Court of Appeals of Illinois, First District, Third Division
Appeal from the Circuit Court of Cook County. No. 11 CR 7480 The Honorable James B. Linn, Judge Presiding.
JUSTICE HYMAN delivered the judgment of the court, with opinion. Justices Pierce and Mason concurred in the judgment and opinion.
¶ 1 Does the unlawful use of weapons by felons statute (720 ILCS 5/24-1.1 (West 2010)), violate a defendant's second amendment rights by criminalizing the knowing possession of firearm ammunition alone, without regard to whether or not the defendant also possesses a firearm?
¶ 2 Defendant draws on District of Columbia v. Heller, 554 U.S. 570 (2008), and McDonald v. City of Chicago, 561 U.S.__, 130 S.Ct. 3020 (2010), cases in which the United States Supreme Court recognized an individual's second amendment right to bear arms, to argue the unlawful use of weapons by felons statute infringes on that right either facially or as applied to him, and is unconstitutional. But defendant's argument is belied by the Supreme Court's recognition that the second amendment guarantees "the right of law-abiding, responsible citizens to use arms in defense of hearth and home." (Emphasis added.) Heller, 554 U.S. at 635; see also McDonald, 561 U.S. at __, 130 S.Ct. at 3047 ("[w]e made it clear in Heller that our holding did not cast doubt on such longstanding regulatory measures as 'prohibitions on the possession of firearms by felons and the mentally ill .' We repeat those assurances here." (quoting Heller, 554 U.S. at 626). As a convicted felon, defendant's second amendment rights may be constitutionally abridged. We uphold defendant's convictions, finding the unlawful use of weapons by felons statute does not violate the second amendment's right to bear arms either facially or as applied to defendant. It would be a strange world indeed for the law to be constitutionally sound in preventing and prohibiting convicted felons from having firearms, but allowing them to keep the very thing that makes firearms deadly.
¶ 3 BACKGROUND
¶ 4 Defendant, Kevin Garvin, was charged with one count of possession of a controlled substance with intent to deliver and one count of unlawful use or possession of a weapon by a felon (UUWF) based on his possession of firearm ammunition.
¶ 5 At the bench trial, Chicago police officer Michael Kelly testified that on April 16, 2011, a team of officers executed a search warrant at Garvin's home, 2124 West 70th Street. They recovered six bags of suspected crack cocaine from Garvin's girlfriend's person. They searched the bedroom, where they recovered more suspect crack cocaine behind an entertainment center. The officers also recovered five live .38 caliber bullets inside of a small red tin case on top of the entertainment center. Next to the tin, the officers found Garvin's state identification card, his Illinois probation card, a watch, hat, and other personal items. In the bedroom closet, officers recovered a piece of mail from the Department of Health with Garvin's name on it and the address of the premises being searched. At the time of his arrest, Garvin did not have a firearm on his person, and no firearms were recovered from his home.
¶ 6 Garvin was arrested and advised of his Miranda rights. Officer Kelly testified Garvin then stated that the bullets and the bags of suspected crack cocaine found on his girlfriend belonged to him. He said the bullets "were from the old days" when he had "used them for protection." Officer Kelly also testified he never saw Garvin handle the recovered bullets.
¶ 7 The parties stipulated that a proper chain of custody of the physical evidence was maintained. The parties further stipulated that a forensic chemist tested and weighed the suspect crack cocaine. The substance tested positive for crack cocaine and weighed 5.2 grams. The State introduced Garvin's October 14, 2004, certified conviction in case number 04 CR 5469 for the offense of possession of a controlled substance with intent to deliver. Garvin was found guilty of the lesser included offense of possession of a controlled substance and unlawful use or possession of a weapon by a felon. The court inquired about Garvin's criminal history and the State responded that Garvin was on probation for one of his four previous convictions. Defense counsel acknowledged that defendant had violated probation and accepted a plea of a sentence of 26 consecutive months.
¶ 8 The trial court denied defendant's motion for a new trial and sentenced him to concurrent terms of six years and six months, and three years. Defendant's motion to reconsider his sentence was denied.
¶ 9 Defendant timely appeals.
¶ 10 ANALYSIS
¶ 11 Garvin argues his UUWF conviction violates his right to keep and bear arms under the second amendment of the United States Constitution. U.S. Const., amend. II. The second amendment 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. In the much-discussed case of District of Columbia v. Heller, 554 U.S. 570 (2008), the United States Supreme Court struck down a District of Columbia law banning the possession of handguns in the home. In doing so, the Court recognized that the second amendment grants an individual the right to keep and bear arms (Heller, 554 U.S. at 592), and that the "central component of the right" is the right of armed self-defense, particularly in one's home. (Emphasis omitted.) He ...