People v. Smith

2024 IL App (1st) 221455
FIRST DISTRICT,
FIRST DIVISION
February 13, 2024

No. 1-22-1455

) Appeal from the
THE PEOPLE OF THE STATE OF ILLINOIS,
) Circuit Court of
) Cook County, Illinois.
Plaintiff-Appellee,
)
v.
) No. 92 CR 19294
)
CALVIN SMITH, a/k/a Sam Hewitt,
) Honorable
) Michael B. McHale,
Defendant-Appellant.
) Judge Presiding.

JUSTICE COGHLAN delivered the judgment of the court, with opinion.
Justices Lavin and Pucinski concurred in the judgment and opinion.

OPINION

¶1 In 1992, defendant Calvin Smith (also known as Sam Hewitt) pled guilty to two counts of

unlawful use of a weapon (UUW) (720 ILCS 5/24-1(a)(7) (West 1992)) for possessing a shotgun

with a barrel length of less than 18 inches and an overall length of less than 26 inches (a short-

barreled shotgun). Defendant was initially sentenced to 18 months’ probation and was

subsequently sentenced to 3 years’ imprisonment for violating his probation.

¶2 On June 23, 2022, defendant filed a petition for relief from judgment under section 2-

1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2022)), seeking to vacate

his UUW conviction as a violation of his second amendment rights. Defendant appeals the

circuit court’s dismissal of his petition, arguing that the UUW statute prohibiting possession of

short-barreled firearms violates the second amendment under New York State Rifle & Pistol

Ass’n v. Bruen, 597 U.S. 1, 142 S. Ct. 2111 (2022). For the following reasons, we affirm.
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¶3 I. BACKGROUND

¶4 On August 25, 1992, defendant was charged with two counts of UUW for knowingly

possessing a shotgun with a barrel length of less than 18 inches and an overall length of less than

26 inches. Ill. Rev. Stat. 1989, ch. 38, ¶ 24-1(a)(7) (now codified at 720 ILCS 5/24-1(a)(7)(ii)

(West 2022)). On September 11, 1992, defendant pled guilty to both counts and was sentenced to

18 months’ probation. He then violated his probation by committing a drug offense (case No. 93-

CR-13081). On July 1, 1993, defendant pled guilty to the drug offense and to violating his

probation. He was sentenced to concurrent terms of three years’ imprisonment for each offense. 1

¶5 On June 23, 2022, defendant filed a section 2-1401 petition for relief from judgment,

arguing that his UUW conviction should be vacated because the “UUW statute [was] struck

down as facially unconstitutional on Second Amendment grounds” in People v. Aguilar, 2013 IL

112116. On August 12, 2022, the circuit court dismissed defendant’s petition, finding that his

reliance on Aguilar is “misplaced as it does not apply to the specific facts of his case,” where he

was convicted of possessing “a ‘sawed off’ shotgun.” Defendant now appeals. 2

¶6 II. ANALYSIS

¶7 Section 2-1401 of the Code provides a comprehensive statutory procedure by which final

judgments may be vacated more than 30 days after their entry. 735 ILCS 5/2-1401(a) (West

2022); People v. Vincent, 226 Ill. 2d 1, 7 (2007). Ordinarily, a section 2-1401 petition must be

1
Defendant was convicted of first degree murder and attempt first degree murder in case No. 94-
CR-14946 and is currently serving a natural life sentence. See People v. Hewitt, 295 Ill. App. 3d 1110
(1998) (table) (unpublished order under Illinois Supreme Court Rule 23).
2
Defendant mailed his notice of appeal on September 8, 2022, but it was not filed until September
15, 2022. On June 28, 2023, defendant filed a motion for supervisory order, requesting that the court treat
his notice of appeal as timely filed. On July 13, 2023, our supreme court granted the motion and directed
this court to “treat the notice of appeal *** as a properly perfected appeal from the circuit court’s August
12, 2022, order.”

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filed within two years of a final judgment. 735 ILCS 5/2-1401(c) (West 2022). However, a

petition can be brought at any time where, as here, a defendant alleges that his conviction or

sentence “is based on a statute that is facially unconstitutional and void ab initio.” People v.

Stoecker, 2020 IL 124807, ¶ 28. “We review de novo a section 2-1401 petition that was denied or

dismissed on legal grounds.” People v. Abdullah, 2019 IL 123492, ¶ 13. We “may affirm on any

basis appearing in the record, whether or not the trial court relied on that basis or its reasoning

was correct.” People v. Daniel, 2013 IL App (1st) 111876, ¶ 37.

¶8 Defendant argues that the UUW statute’s “flat-out ban on private residents from merely

possessing short-barreled firearms” is facially unconstitutional under the second amendment.

Section 24-1(a)(7)(ii) of the Criminal Code of 2012 provides that a person commits UUW if he

knowingly

“[s]ells, manufacturers, purchases, possesses or carries *** any rifle having one or more

barrels less than 16 inches in length or a shotgun having one or more barrels less than 18

inches in length or any weapon made from a rifle or shotgun, *** if such a weapon as

modified has an overall length of less than 26 inches.” 720 ILCS 5/24-1(a)(7)(ii) (West

2022).

¶9 “ ‘Constitutional challenges carry the heavy burden of successfully rebutting the strong

judicial presumption that statutes are constitutional.’ ” People v. Rizzo, 2016 IL 118599, ¶ 23

(quoting People v. Patterson, 2014 IL 115102, ¶ 90). “That presumption applies with equal force

to legislative enactments that declare and define conduct constituting a crime and determine the

penalties imposed for such conduct.” Id. The challenger has the burden of clearly demonstrating

a constitutional violation. People v. Greco, 204 Ill. 2d 400, 406 (2003). “A facial challenge to the

constitutionality of a statute is the most difficult challenge to mount,” as “[a] statute is facially

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unconstitutional only if there are no circumstances in which the statute could be validly applied.”

People v. Davis, 2014 IL 115595, ¶ 25. The constitutionality of a statute is a question of law,

which is reviewed de novo. Id. ¶ 26.

¶ 10 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. “Throughout the twentieth century[,] the prevailing understanding of the

second amendment, at least in some way, related to militia service.” People v. Brooks, 2023 IL

App (1st) 200435, ¶ 66. This changed after District of Columbia v. Heller, 554 U.S. 570, 595

(2008), where the Supreme Court held that the second amendment confers an “individual right to

keep and bear arms” for self-defense. Specifically, the “the right of an ordinary, law-abiding

citizen to possess a handgun in the home for self-defense.” Bruen, 597 U.S. at ___, 142 S. Ct. at

2122. This individual right to keep and bear arms was extended to the States under the fourteenth

amendment in McDonald v. City of Chicago, 561 U.S. 742, 750 (2010).

¶ 11 After Heller and McDonald, the lower courts developed a “two-step” approach to assess

second amendment claims. Bruen, 597 U.S. at ___, 142 S. Ct. at 2174. First, the government

could justify its regulation by “ ‘establish[ing] that the challenged law regulates activity falling

outside the scope of the right as originally understood.’ ” Id. at ___, 142 S. Ct. at 2126 (quoting

Kanter v. Barr, 919 F.3d 437, 441 (7th Cir. 2019)). If the regulated conduct fell beyond the

amendment’s original scope, then the analysis stopped there, and the regulated activity was

“ ‘categorically unprotected.’ ” Id. at ___, 142 S. Ct. at 2126 (quoting United States v. Greeno,

679 F.3d 510, 518 (6th Cir. 2012)). However, “[i]f history proved inconclusive or suggested that

the regulated activity was not ‘categorically unprotected’ courts proceeded to the second step,

whereupon they conducted a means-ends analysis, employing either strict or intermediate

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scrutiny and weighing the severity of the regulation against the ends the government sought to

achieve.” Brooks, 2023 IL App (1st) 200435, ¶ 67 (citing Atkinson v. Garland, 70 F.4th 1018,

1020 (7th Cir. 2023)).

¶ 12 Recently, in Bruen, the Court condemned the application of any “means-end scrutiny” in

the second amendment context. Bruen, 597 U.S. at ___, 142 S. Ct. at 2127. There, the Court

struck a New York licensing regime requiring persons wishing to carry a firearm outside the

home to show “proper cause” to be issued a license, meaning, a “special need for self-protection

distinguishable from that of the general community.” (Internal quotation marks omitted.) Id. at

___, 142 S. Ct. at 2123, 2156. In doing so, the Court adopted a new framework for evaluating

second amendment claims, instructing, “[w]hen the Second Amendment’s plain text covers an

individual’s conduct, the Constitution presumptively protects that conduct” and “[t]he

government must then justify its regulation by demonstrating that it is consistent with the

Nation’s historical tradition of firearm regulation.” Id. at ___, 142 S. Ct. at 2126, 2130. “Only

then may a court conclude that the individual’s conduct falls outside the Second Amendment’s

‘unqualified command.’ ” Id. at ___, 142 S. Ct. at 2130 (quoting Konigsberg v. State Bar of

California, 366 U.S. 36, 50, n. 10 (1961)).

¶ 13 Under Bruen, we first must determine whether the plain text of the second amendment

covers the conduct at issue here, i.e., whether the second amendment protects an individual’s

right to possess short-barreled firearms. See id. at ___, 142 S. Ct. at 2129-30. Defendant argues

that the second amendment “presumptively protects Americans’ rights to possess ‘all instruments

that constitute bearable arms ***,’ ” which includes short-barreled firearms. The State responds

that because short-barreled firearms are “dangerous and unusual” weapons that are “not

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commonly used by law-abiding citizens for self-defense purposes,” they are not “arms” protected

by the second amendment.

¶ 14 The Supreme Court has recognized that, “[l]ike most rights, the right secured by the

Second Amendment is not unlimited.” Heller, 554 U.S. at 626. “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.” Id.

In Heller, the Court recognized an “important limitation on the right to keep and carry arms,”

based on the nature of the arms. Id. at 627. Specifically, the “sorts of weapons protected [by the

second amendment are] those in common use at the time,” which is “fairly supported by the

historical tradition of prohibiting the carrying of dangerous and unusual weapons.” (Internal

quotation marks omitted.) Id.

¶ 15 In considering what types of weapons are covered by the second amendment, the Heller

Court examined its decision in United States v. Miller, 307 U.S. 174 (1939). See Heller, 554 U.S.

at 624. In Miller, the Court held that the second amendment did not guarantee the right to keep

and bear short-barreled shotguns “[i]n the absence of any evidence tending to show that

possession or use of a [short-barreled shotgun] *** at this time has some reasonable relationship

to the preservation or efficiency of a well regulated militia.” Miller, 307 U.S. at 178.

¶ 16 The Heller Court “read Miller to say only that the Second Amendment does not protect

those weapons not typically possessed by law-abiding citizens for lawful purposes, such as

short-barreled shotguns.” (Emphasis added.) Heller, 554 U.S at 623, 625. This necessarily

precludes defendant’s argument that he has a second amendment right to possess a short-barreled

shotgun. And to the extent that defendant challenges the UUW statute’s prohibition on

possessing both short-barreled shotguns and short-barreled rifles, he has offered “no meaningful

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distinction between the two.” See United States v. Cox, 906 F.3d 1170, 1186 (10th Cir. 2018)

(taking its “cue from Heller” and “conclud[ing] that the possession of short-barreled rifles falls

outside the Second Amendment’s guarantee”). Accordingly, the plain text of the second

amendment does not encompass an individual’s right to possess short-barreled firearms. See

Heller, 554 U.S at 625; see also People v. Ramirez, 2023 IL 128123, ¶ 27 (finding that defaced

firearms “are not covered by the plain text of the second amendment because they are not

typically used by law-abiding citizens for lawful purposes”).

¶ 17 Defendant argues that we should not rely on Heller’s pronouncement that short-barreled

shotguns are not protected by the second amendment because Heller did not involve “any

historical analysis *** as to short-barreled firearms,” as is now required under Bruen. We

disagree. The Heller Court found that limiting the kinds of weapons protected by the second

amendment is “fairly supported by the historical tradition of prohibiting the carrying of

dangerous and unusual weapons.” (Internal quotation marks omitted.) Heller, 554 U.S. at 627.

Heller is entirely consistent with Bruen. See Bruen, 597 U.S. at ___, 142 S. Ct. at 2126 (“In

keeping with Heller, we hold that when the Second Amendment’s plain text covers an

individual’s conduct, the Constitution presumptively protects that conduct.”); see also id. at ___,

142 S. Ct. at 2157 (Alito, J., concurring) (noting that the Court had not “disturbed anything that

[they] said in Heller or McDonald *** about restrictions that may be imposed on the possession

or carrying of guns”).

¶ 18 Defendant further asserts that short-barreled firearms are in “common use today” because

162,267 short-barreled shotguns and 532,725 short-barreled rifles were registered in the United

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States as of 2021. 3 However, unlike handguns, short-barreled firearms are not “an entire class of

‘arms’ *** chosen by American society for [the] lawful purpose” of self-defense. See Heller 554

U.S. at 625, 628. Short-barreled firearms are regulated precisely because they are “concealable

weapon[s] *** likely to be used for criminal purposes.” See United States v. Thompson/Center

Arms Co., 504 U.S. 505, 517 (1992) (explaining that short-barreled rifles are regulated under the

National Firearms Act (26 U.S.C. §§ 5841, 5845 (2018)) for this very reason). The sheer number

of registered short-barreled firearms does not undercut their dangerousness or the fact that they

are “not typically possessed by law-abiding citizens for lawful purposes.” 4 See Heller, 554 U.S.

at 625, 628; see also People v. Dean, 207 Ill. App. 3d 640, 642 (1990) (noting that the UUW

statute “provides that a person in possession of a sawed-off shotgun *** has committed a crime.

No exceptions are allowed under this section because such weapons are considered to be

inherently dangerous to human life”).

¶ 19 Accordingly, defendant’s facial challenge to section 24-1(a)(7)(ii) fails where he has not

established that there are “no set of circumstances under which the statute would be valid.”

People v. Bochenek, 2021 IL 125889, ¶ 10.

¶ 20 III. CONCLUSION

¶ 21 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.

3
Defendant cites to Alcohol, Tobacco, Firearms and Explosives, Firearms Commerce in the
United States, at 16 (2021 Update), https://www.atf.gov/firearms/docs/report/2021-firearms-commerce-
report/download [https://perma.cc/R7WD-VNDZ], United States Department of Justice Bureau of
Alcohol, Tobacco, Firearms and Explosives, in support of these statistics.
4
Since Bruen, numerous federal district courts have held that because short-barreled shotguns and
rifles are dangerous and unusual weapons, their possession is not conduct protected under the second
amendment. See, e.g., United States v. Wuchter, No. 23-CR-2024-CJW-MAR, 2023 WL 4999862, at *5
(N.D. Iowa Aug. 4, 2023); United States v. Saleem, 659 F. Supp. 3d 683, 692 (W.D.N.C. 2023); United
States v. Brooks, No. 23-26-DLB-CJS, 2023 WL 6880419, at *4 (E.D. Ky. Oct. 18, 2023); United States
v. Rush, No. 22-cr-40008-JPG, 2023 WL 403774, at *3 (S.D. Ill. Jan. 25, 2023); United States v. Royce,
No. 1:22-cr-130, 2023 WL 2163677, at *3 (D.N.D. Feb. 22, 2023).

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¶ 22 Affirmed.

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People v. Smith, 2024 IL App (1st) 221455

Decision Under Review: Appeal from the Circuit Court of Cook County, No. 92-CR-19294;
the Hon. Michael B. McHale, Judge, presiding.

Attorneys James E. Chadd, Douglas R. Hoff, and Christofer R. Bendik, of
for State Appellate Defender’s Office, of Chicago, for appellant.
Appellant:

Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Enrique
for Abraham, Su Wang, and Caitlin Chenus, Assistant State’s
Appellee: Attorneys, of counsel), for the People.

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