People v. Aguilar: A Case for Concealed Carry in Illinois

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1 People v. Aguilar: A Case for Concealed Carry in Illinois IICLE: New Perspectives Flashpoints November 2013 Shawna Boothe Introduction The debate over enacting concealed carry in Illinois has been heated, especially in the wake of the Sandy Hook Elementary School and Aurora, Colorado, movie theater shootings, which spurred the counter-lobby for stricter gun laws and assault rifle bans. Recently, People v. Aguilar, 2013 IL (Sept. 12, 2013), presented the Illinois Supreme Court with the opportunity to recognize the holding of the Seventh Circuit in Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012), that the aggravated unlawful use of a weapon statute, 720 ILCS 5/24-1.6, is unconstitutional under the Second Amendment. In light of Aguilar, the right to carry firearms is no longer restricted to the home; rather, the court afforded the term bear in the Second Amendment a broad interpretation that allows Illinois citizens to carry a concealed firearm outside the home. As with every enumerated fundamental right, the right to bear arms is not unlimited. District of Columbia v. Heller, 554 U.S. 570, 171 L.Ed.2d 637, 128 S.Ct. 2783, (2008). Under 25 and 65 of the recently enacted Firearm Concealed Carry Act, 430 ILCS 66/1, et seq., a person must qualify for a license, must complete approved firearm training courses, and is prohibited from carrying a firearm in certain locations, including schools, government buildings, hospitals, and public transportation. 430 ILCS 66/25, 66/65. This article reviews the procedural posture of Aguilar and provides a summary of the Illinois Supreme Court s holdings and reasoning that have vastly altered the issue of concealed carry in Illinois. At Trial On the night of June 12, 2008, the defendant, 17-year-old Alberto Aguilar, was found by police in possession of a loaded firearm on private property not owned by the defendant. Aguilar was subsequently arrested and charged with aggravated unlawful use of a weapon (AUUW) and unlawful possession of a firearm (UPF). At the time of the incident, the AUUW statute provided: (a) A person commits the offense of aggravated unlawful use of a weapon when he or she knowingly (1) Carries on or about his or her person or in any vehicle or concealed on or about his or her person except when on his or her land or in his or her abode or fixed place of business any pistol, revolver, stun gun or taser or other firearm; [and] * * *

2 (3) One of the following factors is present: (A) the firearm possessed was uncased, loaded and immediately accessible at the time of the offense IL at 15, quoting 720 ILCS 5/24-1.6(a)(1), 5/24-1.6(a)(3)(A) (2008). The UPF statute provided: A person commits the offense of unlawful possession of firearms or firearm ammunition when: (1) He is under 18 years of age and had in his possession any firearm of a size which may be concealed upon the person IL at 25, quoting 720 ILCS 5/24-3.1(a)(1) (2008). Judge Charles P. Burns of the Circuit Court of Cook County found Aguilar guilty of AUUW and UPF and sentenced him to 24 months probation for the AUUW conviction without imposing a sentence for the UPF conviction. On Appeal Aguilar appealed his convictions and sentence to the First District Appellate Court. On February 23, 2011, the appellate court, in an opinion written by Judge Quinn, affirmed the trial court, with Judge Neville authoring a dissenting opinion. People v. Aguilar, 408 Ill.App.3d 136, 944 N.E.2d 816, 348 Ill.Dec. 575 (1st Dist. 2011). First, the appellate court held that the subsequent amendment to the AUUW statute applied prospectively, not retroactively to Aguilar s conduct. The AUUW statute was amended by P.A ; this amendment permitted a person to carry a loaded firearm on the land or in the legal dwelling of another person as an invitee with that person s permission. The court denied retroactive application of the amendment to Aguilar s case because the legislature clearly indicated a temporal reach of the statutory amendment by providing an effective date of August 29, 2009, which was after Aguilar was arrested for unlawful conduct under the AUUW in effect at the time. The court further reasoned that even if the amendment could be applied retroactively, it still would not apply to the specific facts of the defendant s case because there was no evidence in the record that Aguilar had the requisite permission from the landowner. Turning to the constitutional challenge to the AUUW and UPF statutes, the appellate court held that government infringement of a person s Second Amendment right to bear arms warrants intermediate scrutiny review. The court acknowledged that the Supreme Court in Heller, supra, and McDonald v. City of Chicago, Illinois, 561 U.S., 177 L.Ed.2d 894, 130 S.Ct (2010), did not adopt a level of scrutiny for Second Amendment challenges, but the majority of the Court in Heller did reject application of rational basis review (Heller, 128 S.Ct. at 2817 n.27 ( If all that was required to overcome the right to keep and bear arms was a rational basis, the Second Amendment would be redundant with the separate constitutional prohibitions on irrational laws, and would have no effect. )). Further, the First District reasoned that Justice Breyer s dissent in Heller clearly indicated that he and the majority of the Court rejected strict scrutiny for reviewing gun-control regulations. 944 N.E.2d at 824, citing Heller, 128 S.Ct. at 2851 (Breyer, J., dissenting). Applying intermediate

3 scrutiny to such regulations is also supported by the federal courts of appeal in the Third, Fourth, Seventh, and Tenth Circuits. 944 N.E.2d at 825, citing United States v. Marzzarella, 614 F.3d 85, 97 (3d Cir. 2010), United States v. Chester, 628 F.3d 673 (4th Cir. 2010), United States v. Skoien, 614 F.3d 638, 641 (7th Cir. 2010), and United States v. Reese, 627 F.3d 792 (10th Cir. 2010). In analyzing the constitutionality of the AUUW statute, the appellate court upheld the statute as constitutional because it was substantially related to public safety and the fit between the statute and the governmental objective was reasonable. The court reasoned that the AUUW statute specifically excluded possession of a firearm in the home from its proscriptions, which is consistent with a strict and limited reading of Heller, which recognized the Second Amendment s protection of the right to possess firearms in the home. The court did not reach Aguilar s constitutional challenge to the UPF statute, holding that the court did not have the power to review Aguilar s conviction for unlawful possession of a firearm because the trial court did not impose a sentence for this conviction. The court relied on People v. Baldwin, 199 Ill.2d 1, 764 N.E.2d 1126, 1128, 262 Ill.Dec. 9 (2002), which held that [a]bsent a sentence, a conviction is not a final and appealable judgment. 944 N.E.2d at 828. The court rejected Aguilar s argument that the court had the authority to review the UPF conviction under Illinois Supreme Court Rule 615(b), allowing for the modification of any proceedings dependent on the judgment from which the appeal is taken. The court stated that since it did not reverse the AUUW conviction, the court did not acquire jurisdiction under Rule 615(b). Justice Neville, in his dissent, agreed with the majority that the 2009 amendment to the AUUW statute should not apply retroactively to Aguilar s case and that intermediate scrutiny was the appropriate standard of review for gun-control legislation but disagreed with the majority s holdings on the constitutionality of the AUUW statute and the court s failure to address the validity of the UPF statute. 944 N.E.2d at 830. The dissent argued that the AUUW statute should be held unconstitutional on its face based on guidance provided by the Heller Court in dicta (which should carry dispositive weight in an inferior court). This dictum favors a broad interpretation of the right to bear arms, extending outside the home. According to Justice Neville, the purpose of the AUUW statue is important; however, the fit between the regulation and the governmental purpose sweeps with breadth disproportionate to its legitimate purpose. 944 N.E.2d at 832. The dissent also argued that vacating the UAAW conviction would give the court the authority to review the defendant s UPF conviction, but the dissent would uphold the UPF statute barring minors from possessing concealed firearms as constitutional because children s constitutional rights cannot be equated with those of adults due to the peculiar vulnerability of children [and] their inability to make critical decisions in an informed, mature manner. 944 N.E.2d at 833. The Seventh Circuit Weighs In On December 11, 2012, the Seventh Circuit, in Moore, supra, also addressed the constitutionality of the AUUW statute. In Moore, the plaintiff sought an injunction to prevent the enforcement of the AUUW statute prohibiting public possession of a firearm.

4 The Seventh Circuit rendered an opinion inconsistent with the holding of the First District Appellate Court in Aguilar. The Moore court struck down the AUUW statute as an unconstitutional flat ban on carrying ready-to-use guns outside the home in violation of the Second Amendment right to keep and bear arms, as construed in Heller and McDonald. The Seventh Circuit relied on the broad principles that informed the holding in Heller, as opposed to the specific holding itself, to reason that the Second Amendment ultimately protects the right to keep and bear arms for the purpose of selfdefense since [c]onfrontations are not limited to the home. 702 F.3d at , citing Heller, 128 S.Ct. at Additionally, the Moore court recognized the distinction between the right to keep and the right to bear arms, noting that the right to bear arms implies a right to carry a loaded gun outside the home. 702 F.3d at 936. An en banc rehearing was declined by the Seventh Circuit, and the deadline to appeal to the United States Supreme Court expired on July 9, However, the issue became moot once the Illinois legislature passed the Firearm Concealed Carry Act, which became effective July 9, The Illinois Supreme Court Speaks in Accord with Moore On September 12, 2013, the Illinois Supreme Court had the opportunity to rectify the inconsistent holdings in Aguilar and Moore. Before turning to the merits of the constitutionality of the AUUW statute, the court addressed the threshold issue of the defendant s standing. The court held that Aguilar had standing to bring a facial challenge to the constitutionality of the AUUW statute that sought to prevent the enforcement of the statue against anyone, including the defendant who sustained a direct injury of two felony convictions and a sentence of 24 months of probation. In turning to the merits of Aguilar s appeal, the Illinois Supreme Court followed the Seventh Circuit in Moore and held that the AUUW statute violated the right to keep and bear arms protected by the Second Amendment. The court noted that neither Heller nor McDonald explicitly confined Second Amendment protection to the home; on the contrary, both lines of cases contain strong language confirming that the right to keep and bear arms extends outside the home. The Illinois Supreme Court also reasoned that the central component of the Second Amendment as identified by the Heller Court individual self-defense would support a broad interpretation of keep and bear that is not limited to the home IL at 19. Thus, the Illinois Supreme Court in Aguilar reversed the defendant s conviction under the AUUW statute. Finally, the Illinois Supreme Court upheld the UPF statute as constitutional under the Second Amendment. The court rejected the defendant s argument that, at the time the Second Amendment was drafted and ratified, the right to keep and bear arms extended to 16- and 17-year-olds supported by the colonial requirement that children as young as 15 years of age bear arms for purposes of militia service. Instead, the Illinois Supreme Court relied on language in Heller that affirmed that Second Amendment rights are not unlimited, including longstanding prohibitions on the possession of firearms by felons and the mentally ill or in sensitive places such as schools and government buildings. The court viewed this as a non-exhaustive list, which would encompass placing firearm restrictions on minors. Further support for the Illinois Supreme Court s holding in

5 Aguilar was found in prior historical analysis undertaken by courts that concluded possession of handguns by minors is conduct that lies outside the scope of Second Amendment protection. [L]aws banning the juvenile possession of firearms have been commonplace for almost 150 years and both reflect and comport with a longstanding practice of prohibiting certain classes of individuals from possessing firearms IL at 27, quoting United States v. Rene E., 583 F.3d 8, 15 (1st Cir. 2009), and citing National Rifle Association of America, Inc. v. Bureau of Alcohol, Tobacco, Firearms, & Explosives, 700 F.3d 185, 204 (5th Cir. 2012), and Powell v. Tompkins, 926 F.Supp.2d 367, (D.Mass. 2013). Shawna Boothe is an IICLE New Perspectives Contributor. This article was originally published by IICLE Schiff Hardin LLP This publication has been prepared for the general information of clients and friends of the firm. It is not intended to provide legal advice with respect to any specific matter. Under rules applicable to the professional conduct of attorneys in various jurisdictions, it may be considered attorney advertising material. Prior results do not guarantee a similar outcome. For more information visit our Web site at