                                     2015 IL 117387



                                       IN THE
                               SUPREME COURT
                                           OF
                         THE STATE OF ILLINOIS



                                   (Docket No. 117387)

         THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. EDWARD
                            BURNS, Appellant.


                            Opinion filed December 17, 2015.



        JUSTICE BURKE delivered the judgment of the court, with opinion.

        Justices Freeman, Kilbride, Karmeier, and Theis concurred in the judgment and
     opinion.

        Chief Justice Garman specially concurred, with opinion, joined by Justice
     Thomas.



                                        OPINION

¶1       After a bench trial, defendant was found guilty of violating section
     24-1.6(a)(1), (a)(3)(A) of the aggravated unlawful use of a weapon statute
     (AUUW) (720 ILCS 5/24-1.6(a)(1), (a)(3)(A) (West 2008)) and was sentenced to
     10 years’ imprisonment. Defendant appealed, arguing that his conviction must be
     reversed because section 24-1.6(a)(1), (a)(3)(A) of the AUUW statute was found to
     be unconstitutional in People v. Aguilar, 2013 IL 112116.
¶2       The appellate court affirmed defendant’s conviction, finding that, in Aguilar,
     this court limited its finding of unconstitutionality to the “Class 4 form” of the
     offense. 2013 IL App (1st) 120929. The appellate court then held that the “Class 2
     form” of the offense, which is applicable to felons, like defendant, is constitutional
     and enforceable. Id. ¶ 27.

¶3      Defendant filed a petition for leave to appeal, pursuant to Illinois Supreme
     Court Rules 315 and 612 (Ill. S. Ct. R. 315 (eff. July 1, 2013); R. 612 (eff. Feb. 6,
     2013)), which we granted. We now reverse the judgment of the appellate court.



¶4                                    BACKGROUND

¶5       On June 13, 2009, at about 4 a.m., two police officers in a marked police squad
     car responded to a dispatch call of “shots fired” in the area of 73rd and Blackstone
     in the city of Chicago. As the officers approached that location, they saw three men
     getting into a black Nissan, which was parked on 73rd Street, facing east. A woman
     was sitting in the driver’s seat.

¶6       Officer McDonough, who was driving the police car, pulled up to the parked
     Nissan, “nose-to-nose,” blocking the Nissan’s exit. As Officer McDonough was
     exiting the police car, he saw the man who had been sitting in the front passenger
     seat of the Nissan—later identified as defendant, Edward Burns—exit the car with
     a gun in his hand. When the officer ordered defendant to “Stop, put your hands up,”
     defendant tossed the handgun back into the car, and fled on foot. Officer
     McDonough pursued defendant and, at one point during the chase, saw defendant
     throw an object to the ground. Officer McDonough recovered the object, which he
     discovered was a magazine or “clip,” loaded with 9-millimeter rounds and then
     continued to pursue defendant, who appeared to be doubling back to the parked
     Nissan.

¶7       When defendant arrived back at the Nissan, he was detained by Officer
     McDonough’s partner, Officer Sobczyk. While Officer McDonough was pursuing
     defendant, Officer Sobczyk had retrieved a gun from the front passenger seat of the
     Nissan. The gun had no clip, but had one live 9-millimeter round in the chamber.
     When Officer McDonough returned to the scene, he found that the clip he had
     retrieved during the chase fit the gun recovered from the car.


                                             -2-
¶8         Defendant was arrested and later charged by an indictment which contained
       eleven counts: Count I alleged that defendant was an armed habitual criminal (720
       ILCS 5/24-1.7 (West 2008)), counts II and III, alleged unlawful use of a weapon by
       a felon (720 ILCS 5/24-1.1 (West 2008)), and counts IV through XI alleged
       aggravated unlawful use of a weapon (720 ILCS 5/24-1.6(a) (West 2008)).

¶9        The AUUW statute provides, in pertinent part:

             “(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 ***[,] or

                  (2) Carries or possesses on or about his or her person, upon any public
              street, alley, or other public lands within the corporate limits of a city,
              village or incorporated town ***; 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; ***

                     ***

                      (C) the person possessing the firearm has not been issued a currently
                  valid Firearm Owner’s Identification Card[.]

                  ***

              (d) Sentence. Aggravated unlawful use of a weapon is a Class 4 felony; a
          second or subsequent offense is a Class 2 felony for which the person shall be
          sentenced to a term of imprisonment of not less than 3 years and not more than
          7 years. Aggravated unlawful use of a weapon by a person who has been
          previously convicted of a felony in this State or another jurisdiction is a Class 2
          felony for which the person shall be sentenced to a term of imprisonment of not
          less than 3 years and not more than 7 years.” 720 ILCS 5/24-1.6 (West 2008).

¶ 10      Subsequently, on the State’s motion, the circuit court of Cook County entered
       an order of nolle prosequi on counts V, VII, IX, and XI—four counts alleging
       aggravated unlawful use of a weapon based on defendant’s possession of a firearm
                                               -3-
       without a valid Firearm Owner Identification (FOID) card (720 ILCS
       5/24-1.6(a)(1), (a)(2), (a)(3)(C) (West 2008)). The State then elected to proceed
       against defendant on counts I, II, III, VI, and X. Count VI alleged aggravated
       unlawful use of a weapon based on the possession of an uncased, loaded and readily
       accessible firearm in a vehicle, in violation of section 24-1.6(a)(1), (a)(3)(A) of the
       AUUW statute; count X alleged aggravated unlawful use of a weapon based on the
       possession of an uncased, loaded and readily accessible firearm on a public way, in
       violation of section 24-1.6(a)(2), (a)(3)(A). On November 28, 2011, a bench trial
       was held. At the conclusion of the bench trial, defendant was found guilty on all
       counts.

¶ 11       Defendant filed a motion to reconsider in the circuit court. Defendant asserted
       that the State failed to prove that he had a prior felony conviction, which was a
       necessary element of the charged offenses. At trial, the State had entered into
       evidence a certified copy of conviction for a “Damion Smith.” Although the State
       alleged that defendant used the name “Damion Smith” as an alias, the State
       presented no proof that defendant was the individual named in the certified copy of
       conviction. Thus, defendant argued, the State, having failed to prove that he had a
       prior felony conviction, failed to prove him guilty beyond a reasonable doubt and
       his convictions must be vacated.

¶ 12       The circuit court vacated defendant’s convictions for armed habitual criminal
       and unlawful use of a weapon by a felon, under counts I, II, and III, agreeing with
       defendant that a prior felony conviction was a necessary element of those offenses
       which the State failed to prove. However, the circuit court denied defendant’s
       motion with regard to his AUUW convictions, under counts VI and X. The court
       ruled that a prior felony conviction is not an element of AUUW, but rather, a
       sentencing factor to be proven at the time of sentencing. The matter then proceeded
       to sentencing on defendant’s conviction under count VI, for aggravated unlawful
       use of a weapon pursuant to section 24-1.6(a)(1), (a)(3)(A) of the statute. 1

¶ 13       At the sentencing hearing, the State presented, for the first time, a certified copy
       of defendant’s record as proof that he had a prior felony conviction (possession of a
       controlled substance in case number 99-CR-21991, which was a different felony

           1
            Because defendant was in possession of a single weapon, defendant’s conviction for
       aggravated unlawful use of a weapon under count X, merged with his conviction under count VI.



                                                   -4-
       conviction from the one submitted at trial). Based on this evidence, the circuit court
       ruled that, pursuant to subsection (d) of the AUUW statute, defendant’s conviction
       for AUUW was a Class 2 felony. However, the circuit court further found that,
       because the State had presented additional evidence in aggravation, showing that
       defendant also had two other prior felony convictions, a Class X sentence was
       mandated. Accordingly, the circuit court imposed a sentence of 10 years’
       imprisonment.

¶ 14       Defendant appealed. In his initial brief, filed on March 12, 2012, defendant
       argued that his AUUW conviction must be vacated because the section of the
       AUUW statute under which he was convicted—section 24-1.6(a)(1),
       (a)(3)(A)—unconstitutionally infringes on the right to keep and bear arms as
       guaranteed by the second amendment of the United States Constitution (U.S.
       Const., amend. II).

¶ 15       On September 12, 2013, while defendant’s appeal was still pending, this court
       issued its decision in Aguilar, 2013 IL 112116. In Aguilar, the defendant was
       convicted of AUUW pursuant to section 24-1.6(a)(1), (a)(3)(A) of the statute,
       which was a Class 4 felony pursuant to section (d) of the statute. We reversed the
       defendant’s conviction for AUUW, holding that section 24-1.6(a)(1), (a)(3)(A) is
       facially unconstitutional because it operates as a flat ban on the right to keep and
       bear arms, as guaranteed by the second amendment to the United States
       Constitution.

¶ 16       Subsequently, we modified our decision in Aguilar upon denial of the State’s
       petition for rehearing. In our modified opinion, we added language stating that our
       finding of unconstitutionality was limited to the “Class 4 form” of AUUW, which
       referred to a conviction which was subject to sentencing as a Class 4 felony
       pursuant to section (d) of the statute. See id. ¶ 22 n.3.

¶ 17       Relying on our modified opinion in Aguilar, the appellate court in the case at
       bar affirmed defendant’s AUUW conviction. 2013 IL App (1st) 120929. The
       appellate court noted that, “[i]n general, where a statute initially sets forth the
       elements of the offense, then separately provides sentencing classifications based
       on other factors, these factors only enhance the punishment and do not create a new
       offense.” Id. ¶ 24. Nevertheless, the court interpreted our decision in Aguilar to
       mean that our holding of unconstitutionality with respect to section 24-1.6(a)(1),
       (a)(3)(A) of the AUUW statute, was limited to the so-called “Class 4 form” of that

                                               -5-
       offense. Id. Further, the appellate court concluded that felons lack second
       amendment rights and, as a result, held that a conviction under section 24-1.6(a)(1),
       (a)(3)(A) of the AUUW statute which, pursuant to subsection (d), is a Class 2
       felony because the defendant has a prior felony conviction, is not unconstitutional.
       The appellate court then concluded that this so-called “Class 2 form” of the offense
       is enforceable and, thus, defendant’s conviction could stand. Id. ¶ 27.



¶ 18                                       ANALYSIS

¶ 19       The sole issue before this court is, as it was in the appellate court, whether
       section 24-1.6(a)(1), (a)(3)(A) of the AUUW statute (720 ILCS 5/24-1.6(a)(1),
       (a)(3)(A) (West 2008)), is facially unconstitutional because it violates the right to
       keep and bear arms, as guaranteed by the second amendment to the United States
       Constitution (U.S. Const., amend. II). This is a question of law, which is subject
       to de novo review. People v. Zimmerman, 239 Ill. 2d 491, 497 (2010).

¶ 20       Defendant argues that the appellate court erred when it held that the “Class 2
       form” of aggravated unlawful use of a weapon was constitutional. Defendant
       contends that a “Class 2 form” of aggravated unlawful use of a weapon does not
       exist. There is only one offense of AUUW based on section 24-1.6(a)(1), (a)(3)(A)
       and a prior felony conviction is not an element of that offense. Rather, a prior
       felony conviction is a sentencing factor which elevates the offense, for penalty
       purposes, from a Class 4 felony to a Class 2 felony. See 720 ILCS 5/24-1.6(d)
       (West 2008). Moreover, defendant contends that, in Aguilar, 2013 IL 112116, this
       court held section 24-1.6(a)(1), (a)(3)(A) of the AUUW statute facially
       unconstitutional. For that reason, defendant argues that his conviction, which is
       based on a violation of the same provision—section 24-1.6(a)(1), (a)(3)(A) of the
       AUUW statute—must be reversed. We agree.

¶ 21       In Aguilar, this court held that section 24-1.6(a)(1), (a)(3)(A) of the AUUW
       statute operates as an absolute ban on an individual’s right to possess a gun for
       self-defense outside the home and, as such, is facially unconstitutional under the
       second amendment of the United States Constitution (U.S. Const., amend. II). In so
       ruling, we relied heavily on the Seventh Circuit’s decision in Moore v. Madigan,
       702 F.3d 933 (7th Cir. 2012), which applied the holdings of the United States
       Supreme Court in District of Columbia v. Heller, 554 U.S. 570 (2008), and
       McDonald v. City of Chicago, Illinois, 561 U.S. 742 (2010), and held that “the
                                               -6-
       Supreme Court has decided that the amendment confers a right to bear arms for
       self-defense, which is as important outside the home as inside.” Moore, 702 F.3d at
       942. In Aguilar, we expressly adopted the analysis and holding in Moore, that
       section 24-1.6(a)(1), (a)(3)(A) of our AUUW statute operates as a “ ‘flat ban on
       carrying ready-to-use guns outside the home’ ” and, therefore, held it to be
       unconstitutional on its face. Aguilar, 2013 IL 112116, ¶ 19 (quoting Moore, 702
       F.3d at 940). Since Aguilar was decided, we have reaffirmed its central holding of
       the statute’s facial unconstitutionality in two unanimous opinions, People v.
       Mosley, 2015 IL 115872, ¶ 24 (recognizing that Aguilar held section 24-1.6(a)(1),
       (a)(3)(A), (d) of the statute facially unconstitutional) and In re Jordan G., 2015 IL
       116834, ¶ 7 (same).

¶ 22       Admittedly, in Aguilar, we specifically limited our holding of facial invalidity
       to a so-called “Class 4 form” of the offense. See Aguilar, 2013 IL 112116, ¶ 21.
       However, we now acknowledge that our reference in Aguilar to a “Class 4 form” of
       the offense was inappropriate. No such offense exists. There is no “Class 4 form” or
       “Class 2 form” of aggravated unlawful use of a weapon.

¶ 23       The elements of the offense of AUUW are contained in subsection (a) of the
       statute (720 ILCS 5/24-1.6(a) (West 2008)). See Zimmerman, 239 Ill. 2d at 499.
       Pursuant to subsection (a), a person commits the offense of aggravated unlawful
       use of a weapon when he or she knowingly carries or possesses “any pistol,
       revolver, stun gun or taser or other firearm” “on or about his or her person or in any
       vehicle” or “on or about his or her person, upon any public street, alley, or other
       public lands within the corporate limits of a city, village or incorporated town” and
       one of nine factors is present. 720 ILCS 5/24-1.6(a) (West 2008). Subsection (a)
       sets forth the conduct which the legislature proscribed. Zimmerman, 239 Ill. 2d at
       499. To obtain a conviction, the State need not prove anything more.

¶ 24       In a separate subsection entitled “Sentence,” subsection (d) provides that the
       offense of aggravated unlawful use of a weapon is a Class 4 felony. It then lists
       certain factors which increase an individual’s sentence for aggravated unlawful use
       of a weapon from one classification to a higher level classification. 720 ILCS
       5/24-1.6(d) (West 2008). Specifically, in subsection (d), the legislature increases
       the penalty for any violation of the statute from a Class 4 felony to a Class 2 felony
       if the person found guilty of committing the offense is a convicted felon. This
       sentencing provision does not create separate and distinct offenses of aggravated
       unlawful use of a weapon. Nor does making the sentence for a violation of the
                                               -7-
       statute a Class 4 felony or a Class 2 felony transform the offense of AUUW into a
       different “form.” See People v. Van Schoyck, 232 Ill. 2d 330, 337 (2009) (“Under
       the plain language of the statute, there is only one offense of driving under the
       influence. *** The enhancing factors in subsection (c) do not create a new offense,
       but rather serve only to enhance the punishment.”); People v. Robinson, 232 Ill. 2d
       98, 112 (2008) (involuntary manslaughter statute, providing that if the victim was a
       family or household member then the offense is a Class 2 felony rather than a Class
       3 felony, sets forth a sentencing-enhancement element rather than creating a
       separate and distinct offense); People v. Green, 225 Ill. 2d 612, 619-20
       (2007) ( Illinois has a single offense called “robbery” that is either a Class 1 or a
       Class 2 felony, depending upon the nature of the victim); People v. Smith, 2012 IL
       App (1st) 102354, ¶ 110 (the plain, unambiguous language of section 8-4(a) sets
       forth the elements of the attempt offense; section 8-4(c)(1), under the heading
       “Sentence,” states that the sentence for the offense of attempted first-degree murder
       is the same as the sentence range for a Class X felony); see also People v. White,
       2011 IL 109616, ¶ 26 (“[F]irst degree murder is a single offense—there is no
       separate offense of ‘armed murder’ or ‘enhanced murder.’ ”). The penalty
       enhancements in subsection (d) are not elements of the offense. They do not come
       into play until after the defendant is found guilty.

¶ 25       In Aguilar, we improperly placed limiting language on our holding that section
       24-1.6(a)(1), (a)(3)(A) of the AUUW statute is facially unconstitutional. We now
       clarify that section 24-1.6(a)(1), (a)(3)(A) of the statute is facially unconstitutional,
       without limitation. Section 24-1.6(a)(1), (a)(3)(A) of the AUUW statute provides
       that a person commits the offense of aggravated unlawful use of a weapon when he
       or she knowingly carries on or about his or her person or in any vehicle, any pistol,
       revolver, stun gun, taser or other firearm, when the firearm possessed is uncased,
       loaded, and immediately accessible at the time of the offense. 720 ILCS
       5/24-1.6(a)(1), (a)(3)(A) (West 2008). On its face, this statutory provision
       constitutes a flat ban on carrying ready-to-use guns outside the home. It
       “categorically prohibits the possession and use of an operable firearm for
       self-defense outside the home” (In re Jordan G., 2015 IL 116834, ¶ 13) and, as
       such, it “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.” Aguilar, 2013 IL 112116, ¶ 21. It
       is precisely because the prohibition is not limited to a particular subset of persons,


                                                 -8-
       such as felons, that the statute, as written, is unconstitutional on its face. See City of
       Los Angeles, California v. Patel, 576 U.S. ___, 135 S. Ct. 2443 (2015).

¶ 26       The State, in support of the appellate court judgment in this case, contends that
       the offense of AUUW based on section 24-1.6(a)(1), (a)(3)(A), is not facially
       unconstitutional because it can be applied to felons without violating the second
       amendment. Quoting Hill v. Cowan, 202 Ill. 2d 151, 157 (2002), and United States
       v. Salerno, 481 U.S. 739, 745 (1987), the State relies on the long-accepted principle
       that a statute is facially unconstitutional “only if ‘no set of circumstances exists
       under which the [statute] would be valid.’ ” (Emphasis and internal quotation
       marks omitted.) The State’s argument, however, is misplaced.

¶ 27      In Patel, 576 U.S. at ___, 135 S. Ct. at 2451, the United States Supreme Court
       explained the proper analysis for facial challenges:

           “Under the most exacting standard the Court has prescribed for facial
           challenges, a plaintiff must establish that a ‘law is unconstitutional in all of its
           applications.’ Washington State Grange v. Washington State Republican Party,
           552 U. S. 442, 449 (2008). But when assessing whether a statute meets this
           standard, the Court has considered only applications of the statute in which it
           actually authorizes or prohibits conduct. For instance, in Planned Parenthood
           of Southeastern Pa. v. Casey, 505 U. S. 833 (1992), the Court struck down a
           provision of Pennsylvania’s abortion law that required a woman to notify her
           husband before obtaining an abortion. Those defending the statute argued that
           facial relief was inappropriate because most women voluntarily notify their
           husbands about a planned abortion and for them the law would not impose an
           undue burden. The Court rejected this argument, explaining: The ‘[l]egislation
           is measured for consistency with the Constitution by its impact on those whose
           conduct it affects. . . . The proper focus of the constitutional inquiry is the group
           for whom the law is a restriction, not the group for whom the law is irrelevant.’
           Id., at 894.”

¶ 28       In Heller, 554 U.S. at 626-27, our United States Supreme Court stated:

           “Although we do not undertake an exhaustive historical analysis today of the
           full scope of the Second Amendment, nothing in our opinion should be taken to
           cast doubt on longstanding prohibitions on the possession of firearms by felons
           and the mentally ill ***.”

                                                 -9-
¶ 29       It would appear, therefore, that the legislature could constitutionally prohibit
       felons from carrying readily accessible guns outside the home. See also McDonald,
       561 U.S. at 786; Moore, 702 F.3d at 940. In fact, Illinois already has legislation
       which prohibits felons from possessing guns at all. See 720 ILCS 5/24-1.1 (West
       2008) (Unlawful Use of a Weapon by a Felon). But that is not what the legislature
       proscribes in section 24-1.6(a)(1), (a)(3)(A) of the AUUW statute. The offense, as
       enacted by the legislature, does not include as an element of the offense the fact that
       the offender has a prior felony conviction. An unconstitutional statute does not
       “become constitutional” simply because it is applied to a particular category of
       persons who could have been regulated, had the legislature seen fit to do so.

¶ 30       It would be improper for this court to condition the constitutionality of section
       24-1.6(a)(1), (a)(3)(A) of the AUUW statute on the State’s proof of a defendant’s
       felon status when the legislature did not make that requirement an element of the
       offense. In essence, we would be “rewrit[ing] state law to conform it to
       constitutional requirements” and “substitut[ing] the judicial for the legislative
       department of the government.” (Internal quotation marks omitted.) Ayotte v.
       Planned Parenthood of Northern New England, 546 U.S. 320, 329-30 (2006). As
       the Ayotte court held, “ ‘[I]t would certainly be dangerous if the legislature could
       set a net large enough to catch all possible offenders, and leave it to the courts to
       step inside’ to announce to whom the statute may be applied.” Id. at 330 (quoting
       United States v. Reese, 92 U.S. 214, 221 (1875)). See also MacDonald v. Moose,
       710 F.3d 154, 166 (4th Cir. 2013) (anti-sodomy statute, which prohibited sodomy
       between two persons without any qualification, was facially unconstitutional).



¶ 31                                      CONCLUSION

¶ 32       For the foregoing reasons, we find the offense of aggravated unlawful use of a
       weapon, as set forth in section 24-1.6(a)(1), (a)(3)(A) of the AUUW statute,
       facially unconstitutional. As a result, the provision is not enforceable against
       anyone, including defendant. Accordingly, we vacate defendant’s conviction and
       sentence for aggravated unlawful use of a weapon.



¶ 33      Appellate court judgment reversed.


                                               - 10 -
¶ 34      CHIEF JUSTICE GARMAN, specially concurring:

¶ 35       I agree that section 24-1.6(a)(1), (a)(3)(A) of the aggravated unlawful use of a
       weapon (AUUW) statute is facially unconstitutional. However, I would hold that
       the statute as applied to defendant does not violate the second amendment and thus
       it cannot be facially unconstitutional on that basis. Instead, I would hold that the
       statute is facially unconstitutional because it does not require the State to plead and
       prove an essential element of the offense, and thus it violates due process.

¶ 36       The majority asserts that this court has already held that section 24-1.6(a)(1),
       (a)(3)(A) is facially unconstitutional. Supra ¶ 21. While this may have been the
       conclusion of the court before we modified our decision upon denial of rehearing in
       People v. Aguilar, that conclusion was abandoned when the modified opinion was
       issued. Therefore, this court has not previously held that the statutory section at
       issue is facially unconstitutional. In People v. Aguilar, we held 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.” 2013 IL 112116, ¶ 22. As the majority now explains, the sentencing
       categories (e.g., Class 2, Class 4) should not have been used to differentiate
       multiple “forms” of the offense. Supra ¶ 22. There is only one form of the offense
       of AUUW. Sentencing factors that result in harsher punishment do not create
       separate offenses or different forms of an offense. Id. ¶ 24 (citing People v. Van
       Schoyck, 232 Ill. 2d 330, 337 (2009), and People v. Robinson, 232 Ill. 2d 98, 112
       (2008)). Nevertheless, the limited holding reflects the fact that the court never
       considered whether the statutory section could constitutionally be enforced against
       those subject to sentences other than Class 4 sentences, i.e., those who have been
       previously convicted of a felony. See Aguilar, 2013 IL 112116, ¶¶ 36-37 (Garman,
       C.J., dissenting). In Aguilar, the court focused on whether second amendment
       rights extend beyond the home. 2013 IL 112116, ¶ 20. The court did not consider
       the constitutionality of firearm restrictions as applied to those with diminished
       second amendment rights. That issue is one of first impression before the court
       today.

¶ 37       In resolving that issue, the majority relies entirely on the federal Seventh
       Circuit Court of Appeal’s decision in Moore v. Madigan, 702 F.3d 933 (7th Cir.
       2012), to conclude that the statutory provision at issue is a “flat ban on carrying
       ready-to-use guns outside the home,” that such bans “amount[ ] to a wholesale
       statutory ban on the exercise of a personal right that is specifically named in and
                                                - 11 -
       guaranteed by the United States Constitution,” and therefore that the statutory
       section is facially unconstitutional. Supra ¶ 25. I recognize that the provision
       restricts conduct protected by the second amendment, but I do not agree that a ban
       on certain conduct within the scope of the amendment is inherently facially
       unconstitutional.

¶ 38       The second amendment guarantees that “the right of the people to keep and bear
       Arms, shall not be infringed.” U.S. Const., amend. II. A two-step inquiry is used to
       determine whether a statute violates this amendment. See Wilson v. County of
       Cook, 2012 IL 112026, ¶ 41. In the first step, we consider “whether the challenged
       law imposes a burden on conduct falling within the scope of the second amendment
       guarantee.” Id. “[I]f the historical evidence is inconclusive or suggests that the
       regulated activity is not categorically unprotected,” the court must determine
       whether the government has a sufficient justification for regulating the conduct.
       (Internal quotation marks omitted.) Id. ¶ 42.

¶ 39       In People v. Aguilar, we held that the second amendment right of individuals to
       carry weapons for self-defense extends beyond the home. Aguilar, 2013 IL 112116,
       ¶ 20; see Moore, 702 F.3d at 942. Therefore, the conduct proscribed by section
       24-1.6(a)(1), (a)(3)(A) and by section 24-1.6(a)(2), (a)(3)(A) clearly falls within
       the scope of the second amendment guarantee. See People v. Mosley, 2015 IL
       115872, ¶ 25 (“If, under Aguilar, a person cannot be barred from carrying an
       uncased, loaded and immediately accessible firearm while in a vehicle or concealed
       on or about his or her person based on the second amendment of the United States
       Constitution, it is logical that the same conduct should not be barred when the
       alleged offender similarly carries a firearm on a public way.”).

¶ 40       The State contends that, although it implicates second amendment rights, the
       statutory section is not facially unconstitutional as it could be enforced against
       those who are not entitled to exercise second amendment rights. A statute is facially
       unconstitutional “only if ‘ “no set of circumstances exists under which the [statute]
       would be valid.” ’ ” (Emphasis omitted.) Hill v. Cowan, 202 Ill. 2d 151, 157 (2002)
       (quoting In re C.E., 161 Ill. 2d 200, 210-11 (1994), quoting United States v.
       Salerno, 481 U.S. 739, 745 (1987)). “[S]o long as there exists a situation in which a
       statute could be validly applied, a facial challenge must fail.” Hill, 202 Ill. 2d at
       157; People v. Davis, 2014 IL 115595, ¶ 25. That the statutory section “might
       operate unconstitutionally under some conceivable set of circumstances is
       insufficient to render it wholly invalid.” Salerno, 481 U.S. at 745. This court first
                                              - 12 -
       adopted this standard from Salerno in 1994 and has consistently applied it in facial
       constitutionality challenges ever since. In re C.E., 161 Ill. 2d at 210-11; see In re
       M.A., 2015 IL 118049, ¶ 39; Mosely, 2015 IL 115872, ¶ 49; In re Derrico G., 2014
       IL 114463, ¶ 57; Davis, 2014 IL 115595, ¶ 25; People v. Kitch, 239 Ill. 2d 452, 466
       (2011); People v. One 1998 GMC, 2011 IL 110236, ¶ 20; Davis v. Brown, 221 Ill.
       2d 435, 442 (2006); In re M.T., 221 Ill. 2d 517, 537 (2006); In re Rodney H., 223 Ill.
       2d 510, 521 (2006); People v. Garvin, 219 Ill. 2d 104, 117 (2006); People v.
       Molnar, 222 Ill. 2d 495, 510-11 (2006); In re Parentage of John M., 212 Ill. 2d 253,
       269 (2004); People v. Einoder, 209 Ill. 2d 443, 448 (2004); People v. Huddleston,
       212 Ill. 2d 107, 145 (2004); People v. Greco, 204 Ill. 2d 400, 406-07 (2003);
       People v. Thurow, 203 Ill. 2d 352, 367 (2003); People v. Jackson, 199 Ill. 2d 286,
       301 (2002); People v. Swift, 202 Ill. 2d 378, 392 (2002); In re R.C., 195 Ill. 2d 291,
       297 (2001); People v. Izzo, 195 Ill. 2d 109, 112 (2001). “Because a finding that the
       statute is constitutional as applied to [the defendant] would necessarily compel a
       finding that the statute is constitutional on its face, [the court] *** first consider[s]
       whether the [statute] is unconstitutional as applied.” In re M.A., 2015 IL 118049,
       ¶ 41.

¶ 41       In District of Columbia v. Heller, the U.S. Supreme Court made clear that the
       right secured by the second amendment is held by “law-abiding, responsible
       citizens” and is not unlimited. 554 U.S 570, 635 (2008). Noting support from
       sources from “Blackstone through the 19th-century cases,” the Court concluded
       that “nothing in [its] 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. Such prohibitions are “presumptively
       lawful.” Id. at 627 n.26. The Court reiterated this point in McDonald v. City of
       Chicago, Illinois, 561 U.S. 742, 786 (2010). In Aguilar, we relied upon this
       language to conclude that regulations restricting a minor’s ability to possess or use
       weapons do not implicate the second amendment. 2013 IL 112116, ¶¶ 26-28.

¶ 42      In light of Heller and McDonald, our appellate court has upheld as
       constitutional Illinois statutes governing the possession of weapons by felons on
       grounds that the second amendment is not implicated. People v. Campbell, 2014 IL
       App (1st) 112926, ¶ 60; People v. Rush, 2014 IL App (1st) 123462, ¶ 19; People v.
       Garvin, 2013 IL App (1st) 113095, ¶ 33. If a class of individuals can be restricted
       from possessing weapons, it follows that the class can also be restricted from using
                                               - 13 -
       weapons. Federal and out-of-state courts have also concluded that regulations
       restricting felons’ possession of firearms and ammunition (commonly referred to as
       felon dispossession statutes) are beyond the scope of the second amendment.
       United States v. Bogle, 717 F.3d 281, 281-82 (2d Cir. 2013) (per curiam); United
       States v. Barton, 633 F.3d 168, 172 (3d Cir. 2011); United States v. Vongxay, 594
       F.3d 1111, 1117 (9th Cir. 2010); United States v. Rozier, 598 F.3d 768, 771-72
       (11th Cir. 2010); United States v. McCane, 573 F.3d 1037, 1047 (10th Cir. 2009);
       United States v. Darrington, 351 F.3d 632, 633-34 (5th Cir. 2003); State v. Craig,
       826 N.W.2d 789, 790 (Minn. 2013); Chardin v. Police Commissioner, 989 N.E.2d
       392, 402-03 (Mass. 2013); Pohlabel v. State, 268 P.3d 1264, 1267 (Nev. 2012).

¶ 43        Numerous courts have also upheld restrictions on the possession of weapons by
       minors, illegal aliens, individuals who unlawfully use or are addicted to controlled
       substances, individuals found to be mentally incapacitated, individuals subject to
       orders of protection, and individuals who have been convicted of a misdemeanor
       crime of domestic violence. Aguilar, 2013 IL 112116, ¶ 27 (upholding the
       constitutionality of section 24-3.1(a)(1) which restricts the possession of weapons
       by minors); United States v. Boffil-Rivera, No. 08-20437-CR, 2008 WL 8853354,
       at *8 (S.D. Fla. Aug. 12, 2008) (upholding the constitutionality of section 922(g)(5)
       of title 18 of the United States Code, which restricts the possession of weapons by
       “illegal and unlawful alien[s]”); United States v. Seay, 620 F.3d 919, 925 (8th Cir.
       2010) (upholding constitutionality of section 922(g)(3), which restricts the
       possession of weapons by those who unlawfully use or are addicted to a controlled
       substance); United States v. Roy, 742 F. Supp. 2d 150, 152 (D. Me. 2010)
       (upholding the constitutionality of section 933(g)(4) which restricts the possession
       of weapons by those found to be mentally incapacitated); United States v. Luedtke,
       589 F. Supp. 2d 1018, 1023 (E.D. Wis. 2008) (upholding the constitutionality of
       section 922(g)(8) which restricts the possession of weapons by those subject to an
       order of protection); United States v. White, 593 F.3d 1199, 1206 (11th Cir. 2010)
       (upholding the constitutionality of section 922(g)(9) which restricts the possession
       of weapons by those convicted of a misdemeanor crime of domestic violence).
       Similarly, I conclude that the AUUW statute as applied to someone without full
       second amendment rights is not unconstitutional based on a violation of the second
       amendment. The majority fails to explain how a statute can violate the second
       amendment rights of an individual who is not entitled to exercise second
       amendment rights.


                                              - 14 -
¶ 44       The majority, in reaching its facial unconstitutionality conclusion, strays from
       the “no set of circumstances” rule set forth in Salerno and relies on the United
       States Supreme Court’s recent discussion in City of Los Angeles, California v.
       Patel regarding facial versus as-applied constitutionality challenges. 576 U.S. ___,
       135 S. Ct. 2443. In Patel, a group of motel operators challenged the
       constitutionality of a provision of the Los Angeles Municipal Code that required
       the motel operators to maintain records of information about their guests and
       provide these records to the police on demand. Id. at ___, 135 S. Ct. at 2447. The
       motel operators asserted that the provision was facially unconstitutional based on
       the fourth amendment. Id. at ___, 135 S. Ct. at 2448. The City of Los Angeles
       responded that the provision was not facially unconstitutional, because its
       application would not be unconstitutional in situations “where police are
       responding to an emergency, where the subject of the search consents to the
       intrusion, [or] where the police are acting under a court-ordered warrant.” Id. at
       ___, 135 S. Ct. at 2450-51. In addressing the nature of a facial challenge, the Court
       explained: “Under the most exacting standard the Court has prescribed for facial
       challenges, a plaintiff must establish that a ‘law is unconstitutional in all of its
       applications.’ [Citation.] But when assessing whether a statute meets this standard,
       the Court has considered only applications of the statute in which it actually
       authorizes or prohibits conduct.” Id. at ___, 135 S. Ct. at 2451 (quoting Washington
       State Grange v. Washington State Republican Party, 552 U.S. 442, 449 (2008)).
       “[T]he proper focus of the constitutional inquiry is searches that the law actually
       authorizes, not those for which it is irrelevant.” Id. at ___, 135 S. Ct. at 2451; see
       Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 894
       (1992).

¶ 45        Courts have long recognized the power of the police to conduct a warrantless
       search in the event of an emergency, under exigent circumstances, or if the subject
       consents. Katz v. United States, 389 U.S. 347, 357 (1967); People v. Pitman, 211
       Ill. 2d 502, 523 (2004); People v. Foskey, 136 Ill. 2d 66, 74 (1990). Thus, the code
       provision in Patel was not necessary to authorize the police to conduct a search
       under any of these circumstances. Patel, 576 U.S at ___, 135 S. Ct. at 2451. These
       circumstances were beyond the scope of the provision and thus the Court did not
       consider them when deciding whether the code provision was “unconstitutional in
       all of its applications.” (Internal quotation marks omitted.) Id. at ___, 135 S. Ct. at
       2451. Similarly, in Planned Parenthood of Southeastern Pennsylvania, the
       government argued that the law requiring married women to notify their husbands

                                               - 15 -
       prior to obtaining an abortion was not facially unconstitutional because it could be
       enforced against those who voluntarily comply without unduly burdening their
       privacy rights. 505 U.S. at 894; see Patel, 576 U.S. at ___, 135 S. Ct. at 2451
       (discussing Planned Parenthood of Southeastern Pennsylvania). The Court
       explained that the law is irrelevant to those who voluntarily provide notice.
       Planned Parenthood of Southeastern Pennsylvania, 505 U.S. at 894. “The proper
       focus of constitutional inquiry is the group for whom the law is a restriction, not the
       group for whom the law is irrelevant.” Id. Therefore, the applicability of the law to
       those who voluntarily comply is not considered when determining whether the law
       was facially unconstitutional.

¶ 46       The majority asserts that the court should not consider the application of section
       24-1.6(a)(1), (a)(3)(A) to felons when determining whether the section is facially
       constitutional. By citing Patel and Planned Parenthood of Southeastern
       Pennsylvania in support of this assertion, the majority implies that the statute at
       issue is irrelevant to felons in the same way that the Patel law was irrelevant to
       those who consented to a search or in circumstances where the police had a warrant.
       This is incorrect. The AUUW section at issue here applies to all individuals;
       therefore, felons are part of “the group for whom the law is a restriction.” Planned
       Parenthood of Southeastern Pennsylvania, 505 U.S. at 894. There is no established
       doctrine prohibiting felons from carrying weapons in public comparable to the
       fourth amendment exceptions discussed in Patel. The constitution permits the
       government to restrict the right to keep and bear arms for individuals with prior
       felonies and the Illinois legislature chose to do so through the AUUW statute.
       Therefore, the law at issue “actually *** prohibits” the conduct in this case, and the
       court should consider the application of the law to felons when determining
       whether the law is facially unconstitutional. Patel, 576 U.S. at ___, 135 S. Ct. at
       2451. Because the law as applied to defendant does not violate any right protected
       by the second amendment, the law cannot be facially unconstitutional based on the
       second amendment.

¶ 47       The majority would require that the statute specifically state that it applies to
       felons, or to those with diminished second amendment rights, in order to comply
       with the second amendment. This is an unprecedented expansion of the doctrine of
       overbreadth. The overbreadth doctrine allows a challenger to prove a law is facially
       unconstitutional even if it is valid in some circumstances if he can show that “ ‘a
       substantial number of its applications are unconstitutional, judged in relation to the
       statute’s plainly legitimate sweep.’ ” United States v. Stevens, 559 U.S. 460, 473
                                                - 16 -
       (2010) (quoting Washington State Grange, 552 U.S. at 449 n.6). This is exactly the
       logic employed by the majority today—section 24-1.6(a)(1), (a)(3)(A) is
       unconstitutional as applied to most of society (those entitled to exercise full second
       amendment rights) and thus the law is facially unconstitutional.

¶ 48       However, neither this court nor the Supreme Court has ever applied the doctrine
       of overbreadth outside the context of a first amendment challenge. See Salerno,
       481 U.S. at 745 (“The fact that the Bail Reform Act might operate
       unconstitutionally under some conceivable set of circumstances is insufficient to
       render it wholly invalid, since we have not recognized an ‘overbreadth’ doctrine
       outside the limited context of the First Amendment.”); see also Gonzales v.
       Carhart, 550 U.S. 124, 167 (2007) (recognizing that the overbreadth doctrine does
       not apply outside the context of the first amendment); People v. Clark, 2014 IL
       115776, ¶ 11 (same); In re Lakisha M., 227 Ill. 2d 259, 276 (2008) (same); Davis v.
       Brown, 221 Ill. 2d 435, 442-43 (2006) (same); People v. Garvin, 219 Ill. 2d 104,
       125 (2006) (same); Einoder, 209 Ill. 2d at 448 (same); People v. Greco, 204 Ill. 2d
       400, 407 (2003) (same); People v. Izzo, 195 Ill. 2d 109, 112 (2001) (same); In re
       R.C., 195 Ill. 2d 291, 297 (2001) (same); People v. Terrell, 132 Ill. 2d 178, 212
       (1989) (same); People v. Haywood, 118 Ill. 2d 263, 275 (1987) (same); People v.
       Ryan, 117 Ill. 2d 28, 33 (1987) (same); People v. Garrison, 82 Ill. 2d 444, 449-50
       (1980) (same).

¶ 49       There is no reason to now expand the use of this doctrine and apply it in the
       context of a second amendment challenge. Overbroad statutes are considered
       facially unconstitutional in the context of the first amendment because of the
       “chilling effect” such laws have on free speech. See Bates v. State Bar of Arizona,
       433 U.S. 350, 380 (1977) (recognizing first amendment overbreadth challenges as
       a “departure from the traditional rule that a person may not challenge a statute on
       the ground that it might be applied unconstitutionally in circumstances other than
       those before the court” and noting that this exception is based on the idea that an
       “overbroad statute might serve to chill protected speech”); Broadrick v. Oklahoma,
       413 U.S. 601, 611-12 (1973) (noting that “[i]t has long been recognized that the
       First Amendment needs breathing space”); Clark, 2014 IL 115776, ¶ 11 (“The
       United States Supreme Court has provided this expansive remedy out of concern
       that the threat of enforcement of an overbroad law may deter or chill
       constitutionally protected speech, especially when the statute imposes criminal
       sanctions.”); People v. Bailey, 167 Ill. 2d 210, 226 (1995) (“The doctrine of
       overbreadth is designed to protect first amendment freedom of expression from
                                               - 17 -
       laws written so broadly that the fear of punishment might discourage people from
       taking advantage of the freedom.”). There is no similar concern that the AUUW
       statute will have an inappropriate chilling effect on those with full second
       amendment rights who wish to carry their firearms in public.

¶ 50       Furthermore, by applying the doctrine in this case, the majority nearly
       eliminates all as-applied challenges in the future. After today, any defendant can
       challenge a law as facially unconstitutional, even if the law is constitutional as
       applied to him, so long as the defendant can identify someone to whom the
       application of the law would be unconstitutional. This is directly contrary to the
       presumption that statutes are constitutional (Aguilar, 2013 IL 112116, ¶ 15) and to
       the Court’s preference for as-applied challenges. Washington State Grange, 552
       U.S. at 450 (“Facial challenges are disfavored for several reasons.”). Facial
       challenges, as opposed to as-applied challenges, “raise the risk of ‘premature
       interpretation of statutes on the basis of factually barebones records’ ” and “run
       contrary to the fundamental principle of judicial restraint.” Id. (quoting Sabri v.
       United States, 541 U.S. 600, 609 (2004)). “[C]ourts should neither ‘ “anticipate a
       question of constitutional law in advance of the necessity of deciding it” ’ nor
       ‘ “formulate a rule of constitutional law broader than is required by the precise facts
       to which it is to be applied.” ’ ” Id. at 450-51(quoting Ashwander v. Tennessee
       Valley Authority, 297 U.S. 288, 346-47 (1936) (Brandeis, J., concurring , joined by
       Stone, Roberts and Cardozo, JJ.), quoting Liverpool, New York & Philadelphia,
       Steamship Co. v. Commissioners of Emigration, 113 U.S. 33, 39 (1885)). “Finally,
       facial challenges threaten to short circuit the democratic process by preventing laws
       embodying the will of the people from being implemented in a manner consistent
       with the Constitution.” Id. at 451. Recognizing that a “ ‘ruling of
       unconstitutionality frustrates the intent of the elected representatives of the
       people,’ ” the Court in Ayotte v. Planned Parenthood of Northern New England
       explained that it “prefer[s] *** to enjoin only the unconstitutional applications of a
       statute while leaving other applications in force *** or to sever its problematic
       portions while leaving the remainder intact” where possible. Ayotte, 546 U.S. at
       328-29 (quoting Regan v. Time, Inc., 468 U.S. 641, 652 (1984), and citing United
       States v. Raines, 362 U.S. 17, 20-22 (1960), and United States v. Booker, 543 U.S.
       220, 227-29 (2005)).

¶ 51      For these reasons, I conclude that the statutory section is not facially
       unconstitutional based on the second amendment. However, the section cannot be
       enforced even against those with diminished second amendment rights without
                                             - 18 -
       violating due process. Under the due process clause of the United States
       Constitution, the State must prove every element of a criminal offense beyond a
       reasonable doubt. In re Winship, 397 U.S. 358, 364 (1970). The State must also
       prove any fact, other than a prior conviction, that subjects the defendant to a harsher
       penalty. Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). Because a defendant
       cannot constitutionally be convicted of AUUW under subsection (a)(1), (a)(3)(A)
       or (a)(2), (a)(3)(A) unless he or she lacks second amendment rights, the lack of
       such rights is a fact that the State must prove beyond a reasonable doubt at trial. As
       defendant argued, the statute does not include this requirement. I agree with the
       majority that the court cannot impose this requirement without improperly
       imposing on the authority of the legislature. Supra ¶ 30; see Ayotte, 546 U.S. at 330
       (“ ‘[I]t would certainly be dangerous if the legislature could set a net large enough
       to catch all possible offenders, and leave it to the courts to step inside’ to announce
       to whom the statute may be applied.” (quoting United States v. Reese, 92 U.S. 214,
       221 (1875))). Therefore, I would hold that the statute is facially unconstitutional
       based on this violation of due process.

¶ 52       Because I conclude that the statute is facially unconstitutional, though on
       different grounds than the majority, I concur with the majority’s judgment that
       defendant’s conviction and sentence must be vacated.

¶ 53      JUSTICE THOMAS joins in this special concurrence.




                                               - 19 -
