                                       2018 IL App (1st) 152249


                                                                             FIRST DISTRICT
                                                                             FIFTH DIVISION
                                                                             June 22, 2018


No. 1-15-2249


                                                                 )   Appeal from the
THE PEOPLE OF THE STATE OF ILLINOIS,                             )   Circuit Court of
                                                                 )   Cook County
                Plaintiff-Appellee,                              )
                                                                 )
v.                                                               )   No. 13 CR 9003
                                                                 )
ERICK MARTIN,                                                    )
                                                                 )   Honorable
                Defendant-Appellant.                             )   Thomas M. Davy,
                                                                 )   Judge Presiding.



       PRESIDING JUSTICE REYES delivered the judgment of the court, with opinion.
       Justices Lampkin and Rochford concurred in the judgment and opinion.


                                            OPINION

¶1     Following a bench trial, defendant Erick Martin was convicted of (1) armed habitual

criminal, (2) unlawful use of a weapon by a felon, and (3) six counts of aggravated unlawful use

of a weapon. These convictions were merged into the single offense of armed habitual criminal,

and the trial court imposed the minimum six-year term of imprisonment. Defendant’s sole

contention on appeal is that the armed habitual criminal statute is unconstitutional as applied to

him, where his underlying felony offenses were nonviolent and more than 20 years old. For the

reasons that follow, we affirm the judgment of the circuit court.
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¶2                                       BACKGROUND

¶3      Defendant was charged with multiple offenses including armed habitual criminal (720

ILCS 5/24-1.7(a) (West 2012)), unlawful use of a weapon by a felon (id. § 24-1.1(a)) and six

counts of aggravated unlawful use of a weapon (id. §§ 24-1.6(a)(1), (3)(A), (C); 24-1.6(a)(2),

(3)(C)) based, in part, on his possession of a .357 blue steel revolver without a firearm owner’s

identification (FOID) card. Defendant waived his right to a jury and elected to proceed by way of

a bench trial.

¶4      At trial, two officers, Steve Jarosz and Ryan Harty of the Chicago Police Department,

testified regarding their interaction with defendant and their recovery of a blue steel .357

revolver on April 24, 2013. According to Jarosz, while on patrol they observed defendant’s

vehicle turn into an alley without using a turn signal. Jarosz activated the siren and followed the

vehicle into the alley, but the vehicle did not stop. The vehicle continued to travel through the

alley, during which time Jarosz observed the driver open the driver’s side door and drop a

handgun onto the ground. Harty also observed the driver drop an object outside of the driver’s

side door, but he was unable to discern what the object was. The vehicle later stopped at the end

of the alley, and defendant was removed from the driver’s side of the vehicle. Jarosz recovered

the handgun from where he had observed it fall. The handgun was loaded with six live rounds of

ammunition. Jarosz further testified that defendant did not have a FOID card. A certified copy of

a firearm service bureau report was entered into evidence which revealed that defendant did not

possess a FOID card.

¶5      Certified copies of defendant’s two prior felony convictions—a 1989

manufacture/delivery of a controlled substance offense and a 1992 unlawful use of a weapon by

a felon offense—were entered into the record without objection.



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¶6     Defendant testified that he was not in possession of a firearm that evening nor did he

open his vehicle door while driving through the alley. According to defendant, after he was

stopped by the officers he waited for 30 minutes while one of the officers walked down the alley

and returned with a handgun and asked if it was his weapon. Defendant informed the officers at

that time that it was not his weapon.

¶7     After considering the evidence presented, the trial court indicated it found the officers to

be credible and thus found defendant guilty on all counts. The counts were then merged into a

single armed habitual criminal conviction. At the sentencing hearing, defendant presented

evidence in mitigation that he was employed, participated in church, volunteered as a disc jockey

for neighborhood events, and had no criminal convictions since 1992. The trial court also

reviewed defendant’s presentence investigation report. This report indicated that defendant had

been convicted of five felonies between 1989 and 1992. However, after 1992 defendant earned a

vending machine operator’s license, was employed at a mailing company, and then for the last

25 years worked as an independent professional disc jockey earning $3200 a week. The

presentence investigation report further indicated that defendant had a “great” relationship with

his family and provided financial support to his 18-year-old son. After hearing evidence offered

in aggravation and mitigation, the trial court sentenced defendant to the minimum six years’

imprisonment for the Class X offense of armed habitual criminal. This appeal followed.

¶8                                         ANALYSIS

¶9     Defendant’s sole contention on appeal is that the Illinois armed habitual criminal statute

is unconstitutional as applied to him because the statute’s application to him was triggered by

nonviolent offenses that were more than 20 years old. Defendant asserts that the statute violates

his second amendment right to possess a firearm. U.S. Const., amend. II (“A well regulated



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Militia, being necessary to the security of a free State, the right of the people to keep and bear

Arms, shall not be infringed.”). 1 Defendant does not challenge the sufficiency of the evidence.

¶ 10     In response, the State maintains that defendant’s as-applied challenge fails both

procedurally and substantively. The State asserts that the challenge fails procedurally because he

did not raise the issue in the trial court and therefore there was no evidentiary hearing and no

findings of fact regarding his as-applied challenge. Substantively, the State maintains that

defendant’s as-applied challenge fails because he has not established that his conduct was

entitled to second amendment protection where he chose to possess a firearm knowing that his

prior felony convictions had not been vacated or otherwise set aside. The State maintains

defendant was not a “law abiding, responsible citizen” protected by the second amendment.

¶ 11     As relevant here, an individual commits the offense of armed habitual criminal when he

or she

         “receives, sells, possesses, or transfers any firearm after having been convicted a total of

         2 or more times of any combination of the following offenses:

                         ***

                         (2) unlawful use of a weapon by a felon; ***

                         (3) any violation of the Illinois Controlled Substances Act or the Cannabis

                Control Act that is punishable as a Class 3 felony or higher.” 720 ILCS 5/24­

                1.7(a) (West 2012).

An as-applied challenge arises from a defendant’s contention that the statute or law as it is

applied to his particular situation is unconstitutional. People v. Campbell, 2014 IL App (1st)

112926, ¶ 57. The facts that surround a defendant’s particular circumstances are relevant to an

         1
          During oral argument, defense counsel declined to argue an as-applied challenge under our
Illinois Constitution, indicating the main thrust of his argument was in regards to the federal second
amendment.
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as-applied challenge. Id. We review de novo whether the armed habitual criminal statute under

section 24-1.7 of the Criminal Code of 2012 (720 ILCS 5/1-1 et seq. (West 2012)), as applied to

the defendant, was unconstitutional under the second amendment of the United States

Constitution. See People v. Robinson, 2011 IL App (1st) 100078, ¶ 12; see also U.S. Const.,

amend. II.

¶ 12   We first address the State’s contention that defendant’s as-applied challenge fails

procedurally due to a lack of an evidentiary hearing below. We decline to find the issue

procedurally defaulted. We recognize that in People v. McFadden, 2016 IL 117424, ¶ 36, and

People v. Mosley, 2015 IL 115872, ¶ 47, our supreme court declined to consider as-applied

challenges that were raised for the first time on appeal. In so concluding, the Mosley court stated

that

        “A court is not capable of making an as applied determination of unconstitutionality

       when there has been no evidentiary hearing and no findings of fact. [Citation.] Without

       an evidentiary record, any finding that a statute is unconstitutional as applied is

       premature. [Citation.] Nor would it be appropriate for this court, sua sponte, to consider

       whether [a] statute has been constitutionally applied since we, as a reviewing court, are

       not arbiters of the facts.” (Internal quotation marks omitted.) Id.

Our supreme court, however, has also held that where the evidentiary record developed below is

sufficient, the constitutionality of a statute may be challenged on appeal. People v. Holman, 2017

IL 120655, ¶ 32; see People v. Gray, 2017 IL 120958, ¶¶ 55-67 (considering an as-applied

constitutional challenge raised for the first time on appeal); Robinson, 2011 IL App (1st) 100078,

¶¶ 12, 17, 29 (considering facial and as-applied constitutional challenges that were raised for the

first time on appeal).



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¶ 13   On appeal, defendant’s as-applied challenge is based on facts already in the record, i.e.,

the age and nature of his felony convictions and his alleged rehabilitation since his last

conviction. In the prosecution of defendant’s current offenses, evidence was presented at trial as

to defendant’s possession of the firearm and his two prior felony convictions. Other relevant

facts, such as defendant’s age at the time of his prior felonies and his lack of criminal history

after 1992 as well as his employment history, were presented during the sentencing hearing and

in the court-ordered presentence investigation report. We fail to see what further facts would be

necessary to adduce at an evidentiary hearing, and notably, the State fails to identify any

additional facts not in the record that would preclude our review of this issue. Accordingly, we

conclude that defendant’s as-applied challenge to the armed habitual criminal statute is

reviewable on appeal. See, e.g., Gray, 2017 IL 120958, ¶¶ 55-67; Robinson, 2011 IL App (1st)

100078, ¶¶ 12, 17, 29.

¶ 14   Turning to the merits, while our supreme court has not expressly addressed the

appropriate analysis of an as-applied challenge to the armed habitual criminal statute in

circumstances such as this, we find the recent decision of People v. Chairez, 2018 IL 121417, to

be instructive. In that case, our supreme court considered the constitutionality of section 24­

1(a)(4), (c)(1.5) of the unlawful use of a weapon statute (UUW) (720 ILCS 5/24-1(a)(4), (c)(1.5)

(West 2012)), which, in pertinent part, prohibits an individual from carrying or possessing a

firearm within 1000 feet of a public park. Chairez, 2018 IL 121417, ¶ 1. The defendant raised a

facial challenge to this subsection of the UUW statute, arguing that an individual who is barred

from carrying a firearm within 1000 feet of many locations listed in section 24-1(c)(1.5) of the

UUW statute is essentially barred from carrying a firearm in public, and it is thus more closely

akin to a blanket prohibition than a restriction on carrying a weapon in certain sensitive places.



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Id. ¶ 6. In examining the facial constitutionality of the statute, our supreme court set forth a two-

part test:

        “First, we conduct a textual and historical analysis of the second amendment ‘to

        determine whether the challenged law imposes a burden on conduct that was understood

        to be within the scope of the second amendment’s protection at the time of ratification.’

        [Citation.] If the conduct falls outside of the scope of the second amendment, then the

        regulated activity is ‘categorically unprotected,’ and the law is not subject to further

        second amendment review. [Citation.] But if the historical evidence is inconclusive or

        suggests that the regulated activity is not categorically unprotected, then we apply the

        appropriate level of heightened means-ends scrutiny and consider the strength of the

        government’s justification for restricting or regulating the exercise of second amendment

        rights. [Citation.]” Id. ¶ 21.

Accordingly, we first turn to consider whether the armed habitual criminal statute under these

circumstances imposes a burden on conduct that was historically understood to be within the

scope of the second amendment’s protection at the time of ratification. Id. In other words, we

examine whether the offense of armed habitual criminal as applied to defendant “impermissibly

encroaches on conduct at the core of the second amendment.” Id. ¶ 26.

¶ 15    In regard to the first step, defendant asserts that at the time of ratification of the second

amendment there were no regulations prohibiting felons, particularly nonviolent ones, from

possessing firearms and maintains that such regulations were not in existence until 150 years

after ratification. With this in mind, defendant, citing District of Columbia v. Heller, 554 U.S.

570, 635 (2008), maintains that “the mere fact that he has long-past convictions does not mean

that he is not one of Illinois’s ‘law-abiding, responsible citizens’ today.”



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¶ 16   In Heller, the Supreme Court briefly discussed the historical implications of the second

amendment, observing that, “[l]ike most rights, the right secured by the Second Amendment is

not unlimited.” Id. at 626. The Court further stated 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 repeated its assurances in McDonald v. City of Chicago, 561

U.S. 742 (2010), stating, “We made it clear in Heller that our holding did not cast doubt on such

longstanding regulatory measures as ‘prohibitions on the possession of firearms by felons and

the mentally ill,’ ‘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 786 (quoting Heller, 554 U.S. at 626-27).

¶ 17   The concept that the right to bear arms under the second amendment is not unlimited,

particularly in regards to felons, has been reiterated by our supreme court in People v. Aguilar,

2013 IL 112116, ¶ 26, People v. Burns, 2015 IL 117387, ¶ 29, McFadden, 2016 IL 117424, ¶ 35,

and most recently in Chairez, 2018 IL 121417, ¶ 24. Specifically, in McFadden our supreme

court stated that, with respect to the second amendment, the unlawful use of a weapon by a felon

statute is a presumptively lawful, longstanding prohibition on the possession of firearms.

McFadden, 2016 IL 117424, ¶ 35. Moreover, in Burns, our supreme court indicated that the

legislature can constitutionally prohibit felons from carrying readily accessible firearms outside

the home. Burns, 2015 IL 117387, ¶ 29.

¶ 18   The Illinois appellate court has also held that the imposition of a felon-based firearm ban

does not fall within the scope of the second amendment. See People v. Montgomery, 2016 IL



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App (1st) 142143, ¶ 17 (“Although the second amendment does not categorically exclude felons

from its protection, this court has found that laws prohibiting felons from possessing firearms

does [not] run afoul of the second amendment.”); Campbell, 2014 IL App (1st) 112926, ¶ 60

(holding “felon-based firearm bans, like the [unlawful use of a weapon by a felon] and [armed

habitual criminal] statutes, do not impose a burden on conduct falling within the scope of the

second amendment”); People v. Garvin, 2013 IL App (1st) 113095, ¶¶ 33, 40 (considering the

constitutionality of both the unlawful use of a weapon by a felon and armed habitual criminal

statutes); People v. Black, 2012 IL App (1st) 110055, ¶ 13 (holding the armed habitual criminal

statute could prohibit defendant felon from possessing a firearm in his own home); People v.

Ross, 407 Ill. App. 3d 931, 942 (2011) (holding the armed habitual criminal statute is a

constitutionally permissible restriction of the second amendment right to bear arms). The breadth

of authority supports a conclusion that dispossessing felons from bearing arms is outside the

scope of the second amendment.

¶ 19   However, our supreme court in Chairez agreed with other courts that “some level of

scrutiny” should apply even to regulations which are “presumptively lawful.” Chairez, 2018 IL

121417, ¶ 30 (citing United States v. Williams, 616 F.3d 685, 692 (7th Cir. 2010) (explaining

that courts should apply some level of scrutiny even to regulations identified in Heller as

presumptively lawful); Woollard v. Gallagher, 712 F.3d 865, 875 (4th Cir. 2013) (stating that the

court was not “obliged to impart a definitive ruling at the first step” but, rather, “deemed it

prudent” to resolve some post-Heller challenges to firearm prohibitions at the second step); and

National Rifle Ass’n of America, Inc. v. Bureau of Alcohol, Tobacco, Firearms, & Explosives,

700 F.3d 185, 204 (5th Cir. 2012) (“Although we are inclined to uphold the challenged federal

laws [banning the sale of firearms to persons under the age of 21] at step one of our analytical



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framework, in an abundance of caution, we proceed to step two.”)). Therefore, we will follow

Chairez and proceed to step two of the analysis, which requires this court to apply “the

appropriate level of heightened means-ends scrutiny and consider the strength of the

government’s justification for restricting or regulating the exercise of second amendment rights.”

Chairez, 2018 IL 121417, ¶ 21; see Garvin, 2013 IL App (1st) 113095, ¶ 34 (holding felon-based

firearm bans do not impose a burden on conduct falling within the scope of the second

amendment but also examining whether the unlawful use of a weapon by a felon statute passed

constitutional scrutiny). Since defendant raises an as-applied challenge to the statute, our second-

step analysis will include a consideration of defendant’s particular circumstances, namely the age

and nature of his prior felony convictions along with his potential for rehabilitation. See Chairez,

2018 IL 121417, ¶ 30; Campbell, 2014 IL App (1st) 112926, ¶ 57.

¶ 20   We, however, must first determine the appropriate level of scrutiny in this case. In

Chairez, our supreme court examined Heller and relevant Seventh Circuit cases and found that

the heightened means-end analysis involves a sliding-scale approach. Chairez, 2018 IL 121417,

¶ 35. The court explained:

       “[S]tep two of our second amendment analysis begins with a balance of considerations

       where the quantity and persuasiveness of the State’s evidence required to justify the

       challenged restrictions varies depending on how much it affects the core second

       amendment right to armed self-defense and whose right it affects. [Citation.] The rigor of

       this means-end analysis ‘depends on “how close the law comes to the core of the Second

       Amendment right and the severity of the law’s burden on the right.” ’ [Citation.] The

       closer in proximity the restricted activity is to the core of the second amendment right

       and the more people affected by the restriction, the more rigorous the means-end review.



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       If the State cannot proffer evidence establishing both the law’s strong public-interest

       justification and its close fit to this end, the law must be held unconstitutional.

       [Citation.]” Id. ¶ 45.

See also Wilson v. County of Cook, 2012 IL 112026, ¶¶ 41-42.

¶ 21   To determine where on the sliding scale of intermediate scrutiny the armed habitual

criminal statute should be analyzed, we must first determine the breadth of the statute and the

severity of its burden on the second amendment. Chairez, 2018 IL 121417, ¶ 46.

¶ 22   One commits the offense of armed habitual criminal when he or she receives, sells,

possesses, or transfers any firearm after having been twice convicted of certain felonies

enumerated in the statute. 720 ILCS 5/24-1.7(a)(2), (3) (West 2012). The core right protected by

the second amendment is the right to self-defense, inside and outside the home. See Chairez,

2018 IL 121417, ¶ 48. As applied to defendant in this case, the armed habitual criminal statute

prohibits him from possessing a firearm, as he was a twice-convicted felon, with prior

convictions of unlawful use of a weapon by a felon and manufacture/delivery of a controlled

substance. See 720 ILCS 5/24-1.7(a)(2), (3) (West 2012). As discussed previously, prohibiting

felons from possessing firearms falls outside the scope of the second amendment. See Campbell,

2014 IL App (1st) 112926, ¶ 60. In addition, those individuals who can be classified as twice-

convicted felons (i.e., having two of the specific felonies as listed in the armed habitual criminal

statute) constitute a relatively narrow group in relationship to the entire population. Therefore,

because restricting felons from possessing firearms is not in close proximity to the core of the

second amendment right and a narrow group of individuals is affected by the restriction, the

intermediate scrutiny is less rigorous. See Chairez, 2018 IL 121417, ¶ 45; Wilson, 2012 IL

112026, ¶ 42 (acknowledging that “courts generally recognize that Heller rejected rational-basis



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review [of second amendment claims] and requires some form of heightened scrutiny”); see also

Montgomery, 2016 IL App (1st) 142143, ¶ 18 (finding the armed habitual criminal statute to be

constitutional under either rational basis or intermediate scrutiny); Ross, 407 Ill. App. 3d at 939

(applying intermediate scrutiny standard in upholding the constitutionality of the armed habitual

criminal statute). “To withstand intermediate scrutiny, the legislative enactment must be

substantially related to an important governmental interest.” Napleton v. Village of Hinsdale, 229

Ill. 2d 296, 308 (2008). To survive such intermediate scrutiny, the fit between the challenged

regulation and the asserted governmental objective need only be reasonable. People v. Fields,

2014 IL App (1st) 130209, ¶ 60.

¶ 23    Applying the level of intermediate scrutiny discussed, we conclude that the restrictions of

the armed habitual criminal statute are a tight fit with its public interest justification. It is well-

settled that prohibitions on the possession of firearms by felons are a permissible restriction on

the constitutional right to bear arms. Heller, 554 U.S. at 626. The legislature enjoys wide latitude

in prescribing criminal penalties under its police power and has an obligation to protect its

citizens from known criminals. Robinson, 2011 IL App (1st) 100078, ¶ 31. Moreover, “[i]t is

deeply rooted in our jurisprudence that the government inherently possesses and may lawfully

exercise ‘such power of restraint upon private rights as may be found to be necessary and

appropriate to promote the health, comfort, safety and welfare of society and may enact

prohibitions to promote the general welfare even though the prohibition invade[s] the right of

liberty or property of an individual.’ ” Ross, 407 Ill. App. 3d at 942 (quoting Napleton, 229 Ill.

2d at 310). The armed habitual criminal statute reflects the legitimate governmental interest in

preventing the danger associated with repeat felons having firearms. Black, 2012 IL App (1st)

110055, ¶ 13; see Ross, 407 Ill. App. 3d at 942; Garvin, 2013 IL App (1st) 113095, ¶ 40.



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Furthermore, the armed habitual criminal statute is not a comprehensive ban, but rather it affects

only a certain limited class of people, namely those individuals who have been twice convicted

of certain defined felonies. See 720 ILCS 5/24-1.7 (West 2012). We find the armed habitual

criminal statute does not restrict activity that is at the core of the second amendment, addresses a

significant government interest, and has restrictions closely related to that interest.

¶ 24   Defendant argues that the armed habitual criminal statute is unconstitutional as applied to

him because (1) his prior felony convictions were nonviolent and occurred over 20 years ago and

(2) he has been rehabilitated since his last felony conviction in 1992. Defendant cites to Binderup

v. Attorney General, 836 F.3d 336, 356-57 (3d Cir. 2016) (opinion of Ambro, J., joined by Smith

and Greenway Jr., JJ.), Britt v. State, 681 S.E.2d 320 (N.C. 2009), and Baysden v. State, 718

S.E.2d 699 (N.C. Ct. App. 2011) in support of his position.

¶ 25   Defendant relies primarily on the case of Binderup to demonstrate that the armed habitual

criminal statute must be held unconstitutional as applied to him. 2 Binderup involved complaints

for declaratory and injunctive relief filed in two separate Pennsylvania federal district courts by

two plaintiffs, Daniel Binderup and Julio Suarez (the challengers). Binderup, 836 F.3d at 340

(majority opinion). Binderup had pled guilty in a Pennsylvania state court to corrupting a minor,

a misdemeanor subject to possible imprisonment for up to five years. Id. His sentence, however,

“was the colloquial slap on the wrist: probation (three years) and a $300 fine plus court costs and

restitution.” Id. Suarez, while in Maryland, pled guilty in state court to unlawfully carrying a

handgun without a license, a misdemeanor subject to possible imprisonment for not less than 30

days and not more than three years or a specified fine. Id. Suarez received a suspended sentence

of 180 days’ imprisonment and a $500 fine, followed by a year of probation. Id. Pennsylvania

law disqualified the challengers from possessing firearms due to their convictions, but in 2009
       2
        We observe that Binderup was a fractured, plurality decision. See Binderup, 836 F.3d at 338.
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they successfully petitioned the Pennsylvania courts to remove that prohibition. Id. Federal law,

however, continued to bar them from possessing firearms because their convictions had not been

expunged or set aside, they had not been pardoned, and their civil rights had not been restored.

Id.; 18 U.S.C. § 922(g)(1) (2006) (prohibiting possession of firearms by any person convicted in

any court of “a crime punishable by imprisonment for a term exceeding one year”); see 18

U.S.C. § 921(a)(20) (2006). They argued that, as a matter of statutory construction, the federal

law (id. § 922(g)(1)) did not apply to their convictions and, if it did, the statute was

unconstitutional as applied to them. Binderup, 836 F.3d at 340 (majority opinion).

¶ 26   The federal district court rejected their statutory argument, but held that section 922(g)(1)

was unconstitutional as applied. Id. at 340-41. The Court of Appeals for the Third Circuit, en

banc, considered the challengers’ as-applied argument under a two-step test. Id. at 347 (opinion

of Ambro, J., joined by Fuentes, Smith, Greenway Jr., Vanaskie, Krause, and Roth, JJ.). In

considering the first step, the Binderup court observed that most “scholars of the Second

Amendment agree that the right to bear arms was tied to the concept of a virtuous citizenry and

that, accordingly, the government could disarm unvirtuous citizens.” (Internal quotation marks

omitted.) Id. at 348 (quoting United States v. Yancey, 621 F.3d 681, 684-85 (7th Cir. 2010)). The

court further observed that Heller “recognized ‘longstanding prohibitions on the possession of

firearms by felons,’ not just violent felons” and therefore concluded that “[t]he category of

‘unvirtuous citizens’ is thus broader than violent criminals; it covers any person who has

committed a serious criminal offense, violent or nonviolent.” (Emphasis added.) Id. (quoting

Heller, 554 U.S. at 626).

¶ 27   Having found that only those convicted of “serious crimes” can forfeit their right to

possess firearms, the Binderup court went on to step two and determined that there was “not a



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substantial fit between the continuing disarmament of the [c]hallengers and an important

government interest.” Id. at 356 (opinion of Ambro, J., joined by Smith and Greenway Jr., JJ.).

In so finding, the court discussed four defining factors that were unique to the challengers’ prior

felonies: (1) the state legislatures had enacted the offenses as misdemeanors, which “are, and

traditionally have been, considered less serious than felonies”; (2) the lack of violence involved

in the offense; (3) the minor sentences imposed; and (4) a lack of a “cross-jurisdictional

consensus regarding the seriousness of the [c]hallengers’ crimes.” Id. at 351-52. In sum, the

Binderup court concluded that “[t]he [c]hallengers’ isolated, decades-old, non-violent

misdemeanors do not permit the inference that disarming people like them will promote the

responsible use of firearms.” Id. at 356

¶ 28   In the present case, we find defendant’s particular circumstances distinguish him from the

challengers in Binderup. Our state legislature has classified defendant’s prior offenses

(manufacture/delivery of a controlled substance offense and unlawful use of a weapon by a

felon) as felonies, not misdemeanors as in Binderup. See 720 ILCS 570/401 (West 2012); 720

ILCS 5/24-1.1 (West 2012). Even the Binderup court itself noted that a state-law felon’s “burden

would be extraordinarily high—and perhaps even insurmountable” to demonstrate that the crime

was not serious. Binderup, 836 F.3d at 353 n.6 (opinion of Ambro, J., joined by Smith and

Greenway Jr., JJ.). Additionally, unlike the challengers in Binderup, defendant here waited until

after he was convicted of being in possession of a firearm to challenge the constitutionality of the

armed habitual criminal statute. While defendant was initially sentenced to probation for his

manufacture/delivery of a controlled substance offense, he subsequently violated his probation

and was sentenced to three years’ imprisonment. Defendant was also sentenced to three years’

imprisonment for the unlawful use of a weapon by a felon conviction. In contrast, the Binderup



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challengers were never imprisoned. Finally, we observe that our Illinois jurisprudence has

consistently upheld the constitutionality of the armed habitual criminal statute against facial and

as-applied challenges even where the underlying felony was nonviolent. See Montgomery, 2016

IL App (1st) 142143, ¶ 19.

¶ 29   Defendant maintains that, like the challengers in Binderup, his prior felony offenses were

nonviolent. In response, the State disagrees and posits that defendant’s drug conviction is

equivalent to a violent offense, citing United States v. Torres-Rosario, 658 F.3d 110, 113 (1st

Cir. 2011) (“drug dealing is notoriously linked to violence” and “[a]ssuming arguendo that the

Supreme Court might find some felonies so tame and technical as to be insufficient to justify the

ban, drug dealing is not likely to be among them”). We observe that the armed habitual criminal

statute does not provide any exceptions for a person convicted of nonviolent felonies. Moreover,

unlike the statutes involved in Binderup, our state legislature expressly included within the

armed habitual criminal statute that “any violation of the Illinois Controlled Substances Act or

the Cannabis Control Act that is punishable as a Class 3 felony or higher” is a qualifying felony.

720 ILCS 5/24-1.7(a)(3) (West 2012). Thus, our legislature already contemplated what was

discussed in Binderup—that only those convicted of “serious crimes” can forfeit their right to

possess firearms. See Binderup, 836 F.3d at 351 (opinion of Ambro, J., joined by Smith and

Greenway Jr., JJ,). Accordingly, we decline to find that the armed habitual criminal statute is

unconstitutional as applied to defendant even if his previous felonies could be considered

nonviolent.

¶ 30   In so concluding, we find Montgomery to be instructive. In Montgomery, the defendant

was found guilty of being an armed habitual criminal and unlawful use of a weapon by a felon

after police seized firearms and ammunition from his home during the execution of a search



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warrant. Montgomery, 2016 IL App (1st) 142143, ¶ 1. On appeal, the defendant argued that the

statutes were unconstitutional as applied to him because his prior felony convictions were

nonviolent and he kept the firearms for protection. Id. ¶ 8. The Montgomery court first concluded

that neither statute implicated the second amendment where the Supreme Court in Heller “noted

that its decision does not cast doubt on the longstanding prohibitions on, inter alia, the

possession of firearms by felons” and “our [Illinois] [S]upreme [C]ourt [has] expressed its

approval of felon-based bans on firearm possession.” Id. ¶¶ 14-15 (citing Heller, 554 U.S. at

626-27, and Aguilar, 2013 IL 112116, ¶ 26). The reviewing court further observed that “this

court has consistently rejected constitutional challenges to the statutes at issue here” and thus

declined to depart from these holdings. Id. ¶ 16 (citing, in pertinent part, Campbell, 2014 IL App

(1st) 112926, ¶ 60 (holding “felon-based firearm bans, like the [unlawful use of a weapon by a

felon] and [armed habitual criminal] statutes, do not impose a burden on conduct falling within

the scope of the second amendment”)); see Garvin, 2013 IL App (1st) 113095, ¶ 40 (finding the

unlawful use of a weapon by a felon statute, like the armed habitual criminal statute, is a valid

exercise of Illinois’s right to protect the health, safety, and general welfare of its citizens of the

potential danger posed by convicted felons in possession of firearms or firearm ammunition);

Black, 2012 IL App (1st) 110055, ¶ 13 (holding armed habitual criminal statute could prohibit

the defendant-felon from possessing a firearm in his own home); Ross, 407 Ill. App. 3d at 942

(holding the armed habitual criminal statute is a constitutionally permitted restriction of the

second amendment right to bear arms).

¶ 31    Second, the Montgomery court rejected defendant’s as-applied challenge to the unlawful

use of a weapon by a felon statute, observing (as we have here) that the unlawful use of a

weapon by a felon statute “does not provide any exceptions for persons convicted of nonviolent



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felonies” and that no such exception was recognized by the Supreme Court in Heller and

McDonald. Montgomery, 2016 IL App (1st) 142143, ¶ 19 (citing 720 ILCS 5/24-1.1(a) (West

2012) and People v. Spencer, 2012 IL App (1st) 102094, ¶ 32 (finding even if the defendant had

made a procedurally proper as-applied constitutional challenge to the unlawful use of a weapon

by a felon statute, the court would still reject his claims where the unlawful use of a weapon by a

felon statute does not include an exception for persons convicted of nonviolent felonies and

neither Heller nor McDonald recognized such an exception)). The Montgomery court thus

concluded that the statute is not unconstitutional as applied to the defendant even though his

previous felonies were nonviolent. Id.

¶ 32   Defendant cites no relevant authority in support of his additional claims that the age of

his felony convictions and his rehabilitation since completing those sentences render the armed

habitual criminal statute unconstitutional as applied to him. Defendant cites two cases having no

precedential value in this court, Britt and Baysden, to support these claims. Britt and Baysden

involve similar sets of facts. The plaintiffs in each case had been convicted of nonviolent felonies

in the 1970s. Britt, 681 S.E.2d at 321; Baysden, 718 S.E.2d at 701. After completing their

respective sentences, their civil rights were fully restored by operation of law, including their

right to possess a firearm. Britt, 681 S.E.2d at 321; Baysden, 718 S.E.2d at 701. Both plaintiffs

owned firearms for 17 years or more without any incident until the North Carolina General

Assembly changed the law in 2004 and prohibited the possession of all firearms by any person

convicted of any felony. Britt, 681 S.E.2d at 321; Baysden, 718 S.E.2d at 701-02. Thereafter, the

plaintiffs intentionally divested themselves of their firearms and filed suits in North Carolina

state courts challenging the law as unconstitutional. In undertaking a rational basis review, the

North Carolina courts ultimately concluded that the law was unconstitutional as applied to the



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plaintiffs. Britt, 681 S.E.2d at 323; Baysden, 718 S.E.2d at 703-04. As stated in Britt,

       “[p]laintiff, through his uncontested lifelong nonviolence towards other citizens, his thirty

       years of law-abiding conduct since his crime, his seventeen years of responsible, lawful

       firearm possession between 1987 and 2004, and his assiduous and proactive compliance

       with the 2004 amendment, has affirmatively demonstrated that he is not among the class

       of citizens who pose a threat to public peace and safety.” Britt, 681 S.E.2d at 323.

See Baysden, 718 S.E.2d at 704.

¶ 33   We decline to consider these cases as persuasive authority as the plaintiffs in those cases

conclusively demonstrated their respect for the law by divesting themselves of their weapons

when the law changed and sought redress through the judicial system. Unlike the Britt and

Baysden plaintiffs, defendant here possessed a firearm knowing that he was a twice-convicted

felon and only sought to challenge the law regarding his possession of a firearm after he was

charged with the weapons-related offenses. These facts cut against defendant’s argument that he

has been rehabilitated. Moreover, we observe the courts in Britt and Baysden applied a rational

basis inquiry. Britt, 681 S.E.2d at 323; Baysden, 718 S.E.2d at 703-04. Furthermore, it is notable

that the North Carolina plaintiffs were legally allowed to possess weapons for 17 years prior to

the change in the law that made their possession of firearms illegal. Britt, 681 S.E.2d at 321;

Baysden, 718 S.E.2d at 701-02.

¶ 34   Defendant also asserts that the fact his first felony conviction for manufacture/delivery of

a controlled substance, which occurred when he was age 17, is now no longer punishable as an

adult offense supports his conclusion that the armed habitual criminal statute is unconstitutional

as applied. Defendant, however, cites no relevant authority that a subsequent change in the law

has any bearing on the nature of his first felony conviction or his status as a felon. Accordingly,



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we find this argument to be forfeited. See Ill. S. Ct. R. 341(h)(7) (eff. July 1, 2017); People v.

Hunt, 234 Ill. 2d 49, 67 (2009) (points not argued with citation to authority are forfeited).

¶ 35   In sum, the armed habitual criminal statute “is a valid exercise of Illinois’s right to

protect the health, safety, and general welfare of its citizens from the potential danger posed by

convicted felons in possession of firearms” and survives intermediate scrutiny. Garvin, 2013 IL

App (1st) 113095, ¶ 40. The application of the armed habitual criminal statute is not

unconstitutional as applied to defendant, who committed two prior felonies, despite his assertions

that these were older, nonviolent felonies and that he has since been rehabilitated. Accordingly,

we hold that the judgment of the circuit court is affirmed.

¶ 36                                      CONCLUSION

¶ 37   For the reasons stated above, the armed habitual criminal statute is not unconstitutional as

applied to defendant. Therefore, we affirm the judgment of the circuit court of Cook County.

¶ 38   Affirmed.




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