Appeal from the Circuit Court of Cook County. Honorable Kenneth J. Wadas, Judge Presiding. 08 CR 16364
The opinion of the court was delivered by: Justice O'mara Frossard
JUSTICE O'MARA FROSSARD delivered the opinion of the court: Defendant Omar Williams was convicted in a bench trial of two counts of unlawful use of a weapon by a felon and six counts of aggravated unlawful use of a weapon (AUUW). At sentencing, all counts were merged into one AUUW conviction and defendant was sentenced to 5 years in prison, with 308 days' credit for the time he served awaiting trial. Defendant was also assessed costs totaling $715. On appeal defendant challenges the constitutionality of the criminal laws of which he was convicted as violative of the second amendment to the United States Constitution. He also challenges some of the costs assessed. We affirm defendant's conviction and sentence, but modify the costs.
Defendant does not challenge the sufficiency of the evidence of his guilt, aside from his constitutional challenges. The State's evidence at trial established that on August 14, 2008, at about 5 p.m. the victim, Robert Brown, was walking and conversing with a friend in the area of 1324 West 13th Street in Chicago. Defendant, whom Brown had known for about 10 years, ran up behind Brown and struck him in the face with a silver-gray 9-millimeter handgun. Defendant then took $30 from Brown's pants pocket. Brown walked to his grandmother's house, where he cleaned himself off, and then rode his bike to the hospital. Brown subsequently identified defendant as his assailant in a lineup and also identified him at trial. Defendant was arrested on the street later that same day. On his person the police found a chrome 9-millimeter semiautomatic handgun loaded with nine bullets. They also recovered from defendant one $100 bill, one $10 bill, and two $1 bills. The prosecution introduced evidence that defendant had previously been convicted of unlawful use of a weapon by a felon. Because the money found on defendant did not match the $30 he allegedly took at gunpoint from Brown and no part of the bills recovered could add up to $30, the trial judge acquitted defendant of the offense of robbery, with which he was also charged. But the trial judge did convict him of six counts of aggravated unlawful use of a weapon and two counts of unlawful use of a weapon by a felon. Those charges were merged into one count of aggravated unlawful use of a weapon, defendant was sentenced to five years in prison, and a number of costs were assessed. This timely appeal then ensued.
The second amendment to the United States Constitution provides:
"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.
We need not discuss defendant's contention that the second amendment is incorporated in the due process clause of the fourteenth amendment and therefore applies to individual states, including Illinois. This proposition was answered affirmatively in McDonald v. City of Chicago, 561 U.S. ___, ___, 177 L. Ed. 2d 894, 922, 130 S. Ct. 3020, 3044 (2010). Nor need we re-examine the case of Kalodimos v. Village of Morton Grove, 103 Ill. 2d 483 (1984), as defendant suggests we should in light of McDonald. Kalodimos held that a village ordinance prohibiting, with a few exceptions, the possession of operable handguns was a correct exercise of police power and was not in violation of the Illinois constitutional provision which 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. Any reexamination of Kalodimos would be the task of the Illinois Supreme Court. Moreover, in light of the application of the second amendment to the states by McDonald, there is no need to resort to constructions of the Illinois Constitution's provision applicable to the right to bear arms. Nor does defendant attempt to explain how such an application would be helpful to his arguments, given the extraordinary deference to the police power which this provision grants. Kalodimos, 103 Ill. 2d at 491-92.
Defendant's central contention is that the recent cases of District of Columbia v. Heller, 554 U.S. 570, ___, 171 L. Ed. 2d 637, 661-62, 677, 128 S. Ct. 2783, 2801-02, 2815-16 (2008), and McDonald, which applied the second amendment to invalidate laws virtually banning any possession of loaded handguns for self-defense in the home, should be extended to invalidate the statutes of which defendant was convicted, which criminalized his possession of a loaded handgun outside of his home. This court has recently explored this very issue and definitively determined that the holdings of the United States Supreme Court in Heller and McDonald do not establish that the Illinois statute on aggravated unlawful use of a weapon is unconstitutional. People v. Dawson, 403 Ill. App. 3d 499, 506, 934 N.E.2d 598, 607 (2010). We find Dawson to be persuasive and so reject defendant's challenges to the AUUW statute as well as the statute criminalizing the unlawful use of a weapon by a felon, the two statues of which he was convicted in eight different permutations.
This challenge to the constitutionality of a statute is subject to de novo review. Davis v. Brown, 221 Ill. 2d 435, 443 (2006). Moreover, as we stated in Dawson: "We begin review of such an argument with the presumption that the statute is constitutional. *** It is our duty, when it may be reasonably done, to construe a challenged statute in a manner that upholds its validity and constitutionality. [Citation.]" Dawson, ___
Ill. App. 3d at 506, 934 N.E.2d at 603-04.
Upon close review of the arguments presented by defendant, it becomes clear that he overstates the holdings of Heller and McDonald in order to make them appear to control the outcome of the present challenge. Thus defendant notes that Heller found that a handgun, the type of firearm at issue there and in the case before us, was one contemplated for protection by the drafters of the second amendment, because it was commonly in use at the time and not particularly dangerous or unusual as a firearm. But it is clear that Heller found this a necessary but not sufficient quality of those weapons which were protected. Heller also noted that a crucial factor in permitting the criminalization of such weapons might not be just their type but their location, such as possessing them in schools and government buildings. Heller, 554 U.S. at ___, 171 L. Ed. 2d at 678, 128 S. Ct. at 2817. Thus the very handgun which would be legal to possess in one's home could be illegal to possess in a school or library.
Defendant attempts to turn this reasoning on its head by concluding that Heller's citation of "sensitive" places where firearms could be banned outside the home necessarily meant that they could not be banned everywhere outside the home. There are two answers to this. One is that the Illinois statute does permit firearms to be possessed outside the home under certain circumstances if they are not "uncased, loaded and immediately accessible." 720 ILCS 5/24-1.6(a)(1),(a)(3)(A) (West 2008). More importantly, both Heller and McDonald made clear that the only type of firearms possession they were declaring to be protected under the second amendment was the right to possess handguns in the home for self-defense purposes. Heller, 554 U.S. at ___, 171 L. Ed. 2d at 661-62, 677, 128 S. Ct. at 2801-02, 2815-16; McDonald, 561 U.S. at ____, 177 L. Ed. 2d at 929, 130 S. Ct. at 3050 (extending this protection, under the due process clause, to infringement by state statutes). It is this narrow focus which defeats a final argument made by defendant, that Heller defined the right to "bear arms" as the right to carry a weapon on one's person or clothing in order to be armed and ready for offensive or defensive action. Heller, 554 U.S. at ___, 171 L. Ed. 2d at 652-53, 128 S. Ct. at 2793. But again, this was in the context of the right to bear arms for protection in one's home, and the holdings do not extend beyond such usage.
Along with the narrow holdings of Heller and McDonald, we must acknowledge the numerous Illinois cases predating those two decisions which have found the Illinois statute on unlawful use of weapons to be constitutional and a rational expression of public policy in the face of due process challenges. People v. Sole, 357 Ill. App. 3d 988, 991 (2005); People v. Austin, 349 Ill. App. 3d 766, 772 (2004); People v. Pulley, 345 Ill. App. 3d 916, 925 (2004); People ...