                               2013 IL 112116

                            IN THE
                       SUPREME COURT
                              OF
                     THE STATE OF ILLINOIS


                    (Docket No. 112116)
     THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
                ALBERTO AGUILAR, Appellant.

                      Opinion filed September 12, 2013.

        JUSTICE THOMAS delivered the judgment of the court, with
     opinion.
        Chief Justice Kilbride and Justices Freeman, Garman, Karmeier,
     Burke, and Theis concurred in the judgment and opinion.



                                  OPINION

¶1       The principal issue in this case is whether section 24-1.6(a)(1),
     (a)(3)(A) of the Illinois aggravated unlawful use of weapons
     (AUUW) statute (720 ILCS 5/24-1.6(a)(1), (a)(3)(A) (West 2008))
     violates the right to keep and bear arms, as guaranteed by the second
     amendment to the United States Constitution (U.S. Const., amend. II).
     We hold that it does.

¶2                               BACKGROUND
¶3       The facts are not in dispute. Officer Thomas Harris of the Chicago
     police department testified that, on the evening of June 12, 2008, he
     was on surveillance duty near 4217 West 25th Place. Officer Harris
     observed a group of male teenagers screaming, making gestures, and
     throwing bottles at passing vehicles. This group included defendant,
     who Officer Harris noticed was holding the right side of his waist
     area. After watching the group walk into a nearby alley, Officer
     Harris radioed other officers who were nearby.
¶4       Officer John Dolan testified that, after receiving a radio
     communication from Officer Harris, he and Officers Wagner and
     Triantafillo traveled to 4217 West 25th Place. Once there, Officer
     Dolan watched several individuals walk into the backyard. The
     officers followed, and Officer Dolan heard defendant yell an
     expletive. Officer Dolan then saw that defendant had a gun in his
     right hand. Defendant dropped the gun to the ground, and Officer
     Dolan took defendant into custody while another officer recovered the
     gun. When Officer Dolan examined the gun, he saw that the serial
     number had been scratched off and that it was loaded with three live
     rounds of ammunition. Officer Dolan learned later that defendant did
     not live at 4217 West 25th Place.
¶5       Defense witness Romero Diaz testified that he lived at 4217 West
     25th Place and that defendant was his friend. Diaz explained that, on
     the evening in question, he was with defendant and another friend in
     his backyard waiting for defendant’s mother to pick up defendant,
     when three or four police officers entered the backyard with
     flashlights and ordered him and his friends to the ground. When
     defendant hesitated to comply, one of the officers tackled him to the
     ground. According to Diaz, defendant did not have a gun and did not
     drop a gun to the ground when the officers entered the backyard.
¶6       Defendant testified that, on the night of June 12, 2008, he was
     with friends at the corner of 26th Street and Keeler Avenue. After
     spending about 45 minutes there, he and another friend walked to
     Diaz’s backyard. While defendant was waiting there for his mother
     to pick him up, three police officers entered the yard with flashlights
     and guns drawn. One officer yelled at defendant to get on the ground,
     and when defendant moved slowly, another of the officers tackled
     defendant. The officers then searched the yard, showed defendant a
     gun, and accused him of dropping it. Defendant denied ever having
     a gun that evening, and he denied dropping a gun to the ground.
¶7       After weighing the credibility of the witnesses, the trial court
     found defendant guilty of AUUW (720 ILCS 5/24-1.6(a)(1), (a)(3)(A)
     (West 2008)) and unlawful possession of a firearm (UPF) (720 ILCS
     5/24-3.1(a)(1) (West 2008)). The trial court sentenced defendant to

                                      -2-
       24 months’ probation for the AUUW conviction and did not impose
       sentence on the UPF conviction.
¶8         Defendant appealed, and the appellate court affirmed with one
       justice dissenting. 408 Ill. App. 3d 136. We allowed defendant’s
       petition for leave to appeal. Ill. S. Ct. R. 315 (eff. Feb. 26, 2010).1

¶9                                   DISCUSSION
¶ 10                                    Standing
¶ 11        In this case, we are asked to decide whether the two statutes under
       which defendant stands convicted—namely, section 24-1.6(a)(1),
       (a)(3)(A) of the AUUW statute and section 24-3.1(a)(1) of the UPF
       statute—violate the right to keep and bear arms, as guaranteed by the
       second amendment to the United States Constitution. Before we get
       to those questions, however, we must quickly dispose of the State’s
       argument that defendant lacks standing to contest the constitutionality
       of these statutes. In support of this argument, the State invokes the
       familiar principle that, in order to have standing to contest the
       constitutionality of a statutory provision, the party bringing that
       challenge must show that he falls within the class of persons
       aggrieved by the alleged unconstitutionality. See, e.g., People v.
       Bombacino, 51 Ill. 2d 17, 20 (1972). According to the State, this
       principle means that, in this case, before defendant can argue that
       either of these statutes violates the second amendment, he first must
       be able to show that he was engaged in conduct that enjoys second
       amendment protection. Yet there is no way defendant can do this, the
       State maintains, because defendant himself concedes that the conduct
       involved in this case, namely, possessing a loaded, defaced, and
       illegally modified handgun on another person’s property without
       consent, enjoys no such protection. Thus, the State insists, defendant
       has no standing to bring a second amendment challenge.
¶ 12        We reject the State’s argument. The State assumes that defendant
       is arguing that the enforcement of sections 24-1.6(a)(1), (a)(3)(A) and
       24-3.1(a)(1) in this particular case violates his personal right to keep
       and bear arms, as guaranteed by the second amendment. But that is

           1
            We also allowed several briefs amici curiae to be filed on behalf of
       both defendant and the State. Ill. S. Ct. R. 345 (eff. Sept. 20, 2010).

                                         -3-
       not what defendant is arguing. Rather, he is arguing that sections 24-
       1.6(a)(1), (a)(3)(A) and 24-3.1(a)(1) themselves facially violate the
       second amendment, and that consequently neither statute can be
       enforced against anyone, defendant included. See, e.g., People v.
       Manuel, 94 Ill. 2d 242, 244-45 (1983) (a defendant cannot be
       prosecuted under a criminal statute that is unconstitutional in its
       entirety, as such a statute is void ab initio). This is a very different
       argument from the one the State assumes, and one that defendant
       undoubtedly has the standing to make. “One has standing to challenge
       the validity of a statute if he has sustained or if he is in immediate
       danger of sustaining some direct injury as a result of enforcement of
       the statute.” People v. Mayberry, 63 Ill. 2d 1, 8 (1976). Here, sections
       24-1.6(a)(1), (a)(3)(A) and 24-3.1(a)(1) were enforced against
       defendant in the form of a criminal prosecution initiated by the
       People of the State of Illinois, and the “direct injury” he sustained was
       the entry of two felony convictions for which he was sentenced to 24
       months’ probation. If anyone has standing to challenge the validity of
       these sections, it is defendant. Or to put it another way, if defendant
       does not have standing to challenge the validity of these sections, then
       no one does. The State’s standing objection is rejected.

¶ 13                            Second Amendment
¶ 14                       Section 24-1.6(a)(1), (a)(3)(A)
¶ 15       We now turn to the main issue, namely, the constitutionality of
       the two statutes at issue. We begin with section 24-1.6(a)(1),
       (a)(3)(A), which states:
                   “(a) A person commits the offense of aggravated unlawful
               use of a weapon when he or she knowingly:
                       (1) Carries on or about his or her person or in any
                   vehicle or concealed on or about his or her person except
                   when on his or her land or in his or her abode or fixed
                   place of business any pistol, revolver, stun gun or taser or
                   other firearm; [and]
                       ***
                       (3) One of the following factors is present:
                           (A) the firearm possessed was uncased, loaded
                       and immediately accessible at the time of the

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                       offense[.]” 720 ILCS 5/24-1.6(a)(1), (a)(3)(A) (West
                       2008).
       Statutes are presumed constitutional, and the party challenging the
       constitutionality of a statute carries the burden of proving that the
       statute is unconstitutional. People v. Hollins, 2012 IL 112754, ¶ 13.
       Moreover, this court has a duty to construe the statute in a manner
       that upholds the statute’s validity and constitutionality, if it can
       reasonably be done. Id. The constitutionality of a statute is a question
       of law that we review de novo. Id.
¶ 16       The second amendment provides: “A well regulated Militia, being
       necessary to the security of a free State, the right of the people to keep
       and bear Arms, shall not be infringed.” U.S. Const., amend. II. In
       District of Columbia v. Heller, 554 U.S. 570 (2008), the Supreme
       Court undertook its first-ever “in-depth examination” of the second
       amendment’s meaning. Id. at 635. After a lengthy historical
       discussion, the Court ultimately concluded that the second
       amendment “guarantee[s] the individual right to possess and carry
       weapons in case of confrontation” (id. at 592); that “central to” this
       right is “the inherent right of self-defense” (id. at 628); that “the
       home” is “where the need for defense of self, family, and property is
       most acute” (id. at 628); and that, “above all other interests,” the
       second amendment elevates “the right of law abiding, responsible
       citizens to use arms in defense of hearth and home” (id. at 635).
       Based on this understanding, the Court held that a District of
       Columbia law banning handgun possession in the home violated the
       second amendment. Id. at 635.
¶ 17       Two years later, in McDonald v. City of Chicago, 561 U.S. ___,
       ___, 130 S. Ct. 3020, 3050 (2010), the Supreme Court held that the
       second amendment right recognized in Heller is applicable to the
       states through the due process clause of the fourteenth amendment.
       In so holding, the Court reiterated that “the Second Amendment
       protects the right to keep and bear arms for the purpose of self-
       defense” (id. at ___, 130 S. Ct. at 3026); that “individual self-defense
       is ‘the central component’ of the Second Amendment right”
       (emphasis in original) (id. at ___, 130 S. Ct. at 3036 (quoting Heller,
       554 U.S. at 599)); and that “[s]elf-defense is a basic right, recognized
       by many legal systems from ancient times to the present day” (id. at
       ___, 130 S. Ct. at 3036).

                                          -5-
¶ 18       The issue before us today is whether section 24-1.6(a)(1),
       (a)(3)(A) violates the second amendment right to keep and bear arms,
       as construed by the United States Supreme Court in Heller and
       McDonald. We are not the first court to consider this question. On the
       contrary, the constitutionality of section 24-1.6(a)(1), (a)(3)(A) has
       been considered by several panels of our appellate court. See, e.g.,
       People v. Moore, 2013 IL App (1st) 110793; People v. Montyce H.,
       2011 IL App (1st) 101788; People v. Mimes, 2011 IL App (1st)
       082747; People v. Williams, 405 Ill. App. 3d 958 (2010); People v.
       Dawson, 403 Ill. App. 3d 499 (2010). Uniformly, these courts have
       held that section 24-1.6(a)(1), (a)(3)(A) passes constitutional muster.
       According to these decisions, despite their broad and lengthy
       historical discussions concerning the scope and meaning of the
       second amendment, neither Heller nor McDonald expressly
       recognizes a right to keep and bear arms outside the home. Rather, the
       core holding of both cases is that “the Second Amendment protects
       the right to possess a handgun in the home for the purpose of self-
       defense.” (Emphasis added.) McDonald, 561 U.S. at ___, 130 S. Ct.
       at 3050. And because section 24-1.6(a)(1), (a)(3)(A) prohibits only
       the possession of operable handguns outside the home, it does not run
       afoul of the second amendment, as presently construed by the United
       States Supreme Court. See, e.g., Moore, 2013 IL App (1st) 110793,
       ¶¶ 15-18; Montyce H., 2011 IL App (1st) 101788, ¶¶ 27-28; Dawson,
       403 Ill. App. 3d at 505-10.
¶ 19       In stark contrast to these Illinois decisions stands the Seventh
       Circuit Court of Appeals’ recent decision in Moore v. Madigan, 702
       F.3d 933 (7th Cir. 2012). In Moore, the court held that section 24-
       1.6(a)(1), (a)(3)(A) is effectively “a flat ban on carrying ready-to-use
       guns outside the home” (id. at 940) and that, as such, it violates the
       second amendment right to keep and bear arms, as construed in
       Heller and McDonald (id. at 942). In reaching this result, Moore
       relied not on the specific holding of Heller—i.e., that the second
       amendment protects the right to possess a handgun in the home for
       the purpose of self-defense—but rather on the broad principles that
       informed that holding. According to Moore, the clear implication of
       Heller’s extensive historical analysis is that “the constitutional right
       of armed self-defense is broader than the right to have a gun in one’s
       home.” Id. at 935. Moore notes, for example, that “[t]he first sentence

                                         -6-
       of the McDonald opinion states that ‘two years ago, in District of
       Columbia v. Heller, we held that the Second Amendment protects the
       right to keep and bear arms for the purpose of self-defense.’ ” Id. at
       935 (quoting McDonald, 561 U.S. at ___, 130 S. Ct. at 3026).
       Moreover, Moore explains that, although both Heller and McDonald
       state that the need for self-defense is “most acute” in the home, that
       “doesn’t mean it is not acute outside the home.” Id. (quoting
       McDonald, 561 U.S. at ___, 130 S. Ct. at 3036, and Heller, 554 U.S.
       at 628). On the contrary:
               “Heller repeatedly invokes a broader Second Amendment
               right than the right to have a gun in one’s home, as when it
               says that the amendment ‘guarantee[s] the individual right to
               possess and carry weapons in case of confrontation.’
               [Citation.] Confrontations are not limited to the home.” Id. at
               935-36 (quoting Heller, 554 U.S. at 592).
       Finally, Moore notes that the second amendment guarantees not only
       the right to “keep” arms, but also the right to “bear” arms, and that
       these rights are not the same:
               “The right to ‘bear’ as distinct from the right to ‘keep’ arms
               is unlikely to refer to the home. To speak of ‘bearing’ arms
               within one’s home would at all times have been an awkward
               usage. A right to bear arms thus implies a right to carry a
               loaded gun outside the home.” Id. at 936.
       In other words, Moore concludes, “[t]he Supreme Court has decided
       that the [second] amendment confers a right to bear arms for
       self-defense, which is as important outside the home as inside.” Id. at
       942. As a result, Moore held that Illinois’ “flat ban on carrying ready-
       to-use guns outside the home,” as embodied in section 24-1.6(a)(1),
       (a)(3)(A), is unconstitutional on its face. Id at 940.2
¶ 20       After reviewing these two lines of authority—the Illinois cases
       holding that section 24-1.6(a)(1), (a)(3)(A) is constitutional, and the
       Seventh Circuit’s decision holding that it is not—we are convinced
       that the Seventh Circuit’s analysis is the correct one. As the Seventh
       Circuit correctly noted, neither Heller nor McDonald expressly limits
       the second amendment’s protections to the home. On the contrary,


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

                                            -7-
       both decisions contain language strongly suggesting if not outright
       confirming that the second amendment right to keep and bear arms
       extends beyond the home. Moreover, if Heller means what it says,
       and “individual self-defense” is indeed “the central component” of
       the second amendment right to keep and bear arms (Heller, 554 U.S.
       at 599), then it would make little sense to restrict that right to the
       home, as “[c]onfrontations are not limited to the home.” Moore, 702
       F.3d at 935-36. Indeed, Heller itself recognizes as much when it
       states that “the right to have arms *** was by the time of the founding
       understood to be an individual right protecting against both public
       and private violence.” (Emphasis added.) Heller, 554 U.S. at 593-94.
¶ 21       Of course, in concluding that the second amendment protects the
       right to possess and use a firearm for self-defense outside the home,
       we are in no way saying that such a right is unlimited or is not subject
       to meaningful regulation. See infra ¶¶ 26-27. That said, we cannot
       escape the reality that, in this case, we are dealing not with a
       reasonable regulation but with a comprehensive ban. Again, in the
       form presently before us, section 24-1.6(a)(1), (a)(3)(A) categorically
       prohibits the possession and use of an operable firearm for self-
       defense outside the home. In other words, section 24-1.6(a)(1),
       (a)(3)(A) amounts to a wholesale statutory ban on the exercise of a
       personal right that is specifically named in and guaranteed by the
       United States Constitution, as construed by the United States
       Supreme Court. In no other context would we permit this, and we will
       not permit it here either.
¶ 22       Accordingly, as the Seventh Circuit did in Moore, we here hold
       that, on its face, section 24-1.6(a)(1), (a)(3)(A) violates the right to
       keep and bear arms, as guaranteed by the second amendment to the
       United States Constitution. Defendant’s conviction under that section
       therefore is reversed.3




           3
             Following the decision in Moore, the General Assembly enacted the
       Firearm Concealed Carry Act, which inter alia amended the AUUW statute
       to allow for a limited right to carry certain firearms in public. See Pub. Act
       98-0063 (eff. July 9, 2013), Neither the Firearm Concealed Carry Act nor
       the amended AUUW statute is at issue in this case.

                                            -8-
¶ 23                              Section 24-3.1(a)(1)
¶ 24        Defendant also argues that this court should reverse his UPF
       conviction because, like section 24-1.6(a)(1), (a)(3)(A), the statute
       upon which his UPF conviction is based violates the second
       amendment.
¶ 25        Defendant, who was 17 years old at the time of the offenses
       charged in this case, was convicted of violating section 24-3.1(a)(1)
       of the Criminal Code of 1961, which provides:
                “A person commits the offense of unlawful possession of
                firearms or firearm ammunition when:
                        (1) He is under 18 years of age and has in his
                    possession any firearm of a size which may be concealed
                    upon the person[.]” 720 ILCS 5/24-3.1(a)(1) (West
                    2008).4
       According to defendant, at the time the second amendment was
       drafted and ratified, the right to keep and bear arms extended to
       persons 16 and 17 years of age. In support, defendant relies
       principally on the fact that, at the time of this nation’s founding, many
       colonies “required those as young as 15 years old to bear arms” for
       purposes of militia service. Consequently, defendant argues, “because
       Illinois’ ban on handgun possession by 17-year-olds regulates conduct
       that traditionally falls within the protection of the second amendment,
       the validity of the law depends upon the government’s ability to
       satisfy heightened constitutional scrutiny.” Defendant then insists that
       the State cannot meet this burden because “Illinois’ unconditional
       abrogation of a 17-year-old’s constitutional right to defend himself
       with a handgun” is in no way tailored to meet any identifiable state
       interest. In other words, defendant is arguing that, as far as the second
       amendment is concerned, a 17-year-old minor is on exactly the same
       constitutional footing as a full-fledged adult.


           4
            Section 24-3.1(c) of the UPF statute contains an express exception for
       persons under the age 18 who are “participating in any lawful recreational
       activity with a firearm such as, but not limited to, practice shooting at
       targets upon established public or private target ranges or hunting, trapping,
       or fishing in accordance with the Wildlife Code or the Fish and Aquatic
       Life Code.” 720 ILCS 5/24-3.1(c) (West 2008).

                                            -9-
¶ 26        We reject this argument. In Heller, the Supreme Court expressly
       stated that:
                    “Like most rights, the right secured by the Second
                Amendment is not unlimited. From Blackstone through the
                19th-century cases, commentators and courts routinely
                explained that the right was not a right to keep and carry any
                weapon whatsoever in any manner whatsoever and for
                whatever purpose.” Heller, 554 U.S. at 626.
       From there, the Court went on to emphasize that “nothing in our
       opinion should be taken to cast doubt on longstanding prohibitions on
       the possession of firearms by felons and the mentally ill, or laws
       forbidding the carrying of firearms in sensitive places such as schools
       and government buildings, or laws imposing conditions and
       qualifications on the commercial sale of arms.” Id. at 626-27. The
       Court then immediately added, by way of footnote, that “[w]e identify
       these presumptively lawful regulatory measures only as examples; our
       list does not purport to be exhaustive.” Id. at 627 n.26.
¶ 27        Now admittedly, the list enumerated in Heller does not
       specifically include laws prohibiting the possession of firearms by
       minors. Nevertheless, several courts have since undertaken a
       thorough historical examination of such laws, and all of them have
       concluded that, contrary to defendant’s contention, the possession of
       handguns by minors is conduct that falls outside the scope of the
       second amendment’s protection. See, e.g., National Rifle Ass’n of
       America, Inc. v. Bureau of Alcohol, Tobacco, Firearms, Explosives,
       700 F.3d 185, 204 (5th Cir. 2012) (concluding that “[m]odern
       restrictions on the ability of persons under 21 to purchase
       handguns—and the ability of persons under 18 to possess
       handguns—seem, to us, to be firmly historically rooted”); United
       States v. Rene E., 583 F.3d 8, 16 (1st Cir. 2009) (concluding that the
       “right to keep arms in the founding period did not extend to
       juveniles”); Powell v. Tompkins, No. 12-10744-WGY, 2013 WL
       765339, at *16 (D. Mass Feb. 28, 2013) (holding that a Massachusetts
       law proscribing the carry of firearms by persons under the age of 21
       “comports with the Second Amendment and imposes no burden on”
       the right to keep and bear arms). In essence, these cases explain that,
       although many colonies permitted or even required minors to own
       and possess firearms for purposes of militia service, nothing like a

                                        -10-
       right for minors to own and possess firearms has existed at any time
       in this nation’s history. On the contrary, laws banning the juvenile
       possession of firearms have been commonplace for almost 150 years
       and both reflect and comport with a “longstanding practice of
       prohibiting certain classes of individuals from possessing
       firearms—those whose possession poses a particular danger to the
       public.” Rene, 583 F.3d at 15. We will not repeat or rehash the
       historical evidence set forth in these decisions. Rather, for present
       purposes, we need only express our agreement with the obvious and
       undeniable conclusion that the possession of handguns by minors is
       conduct that falls outside the scope of the second amendment’s
       protection.
¶ 28       For these reasons, we reject defendant’s second amendment
       challenge to section 24-3.1(a)(1) and affirm his conviction
       thereunder.



¶ 29                               CONCLUSION
¶ 30       For the reasons set forth above, we reverse defendant’s conviction
       under section 24-1.6(a)(1), (a)(3)(A), affirm defendant’s conviction
       under section 24-3.1(a)(1), and remand to the trial court for
       imposition of sentence on the UPF conviction. The sentence imposed
       on the UPF conviction shall not exceed the sentence imposed on the
       AUUW conviction, and defendant shall receive credit for time
       already served on the AUUW conviction.

¶ 31      Affirmed in part, reversed in part, and remanded.




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