                           ILLINOIS OFFICIAL REPORTS
                                         Supreme Court




                                People v. Aguilar, 2013 IL 112116




Caption in Supreme         THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. ALBERTO
Court:                     AGUILAR, Appellant.


Docket No.                 112116


Filed                      September 12, 2013
Modified upon
denial of rehearing        December 19, 2013


Held                       Illinois’ flat ban on carrying ready-to-use guns outside the home,
(Note: This syllabus       contained in the Class 4 form of the statute on aggravated unlawful use
constitutes no part of     of weapons, is unconstitutional on its face as a violation of the second
the opinion of the court   amendment right to bear arms—conviction reversed.
but has been prepared
by the Reporter of
Decisions for the
convenience of the
reader.)


Decision Under             Appeal from the Appellate Court for the First District; heard in that court
Review                     on appeal from the Circuit Court of Cook County, the Hon. Charles P.
                           Burns, Judge, presiding.



Judgment                   Affirmed in part, reversed in part, and remanded.
Counsel on   Michael J. Pelletier, State Appellate Defender, Alan D. Goldberg, Deputy
Appeal       Defender, and David C. Holland, Assistant Appellate Defender, of the
             Office of the State Appellate Defender, of Chicago, for appellant.

             Lisa Madigan, Attorney General, of Springfield, and Anita Alvarez,
             State’s Attorney, of Chicago (Alan J. Spellberg, Michelle Fowler,
             Annette Collins, Susan Schierl Sullivan, Veronica Calderon Malavia and
             Kathryn Schierl, Assistant State’s Attorneys, of counsel), for the People.

             Victor D. Quilici, of River Grove, and Stephen P. Halbrook, of Fairfax,
             Virginia, for amici curiae Illinois State Rifle Association et al.

             William N. Howard and Garry L. Wills, of Freeborn & Peters, of
             Chicago, for amici curiae Certain Illinois Legislators.

             Stephen A. Kolodziej, of Brenner, Ford, Monroe & Scott, Ltd., of
             Chicago, and Charles J. Cooper, David H. Thompson and Peter A.
             Patterson, of Cooper & Kirk, PLLC, of Washington, D.C., for amicus
             curiae National Rifle Association of America, Inc.

             Michael P. O’Shea, of Oklahoma City, Oklahoma, for amici curiae
             Professor Nicholas J. Johnson et al.

             Janet Garetto, of Chicago (David H. Tennant, of Rochester, New York,
             Lynette Nogueras-Trummer, of Buffalo, New York, and Cameron R.
             Cloar, of San Francisco, California, of counsel), for amici curiae Legal
             Community Against Violence et al.

             Alexander D. Marks, of Burke, Warren, MacKay & Serritella, P.C., of
             Chicago, and Jonathan L. Diesenhaus, S. Chartey Quarcoo and Matthew
             C. Sullivan, of Hogan Lovells US LLP, and Jonathan E. Lowy and Daniel
             R. Vice, all of Washington, D.C., for amici curiae Brady Center To
             Prevent Gun Violence et al.

             Ranjit Hakim, of Mayer Brown LLP, of Chicago, for amici curiae
             Historians Patrick J. Charles, Peter Charles Hoffer, Stanley N. Katz,
             William Pencak and Robert J. Spitzer.




                                  -2-
Justices                 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

                                               -3-
       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 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 that is not what defendant is arguing. Rather, he is arguing that these statutes themselves


               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).

                                                    -4-
       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; ***
                                                   ***
                   (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.

                                                  -5-
       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).
¶ 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

                                                   -6-
       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 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 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.


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

                                                     -7-
¶ 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
       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


               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.
               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 of 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).

                                                     -8-
       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.
¶ 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 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

                                                -9-
       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.

                               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 a FOID card. 720
       ILCS 5/24-1.6(d) (West 2008). Combining these four sentencing provisions with 18 offenses

                                                 -10-
       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.
¶ 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.
¶ 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

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                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 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

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                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,” 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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