Appeal from the Circuit Court of Cook County. 09 CR 3042 Honorable Michael J. Howlett, Jr., Judge Presiding.
The opinion of the court was delivered by: Justice Neville
JUSTICE NEVILLE delivered the judgment of the court, with opinion. Presiding Justice Quinn and Justice Steele concurred in the judgment and opinion.
The trial court found the defendant, Fred Davis, guilty on seven counts of unlawful use of a weapon by a felon (UUWF) (720 ILCS 5/24-1.1(a) (West 2008)) and on four counts of violations of section 24-1.7(a) of the Criminal Code of 1961, the armed habitual criminal statute (720 ILCS 5/24-1.7(a) (West 2008)). On appeal, Davis argues that (1) both statutes unconstitutionally infringe on his right to bear arms; (2) application of the armed habitual criminal statute to him violates the ex post facto clauses of the state and federal constitutions; and (3) the court should not have found him guilty of four separate counts for violating the armed habitual criminal statute based on his simultaneous possession of four guns. We find that the constitution permits the state to ban felons from possessing firearms and the armed habitual criminal statute does not violate ex post facto principles, but simultaneous possession of four weapons can support only one conviction for violation of the armed habitual criminal statute. We vacate three of the convictions for violating the armed habitual criminal statute, and in all other respects we affirm the trial court's judgment.
On January 21, 2009, a police officer on the south side of Chicago saw Davis put a backpack into a car's trunk. Davis tried to shut the trunk as the officer walked up to him, but the trunk popped open. The officer saw a gun in the backpack. Police officers arrested Davis. When they searched the car, they found that the backpack held four guns, and three of them were loaded. After an officer reminded Davis of his rights, Davis said that the guns belonged to his nephew.
A grand jury indicted Davis for four counts of violations of the armed habitual criminal statute and for seven counts of UUWF.
At the bench trial, the officer who first saw the gun testified about the guns. The parties stipulated that Davis had prior convictions for aggravated discharge of a firearm, a Class 1 felony, and a Class 2 felony conviction for delivery of a controlled substance. The defense presented no evidence. The trial court found Davis guilty on all counts. The court sentenced Davis to seven years in prison on each of the armed habitual criminal statute charges, and to six years on each count of UUWF, with all of the sentences to run concurrently. Davis now appeals.
On appeal, Davis does not challenge the sufficiency of the evidence showing that he possessed firearms and that he had prior felony convictions. He argues that we must reverse his convictions because both the armed habitual criminal statute and the UUWF statute violate his constitutional right to bear arms. See U.S. Const., amend. II. He challenges the statutes both as facially unconstitutional and as unconstitutional as applied to him. We review the constitutionality of a statute de novo. People ex rel. Birkett v. Konetski, 233 Ill. 2d 185, 200 (2009).
The State suggests that the statutes at issue do not impose any burden on conduct falling within the scope of the second amendment because it applies only to felons. In support, the State cites Wilson v. Cook County, No. 1-08-1202 (Ill. App. Feb. 9, 2011) and People v. Ross, No. 1-09-1463 (Ill. App. Mar. 11, 2011). Both the Wilson court and the Ross court cite with approval United States v. Williams, 616 F.3d 685 (7th Cir. 2010), in which the court found the need to apply intermediate scrutiny to a statute that barred felons from possessing firearms. If the statute did not impose any burden on conduct falling within the scope of the second amendment, the court should have applied, at most, a rational basis test for deciding the statute's constitutionality. The second amendment expressly protects "the right of the people to keep and bear arms." U.S. Const., amend.
II. Although a felon, Davis still counts as one of the people whose rights the Constitution protects. Therefore, like the Williams court, we apply intermediate scrutiny to determine whether the statutes at issue here violate the second amendment. People v. Aguilar, No. 1-09-0840, slip op. at 16 (Ill. App. Feb. 23, 2011).
Under this standard of review, "[t]he State must assert a substantial interest to be achieved by restrictions" on the constitutional right, and "the regulatory technique must be in proportion to that interest." Central Hudson Gas & Electric Corp. v. Public Service Comm'n, 447 U.S. 557, 564 (1980). Supreme Court decisions "require *** a fit that is not necessarily perfect, but reasonable; that represents not necessarily the single best disposition but one whose scope is 'in proportion to the interest served,' " Board ...