                                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.—Modified upon denial of
                       rehearing December 19, 2013.

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

                                   OPINION

¶1       The principal issue in this case is whether the Class 4 form of
     section 24-1.6(a)(1), (a)(3)(A), (d) of the Illinois aggravated unlawful
     use of weapons (AUUW) statute (720 ILCS 5/24-1.6(a)(1), (a)(3)(A),
     (d) (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 both the Class 4 form of section 24-
     1.6(a)(1), (a)(3), (d) and unlawful possession of a firearm (UPF) (720

                                      -2-
       ILCS 5/24-3.1(a)(1) (West 2008)). The trial court sentenced
       defendant to 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, the Class 4 form
       of section 24-1.6(a)(1), (a)(3)(A), (d) 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), (d)
       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

           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-
       that is not what defendant is arguing. Rather, he is arguing that these
       statutes 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, the challenged statutes 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                               Class 4 AUUW
¶ 15       We now turn to the main issue, namely, the constitutionality of
       the two statutes at issue. We begin with the Class 4 form of section
       24-1.6(a)(1), (a)(3)(A), (d), 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 offense;
                       ***

                                         -4-
                                         ***
                   (d) Sentence. Aggravated unlawful use of a weapon is a
               Class 4 felony ***.” 720 ILCS 5/24-1.6(a)(1), (a)(3)(A), (d)
               (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

                                         -5-
       ___, 130 S. Ct. at 3036).
¶ 18       The issue before us today is whether the Class 4 form of section
       24-1.6(a)(1), (a)(3)(A), (d) 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 this section 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 the Class 4 form of section 24-1.6(a)(1), (a)(3)(A), (d)
       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 the Class 4 form of section
       24-1.6(a)(1), (a)(3)(A), (d) 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 the Class 4
       form of section 24-1.6(a)(1), (a)(3)(A), (d) 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

                                        -6-
       have a gun in one’s home.” Id. at 935. Moore notes, for example, that
       “[t]he first sentence 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 the Class 4
       form of section 24-1.6(a)(1), (a)(3)(A), (d), is unconstitutional on its
       face. Id. at 940.2
¶ 20       After reviewing these two lines of authority—the Illinois cases
       holding that the Class 4 form of section 24-1.6(a)(1), (a)(3)(A), (d)
       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

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

                                            -7-
       McDonald expressly limits the second amendment’s protections to
       the home. On the contrary, 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, the Class 4 form of section 24-1.6(a)(1),
       (a)(3)(A), (d) categorically prohibits the possession and use of an
       operable firearm for self-defense outside the home. In other words,
       the Class 4 form of section 24-1.6(a)(1), (a)(3)(A), (d) 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, 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 to the United States Constitution.3 Defendant’s

           3
             In response to the State’s petition for rehearing in this case, we
       reiterate and emphasize that 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. We make no
       finding, express or implied, with respect to the constitutionality or
       unconstitutionality of any other section or subsection of the AUUW statute.

                                          -8-
       conviction under that section therefore is reversed.4

¶ 23                            Section 24-3.1(a)(1)
¶ 24       Defendant also argues that this court should reverse his UPF
       conviction because, like the Class 4 form of section 24-1.6(a)(1),
       (a)(3)(A), (d), 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).5
       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



           4
             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.
           5
            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-
       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.
¶ 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

                                        -10-
       “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 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 the Class 4 form of section 24-1.6(a)(1), (a)(3)(A), (d), 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.




                                        -11-
                       Dissents Upon Denial of Rehearing

¶ 32        CHIEF JUSTICE GARMAN, dissenting:
¶ 33        I respectfully dissent from the denial of rehearing because I
       believe that the court would benefit from having the issue raised by
       the State in its petition for rehearing fully briefed and argued by the
       parties. I reach this conclusion because the State has fundamentally
       redefined the issue presented in this case. This might, in other
       circumstances, weigh against rehearing, but given the constitutional
       nature of the issue and the potential far-reaching consequences of our
       decision, I would prefer to resolve this question after more
       deliberation.
¶ 34        “A person commits the offense of aggravated unlawful use of a
       weapon when he or she knowingly” commits either of two
       enumerated acts (720 ILCS 5/24-1.6(a)(1), (a)(2) (West 2008)), in
       combination with one of nine listed conditions (720 ILCS 5/24-
       1.6(a)(3)(A)-(I)). Taking these sections together, the statute defines
       18 possible separate offenses.
¶ 35        Appellant/defendant Aguilar was convicted of AUUW under
       sections (a)(1) and (a)(3)(A), in combination. He argued—and the
       court agreed—that these sections, taken together, are facially
       unconstitutional.
¶ 36        In its petition for rehearing, the State argues that these sections
       are not facially unconstitutional because they can be applied to felons
       without violating the second amendment. Specifically, the State
       points to subsection (d) of the statute, which governs sentencing and
       includes four separate categories: (1) first AUUW offense, (2) second
       or subsequent AUUW offense, (3) AUUW by a convicted felon, and
       (4) AUUW committed while in possession of body armor by a person
       who has not been issued an FOID card. 720 ILCS 5/24-1.6(d) (West
       2008). Combining these four sentencing provisions with 18 offenses
       yields 72 permutations.
¶ 37        The petition further states that allowing the holding to stand
       would “erroneously cast doubt on hundreds” of prior convictions and
       would “impede currently pending prosecutions for that offense.”
       Thus, the State asked that the court either grant rehearing or modify
       its opinion to state that the statute is not unconstitutional as applied
       to felons or that the question remains open.

                                        -12-
¶ 38       In sum, I would prefer that the court reexamine its reasoning in
       this case after due consideration of arguments fully briefed by the
       parties.

¶ 39        JUSTICE THEIS, dissenting:
¶ 40        In modifying its decision upon denial of rehearing, the majority
       seeks to dramatically alter the issue in this case, adopting an entirely
       new way of analyzing the constitutional claim. This court was asked
       to analyze the elements of the offense of AUUW to determine
       whether the offense withstood a second amendment challenge. We
       originally held that based upon the elements of the offense, as stated
       in section 24-1.6(a)(1), (a)(3)(A) (720 ILCS 5/24-1.6(a)(1), (a)(3)(A)
       (West 2008)), the AUUW statute was facially unconstitutional
       because it “categorically prohibits the possession and use of an
       operable firearm for self-defense outside the home” and “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.”
       Supra ¶ 21.
¶ 41        Now, in its modified opinion upon denial of rehearing, the
       majority considers not only the elements of the offense of AUUW in
       determining the constitutionality of the statute, but also incorporates
       the sentencing provisions into its constitutional analysis. Without
       explanation, the majority has now decided that the class of felony has
       some bearing on whether the AUUW statute is constitutional. Thus,
       the majority holds that our finding of unconstitutionality is limited to
       those sentenced to the “Class 4 form” of the offense. Supra ¶ 20
       (citing 720 ILCS 5/24-1.6(a)(1), (a)(3)(A), (d) (West 2008)).
¶ 42        The majority’s new holding has the potential to alter our
       constitutional jurisprudence and create a host of potential practical
       problems. Additionally, if the class of felony has some bearing on
       whether the AUUW statute is constitutional, then I believe the
       majority has opened itself up to the arguments made by the State in
       its petition for rehearing that the AUUW statute is not invalid in all
       of its applications and, therefore, not facially unconstitutional. It is
       for these reasons that I respectfully dissent from the modified opinion
       upon denial of rehearing. Too many legitimate questions remain to
       deny an opportunity for rehearing in this case.


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¶ 43        At the outset, I am concerned that the sentencing aspect of the
       statute was never raised by defendant at any time before the appellate
       court or before this court—in his petition for leave to appeal, his
       initial brief, his reply brief, or his supplemental brief. Indeed,
       defendant’s facial argument, as articulated in his brief, is not
       dependent at all upon the class of felony or the sentencing provisions.
       It is only dependent upon the elements of the offense:
                “A citizen violates the AUUW statute when he knowingly
                carries on or about his person or in any vehicle or concealed
                on or about his person except when on his land or in his
                abode or fixed place of business any pistol, revolver, stun gun
                or taser or other firearm and the firearm is uncased, loaded
                and immediately accessible. 720 ILCS 5/24-1.6(a)(1), (3)(A)
                (West 2008). Every element that comprises the statute, in
                conjunction with the others, violates the Second
                Amendment’s protection of the right to bear arms for the
                purpose of self-defense.” (Emphasis added.)
¶ 44        The majority does not explain why the class of sentence has any
       bearing on the constitutional question raised by the defendant.
       Instead, it appears to rely on the Seventh Circuit decision in Moore
       and the cited appellate court decisions for the proposition that the
       constitutional analysis is limited to the “Class 4 form” of the offense
       of AUUW. Supra ¶¶ 18, 19. However, nowhere in any of these cases
       cited by the majority or in any Illinois case do the words “Class 4
       form” of the offense appear, and none of those panels considered the
       sentencing scheme as having any bearing on their constitutional
       analysis regarding the elements of the offense of AUUW.
       Specifically, in Moore, the Seventh Circuit enjoined the enforcement
       of the statute, without limiting its holding to those who would be
       sentenced as Class 4 felons as opposed to Class 2 felons. See Moore,
       702 F.3d at 942. The court in Moore did not need to consider the
       class of offense in order to find the conduct prohibited by the statute
       unconstitutional. Rather, the court found the statute unenforceable
       based upon its consideration of the elements of the offense. See id. at
       934.
¶ 45        More importantly, I am concerned about the unintended
       consequences of conflating these concepts. I believe this approach
       has the very real potential to skew the distinctions between the
       elements of an offense and the factors relevant to enhancing a

                                        -14-
       sentence. The majority has cited no authority for the proposition that
       this court can find an offense facially unconstitutional based on the
       elements of the offense, but then limit its effect to a particular class
       of sentence. For example, where an offense is unconstitutional, we
       have not limited our analysis to first-time offenders. See, e.g., People
       v. Madrigal, 241 Ill. 2d 463 (2011); People v. Jordan, 218 Ill. 2d 255
       (2006); People v. Woodrum, 223 Ill. 2d 286 (2006). Rather, we have
       explained that when we declare a statute facially unconstitutional,
       i.e., unconstitutional in all of its applications, the statute is then
       unenforceable. People v. Blair, 2013 IL 114122, ¶¶ 28, 30. The
       majority does not explain why we can take a different approach in
       this case.
¶ 46        I am also very concerned about the practical consequences of this
       approach on future cases. Although I recognize that, in this case, the
       AUUW statute has now been amended, how will this type of limited
       enforceability apply in other situations? How will law enforcement
       handle a situation where an offense has been found to be
       unconstitutional, but only as to a particular class of the offense? Does
       the officer have to determine whether this is a first offense or if the
       individual has a prior conviction before he can make an arrest and
       enforce the statute? As the Supreme Court held in Atwater v. City of
       Lago Vista, 532 U.S. 318 (2001), this type of inquiry would be too
       cumbersome:
                 “It is not merely that we cannot expect every police officer
                to know the details of frequently complex penalty schemes,
                see Berkemer v. McCarty, 468 U.S. 420, 431, n.13 (1984)
                (‘[O]fficers in the field frequently “have neither the time nor
                the competence to determine” the severity of the offense for
                which they are considering arresting a person’), but that
                penalties for ostensibly identical conduct can vary on account
                of facts difficult (if not impossible) to know at the scene of an
                arrest. Is this the first offense or is the suspect a repeat
                offender? Is the weight of the marijuana a gram above or a
                gram below the fine-only line? Where conduct could
                implicate more than one criminal prohibition, which one will
                the district attorney ultimately decide to charge? And so on.”
                Id. at 348-49.
¶ 47        Additionally, given this new approach, the implication of the
       court’s holding is that the so-called “Class 2 form of the offense,”

                                         -15-
       which enhances the penalty for felons, could potentially remain
       enforceable. 720 ILCS 5/24-1.6(a)(1), (a)(3)(A), (d) (West 2008). If
       that is the case, and if the sentencing scheme has some bearing on our
       constitutional analysis, as the majority now holds, I believe the State,
       in its petition for rehearing, has raised legitimate arguments that the
       statute is not unconstitutional in all of its applications. The State
       argues that, as demonstrated by the plain language of the AUUW
       statute, the legislature contemplated that the statute could be applied
       to prohibit the possession of firearms outside the home by felons,
       citing section 24-1.6(d) (720 ILCS 5/24-1.6(d) (West 2008) (a
       violation of the statute “by a person who has been previously
       convicted of a felony in this State or another jurisdiction is a Class 2
       felony”)). The State maintains that this prohibition on the possession
       of firearms by felons is fully authorized under the second amendment
       and, therefore, section 24-1.6(a)(1), (a)(3)(A) has a valid application,
       citing Heller and McDonald. Consequently, it argues that this court’s
       facial invalidation of the statute is irreconcilable with Heller and
       McDonald because it “erroneously abrogates a constitutionally
       permissible prohibition on the possession of firearms by felons
       outside the home.” See In re Rodney H., 223 Ill. 2d 510, 521 (2006)
       (“[a] facial challenge to a statute must fail if it could be validly
       applied in any instance”).
¶ 48        The decision in this cause is of momentous import to the litigants
       and to the people of this state. The majority’s new analysis leaves too
       many questions unresolved. At the very minimum, the change in the
       court’s opinion warrants rehearing and an opportunity for the parties
       to argue about whether the court’s new constitutional analysis gives
       us cause to reconsider our determination that the statute is facially
       unconstitutional in all its applications. For all of these reasons, I
       respectfully dissent and would grant rehearing.




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