In re the Interest of Jordan G. , 2015 IL 116834 ( 2015 )

2015 IL 116834
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 116834)
In re JORDAN G., a Minor (The People of the State of Illinois, Appellant, v.
Jordan G., Appellee).
Opinion filed February 20, 2015.
JUSTICE THEIS delivered the judgment of the court, with opinion.
Chief Justice Garman and Justices Freeman, Thomas, Kilbride, Karmeier, and
Burke concurred in the judgment and opinion.
OPINION
¶1 In this direct appeal, we are asked to consider the constitutionality of certain
sections of the aggravated unlawful use of a weapon (AUUW) statute. 720 ILCS
5/24-1.6 (West 2012). Respondent, 16-year-old Jordan G., was charged by petition
for adjudication of wardship under the Juvenile Court Act of 1987 with three counts
of AUUW and one count of unlawful possession of a firearm (UPF). The circuit
court granted respondent’s motion to dismiss the petition, declaring the AUUW
statute unconstitutional. The State appealed the circuit court’s ruling directly to this
court under Illinois Supreme Court Rule 603 (eff. Feb. 6, 2013). For the following
reasons, we now affirm in part, reverse in part, and remand for further proceedings
consistent with our opinion.
¶2 BACKGROUND
¶3 In April 2013, the State filed a petition for adjudication of wardship charging
the minor respondent with three counts of AUUW and one count of UPF.
Specifically, the petition alleged that respondent was a delinquent minor because he
carried in a vehicle an uncased, loaded, and immediately accessible firearm in
violation of section 24-1.6(a)(1), (a)(3)(A) of the Criminal Code of 1961 (Code)
(720 ILCS 5/24-1.6(a)(1), (a)(3)(A) (West 2012)); carried a handgun in a vehicle
when he was under 21 years of age in violation of section 24-1.6(a)(1), (a)(3)(I)
(under 21 restriction) (720 ILCS 5/24-1.6(a)(1), (a)(3)(I) (West 2012)); and carried
a firearm in a vehicle without having been issued a currently valid Firearm Owner’s
Identification (FOID) card in violation of section 24-1.6(a)(1), (a)(3)(C) (FOID
card requirement) (720 ILCS 5/24-1.6(a)(1), (a)(3)(C) (West 2012)). The UPF
count alleged that respondent, being a person under 18 years of age, knowingly
possessed a firearm of a size which may be concealed upon the person in violation
of section 24-3.1(a)(1) of the Code. 720 ILCS 5/24-3.1(a)(1) (West 2012).
¶4 Thereafter, respondent filed a motion to dismiss, contending that the AUUW
statute had been found unconstitutional by the Seventh Circuit in Moore v.
Madigan, 702 F.3d 933, 941 (7th Cir. 2012), as violating the second amendment
right to bear arms for self-defense outside the home. Following a hearing, the
circuit court agreed with respondent, ruling that section 24-1.6 was held facially
unconstitutional in its entirety by Moore, and that the circuit court was bound by the
Seventh Circuit decision. Accordingly, the court dismissed the three AUUW
counts, but denied the motion as to the unlawful possession of a firearm count
based upon respondent’s age as being under 18.
¶5 The State subsequently filed a motion to reconsider. At the time of the hearing
on the motion, this court had decided People v. Aguilar, 2013 IL 112116, where we
initially held that section 24-1.6(a)(1), (a)(3)(A) of the AUUW statute violated the
second amendment right to keep and bear arms. In light of Aguilar, the State
conceded that count of the petition had been properly dismissed. Nevertheless, the
State argued that the remaining counts remained constitutionally valid because they
required proof of independent aggravating factors. The State noted Aguilar’s
admonishment that the right to a firearm outside the home for self-defense was not
unlimited and was subject to meaningful regulation. The State further noted this
court’s citation with approval in Aguilar to cases recognizing that restricting the
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availability of firearms to those younger than 21 years of age does not offend the
second amendment.
¶6 The trial court denied the State’s motion to reconsider, holding that because an
element of both the under 21 restriction and the FOID card requirement of the
AUUW statute involved a prohibition on the carrying of a gun outside the home,
those provisions were unconstitutional under Moore. The State appealed directly to
this court. Ill. Const. 1970, art. VI, § 4(b); Ill. S. Ct. R. 603 (eff. Feb. 6, 2013). We
allowed the Brady Center to Prevent Gun Violence, the City of Chicago, and the
Major Cities Chiefs Association to file an amicus brief in support of the State.
¶7 During the pendency of the appeal, this court issued its modified opinion in
Aguilar, holding that the Class 4 form of AUUW set forth in section 24-1.6(a)(1),
(a)(3)(A), (d) of the Code (720 ILCS 5/24-1.6(a)(1), (a)(3)(A), (d) (West 2008)),
which made it unlawful for a person to possess an uncased, loaded and immediately
accessible firearm except when the person was on his land or in his abode or fixed
place of business, was a comprehensive ban, rather than a reasonable regulation, on
the right to possess and use an operable firearm for self-defense outside the home.
Aguilar, 2013 IL 112116, ¶ 21. Accordingly, this court held that section to be
facially unconstitutional because it violated the second amendment right to keep
and bear arms. Id. ¶ 22.
¶8 ANALYSIS
¶9 Constitutionality of the AUUW Statute
¶ 10 At issue in this case is whether the sections of the AUUW statute under which
respondent was charged violate the second amendment. Statutes are presumed
constitutional, and we have a duty to construe the statute in a manner that upholds
its validity and constitutionality if it can be reasonably done. Aguilar, 2013 IL
112116, ¶ 15. The party challenging the constitutionality of a statute carries the
burden of proof. Id. Whether a statute is constitutional is a question of law to be
reviewed de novo. Id.
¶ 11 At the time respondent was charged, the AUUW statute provided, in pertinent
part:
Ҥ 24-1.6. Aggravated unlawful use of a weapon.
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(a) A person commits the offense of aggravated unlawful use of a weapon
when he or she knowingly:
(1) Carries on or about his or her person or in any vehicle or concealed
on or about his or her person except when on his or her land or in his or her
abode, 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,
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; or
***
(C) the person possessing the firearm has not been issued a currently
valid Firearm Owner’s Identification Card; or
***
(I) the person possessing the weapon was under 21 years of age and
in possession of a handgun as defined in Section 24-3, unless the person
under 21 is engaged in lawful activities under the Wildlife Code or
described in subsection 24-2(b)(1), (b)(3), or 24-2(f).” 720 ILCS
5/24-1.6 (West 2012).
¶ 12 We initially address the trial court’s ruling that under Moore, both the under 21
restriction under subsection (a)(1), (a)(3)(C) and the FOID card requirement under
subsection (a)(1), (a)(3)(I) were unconstitutional because an element of both
sections includes a prohibition on the right to carry a firearm outside the home. The
State maintains that the trial court erred in its apparent belief that Moore held that
any firearm restriction that includes a prohibition from carrying a weapon outside
the home was necessarily unconstitutional. We agree.
¶ 13 Neither Moore nor Aguilar supports, much less compels, the circuit court’s
reasoning in finding the under 21 restriction and the FOID card requirement
facially unconstitutional. Rather, Moore held unconstitutional a “blanket
prohibition on carrying gun[s] in public,” which categorically prohibits the
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possession and use of an operable firearm for self-defense outside the home.
Moore, 702 F.3d at 940. The Seventh Circuit expressly recognized in Moore that
the Illinois legislature could implement sensible regulations for the public carriage
of handguns without running afoul of the second amendment. Id. at 941.
¶ 14 Thereafter, in Aguilar, this court adopted the holding in Moore that Illinois’s
“ ‘flat ban on carrying ready-to-use guns outside the home,’ ” as embodied in the
Class 4 form of section 24-1.6(a)(1), (a)(3)(A), (d) is unconstitutional on its face.
Aguilar, 2013 IL 112116, ¶ 19 (quoting Moore, 702 F.3d at 940). In doing so, we
emphatically made clear that, “we are in no way saying that” the right to possess
and use a firearm for self-defense outside the home “is unlimited or is not subject to
meaningful regulation.” Id. ¶ 21. As this court explicitly stated in Aguilar, “our
finding of unconstitutionality in this decision is specifically limited to the Class 4
form of AUUW, as set forth in section 24-1.6(a)(1), (a)(3)(A), (d) of the AUUW
statute.” Id. ¶ 22 n.3. We specifically held that “[w]e make no finding, express or
implied, with respect to the constitutionality or unconstitutionality of any other
section or subsection of the AUUW statute.” Id. Thus, contrary to the circuit court’s
ruling, neither Moore nor Aguilar compel a finding that subsection (a)(1), (a)(3)(C)
or subsection (a)(1), (a)(3)(I) are facially unconstitutional.
¶ 15 Severability
¶ 16 Nevertheless, respondent contends that subsections (a)(3)(C) and (a)(3)(I) are
not severable from the provision found to be unconstitutional in Aguilar.
Respondent maintains that the statute, as enacted in 2000, was a comprehensive
statute with interrelated provisions and that the legislature would not have passed
the under 21 restrictions or the FOID card requirements without the provision now
held to violate the second amendment. This court has now rejected this argument in
People v. Mosley, 2015 IL 115872, ¶¶ 27-31, a case that also came before this court
on direct appeal, involving the constitutionality of subsections (a)(3)(C) and
(a)(3)(I).
¶ 17 There, we explained that the issue of severability involves a question of
statutory interpretation. Id. ¶ 29. The authority to sever an invalid portion from
those portions which remain valid may arise either from a specific severability
provision in the statute, if one exists, or from the Statute on Statutes’ general
severability provision. Because the offense of AUUW does not contain its own
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specific severability provision, we looked to the Statute on Statutes’ general
severability provision. Id. ¶ 30. That statute provides that the invalidity of one
provision of a statute “does not affect other provisions *** which can be given
effect without the invalid *** provision.” 5 ILCS 70/1.31 (West 2012).
¶ 18 Pursuant to the Statute on Statutes, we held that we must determine whether the
valid and invalid provisions “are essentially and inseparably connected in
substance,” such that the legislature would not have enacted the valid provisions
absent the invalid ones. Mosley, 2015 IL 115872, ¶ 30. An unconstitutional portion
of the statute may be severed from the remaining portions “if what remains is
complete in and of itself, and is capable of being executed wholly independently of
the severed portion.” Id. (citing People v. Pomykala, 203 Ill. 2d 198, 209-10
(2003), and People v. Sanders, 182 Ill. 2d 524, 534 (1998)).
¶ 19 Applying this framework, and in reaching our conclusion, we relied on the
reasoning in People v. Henderson, 2013 IL App (1st) 113294. There, the appellate
court explained that subsection (a)(3)(A) is only one of several aggravating factors
that can operate in conjunction with subsections (a)(1) and (a)(2) to comprise the
substantive AUUW offense. Removing the particular subsection which was struck
down by Aguilar does not undermine the completeness or executability of the
remaining factors. Therefore, it could not be concluded that the one
unconstitutional provision is “so intertwined with the rest of the statute that the
legislature intended the statute to stand or fall as a whole.” (Internal quotation
marks omitted.) Id. ¶ 22. Finding the reasoning in Henderson sound, we concluded
in Mosley that “the legislature would find that subsections (a)(3)(C) [the FOID card
requirement] and (a)(3)(I) [the under 21 restriction] can stand independently.”
Mosley, 2015 IL 115872, ¶ 31. We continue to hold that severing subsection
(a)(3)(A) “undermines neither the completeness of, nor the ability to, execute the
remaining subsections.” Id.
¶ 20 Second Amendment Rights of Those Under the Age of 21
¶ 21 We next consider respondent’s facial challenge, contending that subsections
(a)(1), (a)(3)(C) and (a)(1), (a)(3)(I) violate the second amendment rights of those
under 21 years of age. Respondent contends that these provisions under which he
was charged constitute a “blanket age restriction” against firearm possession.
Although he concedes that the possession of handguns by minors is conduct falling
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outside the scope of the second amendment, he maintains that these provisions are
facially unconstitutional because they are incompatible with Heller and McDonald
and the rights of 18- to 20-year olds to have the “quintessential” means of
self-defense. He argues that they unlawfully prohibit 18- to 20-year olds from the
possession and use of handguns for self-defense outside the home, and bar them
from firearm ownership without parental permission and without any
individualized determination of dangerousness.
¶ 22 This court recently considered and rejected a second amendment challenge to
subsections (a)(1), (a)(3)(C) and (a)(1), (a)(3)(I) in Mosley. As we explained, the
prevailing framework this court has adopted for analyzing a second amendment
challenge is two-fold. First the court must make a threshold inquiry into whether
the restricted activity is protected by the second amendment. Under this threshold
analysis, the court conducts a textual and historical analysis to determine whether
the challenged state law imposes a burden on conduct understood to be within the
scope of the second amendment’s protection at the time of ratification. Mosley,
2015 IL 115872, ¶ 34 (citing Wilson v. County of Cook, 2012 IL 112026, ¶ 41); see
also Ezell v. City of Chicago, 651 F.3d 684, 700-04 (7th Cir. 2011). If the
challenged law regulates activity falling outside the scope of the second
amendment right as it was understood at the relevant historical time, then the
regulated activity is categorically unprotected, and is not subject to further second
amendment review. Id. However, if the historical evidence is inconclusive or
suggests that the regulated activity is not categorically unprotected, then the court,
applying the appropriate level of scrutiny, conducts an inquiry into the strength of
the state’s justification for regulating or restricting the activity. Id.
¶ 23 Applying these principles, we first consider whether the statutes’ restrictions
burden conduct that traditionally falls within the scope of second amendment
protection. As the United States Supreme Court explained in Heller, “the right
secured by the Second Amendment is not unlimited,” and recognized the
constitutionality of several “longstanding prohibitions on the possession of
firearms.” District of Columbia v. Heller, 554 U.S. 570, 626 (2008). The Court
emphasized that its list of presumptively lawful regulatory measures provided only
examples and did “not purport to be exhaustive.” Id. at 627 n.26.
¶ 24 Thereafter, in Aguilar, this court considered the constitutionality of section
24-3.1(a)(1) of the UPF statute, which makes it unlawful for those under 18 to
possess a firearm of a size which may be concealed on his person. 720 ILCS
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5/24-3.1(a)(1) (West 2012); Aguilar, 2013 IL 112116, ¶¶ 24-28. We recognized
that the second amendment right to possess firearms is “subject to meaningful
regulation.” Id. ¶ 21. We cited with approval several cases finding it evident from a
review of the relevant historical record that age based regulations on minors’ access
to firearms for the purpose of ensuring public safety were commonplace and
persisted well beyond the Founding Era. Id. ¶ 27 (citing National Rifle Ass’n of
America, Inc. v. Bureau of Alcohol, Tobacco, Firearms, & Explosives, 700 F.3d
185, 204 (5th Cir. 2012), United States v. Rene E., 583 F.3d 8, 16 (1st Cir. 2009),
and Powell v. Tompkins, 926 F. Supp. 2d 367, 387-88 (D. Mass. 2013)). We stated
that these cases explained that although minors were in many instances permitted
or required to possess firearms for military service, “nothing like a right for minors
to own and possess firearms has existed at any time in this nation’s history.”
(Emphasis in original.) Id. Accordingly, we concluded that “the possession of
handguns by minors is conduct that falls outside the scope of the second
amendment’s protection.” Id.
¶ 25 Notably, the term “minor” must be considered in the context of the right at
issue, and as historically understood, generally applied to individuals under the age
of 21 and remained under 21 in most states until the 1970s. National Rifle Ass’n of
America, Inc. v. Bureau of Alcohol, Tobacco, Firearms, & Explosives, 700 F.3d at
201-02, 204 n.17; Powell, 926 F. Supp. 2d at 388; see also National Rifle Ass’n of
America, Inc. v. McCraw, 719 F.3d 338 (5th Cir. 2013) (finding Texas’s statutory
scheme barring 18- to 20-year olds from carrying handguns in public was
consistent with longstanding traditions of imposing age and safety based
restrictions on the ability to access arms). Thus, we find our conclusion in Aguilar,
that age based restrictions on the right to keep and bear arms are historically rooted,
applies equally to those persons under 21 years of age. We confirmed this
conclusion in Mosley, where we held that the public carrying of firearms by those
persons under 21 years of age is conduct that falls outside the scope of the second
amendment, and held that “neither subsection (a)(3)(C) nor (a)(3)(I) violates the
second amendment rights of *** 18- to 20-year-old persons.” Mosley, 2015 IL
115872, ¶¶ 36-38. For all of these reasons, we reject respondent’s second
amendment challenge to subsections (a)(1), (a)(3)(C) and (a)(1), (a)(3)(I) of the
AUUW statute.
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¶ 26 Second Amendment as Applied to Delinquent Minors
¶ 27 Lastly, the State asks this court to “clarify” our holding in Aguilar, 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.” Aguilar, 2013 IL
112116, ¶ 22. The State argues that respondent was a delinquent minor who
violated the terms of his probation by possessing firearms. The State maintains that
because this type of individual is not the law-abiding citizen the United States
Supreme Court recognized as having second amendment rights, “legislation
prohibiting such criminals from possessing firearms comports with the Second
Amendment and is constitutional.” Therefore, the State maintains that subsection
(a)(3)(A) can be validly applied to respondent.
¶ 28 Essentially, the State asks this court to overrule our holding in Aguilar that the
Class 4 form of section 24-1.6 (a)(1), (a)(3)(A), (d) is unconstitutional on its face
and is void ab initio. We decline the State’s invitation to revisit our holding.
Furthermore, this particular provision in the AUUW statute struck down in Aguilar
as facially unconstitutional is not directed at prohibiting delinquent minors’ rights
to possess firearms or otherwise directed at regulating their conduct. Thus, whether
legislation prohibiting those who have previously been adjudicated delinquent
from possessing firearms would comport with the second amendment is not before
us. Accordingly, for all of these reasons, we decline the State’s invitation to address
this issue.
¶ 29 CONCLUSION
¶ 30 For the reasons set forth above, we affirm the trial court’s judgment, dismissing
the charges based on the Class 4 form of section 24-1.6(a)(1), (a)(3)(A), which we
found to be facially unconstitutional in Aguilar. Further, we reverse the trial court’s
judgment dismissing the charges based on sections 24-1.6(a)(1), (a)(3)(C) and
(a)(3)(I), which we find to be constitutional and severable from the unconstitutional
provision of the statute. Accordingly, we remand this cause to the circuit court for
further proceedings consistent with this opinion.
¶ 31 Circuit court judgment affirmed in part and reversed in part.
¶ 32 Cause remanded.
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