                                        2015 IL 116834



                                  IN THE
                             SUPREME COURT
                                    OF
                           THE STATE OF ILLINOIS



                                     (Docket No. 116834)

       In re JORDAN G., a Minor (The People of the State of Illinois, Appellant, v.
                               Jordan G., Appellee).


                               Opinion filed February 20, 2015.



        JUSTICE THEIS delivered the judgment of the court, with opinion.

        Chief Justice Garman and Justices Freeman, Thomas, Kilbride, Karmeier, and
     Burke concurred in the judgment and opinion.



                                           OPINION

¶1       In this direct appeal, we are asked to consider the constitutionality of certain
     sections of the aggravated unlawful use of a weapon (AUUW) statute. 720 ILCS
     5/24-1.6 (West 2012). Respondent, 16-year-old Jordan G., was charged by petition
     for adjudication of wardship under the Juvenile Court Act of 1987 with three counts
     of AUUW and one count of unlawful possession of a firearm (UPF). The circuit
     court granted respondent’s motion to dismiss the petition, declaring the AUUW
     statute unconstitutional. The State appealed the circuit court’s ruling directly to this
     court under Illinois Supreme Court Rule 603 (eff. Feb. 6, 2013). For the following
     reasons, we now affirm in part, reverse in part, and remand for further proceedings
     consistent with our opinion.
¶2                                    BACKGROUND

¶3         In April 2013, the State filed a petition for adjudication of wardship charging
     the minor respondent with three counts of AUUW and one count of UPF.
     Specifically, the petition alleged that respondent was a delinquent minor because he
     carried in a vehicle an uncased, loaded, and immediately accessible firearm in
     violation of section 24-1.6(a)(1), (a)(3)(A) of the Criminal Code of 1961 (Code)
     (720 ILCS 5/24-1.6(a)(1), (a)(3)(A) (West 2012)); carried a handgun in a vehicle
     when he was under 21 years of age in violation of section 24-1.6(a)(1), (a)(3)(I)
     (under 21 restriction) (720 ILCS 5/24-1.6(a)(1), (a)(3)(I) (West 2012)); and carried
     a firearm in a vehicle without having been issued a currently valid Firearm Owner’s
     Identification (FOID) card in violation of section 24-1.6(a)(1), (a)(3)(C) (FOID
     card requirement) (720 ILCS 5/24-1.6(a)(1), (a)(3)(C) (West 2012)). The UPF
     count alleged that respondent, being a person under 18 years of age, knowingly
     possessed a firearm of a size which may be concealed upon the person in violation
     of section 24-3.1(a)(1) of the Code. 720 ILCS 5/24-3.1(a)(1) (West 2012).

¶4       Thereafter, respondent filed a motion to dismiss, contending that the AUUW
     statute had been found unconstitutional by the Seventh Circuit in Moore v.
     Madigan, 702 F.3d 933, 941 (7th Cir. 2012), as violating the second amendment
     right to bear arms for self-defense outside the home. Following a hearing, the
     circuit court agreed with respondent, ruling that section 24-1.6 was held facially
     unconstitutional in its entirety by Moore, and that the circuit court was bound by the
     Seventh Circuit decision. Accordingly, the court dismissed the three AUUW
     counts, but denied the motion as to the unlawful possession of a firearm count
     based upon respondent’s age as being under 18.

¶5        The State subsequently filed a motion to reconsider. At the time of the hearing
     on the motion, this court had decided People v. Aguilar, 2013 IL 112116, where we
     initially held that section 24-1.6(a)(1), (a)(3)(A) of the AUUW statute violated the
     second amendment right to keep and bear arms. In light of Aguilar, the State
     conceded that count of the petition had been properly dismissed. Nevertheless, the
     State argued that the remaining counts remained constitutionally valid because they
     required proof of independent aggravating factors. The State noted Aguilar’s
     admonishment that the right to a firearm outside the home for self-defense was not
     unlimited and was subject to meaningful regulation. The State further noted this
     court’s citation with approval in Aguilar to cases recognizing that restricting the


                                             -2-
       availability of firearms to those younger than 21 years of age does not offend the
       second amendment.

¶6         The trial court denied the State’s motion to reconsider, holding that because an
       element of both the under 21 restriction and the FOID card requirement of the
       AUUW statute involved a prohibition on the carrying of a gun outside the home,
       those provisions were unconstitutional under Moore. The State appealed directly to
       this court. Ill. Const. 1970, art. VI, § 4(b); Ill. S. Ct. R. 603 (eff. Feb. 6, 2013). We
       allowed the Brady Center to Prevent Gun Violence, the City of Chicago, and the
       Major Cities Chiefs Association to file an amicus brief in support of the State.

¶7         During the pendency of the appeal, this court issued its modified opinion in
       Aguilar, holding that the Class 4 form of AUUW set forth in section 24-1.6(a)(1),
       (a)(3)(A), (d) of the Code (720 ILCS 5/24-1.6(a)(1), (a)(3)(A), (d) (West 2008)),
       which made it unlawful for a person to possess an uncased, loaded and immediately
       accessible firearm except when the person was on his land or in his abode or fixed
       place of business, was a comprehensive ban, rather than a reasonable regulation, on
       the right to possess and use an operable firearm for self-defense outside the home.
       Aguilar, 2013 IL 112116, ¶ 21. Accordingly, this court held that section to be
       facially unconstitutional because it violated the second amendment right to keep
       and bear arms. Id. ¶ 22.



¶8                                          ANALYSIS

¶9                            Constitutionality of the AUUW Statute

¶ 10       At issue in this case is whether the sections of the AUUW statute under which
       respondent was charged violate the second amendment. Statutes are presumed
       constitutional, and we have a duty to construe the statute in a manner that upholds
       its validity and constitutionality if it can be reasonably done. Aguilar, 2013 IL
       112116, ¶ 15. The party challenging the constitutionality of a statute carries the
       burden of proof. Id. Whether a statute is constitutional is a question of law to be
       reviewed de novo. Id.

¶ 11       At the time respondent was charged, the AUUW statute provided, in pertinent
       part:

               “§ 24-1.6. Aggravated unlawful use of a weapon.
                                                 -3-
             (a) A person commits the offense of aggravated unlawful use of a weapon
          when he or she knowingly:

                  (1) Carries on or about his or her person or in any vehicle or concealed
              on or about his or her person except when on his or her land or in his or her
              abode, legal dwelling, or fixed place of business, or on the land or in the
              legal dwelling of another person as an invitee with that person’s permission,
              any pistol, revolver, stun gun or taser or other firearm; [and]

                  ***

                  (3) One of the following factors is present:

                     (A) the firearm possessed was uncased, loaded and immediately
                  accessible at the time of the offense; or

                        ***

                      (C) the person possessing the firearm has not been issued a currently
                  valid Firearm Owner’s Identification Card; or

                                               ***

                      (I) the person possessing the weapon was under 21 years of age and
                  in possession of a handgun as defined in Section 24-3, unless the person
                  under 21 is engaged in lawful activities under the Wildlife Code or
                  described in subsection 24-2(b)(1), (b)(3), or 24-2(f).” 720 ILCS
                  5/24-1.6 (West 2012).

¶ 12       We initially address the trial court’s ruling that under Moore, both the under 21
       restriction under subsection (a)(1), (a)(3)(C) and the FOID card requirement under
       subsection (a)(1), (a)(3)(I) were unconstitutional because an element of both
       sections includes a prohibition on the right to carry a firearm outside the home. The
       State maintains that the trial court erred in its apparent belief that Moore held that
       any firearm restriction that includes a prohibition from carrying a weapon outside
       the home was necessarily unconstitutional. We agree.

¶ 13       Neither Moore nor Aguilar supports, much less compels, the circuit court’s
       reasoning in finding the under 21 restriction and the FOID card requirement
       facially unconstitutional. Rather, Moore held unconstitutional a “blanket
       prohibition on carrying gun[s] in public,” which categorically prohibits the
                                           -4-
       possession and use of an operable firearm for self-defense outside the home.
       Moore, 702 F.3d at 940. The Seventh Circuit expressly recognized in Moore that
       the Illinois legislature could implement sensible regulations for the public carriage
       of handguns without running afoul of the second amendment. Id. at 941.

¶ 14        Thereafter, in Aguilar, this court adopted the holding in Moore that Illinois’s
       “ ‘flat ban on carrying ready-to-use guns outside the home,’ ” as embodied in the
       Class 4 form of section 24-1.6(a)(1), (a)(3)(A), (d) is unconstitutional on its face.
       Aguilar, 2013 IL 112116, ¶ 19 (quoting Moore, 702 F.3d at 940). In doing so, we
       emphatically made clear that, “we are in no way saying that” the right to possess
       and use a firearm for self-defense outside the home “is unlimited or is not subject to
       meaningful regulation.” Id. ¶ 21. As this court explicitly stated in Aguilar, “our
       finding of unconstitutionality in this decision is specifically limited to the Class 4
       form of AUUW, as set forth in section 24-1.6(a)(1), (a)(3)(A), (d) of the AUUW
       statute.” Id. ¶ 22 n.3. We specifically held that “[w]e make no finding, express or
       implied, with respect to the constitutionality or unconstitutionality of any other
       section or subsection of the AUUW statute.” Id. Thus, contrary to the circuit court’s
       ruling, neither Moore nor Aguilar compel a finding that subsection (a)(1), (a)(3)(C)
       or subsection (a)(1), (a)(3)(I) are facially unconstitutional.



¶ 15                                       Severability

¶ 16       Nevertheless, respondent contends that subsections (a)(3)(C) and (a)(3)(I) are
       not severable from the provision found to be unconstitutional in Aguilar.
       Respondent maintains that the statute, as enacted in 2000, was a comprehensive
       statute with interrelated provisions and that the legislature would not have passed
       the under 21 restrictions or the FOID card requirements without the provision now
       held to violate the second amendment. This court has now rejected this argument in
       People v. Mosley, 2015 IL 115872, ¶¶ 27-31, a case that also came before this court
       on direct appeal, involving the constitutionality of subsections (a)(3)(C) and
       (a)(3)(I).

¶ 17       There, we explained that the issue of severability involves a question of
       statutory interpretation. Id. ¶ 29. The authority to sever an invalid portion from
       those portions which remain valid may arise either from a specific severability
       provision in the statute, if one exists, or from the Statute on Statutes’ general
       severability provision. Because the offense of AUUW does not contain its own
                                               -5-
       specific severability provision, we looked to the Statute on Statutes’ general
       severability provision. Id. ¶ 30. That statute provides that the invalidity of one
       provision of a statute “does not affect other provisions *** which can be given
       effect without the invalid *** provision.” 5 ILCS 70/1.31 (West 2012).

¶ 18       Pursuant to the Statute on Statutes, we held that we must determine whether the
       valid and invalid provisions “are essentially and inseparably connected in
       substance,” such that the legislature would not have enacted the valid provisions
       absent the invalid ones. Mosley, 2015 IL 115872, ¶ 30. An unconstitutional portion
       of the statute may be severed from the remaining portions “if what remains is
       complete in and of itself, and is capable of being executed wholly independently of
       the severed portion.” Id. (citing People v. Pomykala, 203 Ill. 2d 198, 209-10
       (2003), and People v. Sanders, 182 Ill. 2d 524, 534 (1998)).

¶ 19       Applying this framework, and in reaching our conclusion, we relied on the
       reasoning in People v. Henderson, 2013 IL App (1st) 113294. There, the appellate
       court explained that subsection (a)(3)(A) is only one of several aggravating factors
       that can operate in conjunction with subsections (a)(1) and (a)(2) to comprise the
       substantive AUUW offense. Removing the particular subsection which was struck
       down by Aguilar does not undermine the completeness or executability of the
       remaining factors. Therefore, it could not be concluded that the one
       unconstitutional provision is “so intertwined with the rest of the statute that the
       legislature intended the statute to stand or fall as a whole.” (Internal quotation
       marks omitted.) Id. ¶ 22. Finding the reasoning in Henderson sound, we concluded
       in Mosley that “the legislature would find that subsections (a)(3)(C) [the FOID card
       requirement] and (a)(3)(I) [the under 21 restriction] can stand independently.”
       Mosley, 2015 IL 115872, ¶ 31. We continue to hold that severing subsection
       (a)(3)(A) “undermines neither the completeness of, nor the ability to, execute the
       remaining subsections.” Id.



¶ 20              Second Amendment Rights of Those Under the Age of 21

¶ 21       We next consider respondent’s facial challenge, contending that subsections
       (a)(1), (a)(3)(C) and (a)(1), (a)(3)(I) violate the second amendment rights of those
       under 21 years of age. Respondent contends that these provisions under which he
       was charged constitute a “blanket age restriction” against firearm possession.
       Although he concedes that the possession of handguns by minors is conduct falling
                                              -6-
       outside the scope of the second amendment, he maintains that these provisions are
       facially unconstitutional because they are incompatible with Heller and McDonald
       and the rights of 18- to 20-year olds to have the “quintessential” means of
       self-defense. He argues that they unlawfully prohibit 18- to 20-year olds from the
       possession and use of handguns for self-defense outside the home, and bar them
       from firearm ownership without parental permission and without any
       individualized determination of dangerousness.

¶ 22       This court recently considered and rejected a second amendment challenge to
       subsections (a)(1), (a)(3)(C) and (a)(1), (a)(3)(I) in Mosley. As we explained, the
       prevailing framework this court has adopted for analyzing a second amendment
       challenge is two-fold. First the court must make a threshold inquiry into whether
       the restricted activity is protected by the second amendment. Under this threshold
       analysis, the court conducts a textual and historical analysis to determine whether
       the challenged state law imposes a burden on conduct understood to be within the
       scope of the second amendment’s protection at the time of ratification. Mosley,
       2015 IL 115872, ¶ 34 (citing Wilson v. County of Cook, 2012 IL 112026, ¶ 41); see
       also Ezell v. City of Chicago, 651 F.3d 684, 700-04 (7th Cir. 2011). If the
       challenged law regulates activity falling outside the scope of the second
       amendment right as it was understood at the relevant historical time, then the
       regulated activity is categorically unprotected, and is not subject to further second
       amendment review. Id. However, if the historical evidence is inconclusive or
       suggests that the regulated activity is not categorically unprotected, then the court,
       applying the appropriate level of scrutiny, conducts an inquiry into the strength of
       the state’s justification for regulating or restricting the activity. Id.

¶ 23       Applying these principles, we first consider whether the statutes’ restrictions
       burden conduct that traditionally falls within the scope of second amendment
       protection. As the United States Supreme Court explained in Heller, “the right
       secured by the Second Amendment is not unlimited,” and recognized the
       constitutionality of several “longstanding prohibitions on the possession of
       firearms.” District of Columbia v. Heller, 554 U.S. 570, 626 (2008). The Court
       emphasized that its list of presumptively lawful regulatory measures provided only
       examples and did “not purport to be exhaustive.” Id. at 627 n.26.

¶ 24      Thereafter, in Aguilar, this court considered the constitutionality of section
       24-3.1(a)(1) of the UPF statute, which makes it unlawful for those under 18 to
       possess a firearm of a size which may be concealed on his person. 720 ILCS
                                               -7-
       5/24-3.1(a)(1) (West 2012); Aguilar, 2013 IL 112116, ¶¶ 24-28. We recognized
       that the second amendment right to possess firearms is “subject to meaningful
       regulation.” Id. ¶ 21. We cited with approval several cases finding it evident from a
       review of the relevant historical record that age based regulations on minors’ access
       to firearms for the purpose of ensuring public safety were commonplace and
       persisted well beyond the Founding Era. Id. ¶ 27 (citing National Rifle Ass’n of
       America, Inc. v. Bureau of Alcohol, Tobacco, Firearms, & Explosives, 700 F.3d
       185, 204 (5th Cir. 2012), United States v. Rene E., 583 F.3d 8, 16 (1st Cir. 2009),
       and Powell v. Tompkins, 926 F. Supp. 2d 367, 387-88 (D. Mass. 2013)). We stated
       that these cases explained that although minors were in many instances permitted
       or required to possess firearms for military service, “nothing like a right for minors
       to own and possess firearms has existed at any time in this nation’s history.”
       (Emphasis in original.) Id. Accordingly, we concluded that “the possession of
       handguns by minors is conduct that falls outside the scope of the second
       amendment’s protection.” Id.

¶ 25       Notably, the term “minor” must be considered in the context of the right at
       issue, and as historically understood, generally applied to individuals under the age
       of 21 and remained under 21 in most states until the 1970s. National Rifle Ass’n of
       America, Inc. v. Bureau of Alcohol, Tobacco, Firearms, & Explosives, 700 F.3d at
       201-02, 204 n.17; Powell, 926 F. Supp. 2d at 388; see also National Rifle Ass’n of
       America, Inc. v. McCraw, 719 F.3d 338 (5th Cir. 2013) (finding Texas’s statutory
       scheme barring 18- to 20-year olds from carrying handguns in public was
       consistent with longstanding traditions of imposing age and safety based
       restrictions on the ability to access arms). Thus, we find our conclusion in Aguilar,
       that age based restrictions on the right to keep and bear arms are historically rooted,
       applies equally to those persons under 21 years of age. We confirmed this
       conclusion in Mosley, where we held that the public carrying of firearms by those
       persons under 21 years of age is conduct that falls outside the scope of the second
       amendment, and held that “neither subsection (a)(3)(C) nor (a)(3)(I) violates the
       second amendment rights of *** 18- to 20-year-old persons.” Mosley, 2015 IL
       115872, ¶¶ 36-38. For all of these reasons, we reject respondent’s second
       amendment challenge to subsections (a)(1), (a)(3)(C) and (a)(1), (a)(3)(I) of the
       AUUW statute.




                                                -8-
¶ 26                  Second Amendment as Applied to Delinquent Minors

¶ 27       Lastly, the State asks this court to “clarify” our holding in Aguilar, that “on its
       face, the Class 4 form of section 24-1.6(a)(1), (a)(3)(A), (d) violates the right to
       keep and bear arms, as guaranteed by the second amendment.” Aguilar, 2013 IL
       112116, ¶ 22. The State argues that respondent was a delinquent minor who
       violated the terms of his probation by possessing firearms. The State maintains that
       because this type of individual is not the law-abiding citizen the United States
       Supreme Court recognized as having second amendment rights, “legislation
       prohibiting such criminals from possessing firearms comports with the Second
       Amendment and is constitutional.” Therefore, the State maintains that subsection
       (a)(3)(A) can be validly applied to respondent.

¶ 28       Essentially, the State asks this court to overrule our holding in Aguilar that the
       Class 4 form of section 24-1.6 (a)(1), (a)(3)(A), (d) is unconstitutional on its face
       and is void ab initio. We decline the State’s invitation to revisit our holding.
       Furthermore, this particular provision in the AUUW statute struck down in Aguilar
       as facially unconstitutional is not directed at prohibiting delinquent minors’ rights
       to possess firearms or otherwise directed at regulating their conduct. Thus, whether
       legislation prohibiting those who have previously been adjudicated delinquent
       from possessing firearms would comport with the second amendment is not before
       us. Accordingly, for all of these reasons, we decline the State’s invitation to address
       this issue.


¶ 29                                      CONCLUSION

¶ 30       For the reasons set forth above, we affirm the trial court’s judgment, dismissing
       the charges based on the Class 4 form of section 24-1.6(a)(1), (a)(3)(A), which we
       found to be facially unconstitutional in Aguilar. Further, we reverse the trial court’s
       judgment dismissing the charges based on sections 24-1.6(a)(1), (a)(3)(C) and
       (a)(3)(I), which we find to be constitutional and severable from the unconstitutional
       provision of the statute. Accordingly, we remand this cause to the circuit court for
       further proceedings consistent with this opinion.


¶ 31      Circuit court judgment affirmed in part and reversed in part.

¶ 32      Cause remanded.
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