                             ILLINOIS OFFICIAL REPORTS
                                          Appellate Court




                           People v. Montyce H., 2011 IL App (1st) 101788




Appellate Court              THE PEOPLE OF THE STATE OF ILLINOIS, Petitioner-Appellee, v.
Caption                      MONTYCE H., Respondent-Appellant.



District & No.               First District, Sixth Division
                             Docket No. 1-10-1788


Filed                        November 18, 2011


Held                         The adjudication that respondent minor was delinquent based on
(Note: This syllabus         aggravated unlawful use of a weapon was upheld over his contention that
constitutes no part of       the aggravated unlawful use of a weapon statute violated the
the opinion of the court     constitutional right to bear arms, since the statute does not offend the
but has been prepared        second amendment, it serves an important governmental objective, and
by the Reporter of           the statute employs means substantially related to its objective.
Decisions for the
convenience of the
reader.)


Decision Under               Appeal from the Circuit Court of Cook County, No. 09-JD-3959; the
Review                       Hon. Carl Anthony Walker, Judge, presiding.


Judgment                     Affirmed.
Counsel on                 Michael J. Pelletier, Alan D. Goldberg, and Thomas G. Gonzalez, all of
Appeal                     State Appellate Defender’s Office, of Chicago, for appellant.

                           Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
                           Douglas P. Harvath, and Jessica R. Bargmann, Assistant State’s
                           Attorneys, of counsel), for the People.


Panel                      PRESIDING JUSTICE R. GORDON delivered the judgment of the court
                           with opinion.
                           Justices Cahill and Lampkin concurred in the judgment and opinion.



                                             OPINION

¶1          The sole issue on this direct appeal is whether the aggravated unlawful use of a weapon
        statute, insofar as it criminalizes the possession of a loaded, uncased and accessible firearm
        outside the home, violates the constitutional right to bear arms. Respondent concedes that
        the Illinois Appellate Court has considered several times whether this exact same statute
        violates this exact same right and has held that it does not, every time. People v. Dawson,
        403 Ill. App. 3d 499, 510 (2010); People v. Aguilar, 408 Ill. App. 3d 136, 142-150 (2011);
        People v. Mimes, 2011 IL App (1st) 082747, ¶ 82 (“defendant’s AUUW conviction must
        stand because the challenged statutory provisions do not violate either the second amendment
        or the Illinois Constitution”). However, he asks us to find that our precedent was wrongly
        decided. This we decline to do. Therefore, we affirm his adjudication of delinquency.
¶2          Respondent Montyce H. was 15 years old when he was arrested and charged on
        September 29, 2009, in a petition for adjudication of wardship. The petition contained a total
        of four counts: three counts of aggravated unlawful use of a weapon (720 ILCS 5/24-1.6(a)
        (West 2008)), and one count of unlawful possession of a firearm (720 ILCS 5/24-3.1 (West
        2008)). After a trial on December 30, 2009, the trial court “hereby found” respondent “to be
        delinquent on all 4 counts.” However, the trial court then stated that it was entering judgment
        on only the first count and that the other counts were “merged into one.” On May 13, 2010,
        the trial court sentenced respondent to 18 months of probation
¶3          The only count upon which judgment was entered was a count for aggravated unlawful
        use of a firearm. The statute for aggravated unlawful use of a firearm lists several different
        “factors,” any one of which will make the use “aggravated.” 720 ILCS 5/24-1.6(a)(3) (West
        2008). The count supporting respondent’s conviction charged the “factor[ ]” that the firearm
        “was uncased, loaded and immediately accessible.” 720 ILCS 5/24-1.6(a)(3)(A) (West 2008).
        The statute criminalizes possession of an uncased, loaded and accessible firearm, only if it
        is outside the home. 720 ILCS 5/24-1.6(a)(1) (West 2008).
¶4          In his appellate brief, respondent raised two claims: (1) that the aggravated unlawful use

                                                 -2-
       of a weapon statute, which criminalizes the possession of a loaded, uncased and accessible
       firearm outside the home, violates both federal and state guarantees of the right to bear arms;
       and (2) that the unlawful possession of firearms statute, insofar as it criminalizes a 15-year-
       old’s possession of a handgun, violates both the federal and state guarantees of the right to
       bear arms.
¶5          Since respondent was found delinquent on an aggravated use count, the unlawful
       possession statute is not properly before us. Aguilar, 408 Ill. App. 3d at 150 (“we find that
       we cannot review defendant’s conviction for unlawful possession of a firearm because the
       trial court did not impose sentence”); People v. Baldwin, 199 Ill. 2d 1, 5 (2002) (“Absent a
       sentence, a conviction is not a final and appealable judgment.”). In addition, although
       respondent claims in the headings in his brief to be raising a state challenge as well as a
       federal challenge, there is no discussion of the Illinois constitutional right in his brief. His
       discussion of the aggravated use statute is based entirely on the second amendment right
       found in the United States constitution and the case law interpreting it. “Points not argued
       are waived ***.” Ill. S. Ct. R. 341(h)(7) (eff. July 1, 2008); Wilson v. Cook County, 407 Ill.
       App. 3d 759, 775-76 (2011) (finding that plaintiffs had waived any argument concerning the
       Illinois Constitution’s right to bear arms where they made a “one-sentence statement” and
       failed to provide any support or analysis).
¶6          Thus, the issue before us on this appeal is solely whether the aggravated unlawful use of
       a weapon statute, insofar as it criminalizes the possession of a loaded, uncased and accessible
       firearm outside the home, violates the federal constitutional right to bear arms.

¶7                                        BACKGROUND
¶8        On this direct appeal, the facts are not in dispute. Respondent in his brief to this court
       admits that the following facts are true:
              “On September 28, 2009, around 9:43 p.m. Officer Pedraza was on patrol with
          another marked squad car on the 6400 block of South Peoria when officers noticed a
          white vehicle double parked in the middle of the road partially blocking traffic. The
          police cars stopped next to the white car. A male identified in court as Montyce was
          leaning inside the white car on the passenger’s side. Once the officers pulled up, Montyce
          looked in their direction and ran off grabbing his waistband as he ran. A foot chase
          ensued, during which Montyce tossed a gun in a nearby gangway. Montyce was quickly
          arrested a couple [of] houses away.
              Officer Pedroza recovered the loaded handgun from the gangway and kept it in his
          possession until he tendered it at the station to one of his partners for inventory. The gun
          was inventoried in Pedroza’s possession.”
       Thus, in his brief to this court, respondent admits that “Montyce tossed a gun in a nearby
       gangway.”

¶9                                     ANALYSIS
¶ 10      As we previously observed, the sole issue on this appeal is whether the aggravated


                                                 -3-
       unlawful use of a weapon statute, insofar as it criminalizes the possession of a loaded,
       uncased and accessible firearm outside the home, violates the federal constitutional right to
       bear arms.

¶ 11                                    I. Standard of Review
¶ 12        The question of a statute’s constitutionality is reviewed de novo. People ex rel. Birkett
       v. Konetski, 233 Ill. 2d 185, 200 (2009); People v. Cornelius, 213 Ill. 2d 178, 188 (2004).
       Statutes are presumed to be constitutional, and the party challenging the constitutionality of
       a statute has the burden of overcoming this presumption. Cornelius, 213 Ill. 2d at 189. After
       listening to the parties’ arguments, a reviewing court should attempt to construe the statute
       as constitutional. Cornelius, 213 Ill. 2d at 189. If the reviewing court has any doubt about
       how to construe the statute, it should resolve that doubt in favor of finding the statute
       constitutional. Cornelius, 213 Ill. 2d at 189. “This is not to mean that statutes are
       unassailable” but, rather, that they enjoy a strong presumption of validity. Cornelius, 213 Ill.
       2d at 190.
¶ 13        Although respondent did not challenge the constitutionality of the statute at trial, a
       constitutional challenge to a criminal statute can generally be raised at any time. In re J.W.,
       204 Ill. 2d 50, 61 (2003). Accordingly, respondent has not waived his constitutional
       challenge to the statute, even though he first raised this challenge in the appellate court. J.W.,
       204 Ill. 2d at 61-62.

¶ 14                              II. Facial and Applied Challenges
¶ 15        Respondent challenges the constitutionality of the statute both as applied and on its face.
       “The difference between an as-applied and a facial challenge is that if a plaintiff[1] prevails
       in an as-applied claim, he may enjoin the objectionable enforcement of a statute only against
       himself, while a successful facial challenge voids enactment in its entirety and in all
       applications.” Morr-Fitz, Inc. v. Blagojevich, 231 Ill. 2d 474, 498 (2008).
¶ 16        This difference affects the scope of our review, because the facts of a defendant’s case
       become relevant only if he or she brings an as-applied challenge. In an “as-applied”
       challenge, the challenging party contests only how the statute was applied against him or her
       within a particular context, and as a result, the facts of his or her particular case become
       relevant. Napleton v. Village of Hinsdale, 229 Ill. 2d 296, 306 (2008). By contrast, in a facial
       challenge, the facts of his or her particular case do not affect our review.
¶ 17        Since a successful facial challenge will void the statute for all parties in all contexts, it
       is “the most difficult challenge to mount successfully.” Napleton, 229 Ill. 2d at 305. “ ‘Facial
       invalidation “is, manifestly, strong medicine” that “has been employed by the court sparingly
       and only as a last resort.” ’ ” Poo-bah Enterprises, Inc. v. County of Cook, 232 Ill. 2d 463,
       473 (2009) (quoting National Endowment for the Arts v. Finley, 524 U.S. 569, 580 (1998),
       quoting Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973)).


               1
               This quote is from a civil case.

                                                  -4-
¶ 18       Respondent claims that the statute is unconstitutional, not only on its face, but also as
       applied to him. However, he offers no separate “as applied” arguments, and we can think of
       no reason why a 15-year-old would have a greater right to possess a loaded handgun on the
       street than an adult. The United States Supreme Court has recently emphasized that the need
       for self-defense in the home is at the core of the second amendment. McDonald v. City of
       Chicago, 561 U.S. ___, ___, 130 S. Ct. 3020, 3050 (2010) (plurality op.) (“the Second
       Amendment protects the right to possess a handgun in the home for the purpose of self-
       defense”). However, respondent has not argued that, at the moment of his offense, he had
       specific fears or a heightened need for self-defense or that he was anywhere near or en route
       to his home. Thus, we find unpersuasive his assertion of an “as applied” challenge, and we
       will proceed to review his arguments in the context of a facial challenge.

¶ 19                        III. Constitutional Right and Statute at Issue
¶ 20       The constitutional right at issue is the right to bear arms. The second amendment to the
       federal constitution provides that: “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.
¶ 21       The statute at issue is quoted below. As we noted above, the trial court found respondent
       delinquent based on count I in the delinquency petition, and count I charged him with
       violating the following statute:
           “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[.]” 720 ILCS 5/24-1.6(a)(1), (a)(3)(A) (West 2008).
¶ 22       Section (1) quoted above was amended by Public Act 96-742 to state “except when on
       his or her land or in his or her own abode, legal dwelling, or fixed place of business, or on
       the land or in the legal dwelling of another person as an invitee with that person’s
       permission.” Pub. Act 96-742 (eff. Aug. 25, 2009) (italics denotes new language); Aguilar,
       408 Ill. App. 3d at 139-40. In essence, our legislature amended the statute to expand the
       exceptions section to include in his or her “legal dwelling” and when he or she is “on the
       land or in the legal dwelling of another person as an invitee with that person’s permission.”
       Pub. Act 96-742 (eff. Aug. 25, 2009); Aguilar, 408 Ill. App. 3d at 140. This expansion
       became effective prior to respondent’s offense date. However, neither party is arguing that
       these new exceptions apply to the case at bar. Therefore, the discrepancy between the statute
       as charged and the amended statute has no effect on our review.
¶ 23       As we previously observed, the appellate court has upheld the constitutionality of the


                                                -5-
       charged statute, several times. Dawson, 403 Ill. App. 3d at 510 (recent United States
       Supreme Court cases “do not define the fundamental right to bear arms to include activity
       barred by the AUUW statute”); Aguilar, 408 Ill. App. 3d at 146 (“[w]e find that the AUUW
       statute does not violate defendant’s second amendment rights”); Mimes, 2011 IL App (1st)
       082747, ¶ 82 (“defendant’s AUUW conviction must stand because the challenged statutory
       provisions do not violate either the second amendment or the Illinois Constitution”).2 In all
       three of these cases, the appellate court considered the exact same factor of the same statute
       that is before us now (720 ILCS 5/24-1.6(a)(3)(A) (West 2008)) and upheld it against a
       second amendment challenge. Aguilar, 408 Ill. App. 3d at 142 (deciding that the
       preamendment statute applied to the case before it); Dawson, 403 Ill. App. 3d at 506 (quoting
       statute); Mimes, 2011 IL App (1st) 082747, ¶ 51 (quoting statute).
¶ 24       Respondent’s first argument is that the Illinois “ban on loaded handguns outside of one’s
       home contradicts the founder’s intent,” and he cites in support the United States Supreme
       Court’s decision in District of Columbia v. Heller, 554 U.S. 570 (2008), as well as its
       decision in McDonald v. City of Chicago, ___ U.S. ___, 130 S. Ct. 3020 (2009).
¶ 25       In Heller, the United States Supreme Court stated: “we hold that the District [of
       Columbia’s] ban on handgun possession in the home violates the Second Amendment, as
       does its prohibition against rendering any lawful firearm in the home operable for the purpose
       of immediate self-defense.” (Emphasis added.) Heller, 554 U.S. at 635.
¶ 26       In McDonald, a plurality of the Court found that the right recognized in Heller was
       applicable to the states through the due process clause of the fourteenth amendment.
       McDonald, 561 U.S. at ___, 130 S. Ct. at 3050. The plurality stated: “In Heller, we held that
       the Second Amendment protects the right to possess a handgun in the home for the purpose
       of self-defense. *** We therefore hold that the Due Process Clause of the Fourteenth
       Amendment incorporates the Second Amendment right recognized in Heller.” (Emphasis
       added.) McDonald, 561 U.S. at ___, 130 S. Ct. at 3050.
¶ 27       Respondent relies on these recent United States Supreme Court cases to argue that a ban
       on loaded handguns outside of one’s home violates the second amendment. The Illinois
       Appellate Court has rejected this argument at least three times before in published opinions.
       In Aguilar, we found that “the decisions in Heller and McDonald were limited to interpreting
       the second amendment’s protection of the right to possess handguns in the home, not the
       right to possess handguns outside the home.” Aguilar, 408 Ill. App. 3d at 143. Again in
       Dawson, we stated “the Heller Court ultimately limited its holding to the question
       presented–that the second amendment right to bear arms protected the right to possess a
       commonly used firearm *** in the home for self-defense purposes. [Citation.] McDonald
       also addressed the limited question of whether a ban on the possession of a handgun in the
       home violated the second amendment right to bear arms.” Dawson, 403 Ill. App. 3d at 508.


               2
               In People v. Williams, 405 Ill. App. 3d 958 (2010), the Fourth Division of the First District
       affirmed the defendant’s AUUW conviction based on carrying a pistol in his pocket as he walked
       down the street. However, our supreme court later directed the Fourth Division to vacate that
       judgment on other grounds. People v. Williams, No. 111594 (Ill. Sept. 28, 2011) (supervisory order).

                                                   -6-
       And again in People v. Ross, 407 Ill. App. 3d 931 (2011), we held: “Heller applies only to
       the question presented–that the second amendment right to bear arms protected the right to
       possess a handgun in the home for self-defense purposes. [Citation.] McDonald also
       addressed the limited question of whether a ban on the possession of a handgun in the home
       violated the second amendment right to bear arms.” Ross, 407 Ill. App. 3d at 939-40.
¶ 28       Respondent offers no new argument about why we should depart from our precedent, and
       we decline his offer to do so.
¶ 29       Respondent’s second argument is that the applicable standard of review is strict scrutiny
       and that the statute fails under this test. However, every Illinois appellate panel that has
       considered the applicable level of scrutiny after Heller and McDonald has rejected strict
       scrutiny. See, e.g., Aguilar, 408 Ill. App. 3d at 145 (rejecting strict scrutiny), 146 (“we find
       intermediate scrutiny to be the appropriate standard in the present case” for the aggravated
       unlawful use of a weapon statute); Mimes, 2011 IL App (1st) 082747, ¶ 74 (“We find that
       intermediate scrutiny is the appropriate level of scrutiny to apply to the second amendment
       challenge at issue here,” the aggravated unlawful use of a weapon statute.); Ross, 407 Ill.
       App. 3d at 939 (“Recently, this district in Aguilar [citation] applied the intermediate scrutiny
       standard in upholding the constitutionality of the aggravated unlawful use of a weapon
       statute and we also find it to be the appropriate standard in the present case” involving the
       armed habitual criminal statute.); People v. Davis, 408 Ill. App. 3d 747, 749 (2011) (applying
       intermediate scrutiny to the unlawful use of a weapon by a felon and the armed habitual
       criminal statute); Wilson, 407 Ill. App. 3d at 768 (applying intermediate scrutiny to uphold
       a statute banning assault weapons).3 Again, defendant offers us no new argument about why
       we should depart from our well-established precedent.
¶ 30       Respondent’s third argument is that the statute cannot survive any heightened level of
       scrutiny, whether it be strict scrutiny or an intermediate level of scrutiny.
¶ 31       Under intermediate scrutiny, a regulation can survive only if it (1) serves “important
       governmental objectives” and (2) employs means that are “substantially related to the
       achievement of those objectives.” (Internal quotation marks omitted.) United States v.
       Virginia, 518 U.S. 515, 533 (1996); United States v. Marzzarella, 614 F.3d 85, 98 (3d Cir.
       2010) (the regulation must serve an important objective and “the fit between the challenged
       regulation and the asserted objective [must] be reasonable, not perfect”); People v. Davis,
       408 Ill. App. 3d 747, 749 (2011). Applying this two-part test to the charged statute, we find
       that it passes intermediate scrutiny. This is at least the third time that we have found that this
       same statute passes intermediate scrutiny. Aguilar, 408 Ill. App. 3d at 146 (“We find that the
       AUUW statute does not violate defendant’s second amendment rights because it is
       substantially related to [an] important governmental objective and the fit between the AAUW


               3
                In Williams, the Fourth Division of the First District rejected strict scrutiny and applied the
       rational basis test to affirm defendant’s AUUW conviction. Williams, 405 Ill. App. 3d at 963.
       However, as noted earlier, our Illinois Supreme Court later directed the Fourth Division to vacate
       that opinion on other grounds. People v. Williams, No. 111594 (Ill. Sept. 28, 2011) (supervisory
       order).

                                                     -7-
       statute and the governmental objective [is] reasonable.”); Mimes, 2011 IL App (1st) 082747,
       ¶ 74.
¶ 32        First, we find, as we have found before, that the statute serves an important governmental
       objective. “[T]his court [previously] looked at the history and language of the AUUW statute
       and determined that its overall purpose is to protect the public and police enforcement
       officers from the inherent dangers and threats to safety posed by any person carrying in
       public a loaded and immediately accessible firearm on his [or her] person or in his [or her]
       vehicle.” Mimes, 2011 IL App (1st) 082747, ¶ 75 (citing People v. Marin, 342 Ill. App. 3d
       716, 723-24 (2003)); Aguilar, 408 Ill. App. 3d at 146 (the purpose of the AUUW statute is
       to prevent the inherent dangers to police officers and the public from a person carrying a
       loaded and accessible firearm, even if that person lacks criminal intent (citing People v. Sole,
       357 Ill. App. 3d 988, 992 (2005), citing People v. Pulley, 345 Ill. App. 3d 916, 925 (2004))).
¶ 33        Second, we find, as we have found before, that the means employed by the statute are
       substantially related to its asserted objective. Mimes, 2011 IL App (1st) 082747, ¶ 74. The
       fit between a statute’s method and its objective must be reasonable; but it does not have to
       be perfect. Mimes, 2011 IL App (1st) 082747, ¶ 74; Wilson, 407 Ill. App. 3d at 767 (citing
       United States v. Reese, 627 F.3d 792, 801 (10th Cir. 2010)). As we have explained before,
                “Contrary to defendant’s assertion that the AUUW imposes a ‘blanket prohibition’
            on carrying firearms outside the home, the statute is limited to preventing the carrying
            of loaded, uncased and accessible firearms in public on the street. Certainly, the
            prohibited place at issue here, i.e., in public on the street, is broad. Nevertheless, the
            prohibition is justified by the potential deadly consequences to innocent members of the
            general public when someone carrying a loaded and accessible gun is either mistaken
            about his [or her] need for self-defense or just a poor shot.” Mimes, 2011 IL App (1st)
            082747, ¶ 79.
       Aguilar, 408 Ill. App. 3d at 146 (holding that “the AUUW statute *** is substantially related
       to this important governmental objective”).
¶ 34        Thus, we find that the statute at issue passes intermediate scrutiny.

¶ 35                               IV. Illinois Constitutional Right
¶ 36        In the headings in his appellate brief, respondent claims that the statute also violates our
       state constitution. The Illinois Constitution provides: “Subject only to the police power, the
       right of the individual citizen to keep and bear arms shall not be infringed.” Ill. Const. 1970,
       art. I, § 22.
¶ 37        Although respondent claims in the headings in his brief to be raising a state challenge as
       well as a federal challenge, we previously noted that there is no discussion of the Illinois
       constitutional right in his brief. His discussion of the aggravated use statute is based entirely
       on the second amendment right found in the United States Constitution and the case law
       interpreting it. “Points not argued are waived ***.” Ill. S. Ct. R. 341(h)(7) (eff. July 1, 2008);
       Wilson, 407 Ill. App. 3d at 775-76 (finding that plaintiffs had waived any argument
       concerning the Illinois Constitution’s right to bear arms where they made a “one-sentence
       statement” and failed to provide any support or analysis).

                                                  -8-
¶ 38        Although we find that respondent waived his state constitutional argument by failing to
       argue it, we observe that we have rejected this argument at least twice before. Aguilar, 408
       Ill. App. 3d at 149-50; Mimes, 2011 IL App (1st) 082747, ¶ 82. First, we already found above
       that the second amendment does not afford respondent protection and he “cites no authority
       to persuade us that the protection of his right to bear arms under the Illinois Constitution is
       greater than that afforded under the second amendment.” Mimes, 2011 IL App (1st) 082747,
       ¶ 82. Second, as we explained in Aguilar, the Illinois Supreme Court in Kalodimos v. Village
       of Morton Grove, 103 Ill. 2d 483, 498 (1984), upheld a city ordinance absolutely prohibiting
       the possession of handguns; and, even if this ruling should be revisited in light of Heller and
       McDonald, “only our [Illinois] supreme court may change its [own] holding.” Aguilar, 408
       Ill. App. 3d at 149-50. Thus, we find respondent’s state constitutional argument both waived
       and unpersuasive.

¶ 39                                    CONCLUSION
¶ 40      For the foregoing reasons, we decline respondent’s offer to reject our precedent and we
       continue to hold, as we have before, that the aggravated unlawful use of a weapon statute
       does not offend the second amendment. We therefore affirm the adjudication of delinquency.

¶ 41      Affirmed.




                                                -9-
