defendant’s
vehicle turn into an alley without using a turn signal. Jarosz activated the siren and followed the
vehicle into the alley, but the vehicle did not stop. The vehicle continued to travel through the
alley, during which time Jarosz observed the driver open the driver’s side door and drop a
handgun onto the ground. Harty also observed the driver drop an object outside of the driver’s
side door, but he was unable to discern what the object was. The vehicle later stopped at the end
of the alley, and defendant was removed from the driver’s side of the vehicle. Jarosz recovered
the handgun from where he had observed it fall. The handgun was loaded with six live rounds of
ammunition. Jarosz further testified that defendant did not have a FOID card. A certified copy of
a firearm service bureau report was entered into evidence which revealed that defendant did not
possess a FOID card.
¶5 Certified copies of defendant’s two prior felony convictions—a 1989
manufacture/delivery of a controlled substance offense and a 1992 unlawful use of a weapon by
a felon offense—were entered into the record without objection.
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¶6 Defendant testified that he was not in possession of a firearm that evening nor did he
open his vehicle door while driving through the alley. According to defendant, after he was
stopped by the officers he waited for 30 minutes while one of the officers walked down the alley
and returned with a handgun and asked if it was his weapon. Defendant informed the officers at
that time that it was not his weapon.
¶7 After considering the evidence presented, the trial court indicated it found the officers to
be credible and thus found defendant guilty on all counts. The counts were then merged into a
single armed habitual criminal conviction. At the sentencing hearing, defendant presented
evidence in mitigation that he was employed, participated in church, volunteered as a disc jockey
for neighborhood events, and had no criminal convictions since 1992. The trial court also
reviewed defendant’s presentence investigation report. This report indicated that defendant had
been convicted of five felonies between 1989 and 1992. However, after 1992 defendant earned a
vending machine operator’s license, was employed at a mailing company, and then for the last
25 years worked as an independent professional disc jockey earning $3200 a week. The
presentence investigation report further indicated that defendant had a “great” relationship with
his family and provided financial support to his 18-year-old son. After hearing evidence offered
in aggravation and mitigation, the trial court sentenced defendant to the minimum six years’
imprisonment for the Class X offense of armed habitual criminal. This appeal followed.
¶8 ANALYSIS
¶9 Defendant’s sole contention on appeal is that the Illinois armed habitual criminal statute
is unconstitutional as applied to him because the statute’s application to him was triggered by
nonviolent offenses that were more than 20 years old. Defendant asserts that the statute violates
his second amendment right to possess a firearm. U.S. Const., amend. II (“A well regulated
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Militia, being necessary to the security of a free State, the right of the people to keep and bear
Arms, shall not be infringed.”). 1 Defendant does not challenge the sufficiency of the evidence.
¶ 10 In response, the State maintains that defendant’s as-applied challenge fails both
procedurally and substantively. The State asserts that the challenge fails procedurally because he
did not raise the issue in the trial court and therefore there was no evidentiary hearing and no
findings of fact regarding his as-applied challenge. Substantively, the State maintains that
defendant’s as-applied challenge fails because he has not established that his conduct was
entitled to second amendment protection where he chose to possess a firearm knowing that his
prior felony convictions had not been vacated or otherwise set aside. The State maintains
defendant was not a “law abiding, responsible citizen” protected by the second amendment.
¶ 11 As relevant here, an individual commits the offense of armed habitual criminal when he
or she
“receives, sells, possesses, or transfers any firearm after having been convicted a total of
2 or more times of any combination of the following offenses:
***
(2) unlawful use of a weapon by a felon; ***
(3) any violation of the Illinois Controlled Substances Act or the Cannabis
Control Act that is punishable as a Class 3 felony or higher.” 720 ILCS 5/24
1.7(a) (West 2012).
An as-applied challenge arises from a defendant’s contention that the statute or law as it is
applied to his particular situation is unconstitutional. People v. Campbell, 2014 IL App (1st)
112926, ¶ 57. The facts that surround a defendant’s particular circumstances are relevant to an
1
During oral argument, defense counsel declined to argue an as-applied challenge under our
Illinois Constitution, indicating the main thrust of his argument was in regards to the federal second
amendment.
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as-applied challenge. Id. We review de novo whether the armed habitual criminal statute under
section 24-1.7 of the Criminal Code of 2012 (720 ILCS 5/1-1 et seq. (West 2012)), as applied to
the defendant, was unconstitutional under the second amendment of the United States
Constitution. See People v. Robinson, 2011 IL App (1st) 100078, ¶ 12; see also U.S. Const.,
amend. II.
¶ 12 We first address the State’s contention that defendant’s as-applied challenge fails
procedurally due to a lack of an evidentiary hearing below. We decline to find the issue
procedurally defaulted. We recognize that in People v. McFadden, 2016 IL 117424, ¶ 36, and
People v. Mosley, 2015 IL 115872, ¶ 47, our supreme court declined to consider as-applied
challenges that were raised for the first time on appeal. In so concluding, the Mosley court stated
that
“A court is not capable of making an as applied determination of unconstitutionality
when there has been no evidentiary hearing and no findings of fact. [Citation.] Without
an evidentiary record, any finding that a statute is unconstitutional as applied is
premature. [Citation.] Nor would it be appropriate for this court, sua sponte, to consider
whether [a] statute has been constitutionally applied since we, as a reviewing court, are
not arbiters of the facts.” (Internal quotation marks omitted.) Id.
Our supreme court, however, has also held that where the evidentiary record developed below is
sufficient, the constitutionality of a statute may be challenged on appeal. People v. Holman, 2017
IL 120655, ¶ 32; see People v. Gray, 2017 IL 120958, ¶¶ 55-67 (considering an as-applied
constitutional challenge raised for the first time on appeal); Robinson, 2011 IL App (1st) 100078,
¶¶ 12, 17, 29 (considering facial and as-applied constitutional challenges that were raised for the
first time on appeal).
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¶ 13 On appeal, defendant’s as-applied challenge is based on facts already in the record, i.e.,
the age and nature of his felony convictions and his alleged rehabilitation since his last
conviction. In the prosecution of defendant’s current offenses, evidence was presented at trial as
to defendant’s possession of the firearm and his two prior felony convictions. Other relevant
facts, such as defendant’s age at the time of his prior felonies and his lack of criminal history
after 1992 as well as his employment history, were presented during the sentencing hearing and
in the court-ordered presentence investigation report. We fail to see what further facts would be
necessary to adduce at an evidentiary hearing, and notably, the State fails to identify any
additional facts not in the record that would preclude our review of this issue. Accordingly, we
conclude that defendant’s as-applied challenge to the armed habitual criminal statute is
reviewable on appeal. See, e.g., Gray, 2017 IL 120958, ¶¶ 55-67; Robinson, 2011 IL App (1st)
100078, ¶¶ 12, 17, 29.
¶ 14 Turning to the merits, while our supreme court has not expressly addressed the
appropriate analysis of an as-applied challenge to the armed habitual criminal statute in
circumstances such as this, we find the recent decision of People v. Chairez, 2018 IL 121417, to
be instructive. In that case, our supreme court considered the constitutionality of section 24
1(a)(4), (c)(1.5) of the unlawful use of a weapon statute (UUW) (720 ILCS 5/24-1(a)(4), (c)(1.5)
(West 2012)), which, in pertinent part, prohibits an individual from carrying or possessing a
firearm within 1000 feet of a public park. Chairez, 2018 IL 121417, ¶ 1. The defendant raised a
facial challenge to this subsection of the UUW statute, arguing that an individual who is barred
from carrying a firearm within 1000 feet of many locations listed in section 24-1(c)(1.5) of the
UUW statute is essentially barred from carrying a firearm in public, and it is thus more closely
akin to a blanket prohibition than a restriction on carrying a weapon in certain sensitive places.
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Id. ¶ 6. In examining the facial constitutionality of the statute, our supreme court set forth a two-
part test:
“First, we conduct a textual and historical analysis of the second amendment ‘to
determine whether the challenged law imposes a burden on conduct that was understood
to be within the scope of the second amendment’s protection at the time of ratification.’
[Citation.] If the conduct falls outside of the scope of the second amendment, then the
regulated activity is ‘categorically unprotected,’ and the law is not subject to further
second amendment review. [Citation.] But if the historical evidence is inconclusive or
suggests that the regulated activity is not categorically unprotected, then we apply the
appropriate level of heightened means-ends scrutiny and consider the strength of the
government’s justification for restricting or regulating the exercise of second amendment
rights. [Citation.]” Id. ¶ 21.
Accordingly, we first turn to consider whether the armed habitual criminal statute under these
circumstances imposes a burden on conduct that was historically understood to be within the
scope of the second amendment’s protection at the time of ratification. Id. In other words, we
examine whether the offense of armed habitual criminal as applied to defendant “impermissibly
encroaches on conduct at the core of the second amendment.” Id. ¶ 26.
¶ 15 In regard to the first step, defendant asserts that at the time of ratification of the second
amendment there were no regulations prohibiting felons, particularly nonviolent ones, from
possessing firearms and maintains that such regulations were not in existence until 150 years
after ratification. With this in mind, defendant, citing District of Columbia v. Heller, 554 U.S.
570, 635 (2008), maintains that “the mere fact that he has long-past convictions does not mean
that he is not one of Illinois’s ‘law-abiding, responsible citizens’ today.”
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¶ 16 In Heller, the Supreme Court briefly discussed the historical implications of the second
amendment, observing that, “[l]ike most rights, the right secured by the Second Amendment is
not unlimited.” Id. at 626. The Court further stated 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 repeated its assurances in McDonald v. City of Chicago, 561
U.S. 742 (2010), stating, “We made it clear in Heller that our holding did not cast doubt on such
longstanding regulatory measures as ‘prohibitions on the possession of firearms by felons and
the mentally ill,’ ‘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 786 (quoting Heller, 554 U.S. at 626-27).
¶ 17 The concept that the right to bear arms under the second amendment is not unlimited,
particularly in regards to felons, has been reiterated by our supreme court in People v. Aguilar,
2013 IL 112116, ¶ 26, People v. Burns, 2015 IL 117387, ¶ 29, McFadden, 2016 IL 117424, ¶ 35,
and most recently in Chairez, 2018 IL 121417, ¶ 24. Specifically, in McFadden our supreme
court stated that, with respect to the second amendment, the unlawful use of a weapon by a felon
statute is a presumptively lawful, longstanding prohibition on the possession of firearms.
McFadden, 2016 IL 117424, ¶ 35. Moreover, in Burns, our supreme court indicated that the
legislature can constitutionally prohibit felons from carrying readily accessible firearms outside
the home. Burns, 2015 IL 117387, ¶ 29.
¶ 18 The Illinois appellate court has also held that the imposition of a felon-based firearm ban
does not fall within the scope of the second amendment. See People v. Montgomery, 2016 IL
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App (1st) 142143, ¶ 17 (“Although the second amendment does not categorically exclude felons
from its protection, this court has found that laws prohibiting felons from possessing firearms
does [not] run afoul of the second amendment.”); Campbell, 2014 IL App (1st) 112926, ¶ 60
(holding “felon-based firearm bans, like the [unlawful use of a weapon by a felon] and [armed
habitual criminal] statutes, do not impose a burden on conduct falling within the scope of the
second amendment”); People v. Garvin, 2013 IL App (1st) 113095, ¶¶ 33, 40 (considering the
constitutionality of both the unlawful use of a weapon by a felon and armed habitual criminal
statutes); People v. Black, 2012 IL App (1st) 110055, ¶ 13 (holding the armed habitual criminal
statute could prohibit defendant felon from possessing a firearm in his own home); People v.
Ross, 407 Ill. App. 3d 931, 942 (2011) (holding the armed habitual criminal statute is a
constitutionally permissible restriction of the second amendment right to bear arms). The breadth
of authority supports a conclusion that dispossessing felons from bearing arms is outside the
scope of the second amendment.
¶ 19 However, our supreme court in Chairez agreed with other courts that “some level of
scrutiny” should apply even to regulations which are “presumptively lawful.” Chairez, 2018 IL
121417, ¶ 30 (citing United States v. Williams, 616 F.3d 685, 692 (7th Cir. 2010) (explaining
that courts should apply some level of scrutiny even to regulations identified in Heller as
presumptively lawful); Woollard v. Gallagher, 712 F.3d 865, 875 (4th Cir. 2013) (stating that the
court was not “obliged to impart a definitive ruling at the first step” but, rather, “deemed it
prudent” to resolve some post-Heller challenges to firearm prohibitions at the second step); and
National Rifle Ass’n of America, Inc. v. Bureau of Alcohol, Tobacco, Firearms, & Explosives,
700 F.3d 185, 204 (5th Cir. 2012) (“Although we are inclined to uphold the challenged federal
laws [banning the sale of firearms to persons under the age of 21] at step one of our analytical
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framework, in an abundance of caution, we proceed to step two.”)). Therefore, we will follow
Chairez and proceed to step two of the analysis, which requires this court to apply “the
appropriate level of heightened means-ends scrutiny and consider the strength of the
government’s justification for restricting or regulating the exercise of second amendment rights.”
Chairez, 2018 IL 121417, ¶ 21; see Garvin, 2013 IL App (1st) 113095, ¶ 34 (holding felon-based
firearm bans do not impose a burden on conduct falling within the scope of the second
amendment but also examining whether the unlawful use of a weapon by a felon statute passed
constitutional scrutiny). Since defendant raises an as-applied challenge to the statute, our second-
step analysis will include a consideration of defendant’s particular circumstances, namely the age
and nature of his prior felony convictions along with his potential for rehabilitation. See Chairez,
2018 IL 121417, ¶ 30; Campbell, 2014 IL App (1st) 112926, ¶ 57.
¶ 20 We, however, must first determine the appropriate level of scrutiny in this case. In
Chairez, our supreme court examined Heller and relevant Seventh Circuit cases and found that
the heightened means-end analysis involves a sliding-scale approach. Chairez, 2018 IL 121417,
¶ 35. The court explained:
“[S]tep two of our second amendment analysis begins with a balance of considerations
where the quantity and persuasiveness of the State’s evidence required to justify the
challenged restrictions varies depending on how much it affects the core second
amendment right to armed self-defense and whose right it affects. [Citation.] The rigor of
this means-end analysis ‘depends on “how close the law comes to the core of the Second
Amendment right and the severity of the law’s burden on the right.” ’ [Citation.] The
closer in proximity the restricted activity is to the core of the second amendment right
and the more people affected by the restriction, the more rigorous the means-end review.
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If the State cannot proffer evidence establishing both the law’s strong public-interest
justification and its close fit to this end, the law must be held unconstitutional.
[Citation.]” Id. ¶ 45.
See also Wilson v. County of Cook, 2012 IL 112026, ¶¶ 41-42.
¶ 21 To determine where on the sliding scale of intermediate scrutiny the armed habitual
criminal statute should be analyzed, we must first determine the breadth of the statute and the
severity of its burden on the second amendment. Chairez, 2018 IL 121417, ¶ 46.
¶ 22 One commits the offense of armed habitual criminal when he or she receives, sells,
possesses, or transfers any firearm after having been twice convicted of certain felonies
enumerated in the statute. 720 ILCS 5/24-1.7(a)(2), (3) (West 2012). The core right protected by
the second amendment is the right to self-defense, inside and outside the home. See Chairez,
2018 IL 121417, ¶ 48. As applied to defendant in this case, the armed habitual criminal statute
prohibits him from possessing a firearm, as he was a twice-convicted felon, with prior
convictions of unlawful use of a weapon by a felon and manufacture/delivery of a controlled
substance. See 720 ILCS 5/24-1.7(a)(2), (3) (West 2012). As discussed previously, prohibiting
felons from possessing firearms falls outside the scope of the second amendment. See Campbell,
2014 IL App (1st) 112926, ¶ 60. In addition, those individuals who can be classified as twice-
convicted felons (i.e., having two of the specific felonies as listed in the armed habitual criminal
statute) constitute a relatively narrow group in relationship to the entire population. Therefore,
because restricting felons from possessing firearms is not in close proximity to the core of the
second amendment right and a narrow group of individuals is affected by the restriction, the
intermediate scrutiny is less rigorous. See Chairez, 2018 IL 121417, ¶ 45; Wilson, 2012 IL
112026, ¶ 42 (acknowledging that “courts generally recognize that Heller rejected rational-basis
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review [of second amendment claims] and requires some form of heightened scrutiny”); see also
Montgomery, 2016 IL App (1st) 142143, ¶ 18 (finding the armed habitual criminal statute to be
constitutional under either rational basis or intermediate scrutiny); Ross, 407 Ill. App. 3d at 939
(applying intermediate scrutiny standard in upholding the constitutionality of the armed habitual
criminal statute). “To withstand intermediate scrutiny, the legislative enactment must be
substantially related to an important governmental interest.” Napleton v. Village of Hinsdale, 229
Ill. 2d 296, 308 (2008). To survive such intermediate scrutiny, the fit between the challenged
regulation and the asserted governmental objective need only be reasonable. People v. Fields,
2014 IL App (1st) 130209, ¶ 60.
¶ 23 Applying the level of intermediate scrutiny discussed, we conclude that the restrictions of
the armed habitual criminal statute are a tight fit with its public interest justification. It is well-
settled that prohibitions on the possession of firearms by felons are a permissible restriction on
the constitutional right to bear arms. Heller, 554 U.S. at 626. The legislature enjoys wide latitude
in prescribing criminal penalties under its police power and has an obligation to protect its
citizens from known criminals. Robinson, 2011 IL App (1st) 100078, ¶ 31. Moreover, “[i]t is
deeply rooted in our jurisprudence that the government inherently possesses and may lawfully
exercise ‘such power of restraint upon private rights as may be found to be necessary and
appropriate to promote the health, comfort, safety and welfare of society and may enact
prohibitions to promote the general welfare even though the prohibition invade[s] the right of
liberty or property of an individual.’ ” Ross, 407 Ill. App. 3d at 942 (quoting Napleton, 229 Ill.
2d at 310). The armed habitual criminal statute reflects the legitimate governmental interest in
preventing the danger associated with repeat felons having firearms. Black, 2012 IL App (1st)
110055, ¶ 13; see Ross, 407 Ill. App. 3d at 942; Garvin, 2013 IL App (1st) 113095, ¶ 40.
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Furthermore, the armed habitual criminal statute is not a comprehensive ban, but rather it affects
only a certain limited class of people, namely those individuals who have been twice convicted
of certain defined felonies. See 720 ILCS 5/24-1.7 (West 2012). We find the armed habitual
criminal statute does not restrict activity that is at the core of the second amendment, addresses a
significant government interest, and has restrictions closely related to that interest.
¶ 24 Defendant argues that the armed habitual criminal statute is unconstitutional as applied to
him because (1) his prior felony convictions were nonviolent and occurred over 20 years ago and
(2) he has been rehabilitated since his last felony conviction in 1992. Defendant cites to Binderup
v. Attorney General, 836 F.3d 336, 356-57 (3d Cir. 2016) (opinion of Ambro, J., joined by Smith
and Greenway Jr., JJ.), Britt v. State, 681 S.E.2d 320 (N.C. 2009), and Baysden v. State, 718
S.E.2d 699 (N.C. Ct. App. 2011) in support of his position.
¶ 25 Defendant relies primarily on the case of Binderup to demonstrate that the armed habitual
criminal statute must be held unconstitutional as applied to him. 2 Binderup involved complaints
for declaratory and injunctive relief filed in two separate Pennsylvania federal district courts by
two plaintiffs, Daniel Binderup and Julio Suarez (the challengers). Binderup, 836 F.3d at 340
(majority opinion). Binderup had pled guilty in a Pennsylvania state court to corrupting a minor,
a misdemeanor subject to possible imprisonment for up to five years. Id. His sentence, however,
“was the colloquial slap on the wrist: probation (three years) and a $300 fine plus court costs and
restitution.” Id. Suarez, while in Maryland, pled guilty in state court to unlawfully carrying a
handgun without a license, a misdemeanor subject to possible imprisonment for not less than 30
days and not more than three years or a specified fine. Id. Suarez received a suspended sentence
of 180 days’ imprisonment and a $500 fine, followed by a year of probation. Id. Pennsylvania
law disqualified the challengers from possessing firearms due to their convictions, but in 2009
2
We observe that Binderup was a fractured, plurality decision. See Binderup, 836 F.3d at 338.
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they successfully petitioned the Pennsylvania courts to remove that prohibition. Id. Federal law,
however, continued to bar them from possessing firearms because their convictions had not been
expunged or set aside, they had not been pardoned, and their civil rights had not been restored.
Id.; 18 U.S.C. § 922(g)(1) (2006) (prohibiting possession of firearms by any person convicted in
any court of “a crime punishable by imprisonment for a term exceeding one year”); see 18
U.S.C. § 921(a)(20) (2006). They argued that, as a matter of statutory construction, the federal
law (id. § 922(g)(1)) did not apply to their convictions and, if it did, the statute was
unconstitutional as applied to them. Binderup, 836 F.3d at 340 (majority opinion).
¶ 26 The federal district court rejected their statutory argument, but held that section 922(g)(1)
was unconstitutional as applied. Id. at 340-41. The Court of Appeals for the Third Circuit, en
banc, considered the challengers’ as-applied argument under a two-step test. Id. at 347 (opinion
of Ambro, J., joined by Fuentes, Smith, Greenway Jr., Vanaskie, Krause, and Roth, JJ.). In
considering the first step, the Binderup court observed that most “scholars of the Second
Amendment agree that the right to bear arms was tied to the concept of a virtuous citizenry and
that, accordingly, the government could disarm unvirtuous citizens.” (Internal quotation marks
omitted.) Id. at 348 (quoting United States v. Yancey, 621 F.3d 681, 684-85 (7th Cir. 2010)). The
court further observed that Heller “recognized ‘longstanding prohibitions on the possession of
firearms by felons,’ not just violent felons” and therefore concluded that “[t]he category of
‘unvirtuous citizens’ is thus broader than violent criminals; it covers any person who has
committed a serious criminal offense, violent or nonviolent.” (Emphasis added.) Id. (quoting
Heller, 554 U.S. at 626).
¶ 27 Having found that only those convicted of “serious crimes” can forfeit their right to
possess firearms, the Binderup court went on to step two and determined that there was “not a
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substantial fit between the continuing disarmament of the [c]hallengers and an important
government interest.” Id. at 356 (opinion of Ambro, J., joined by Smith and Greenway Jr., JJ.).
In so finding, the court discussed four defining factors that were unique to the challengers’ prior
felonies: (1) the state legislatures had enacted the offenses as misdemeanors, which “are, and
traditionally have been, considered less serious than felonies”; (2) the lack of violence involved
in the offense; (3) the minor sentences imposed; and (4) a lack of a “cross-jurisdictional
consensus regarding the seriousness of the [c]hallengers’ crimes.” Id. at 351-52. In sum, the
Binderup court concluded that “[t]he [c]hallengers’ isolated, decades-old, non-violent
misdemeanors do not permit the inference that disarming people like them will promote the
responsible use of firearms.” Id. at 356
¶ 28 In the present case, we find defendant’s particular circumstances distinguish him from the
challengers in Binderup. Our state legislature has classified defendant’s prior offenses
(manufacture/delivery of a controlled substance offense and unlawful use of a weapon by a
felon) as felonies, not misdemeanors as in Binderup. See 720 ILCS 570/401 (West 2012); 720
ILCS 5/24-1.1 (West 2012). Even the Binderup court itself noted that a state-law felon’s “burden
would be extraordinarily high—and perhaps even insurmountable” to demonstrate that the crime
was not serious. Binderup, 836 F.3d at 353 n.6 (opinion of Ambro, J., joined by Smith and
Greenway Jr., JJ.). Additionally, unlike the challengers in Binderup, defendant here waited until
after he was convicted of being in possession of a firearm to challenge the constitutionality of the
armed habitual criminal statute. While defendant was initially sentenced to probation for his
manufacture/delivery of a controlled substance offense, he subsequently violated his probation
and was sentenced to three years’ imprisonment. Defendant was also sentenced to three years’
imprisonment for the unlawful use of a weapon by a felon conviction. In contrast, the Binderup
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challengers were never imprisoned. Finally, we observe that our Illinois jurisprudence has
consistently upheld the constitutionality of the armed habitual criminal statute against facial and
as-applied challenges even where the underlying felony was nonviolent. See Montgomery, 2016
IL App (1st) 142143, ¶ 19.
¶ 29 Defendant maintains that, like the challengers in Binderup, his prior felony offenses were
nonviolent. In response, the State disagrees and posits that defendant’s drug conviction is
equivalent to a violent offense, citing United States v. Torres-Rosario, 658 F.3d 110, 113 (1st
Cir. 2011) (“drug dealing is notoriously linked to violence” and “[a]ssuming arguendo that the
Supreme Court might find some felonies so tame and technical as to be insufficient to justify the
ban, drug dealing is not likely to be among them”). We observe that the armed habitual criminal
statute does not provide any exceptions for a person convicted of nonviolent felonies. Moreover,
unlike the statutes involved in Binderup, our state legislature expressly included within the
armed habitual criminal statute that “any violation of the Illinois Controlled Substances Act or
the Cannabis Control Act that is punishable as a Class 3 felony or higher” is a qualifying felony.
720 ILCS 5/24-1.7(a)(3) (West 2012). Thus, our legislature already contemplated what was
discussed in Binderup—that only those convicted of “serious crimes” can forfeit their right to
possess firearms. See Binderup, 836 F.3d at 351 (opinion of Ambro, J., joined by Smith and
Greenway Jr., JJ,). Accordingly, we decline to find that the armed habitual criminal statute is
unconstitutional as applied to defendant even if his previous felonies could be considered
nonviolent.
¶ 30 In so concluding, we find Montgomery to be instructive. In Montgomery, the defendant
was found guilty of being an armed habitual criminal and unlawful use of a weapon by a felon
after police seized firearms and ammunition from his home during the execution of a search
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warrant. Montgomery, 2016 IL App (1st) 142143, ¶ 1. On appeal, the defendant argued that the
statutes were unconstitutional as applied to him because his prior felony convictions were
nonviolent and he kept the firearms for protection. Id. ¶ 8. The Montgomery court first concluded
that neither statute implicated the second amendment where the Supreme Court in Heller “noted
that its decision does not cast doubt on the longstanding prohibitions on, inter alia, the
possession of firearms by felons” and “our [Illinois] [S]upreme [C]ourt [has] expressed its
approval of felon-based bans on firearm possession.” Id. ¶¶ 14-15 (citing Heller, 554 U.S. at
626-27, and Aguilar, 2013 IL 112116, ¶ 26). The reviewing court further observed that “this
court has consistently rejected constitutional challenges to the statutes at issue here” and thus
declined to depart from these holdings. Id. ¶ 16 (citing, in pertinent part, Campbell, 2014 IL App
(1st) 112926, ¶ 60 (holding “felon-based firearm bans, like the [unlawful use of a weapon by a
felon] and [armed habitual criminal] statutes, do not impose a burden on conduct falling within
the scope of the second amendment”)); see Garvin, 2013 IL App (1st) 113095, ¶ 40 (finding the
unlawful use of a weapon by a felon statute, like the armed habitual criminal statute, is a valid
exercise of Illinois’s right to protect the health, safety, and general welfare of its citizens of the
potential danger posed by convicted felons in possession of firearms or firearm ammunition);
Black, 2012 IL App (1st) 110055, ¶ 13 (holding armed habitual criminal statute could prohibit
the defendant-felon from possessing a firearm in his own home); Ross, 407 Ill. App. 3d at 942
(holding the armed habitual criminal statute is a constitutionally permitted restriction of the
second amendment right to bear arms).
¶ 31 Second, the Montgomery court rejected defendant’s as-applied challenge to the unlawful
use of a weapon by a felon statute, observing (as we have here) that the unlawful use of a
weapon by a felon statute “does not provide any exceptions for persons convicted of nonviolent
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felonies” and that no such exception was recognized by the Supreme Court in Heller and
McDonald. Montgomery, 2016 IL App (1st) 142143, ¶ 19 (citing 720 ILCS 5/24-1.1(a) (West
2012) and People v. Spencer, 2012 IL App (1st) 102094, ¶ 32 (finding even if the defendant had
made a procedurally proper as-applied constitutional challenge to the unlawful use of a weapon
by a felon statute, the court would still reject his claims where the unlawful use of a weapon by a
felon statute does not include an exception for persons convicted of nonviolent felonies and
neither Heller nor McDonald recognized such an exception)). The Montgomery court thus
concluded that the statute is not unconstitutional as applied to the defendant even though his
previous felonies were nonviolent. Id.
¶ 32 Defendant cites no relevant authority in support of his additional claims that the age of
his felony convictions and his rehabilitation since completing those sentences render the armed
habitual criminal statute unconstitutional as applied to him. Defendant cites two cases having no
precedential value in this court, Britt and Baysden, to support these claims. Britt and Baysden
involve similar sets of facts. The plaintiffs in each case had been convicted of nonviolent felonies
in the 1970s. Britt, 681 S.E.2d at 321; Baysden, 718 S.E.2d at 701. After completing their
respective sentences, their civil rights were fully restored by operation of law, including their
right to possess a firearm. Britt, 681 S.E.2d at 321; Baysden, 718 S.E.2d at 701. Both plaintiffs
owned firearms for 17 years or more without any incident until the North Carolina General
Assembly changed the law in 2004 and prohibited the possession of all firearms by any person
convicted of any felony. Britt, 681 S.E.2d at 321; Baysden, 718 S.E.2d at 701-02. Thereafter, the
plaintiffs intentionally divested themselves of their firearms and filed suits in North Carolina
state courts challenging the law as unconstitutional. In undertaking a rational basis review, the
North Carolina courts ultimately concluded that the law was unconstitutional as applied to the
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plaintiffs. Britt, 681 S.E.2d at 323; Baysden, 718 S.E.2d at 703-04. As stated in Britt,
“[p]laintiff, through his uncontested lifelong nonviolence towards other citizens, his thirty
years of law-abiding conduct since his crime, his seventeen years of responsible, lawful
firearm possession between 1987 and 2004, and his assiduous and proactive compliance
with the 2004 amendment, has affirmatively demonstrated that he is not among the class
of citizens who pose a threat to public peace and safety.” Britt, 681 S.E.2d at 323.
See Baysden, 718 S.E.2d at 704.
¶ 33 We decline to consider these cases as persuasive authority as the plaintiffs in those cases
conclusively demonstrated their respect for the law by divesting themselves of their weapons
when the law changed and sought redress through the judicial system. Unlike the Britt and
Baysden plaintiffs, defendant here possessed a firearm knowing that he was a twice-convicted
felon and only sought to challenge the law regarding his possession of a firearm after he was
charged with the weapons-related offenses. These facts cut against defendant’s argument that he
has been rehabilitated. Moreover, we observe the courts in Britt and Baysden applied a rational
basis inquiry. Britt, 681 S.E.2d at 323; Baysden, 718 S.E.2d at 703-04. Furthermore, it is notable
that the North Carolina plaintiffs were legally allowed to possess weapons for 17 years prior to
the change in the law that made their possession of firearms illegal. Britt, 681 S.E.2d at 321;
Baysden, 718 S.E.2d at 701-02.
¶ 34 Defendant also asserts that the fact his first felony conviction for manufacture/delivery of
a controlled substance, which occurred when he was age 17, is now no longer punishable as an
adult offense supports his conclusion that the armed habitual criminal statute is unconstitutional
as applied. Defendant, however, cites no relevant authority that a subsequent change in the law
has any bearing on the nature of his first felony conviction or his status as a felon. Accordingly,
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we find this argument to be forfeited. See Ill. S. Ct. R. 341(h)(7) (eff. July 1, 2017); People v.
Hunt, 234 Ill. 2d 49, 67 (2009) (points not argued with citation to authority are forfeited).
¶ 35 In sum, the armed habitual criminal statute “is a valid exercise of Illinois’s right to
protect the health, safety, and general welfare of its citizens from the potential danger posed by
convicted felons in possession of firearms” and survives intermediate scrutiny. Garvin, 2013 IL
App (1st) 113095, ¶ 40. The application of the armed habitual criminal statute is not
unconstitutional as applied to defendant, who committed two prior felonies, despite his assertions
that these were older, nonviolent felonies and that he has since been rehabilitated. Accordingly,
we hold that the judgment of the circuit court is affirmed.
¶ 36 CONCLUSION
¶ 37 For the reasons stated above, the armed habitual criminal statute is not unconstitutional as
applied to defendant. Therefore, we affirm the judgment of the circuit court of Cook County.
¶ 38 Affirmed.
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