                                      2020 IL 124100



                                        IN THE
                               SUPREME COURT
                                            OF
                          THE STATE OF ILLINOIS




                                   (Docket No. 124100)

               THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.
                     VIVIAN CLAUDINE BROWN, Appellee.


                                Opinion filed April 2, 2020.



        CHIEF JUSTICE ANNE M. BURKE delivered the judgment of the court, with
     opinion.

        Justices Kilbride, Garman, and Neville concurred in the judgment and opinion.

        Justice Karmeier dissented, with opinion, joined by Justice Theis.

        Justice Michael J. Burke took no part in the decision.



                                        OPINION

¶1       Defendant, Vivian Brown, was charged by information with possessing a
     firearm without a Firearm Owners Identification (FOID) card in violation of section
     2(a)(1) of the Illinois Firearm Owners Identification Card Act (FOID Card Act)
     (430 ILCS 65/2(a)(1) (West 2016)). The circuit court of White County dismissed
     the charge, finding that, as applied to the facts of this case, section 2(a)(1) was
     unconstitutional under the second amendment to the United States Constitution
     (U.S. Const., amend. II), and article I, section 22, of the Illinois Constitution of
     1970 (Ill. Const. 1970, art. I, § 22). Direct appeal was taken to this court. Ill. S. Ct.
     R. 603 (eff. Feb. 6, 2013). For the reasons that follow, we determine that the circuit
     court unnecessarily reached defendant’s constitutional challenge. We therefore
     remand this cause with directions.


¶2                                     BACKGROUND

¶3       On May 5, 2017, a criminal information was filed in the circuit court of White
     County charging defendant with knowingly possessing a firearm “without having
     in her possession a Firearm Owner’s identification card,” in violation of section
     2(a)(1) of the FOID Card Act. This provision states:

         “No person may acquire or possess any firearm, stun gun, or taser within this
         State without having in his or her possession a Firearm Owner’s Identification
         Card previously issued in his or her name by the Department of State Police
         under the provisions of this Act.” 430 ILCS 65/2(a)(1) (West 2016).

¶4       To acquire a FOID card, an applicant must submit a form to the Illinois State
     Police attesting that he or she is not subject to certain disqualifying conditions, such
     as being under the age of 21, a felon or a person who has been adjudicated with a
     mental disability. Id. § 4(a)(2). The applicant must also submit a personal
     photograph (id. § 4(a-20)); pay $10 (id. § 5); and sign a release allowing the State
     Police to perform a background check to verify the information contained in the
     application (id. § 4(a)(3)). An initial violation of section 2(a)(1) is a Class A
     misdemeanor when the person does not currently possess a valid FOID card but is
     otherwise eligible for one. Id. § 14(b).

¶5       On September 26, 2017, defendant filed a “Motion to Find Statute
     Unconstitutional,” in which she alleged the following facts regarding the incident
     that led to her arrest and prosecution. At approximately 1:47 p.m., on March 18,
     2017, defendant’s estranged husband phoned the White County Sheriff’s




                                               -2-
     Department and reported that defendant was shooting a gun inside her rural home
     near Carmi, Illinois. Officers from the sheriff’s department went to defendant’s
     home to investigate and, while there, discovered a Remington brand, .22-caliber,
     single-shot, bolt-action rifle in defendant’s bedroom. However, the officers found
     no evidence that this rifle, or any other gun, had been fired in the home. Defendant
     denied firing the rifle, and other occupants of the residence denied hearing any shots
     being fired.

¶6       According to defendant’s motion, after the sheriff’s officers completed their
     investigation, they prepared an incident report and forwarded it to the White County
     State’s Attorney’s office. Thereafter, the State’s Attorney filed a criminal
     information against defendant, charging her with violating section 2(a)(1) of the
     FOID Card Act (id. § 2(a)(1)). A warrant was issued, and defendant was arrested
     on May 20, 2017.

¶7       Defendant did not indicate in her motion who owned the rifle that was found in
     her home or when or how it was acquired. She did acknowledge, however, that she
     was in possession of the rifle when the sheriff’s officers observed it. She also
     asserted that she kept the rifle in her home for self-defense; that she was over 21;
     and that, although she did not possess a FOID card, she was a law-abiding citizen
     with no criminal record, history of mental illness, or other disqualifying condition
     and, thus, would have been eligible to obtain a FOID card had she applied for one.

¶8       Based on the foregoing alleged facts, defendant argued in her motion that
     section 2(a)(1) of the FOID Card Act was unconstitutional as applied to her. Citing
     District of Columbia v. Heller, 554 U.S. 570 (2008), and McDonald v. City of
     Chicago, 561 U.S. 742 (2010), defendant noted the second amendment to the
     United States Constitution protects an individual’s right to keep and bear arms for
     the purpose of self-defense and that this right is at its “most acute” in the home.
     Defendant maintained she was a law-abiding person charged with possessing an
     otherwise lawful firearm without a FOID card solely within the confines of her
     home and that requiring her to go through the FOID card process unconstitutionally
     infringed upon her fundamental right of self-defense in this “most private of areas.”




                                             -3-
¶9          A hearing was held on defendant’s motion the same day it was filed, and the
       matter was then taken under advisement by the circuit court. 1 On February 14,
       2018, the court entered a written order granting defendant’s motion and finding
       section 2(a)(1) unconstitutional “as applied to the defendant,” under both the
       Illinois and United States Constitutions. Stating that the facts of the case were
       “undisputed,” the circuit court held that requiring defendant to “fill out a form,
       provide a picture ID and pay a $10 fee to obtain a FOID card before she can exercise
       her constitutional right to self-defense with a firearm” in her home violated the
       second amendment to the United States Constitution as applied to the states through
       the fourteenth amendment (U.S. Const., amends. II, XIV), as well as article I,
       section 22, of the Illinois Constitution of 1970 (Ill. Const. 1970, art. I, § 22). The
       court further stated that its finding of unconstitutionality had been entered in
       conformity with Illinois Supreme Court Rule 18 (eff. Sept. 1, 2006). The court’s
       order did not contain language dismissing the information against defendant.

¶ 10       On March 19, 2018, the State filed a motion to “Reconsider and Amend” the
       circuit court’s order declaring section 2(a)(1) unconstitutional.2 In this motion, the
       State maintained that, even within the confines of the home, the FOID card
       requirement is a reasonable regulation on the right to keep and bear arms and,
       therefore, is permitted under the second amendment. Alternatively, the State argued
       that, if the circuit court declined to reconsider its decision, its order should
       nevertheless be amended to comply fully with Rule 18. In particular, the State
       asserted the court’s order should set forth the factual findings the court believed
       rendered the statute unconstitutional. This point was then repeated during the
       hearing held on the motion to reconsider. There, the State conceded “the gun was
       undisputedly in the home in this case” but maintained there was “not a sufficient
       factual record” to determine other matters such as whether defendant “fit into the
       class of citizens who are otherwise eligible to receive a FOID card.” The State




           1
              Although the circuit court record sheet indicates that a hearing was held on defendant’s motion,
       there is no transcript from this hearing in the record on appeal. There also is no written response to
       defendant’s motion from the State contained in the record.
            2
              This motion was filed on behalf of the State by the Attorney General of the State of Illinois.
       The Attorney General’s office litigated this case both in the circuit court and on appeal from this
       point forward.




                                                       -4-
       argued the circuit court should “clarify what factual findings specific to this case”
       rendered the statute unconstitutional.

¶ 11       On October 2, 2018, the circuit court made a docket entry in which it denied
       the State’s motion to reconsider and, in addition, supplemented the court’s prior
       order of February 14, 2018. The docket entry also instructed counsel for the
       defendant to prepare a written order that conformed with the entry. That order,
       which was filed on October 16, 2018, added two new points addressing the
       difficulties of implementing the FOID card requirement in the home. First, the
       circuit court noted that possession of a firearm under the FOID Card Act may
       consist of either actual, physical possession or constructive possession. The court
       observed that constructive possession of a firearm may be shown where the person
       has knowledge of the presence of the weapon and exercises immediate and
       exclusive control over the area where the firearm is found (see, e.g., People v.
       McIntyre, 2011 IL App (2d) 100889) and, thus, a person may often be in possession
       of a firearm in one’s home even if that firearm is not physically on the person.

¶ 12        Citing People v. Eldens, 63 Ill. App. 3d 554 (1978), and People v. Cahill, 37
       Ill. App. 3d 361 (1976), the circuit court stated that, while possession of a firearm
       may be constructive, possession of the FOID card itself must be actual and “a
       person must have a FOID card on their person” whenever in possession of a firearm
       in order to comply with section 2(a)(1). See Eldens, 63 Ill. App. 3d at 559 (the
       possessor of the firearm must “have the card on his person”). From this, the court
       reasoned “that compliance [with section 2(a)(1)] is impossible when one is in their
       own home. No person could have their FOID card on their person 24 hours each
       and every day when firearms or ammunition are in the house.”

¶ 13       Second, the circuit court noted that the concept of constructive possession can
       create problems for those people who share a home with a firearm owner but who
       do not themselves possess a FOID card. If one person in lawful possession of a
       firearm in the home leaves the firearm unsecured, other residents might have
       constructive possession of that firearm (see, e.g., People v. Schmalz, 194 Ill. 2d 75,
       82 (2000) (more than one party can have joint constructive possession)). In this
       situation, according to the circuit court, “every person in the home (family member,
       friend, spouse, etc.) who has knowledge of the firearms or ammunition and has
       immediate and exclusive control of the area where the firearms or ammunition is




                                               -5-
       located, who does not have a FOID card, would be in violation of the statute.” In
       other words, according to the circuit court, the lawful owner of a firearm could
       inadvertently make criminals out of the other residents simply by leaving the
       firearm unsecured in the home.

¶ 14       The circuit court concluded that these concerns, in addition to the concerns
       discussed in its original order, warranted finding section 2(a)(1) unconstitutional as
       applied. Importantly, however, the circuit court then found, “As an alternative, if
       [section 2(a)(1)] is constitutional then it becomes obvious the legislature did not
       intend the statute to apply in one’s own home due to impossibility of compliance.”
       Finally, at the conclusion of its order denying the State’s motion to reconsider, the
       circuit court stated that, for “the above and foregoing reasons,” defendant’s cause
       was dismissed with prejudice.

¶ 15       The State sought direct appeal in this court from the judgment of the circuit
       court finding section 2(a)(1) unconstitutional and dismissing defendant’s case. Ill.
       S. Ct. R. 603 (eff. Feb. 6, 2013). We allowed the Giffords Law Center to Prevent
       Gun Violence to file an amicus brief on behalf of the State’s position. We also
       allowed State’s Attorneys Stewart J. Umholtz and Brandon J. Zanotti, six
       professors of second amendment law, the Firearms Policy Coalition, the Citizens
       Committee for the Right to Keep and Bear Arms, the Millennial Policy Center, the
       Independence Institute, and economics professor Carlisle Moody to file jointly an
       amicus curiae brief on behalf of defendant’s position.


¶ 16                                        ANALYSIS

¶ 17       At the outset we consider our subject-matter jurisdiction to address this appeal.
       Although neither party has challenged our jurisdiction, we have a duty to consider
       the issue sua sponte, since subject-matter jurisdiction cannot be waived and cannot
       be conferred on this court by consent of the parties. Vasquez Gonzalez v. Union
       Health Service, Inc., 2018 IL 123025, ¶ 8 (citing In re M.W., 232 Ill. 2d 408, 417
       (2009)); Archer Daniels Midland Co. v. Barth, 103 Ill. 2d 536, 539 (1984).

¶ 18       The State seeks direct appeal in this court under Illinois Supreme Court Rule
       603 (eff. Feb. 6, 2013). Rule 603 provides that “[a]ppeals in criminal cases in which
       a statute of the United States or of this State has been held invalid shall lie directly




                                                -6-
       to the Supreme Court as a matter of right.” Id. Similar language is also found in
       Illinois Supreme Court Rule 302(a)(1) (eff. Oct. 4, 2011), pertaining to civil
       appeals, and case law interpreting Rule 302(a)(1) is also relevant in criminal cases.
       People v. Fuller, 187 Ill. 2d 1, 8 (1999); see also Ill. S. Ct. R. 603, Committee
       Comments (rev. July 1, 1971) (noting that the direct appeal provision in Rule 603
       is “[t]he same provision” that appears in Rule 302).

¶ 19       The circuit court in this case held a statute “invalid” when it found section
       2(a)(1) unconstitutional as applied to defendant. See Fuller, 187 Ill. 2d at 9-10.
       However, at the same time the circuit court held section 2(a)(1) unconstitutional, it
       also provided an alternative, nonconstitutional ground for dismissing defendant’s
       information, when it held that the legislature did not intend for the FOID Card Act
       to apply in the home. This fact is significant because, under Trent v. Winningham,
       172 Ill. 2d 420 (1996), and Hearne v. Illinois State Board of Education, 185 Ill. 2d
       443 (1999), when the circuit court provides an alternative, nonconstitutional basis
       for relief, direct appeal cannot lie in this court.

¶ 20       In Trent, a mother sought retroactive child support from the father of her child
       under section 14(b) of the Illinois Parentage Act of 1984 (750 ILCS 45/14(b) (West
       1992)). Trent, 172 Ill. 2d at 422. The circuit court denied the claim for support on
       the grounds that (1) the claim was time-barred, (2) the claim failed on the merits
       based on the factors listed for consideration under the statute, and (3) the statute
       was unconstitutional under federal and state equal protection guarantees. Id. The
       State, which had intervened to defend the constitutionality of section 14(b), sought
       direct appeal to this court under Rule 302(a)(1). Id. at 423.

¶ 21        After briefing and oral argument, this court held that the circuit court’s finding
       of unconstitutionality could not serve as a basis for direct review. In support of this
       conclusion, Trent cited the long-standing, common-law doctrine that holds that
       courts should not compromise the stability of our legal system “by declaring
       legislation unconstitutional when the particular case does not require it.” Id. at 425
       (citing People ex rel. Waller v. 1990 Ford Bronco, 158 Ill. 2d 460, 464 (1994)); see
       also, e.g., Bonaguro v. County Officers Electoral Board, 158 Ill. 2d 391, 396 (1994)
       (questions regarding the constitutionality of statutes should be considered “only
       where essential to the disposition of a case, i.e., where the case cannot be
       determined on other grounds”). Trent observed that the circuit court had violated




                                                -7-
       this doctrine when it held section 14(b) unconstitutional and, at the same time,
       granted relief to the plaintiff on alternative, nonconstitutional grounds. Trent, 172
       Ill. 2d at 426. That violation had, in turn, upset the normal appellate process and
       brought a case to this court as a matter of right that might otherwise have been
       declined as a matter of permissive review. Id. In other words, the case was before
       this court as a matter of right only because the circuit court had taken an action that
       it should not have.

¶ 22       Trent acknowledged there might be reasons of efficiency or judicial economy
       to address the constitutional issue. However, the court determined that these
       interests could not justify holding a statute unconstitutional before it was necessary
       to do so. Id. at 425. Invoking the power under Illinois Supreme Court Rule 366(a)
       (eff. Feb. 1, 1994) to grant any relief that the case might require, Trent vacated the
       circuit court’s judgment order and directed the circuit court to enter a new, modified
       order that excluded the finding of unconstitutionality. Trent, 172 Ill. 2d at 427. This
       was necessary, the court explained, in order to preserve the mother’s right to seek
       review in the appellate court of the circuit court’s nonconstitutional basis for its
       ruling and to “permit the normal appellate process to run its course.” Id. at 426.

¶ 23        Trent thus holds that when a circuit court finds a statute unconstitutional and,
       at the same time, also grants relief on an alternative, nonconstitutional ground, Rule
       302(a)(1) does not vest this court with jurisdiction to address the constitutional
       claim (id. at 427). Instead, this court will vacate the circuit court’s judgment order
       and remand the cause to the circuit court with directions to enter a new, modified
       judgment order that excludes the finding of unconstitutionality.

¶ 24       Trent was reaffirmed three years later in Hearne. As in Trent, the circuit court
       in Hearne held a statute unconstitutional and, at the same time, granted relief to the
       plaintiff on an alternative, nonconstitutional ground. Hearne, 185 Ill. 2d at 449-52.
       Hearne repeated Trent’s holding that, in these circumstances, a circuit court’s
       finding that a statute is unconstitutional is unnecessary and thus cannot “properly
       serve as a basis for direct supreme court review under Rule 302(a).” Id. at 455.
       Consistent with Trent, Hearne vacated the circuit court’s judgment order and
       remanded with directions to enter a new, modified order that excluded the finding
       of unconstitutionality. Id. at 456-57.




                                                -8-
¶ 25       Trent and Hearne were both direct appeals under Rule 302(a)(1). Notably,
       however, the principles underlying those cases have also been applied in appeals
       brought from our appellate court. In People v. Hampton, 225 Ill. 2d 238, 240
       (2007), the appellate court vacated the defendant’s convictions and remanded the
       cause to the circuit court for further proceedings. Having done so, the appellate
       court then went on to hold a sentencing statute unconstitutional under the
       proportionate penalties clause of the Illinois Constitution. Id. Because the appellate
       court had held a statute unconstitutional, the State sought appeal to this court as a
       matter of right under Illinois Supreme Court Rule 317 (eff. Oct. 15, 1979).
       Hampton, 225 Ill. 2d at 243. Like Rules 302(a)(1) and 603, Rule 317 provides that
       appeals from the appellate court shall lie to this court as a matter of right in cases
       in which a statute of the United States or of this state has been held invalid. Ill. S.
       Ct. R. 317 (eff. July 1, 2017).

¶ 26       As in Trent and Hearne, this court in Hampton stressed that statutes should be
       found unconstitutional only when necessary and that, in that instance, after vacating
       defendant’s convictions and remanding the cause to the circuit court, it was
       unnecessary for the appellate court to find the sentencing statute unconstitutional.
       Hampton, 225 Ill. 2d at 243-44. Citing Hearne, Hampton also again rejected the
       idea that interests of efficiency or judicial economy could justify reaching the
       constitutional claim. The court stated:

               “We note that the State asserted in oral argument that the appellate court
          correctly reached the proportionate penalties issue because it was more efficient
          to address it in this appeal. The interest in efficiency or judicial economy,
          however, does not justify reaching a constitutional issue unnecessarily. Hearne
          v. Illinois State Board of Education, 185 Ill. 2d 443, 456 (1999). Unnecessarily
          addressing a constitutional issue is improper because it may result in
          compromising the stability of the legal system in the event that the statute is
          declared unconstitutional when the particular case does not require that action.
          See In re E.H., 224 Ill. 2d at 179, quoting People v. Lee, 214 Ill. 2d 476, 482
          (2005). The interest in the stability of the legal system outweighs the potential
          benefit of increased efficiency that may be gained by addressing a constitutional
          issue before it is necessary to reach it.” Id. at 244-45.




                                                -9-
       Accordingly, Hampton vacated the appellate court’s finding of unconstitutionality
       and remanded the cause to the circuit court. Id. at 246; see also, e.g., In re E.H., 224
       Ill. 2d 172, 181 (2006) (vacating the appellate court’s premature finding that a
       statute was unconstitutional and remanding the cause to that court with directions
       to first consider nonconstitutional issues).

¶ 27       The common-law doctrine that holds that courts should not compromise the
       stability of the legal system by declaring legislation unconstitutional when it is not
       required is “ ‘[o]ne of the most firmly established’ ” in constitutional law (Lorton
       v. Brown County Community Unit School District No. 1, 35 Ill. 2d 362, 364 (1966)
       (quoting Grasse v. Dealer’s Transportation Co., 412 Ill. 179, 201 (1952))) and one
       that this court has applied with diligence. See, e.g., Ultsch v. Illinois Municipal
       Retirement Fund, 226 Ill. 2d 169, 176-77 (2007) (noting that a just respect for the
       legislature requires that statutes not be found unconstitutional unless necessary).
       Indeed, the doctrine is of such importance that this court has taken the “somewhat
       extraordinary step” of incorporating it into our Supreme Court Rules to ensure its
       enforcement. In re E.H., 224 Ill. 2d at 178. Illinois Supreme Court Rule 18(c)(4)
       (eff. Sept. 1, 2006) requires courts to state in writing that a case cannot be resolved
       on an alternative ground before finding a statute unconstitutional. We have also
       incorporated Trent and Hearne’s holdings that an order of the circuit court that
       unnecessarily finds a statute unconstitutional may be vacated by this court at any
       time, whether before or after briefing and oral argument, in Illinois Supreme Court
       Rule 302(c)(2) (eff. Oct. 4, 2011).

¶ 28       In this case, at the conclusion of its October 16, 2018, order denying the
       Attorney General’s motion to reconsider and dismissing defendant’s information,
       the circuit court stated it had complied with Rule 18 and that its finding of
       unconstitutionality was necessary and the decision could not rest upon an
       alternative ground. However, in the immediately preceding paragraphs the circuit
       court had provided one.

¶ 29       At the outset of its October 16, 2018, order the circuit court stated it was
       denying the State’s motion to reconsider and supplementing its prior order from
       February 14, 2018. The court then set forth two factual situations involving the use
       of a FOID card that, in the court’s view, demonstrated the difficulties of applying
       the FOID Card Act in the home: (1) it was impossible for a person to have a FOID




                                                - 10 -
       card on his or her person at all times while in constructive possession of a firearm
       in the home and (2) the lawful holder of a FOID card could inadvertently make
       criminals out of other residents of the home who lacked a FOID card by simply
       leaving a firearm unsecured. Notably, neither of these factual situations had any
       relevance to defendant’s as-applied constitutional challenge. A claim that a statute
       is unconstitutional as applied requires a showing that the statute violates the
       constitution as it applies to the specific “facts and circumstances of the challenging
       party.” People v. Thompson, 2015 IL 118151, ¶ 36. Yet, as was pointed out by
       several members of this court at oral argument in this case, the factual situations set
       forth by the circuit court could have nothing to do with the specific facts and
       circumstances of defendant’s case because she never possessed a FOID card to
       begin with. Thus, when viewed in the context of defendant’s as-applied second
       amendment challenge, it is difficult to see what purpose the circuit court had for
       including the supplemental material in its October 16, 2018, order.

¶ 30       However, that material makes perfect sense when understood as statutory
       analysis. When interpreting a statute, a court may always consider the consequences
       of construing the law one way or another and may always consider whether a
       particular interpretation of the statute will lead to absurd, inconvenient, or unjust
       results. People v. Gutman, 2011 IL 110338, ¶ 12. The circuit court’s October 16,
       2018, order consisted primarily of a statutory analysis in which the court concluded
       the legislature did not intend for the FOID Card Act to apply in the home because
       such an interpretation would lead to absurd and unworkable results. See, e.g.,
       People v. Hanna, 207 Ill. 2d 486, 498 (2003).

¶ 31       Further, if there were any doubt this was the circuit court’s intent, the court
       resolved it later in the order. The court stated,

          “As an alternative, if [section 2(a)(1)] is constitutional then it becomes obvious
          the legislature did not intend the statute to apply in one’s own home due to
          impossibility of compliance.”

       The circuit court’s language was clear and unequivocal. The court held that the
       FOID Card Act did not apply to the act of possessing a firearm in the home as a




                                               - 11 -
       matter of statutory interpretation and, therefore, could not apply to defendant. This
       was an alternative, nonconstitutional basis for dismissing defendant’s information. 3

¶ 32        The circuit court’s holding that section 2(a)(1) of the FOID Card Act is
       unconstitutional was not necessary for the resolution of this case. Thus, in
       accordance with Trent and Hearne, the circuit court’s constitutional holding cannot
       “properly serve as a basis for direct supreme court review.” Hearne, 185 Ill. 2d at
       455. We must therefore vacate the court’s finding of unconstitutionality and remand
       the cause to the circuit court to enter a modified judgment order that excludes that
       finding. In so holding, we emphasize that we express no opinion on the merits of
       the circuit court’s statutory analysis. The entry of a modified judgment order is done
       only to preserve the State’s right to seek review in the appellate court of the circuit
       court’s nonconstitutional basis for dismissing defendant’s information (Ill. S. Ct.
       R. 604(a)(1) (eff. July 1, 2017)) and to “permit the normal appellate process to run
       its course” (Trent, 172 Ill. 2d at 426).

¶ 33       An additional point merits comment. This court has repeatedly held that,

           “because as-applied constitutional challenges are necessarily dependent on the
           specific facts and circumstances of the case, 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. Absent a sufficient evidentiary
           record, any finding that a statute is unconstitutional as applied is premature.”
           Vasquez Gonzalez, 2018 IL 123025, ¶ 24.

       See also People v. Harris, 2018 IL 121932, ¶ 39; People v. Minnis, 2016 IL 119563,
       ¶ 19; People v. Rizzo, 2016 IL 118599, ¶ 26; People v. Mosley, 2015 IL 115872,
       ¶¶ 47-48; In re Parentage of John M., 212 Ill. 2d 253, 268 (2004). Here, although
       the circuit court found section 2(a)(1) unconstitutional as applied, it did not conduct


           3
             The circuit court’s alternative holding first appeared in the court’s docket entry from October
       2, 2018. Of note, this docket entry did not contain any mention of Rule 18(c)(4), nor did it say
       anything about whether it was or was not possible for the court’s judgment to rest upon an
       alternative, nonconstitutional ground. That language only appeared later, in the final written order
       that was prepared by defense counsel and filed on October 16, 2018. This fact further underscores
       the point that the circuit court intended to provide an alternative basis for its judgment. Rule 18(c)(4)
       concerns were simply not under consideration by the court when the alternative holding was made
       for the first time.




                                                        - 12 -
       an evidentiary hearing or make findings of fact. Nor is there anything of record to
       indicate the State stipulated to any matter in the circuit court other than the fact
       defendant possessed some type of firearm in her home. To be sure, in its initial
       order of February 14, 2018, holding section 2(a)(1) unconstitutional, the circuit
       court found that the State did not dispute any of the facts alleged by defendant in
       her motion to find the statute unconstitutional. Yet the State, in both its written
       motion to reconsider and the hearing on that motion, expressly informed the court
       that it did dispute the facts alleged by defendant and that the factual record was not
       sufficient to determine whether defendant was a law-abiding person who fit within
       the class of individuals eligible to receive a FOID card. Thus, when the circuit court
       entered its final judgment order on October 16, 2018, and repeated the finding that
       section 2(a)(1) was unconstitutional as applied, essential factual matters remained
       unresolved.

¶ 34      Before this court, the State has continued to recognize the problem. At oral
       argument the State acknowledged that

          “[t]he posture of this case is such that we don’t have a lot of definitive factual
          answers about the circumstances. So we have to take this as—sort of a—on the
          terms of defendant’s pleading that she was otherwise eligible to receive a FOID
          card, didn’t have one, had the gun at home, and those are the terms on which
          she is challenging [the statute].”

       A court may not simply assume that alleged factual matters are true when
       considering an as-applied constitutional challenge. We reiterate that when a court
       holds a statute unconstitutional as applied, that holding must be based on an
       established factual record.


¶ 35                                     CONCLUSION

¶ 36       The circuit court’s ruling that section 2(a)(1) of the FOID Card Act is
       unconstitutional as applied was not necessary to the resolution of this case.
       Therefore, we remand this cause to the circuit court. We direct that the order entered
       by the circuit court on February 14, 2018, be vacated. We further direct that the
       October 16, 2018, judgment order dismissing defendant’s information be vacated
       and then modified to exclude the ruling that section 2(a)(1) is unconstitutional. The




                                               - 13 -
       modified order is thereupon to be reentered.


¶ 37       Vacated and remanded with directions.


¶ 38       JUSTICE KARMEIER, dissenting:

¶ 39       The majority’s decision resolves this appeal based on an issue no one has raised,
       decides the issue through misapplication of principles we have no reason to discuss,
       and remands the case to the circuit court for entry of an order that is clearly meritless
       and serves no purpose. Neither the parties nor the interests of justice will be served
       by this unexpected and pointless exercise. I therefore respectfully dissent.

¶ 40       Contrary to the majority’s suggestion, there is no jurisdictional impediment to
       our hearing this appeal. Under article VI, section 4(b), of the Illinois Constitution
       of 1970 (Ill. Const. 1970, art. VI, § 4(b)), direct appeal lies to this court from
       judgments of circuit courts imposing a sentence of death and in such other cases as
       we may specify by rule. Pursuant to that authority, we have enacted Illinois
       Supreme Court Rule 603 (eff. Feb. 6, 2013). That rule expressly provides that
       “[a]ppeals in criminal cases in which a statute of the United States or of this State
       has been held invalid shall lie directly to the Supreme Court as a matter of right.”
       Id. Our case law makes clear that such appeals may be brought by the State (People
       v. Miller, 202 Ill. 2d 328, 334-35 (2002)) and will lie where a statute has been held
       unconstitutional as applied, as well as when it has been found facially invalid (see
       People v. Fuller, 187 Ill. 2d 1, 8-10 (1999); People v. Falbe, 189 Ill. 2d 635, 638
       (2000); In re Derrico G., 2014 IL 114463, ¶ 1).

¶ 41       There is no question that this appeal involves a criminal case. Defendant was
       charged by criminal information with violating section 2(a)(1) of the FOID Card
       Act (430 ILCS 65/2(a)(1) (West 2018)), a Class A misdemeanor under the facts
       alleged here (see id. § 14(b)). There is likewise no actual dispute that the circuit
       court dismissed that charge based on its conclusion that section 2(a)(1) of the FOID
       Card Act is invalid as applied to defendant under both the second amendment to
       the United States Constitution (U.S. Const., amend. II) and article I, section 22, of
       the Illinois Constitution of 1970 (Ill. Const. 1970, art. I, § 22). Under the plain and




                                                - 14 -
       unambiguous language of Rule 603, we therefore have jurisdiction to hear the
       State’s appeal from that judgment on direct review.

¶ 42       Even if it were true that the lower court had advanced an additional,
       nonconstitutional basis for its judgment—a proposition that does not withstand
       scrutiny for reasons I will discuss shortly—that would not alter our authority to
       exercise direct review. The long-standing rule that courts should refrain from
       reaching constitutional questions when a case can be resolved on nonconstitutional
       grounds is merely a jurisprudential principle (Lebron v. Gottlieb Memorial
       Hospital, 237 Ill. 2d 217, 263 (2010) (Karmeier, J., concurring in part and
       dissenting in part, joined by Garman, J.)). It is not a limitation on our jurisdiction.

¶ 43       While not jurisdictional, the principle that cases should be decided on
       nonconstitutional grounds whenever possible is certainly an important one. It arose
       from concern for preserving the stability of the legal system, respecting enactments
       by the elected representatives of the People, and preventing the normal appellate
       process from being circumvented (Vasquez Gonzalez v. Union Health Service, Inc.,
       2018 IL 123025, ¶¶ 19-20), and we strive to be diligent about its enforcement.

¶ 44        We initially sought to accomplish this through ad hoc judicial pronouncements
       of increasing specificity. See Trent v. Winningham, 172 Ill. 2d 420, 425-27 (1996);
       In re Parentage of John M., 212 Ill. 2d 253, 266-67 (2004); People v. Cornelius,
       213 Ill. 2d 178, 189-90 (2004). Eventually, because of ongoing problems, we were
       compelled to enact Illinois Supreme Court Rule 18 (eff. Sept. 1, 2006), which
       implemented principles encapsulated in Cornelius and In re Parentage of John M.
       Ill. S. Ct. R. 18, Committee Comment (adopted July 27, 2006); see In re E.H., 224
       Ill. 2d 172, 178 (2006). That rule sets out the duties incumbent upon the circuit
       court when declaring a state statute unconstitutional. It is now the controlling
       authority on this subject.

¶ 45       Under Rule 18, a court is required to take the following measures when finding
       a statute, ordinance, regulation, or other law unconstitutional: (1) it must make the
       finding of unconstitutionality in a written order or opinion or in an oral statement
       on the record that is transcribed; (2) in its order or opinion it must clearly identify
       what portion or portions of the statute, ordinance, regulation, or other law it finds
       unconstitutional; and (3) the order or opinion must clearly set forth the grounds for




                                               - 15 -
       its finding of unconstitutionality. With regard to the third of these requirements,
       Rule 18 further specifies that the order or opinion must include the following:

             “(1) the constitutional provision(s) upon which the finding of
          unconstitutionality is based;

             (2) whether the statute, ordinance, regulation or other law is being found
          unconstitutional on its face, as applied to the case sub judice, or both;

              (3) that the statute, ordinance, regulation or other law being held
          unconstitutional cannot reasonably be construed in a manner that would
          preserve its validity;

              (4) that the finding of unconstitutionality is necessary to the decision or
          judgment rendered, and that such decision or judgment cannot rest upon an
          alternative ground; and

              (5) that the notice required by Rule 19 has been served, and that those served
          with such notice have been given adequate time and opportunity under the
          circumstances to defend the statute, ordinance, regulation or other law
          challenged.” Ill. S. Ct. R. 18(c) (eff. Sept. 1, 2006).

¶ 46       In holding section 2(a)(1) of the FOID Card Act (430 ILCS 65/2(a)(1) (West
       2018)) unconstitutional, the circuit court here found that the “[t]he facts of this case
       are undisputed”; it reviewed the language of the statute at issue, the relevant
       constitutional provisions and United States Supreme Court precedent; and it
       concluded:

               “In this case the facts show the defendant possessed a gun, in her house, for
          the purpose of self-defense without a FOID card. To require the defendant to
          fill out a form, provide a picture ID and pay a $10 fee to obtain a FOID card
          before she can exercise her constitutional right to self-defense with a firearm is
          a violation of the 2nd Amendment to the United States Constitution as applied
          to the States and a violation of Article I, Section 22, of the Constitution of the
          State of Illinois, as applied to this case only.

             *** Based upon the for[e]going the Court finds 430 ILCS 65/2(a)(1)
          unconstitutional as applied to this case.




                                                - 16 -
              *** The Court further finds 430 ILCS 65/2(a)(1) cannot, in this case,
          reasonably be construed in a manner that would preserve its validity and this
          finding of unconstitutionality is necessary to the decision in this case and this
          decision cannot rest upon an alternate ground.”

¶ 47       Following this ruling, the State moved for reconsideration, arguing that the
       circuit court was incorrect on the merits. In the alternative, the State asserted that
       the court needed to amend its ruling in order to properly comply with Rule 18.

¶ 48      The circuit court denied reconsideration of the merits but supplemented its
       previous ruling to address concerns over the adequacy of its Rule 18 findings.
       Specifically, it held:

          “To comply with 430 ILCS 65/2(a)(1) a person must have a FOID card on their
          person when in either actual or constructive possession of a firearm or
          ammunition. Owning a FOID card is insufficient to comply with the statute.
          See People v. Eldens, 63 Ill.App.3d 554 (Fifth Dist. 1978) and People v. Cahill,
          37 Ill.App.3d 361 (Second Dist. Second Div. 1976).

              A person is in constructive possession of a firearm or ammunition when: (1)
          The person has knowledge of the presence of a weapon or ammunition, and (2)
          That person is in immediate and exclusive control over the area where the
          firearm or ammunition is located.

              Due to the language of 430 ILCS 65/2(a)(1) and the Court’s interpretation
          of the statute, it is clear that compliance is impossible when one is in their own
          home. No person could have their FOID card on their person 24 hours each and
          every day when firearms or ammunition are in the house.

             In addition, every person in the home (family member, friend, spouse, etc.)
          who has knowledge of the firearms or ammunition and has immediate and
          exclusive control of the area where the firearms or ammunition is located, who
          does not have a FOID card, would be in violation of the statute.

              Thus, 430 ILCS 65/2(a)(1) is unconstitutional, as applied to this defendant,
          because it is impossible to comply in the person’s own home. As an alternative,
          if 430 ILCS 65/2(a)(1) is constitutional then it becomes obvious the legislature




                                               - 17 -
           did not intend the statute to apply in one’s own home due to impossibility of
           compliance.”

¶ 49       The circuit court then reiterated the findings it made in its initial order declaring
       the statute invalid as applied to defendant and made additional findings in an
       attempt to meet the requirements of Rule 18. Specifically, the court stated that it
       was further finding,

           “in compliance with Supreme Court Rule 18, that the finding of
           unconstitutionality is necessary to the decision and that such decision cannot
           rest upon an alternative ground; and that the notice required by Supreme Court
           Rule 19 has been served and that those served with such notice have been given
           adequate time and opportunity under the circumstances to defend the statute.

               IT IS THEREFORE ORDERED that for the foregoing reasons, and those
           enumerated in the [previous order], that 430 ILCS 65/2(a)(1) is unconstitutional
           as applied to the defendant in this case, in violation of the Second Amendment
           to the United States Constitution, as applied to the States thru [sic] the
           Fourteenth Amendment, and Article I, Section 22 of the Constitution of the
           State of Illinois, and by reason thereof, this cause is dismissed with prejudice.”

¶ 50       Under any fair reading of the foregoing, it is clear that the circuit court was
       mindful of its responsibilities under Rule 18 and was conscientious about checking
       off all boxes required by the rule. Once the court supplemented its initial order, the
       parties themselves did not question its sufficiency under Rule 18. Since 2010, our
       court has had a screening procedure in place to identify deficient Rule 18 orders
       before briefing and argument takes place. The order in this case passed that initial
       screening process. The briefs that were subsequently filed made no mention of a
       Rule 18 problem. When the case was argued, no member of this court voiced any
       concern as to whether the requirements of Rule 18 had been satisfied or whether
       the appeal was properly before us.

¶ 51       That a Rule 18 problem should now prove fatal to the appeal is as surprising to
       me as I am sure it will be to the parties when they read the majority’s opinion. That
       is especially true given the rationalization my colleagues belatedly advance.
       Although the circuit court’s final written dismissal order explicitly and
       unambiguously held that “the finding of unconstitutionality is necessary to the




                                                - 18 -
       decision and that such decision cannot rest upon an alternative ground,” the
       majority has now decided that, no, what the circuit court actually held is that there
       was an alternative basis for granting defendant’s motion to dismiss, namely, that
       the conduct underlying the charges for which defendant is being prosecuted is
       outside the reach of the FOID Card Act.

¶ 52       That section 2(a)(1) of the FOID Card Act (id.), by its terms, does not apply
       and could not have been intended by the legislature to apply to circumstances like
       those present in this case—possession of a firearm in one’s home by a person who
       otherwise meets FOID card eligibility requirements—is a theory the defendant in
       this case has never raised and that was never argued in the circuit court or in the
       briefs on appeal. It is an invention of the majority based on a single sentence taken
       out of context.

¶ 53        The sentence that has suddenly emerged as pivotal to the majority’s disposition
       is this one: that “[a]s an alternative, if 430 ILCS 65/2(a)(1) is constitutional then it
       becomes obvious the legislature did not intend the statute to apply in one’s own
       home due to impossibility of compliance.” These words might lend support to the
       majority’s position if read narrowly and in isolation, but that is not how courts of
       review are supposed to construe rulings by the circuit court. To the contrary, where,
       as here, the meaning of a trial court’s order is in dispute and requires interpretation,
       a court of review must consider the entire context in which the order was entered,
       with reference to the other parts of the record, including the pleadings, motions,
       and issues before the court and the arguments of counsel (People v. Ward, 113 Ill.
       2d 516, 526-27 (1986); People v. Cooper, 132 Ill. 2d 347, 353-54 (1989); see In re
       Marriage of Heasley, 2014 IL App (2d) 130937, ¶ 28), and the court’s statements
       must be given their most logical meaning (Cornelius, 213 Ill. 2d at 190).

¶ 54       As noted above, no one in this case attempted to make the argument that
       defendant’s conduct, if proved, would not fall within the express terms of section
       2(a)(1) of the FOID Card Act, which provides simply that

          “[n]o person may acquire or possess any firearm, stun gun, or taser within this
          State without having in his or her possession a Firearm Owner’s Identification
          Card previously issued in his or her name by the Department of State Police
          under the provisions of this Act.” 430 ILCS 65/2(a)(1) (West 2016).




                                                - 19 -
       It is not surprising that no one made such a claim. The language of the law is clear
       and unambiguous. There is no exception, here or in any other provision of the Act,
       for possession of the firearm, stun gun, or taser within one’s home. To read the law
       as inapplicable to possession within the home, thereby avoiding any challenge to
       the constitutionality of the law as applied in that circumstance, would therefore
       require the court to depart from the plain language and meaning of the statute and
       read into it an exception, limitation, or condition the legislature did not express.
       That is something courts are not at liberty to do. In re Hernandez, 2020 IL 124661,
       ¶ 18.

¶ 55       If one considers the circuit court’s statement in the broader context of the
       arguments raised by the parties, the constitutional concerns expressed by the circuit
       court, the requirements of Rule 18, the language of the court’s rulings taken as a
       whole, and the clear prohibition against judicial rewriting of statutes, there is a
       much more logical explanation for why the circuit court referenced the legislature’s
       intent. It was simply to address whether the statute could “reasonably be construed
       in a manner that would preserve its validity,” a finding expressly required by Rule
       18(c)(3) (eff. Sept. 1, 2006).

¶ 56       In my view it is evident that the circuit court would have answered this question
       in the negative. After all, it invoked no legal authority and cited no principles of
       statutory construction that would support an alternative, “saving” construction of
       the law. Instead, as it had in its earlier ruling, it expressly held that “the finding of
       unconstitutionality is necessary to the decision and that such decision cannot rest
       upon an alternative ground.”

¶ 57       In sum, constitutional concerns—not statutory ones—lay at the center of the
       circuit court’s reasoning. But for the circuit court’s view that the statute could not
       pass muster under the second amendment as applied, the circuit court would not
       have dismissed the charges against defendant. Accordingly, I do not believe we can
       fairly assert that the circuit court’s decision compromised the substantive principles
       underlying Rule 18 and should preclude us from proceeding to the merits of the
       appeal.

¶ 58       Even if I agreed with the majority’s newly discovered and legally unsound
       interpretation of the circuit court’s ruling, I could not join in its resolution of the
       appeal. Contrary to the majority’s view, remand to the circuit court is not required.



                                                - 20 -
       Rule 18 provides that when a circuit court’s judgment fails to comply with the rule,
       our court “may” summarily vacate and remand the judgment for noncompliance.
       Ill. S. Ct. R. 302(c)(2) (eff. Oct. 4, 2011); Bryant v. Board of Election
       Commissioners of the City of Chicago, 224 Ill. 2d 473, 477 (2007) (per curiam).
       That is so in criminal as well as civil cases. See Ill. S. Ct. R. 612(b)(2) (eff. July 1,
       2017). Significantly, however, the rule, by its terms, does not obligate us to
       summarily vacate and remand in every case. We have never held otherwise. To the
       contrary, when appropriate, we have not hesitated to address nonconstitutional
       issues on direct review even where we have determined that a circuit court erred in
       making findings under Rule 18. People v. Jackson, 2013 IL 113986, ¶¶ 14-25.
       Moreover, even where we have determined that a case originally docketed as a
       direct appeal from an order declaring a statute invalid is not eligible for appeal on
       that basis at all, we have proceeded to the merits in the exercise of our supervisory
       authority when circumstances warrant. See Vasquez Gonzales, 2018 IL 123025,
       ¶ 17 (and numerous cases cited therein). Had the majority consulted relevant
       precedent from this century—or even just the past decade—it would have
       recognized these principles.

¶ 59        There is good reason to proceed to the merits here. Remand to the circuit court
       to enter a new order dismissing the case on statutory rather than constitutional
       grounds is a meaningless and wasteful act. As I have noted, no plausible claim can
       be made that the conduct with which defendant is charged falls outside the plain
       language of section 2(a)(1) of the FOID Card Act (430 ILCS 65/2(a)(1) (West
       2018)). To order the circuit court to enter such an order would be tantamount to
       compelling it to make a legal determination that none of the parties requested, that
       the court itself never meant to make, and that would have no chance of being
       affirmed on appeal. And when the forced order is ultimately reversed by the
       appellate court, as the law would require, what will happen? The circuit court will
       simply enter another order declaring the statute invalid, putting the parties and the
       litigation in precisely the same position they are now. Nothing will have been
       gained. Time will have been lost. Judicial resources will have been wasted.
       Defendant will remain in legal limbo.

¶ 60      I take equally strong exception to the majority’s contention that the circuit’s
       court’s decision to invalidate the statute “as applied” was premature and improper
       because the court had not yet conducted an evidentiary hearing and the record was




                                                - 21 -
       not sufficiently developed. My colleagues’ discussion of this point is, of course,
       irrelevant to their ruling. If the constitutional challenge is not properly before us to
       begin with, what difference does it make whether the circuit court’s ruling may also
       have been premature?

¶ 61      Having just set aside a ruling by the circuit court on the grounds that the issue
       should not have been reached, the majority fails to appreciate the irony in its own
       decision to address a question that is not necessary to its disposition. My complaint,
       however, is not that the majority is inconsistent. It is that the majority is wrong.

¶ 62       Contrary to my colleagues, I fail to see any additional facts that need to be
       established beyond those to which the parties have already stipulated. It is true that
       the State pointed to some factual gaps in its motion to reconsider and at the hearing
       on that motion. Significantly, however, it is not complaining about such gaps now,
       and they are not the basis for its appeal before our court.

¶ 63       To properly understand why a further hearing is unnecessary, it is important to
       understand the basis for defendant’s challenge. During the hearing on the motion
       to reconsider, counsel for defendant brought the theory of the case into focus. He
       explained:

              “The right to possess or own guns for defense of yourself and your home is
          distinct from having guns in general. So it’s very important that the government
          not be able to regulate your right to be safe in your own home, even if it can
          regulate the use of guns outside the home.

             So I’m not asking here and haven’t—in my motion haven’t argued that the
          government cannot regulate the possession of firearms, that they cannot require
          a FOID card; just that it’s unreasonable to require it when the firearm is only
          used for self-defense within the privacy and sanctity of your home.

              So I’m not arguing that you can’t regulate, because I think the Court very
          clearly says that you can, but if you look and you read McDonald and you read
          Heller, you see how important the Court’s emphasis is on being able to have a
          gun in your own home to protect yourself. They use the words, ‘This is the core
          of the Second Amendment.’




                                                - 22 -
              As far as I know—and I don’t believe counsel has pointed any cases out to
          the Court—there is no Illinois Supreme Court case or there is no United States
          Supreme Court case that determines a person cannot possess a weapon in their
          own home for self-protection unless they have some kind of card.

                                               ***

             It seems to me that any regulation that deprecates or requires someone to
          purchase a card and go through all the hoops necessary to have a card to protect
          yourself in your own home is one regulation too far.

              Again, I’m not arguing that the FOID Card Act is facially invalid, that it’s
          unconstitutional as a whole, but I think as to this kind of person in their home
          who otherwise qualifies for a card, they should not be required to purchase a
          card to defend theirselves [sic] in their home.”

¶ 64       In light of these clarifying remarks by defendant’s attorney, it is evident that,
       for purposes of defendant’s constitutional challenge, only four core facts are
       relevant: (1) she was charged with violating the FOID Card Act after police
       discovered a rifle in her bedroom, (2) she kept the weapon in her home for self-
       defense, (3) she had not sought or obtained a FOID card, and (4) she met the
       requirements for a FOID card and could have gotten one had she applied.

¶ 65       At this stage in the proceedings, neither defendant nor the State takes issue with
       any of these points. The majority is incorrect when it suggests otherwise. The circuit
       court’s dismissal order recited that the facts were undisputed, and that finding has
       not been challenged by the parties on appeal. Holding an evidentiary hearing would
       therefore serve no purpose. That is especially true considering that this is a criminal
       proceeding and that the risks of self-incrimination would likely deter defendant
       from taking the witness stand to elaborate further on any of the circumstances
       relevant to her prosecution for violation of the FOID Card Act.

¶ 66       Although the trial court hypothesized about situations where other persons,
       including friends and family members, are also present in the home and have
       knowledge and/or control of the weapon, no hearing was necessary to establish
       those circumstances either because they are simply not germane to defendant’s core
       position, which, to repeat, is that she could have met the requirements for obtaining




                                               - 23 -
       a FOID card but could not constitutionally be required to have one as a condition
       of having a gun in her own home for self defense. And while such factors could be
       relevant to other persons in other circumstances, “as-applied” challenges are
       limited to the particular facts and circumstances actually before the court. See
       Napleton v. Village of Hinsdale, 229 Ill. 2d 296, 306 (2008). The circuit court’s
       improper consideration of hypotheticals is therefore not a proper basis for declaring
       that court’s ruling premature. Rather, it is grounds for reversing on the merits.

¶ 67       For the foregoing reasons, I cannot join in the majority’s resolution of this case.
       We have jurisdiction, the circuit court properly complied with Rule 18, it did not
       err in reaching the constitutional question raised by defendant in her motion to
       dismiss, all the facts necessary to resolution of defendant’s “as-applied” challenge
       are before us, and remand would serve no valid purpose. Accordingly, this case
       should not be sent back to the circuit court with directions. Rather, we should retain
       the appeal and resolve it on the merits. I therefore respectfully dissent.

¶ 68      JUSTICE THEIS joins in this dissent.


¶ 69       JUSTICE MICHAEL J. BURKE took no part in the consideration or decision
       of this case.




                                               - 24 -
