Modified upon denial of rehearing December 19, 2013
Illinois’ flat ban on carrying ready-to-use guns outside the home, contained in the Class 4 form of the statute on aggravated unlawful use of weapons, is unconstitutional on its face as a violation of the second amendment right to bear arms—conviction reversed.
Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County, the Hon. Charles P. Burns, Judge, presiding.
Michael J. Pelletier, State Appellate Defender, Alan D. Goldberg, Deputy Defender, and David C. Holland, Assistant Appellate Defender, of the Office of the State Appellate Defender, of Chicago, for appellant.
Lisa Madigan, Attorney General, of Springfield, and Anita Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg, Michelle Fowler, Annette Collins, Susan Schierl Sullivan, Veronica Calderon Malavia and Kathryn Schierl, Assistant State’s Attorneys, of counsel), for the People.
Victor D. Quilici, of River Grove, and Stephen P. Halbrook, of Fairfax, Virginia, for amici curiae Illinois State Rifle Association et al.
William N. Howard and Garry L. Wills, of Freeborn & Peters, of Chicago, for amici curiae Certain Illinois Legislators.
Stephen A. Kolodziej, of Brenner, Ford, Monroe & Scott, Ltd., of Chicago, and Charles J. Cooper, David H. Thompson and Peter A. Patterson, of Cooper & Kirk, PLLC, of Washington, D.C., for amicus curiae National Rifle Association of America, Inc.
Michael P. O’Shea, of Oklahoma City, Oklahoma, for amici curiae Professor Nicholas J. Johnson et al.
Janet Garetto, of Chicago (David H. Tennant, of Rochester, New York, Lynette Nogueras-Trummer, of Buffalo, New York, and Cameron R. Cloar, of San Francisco, California, of counsel), for amici curiae Legal Community Against Violence et al.
Alexander D. Marks, of Burke, Warren, MacKay & Serritella, P.C., of Chicago, and Jonathan L. Diesenhaus, S. Chartey Quarcoo and Matthew C. Sullivan, of Hogan Lovells U.S. LLP, and Jonathan E. Lowy and Daniel R. Vice, all of Washington, D.C., for amici curiae Brady Center To Prevent Gun Violence et al.
Ranjit Hakim, of Mayer Brown LLP, of Chicago, for amici curiae Historians Patrick J. Charles, Peter Charles Hoffer, Stanley N. Katz, William Pencak and Robert J. Spitzer.
Justices Freeman, Kilbride, Karmeier, and Burke concurred in the judgment and opinion.
Chief Justice Garman dissented upon denial of rehearing, with opinion.
Justice Theis dissented upon denial of rehearing, with opinion.
¶ 1 The principal issue in this case is whether the Class 4 form of section 24-1.6(a)(1), (a)(3)(A), (d) of the Illinois aggravated unlawful use of weapons (AUUW) statute (720 ILCS 5/24-1.6(a)(1), (a)(3)(A), (d) (West 2008)) violates the right to keep and bear arms, as guaranteed by the second amendment to the United States Constitution (U.S. Const., amend. II). We hold that it does.
¶ 2 BACKGROUND
¶ 3 The facts are not in dispute. Officer Thomas Harris of the Chicago police department testified that, on the evening of June 12, 2008, he was on surveillance duty near 4217 West 25th Place. Officer Harris observed a group of male teenagers screaming, making gestures, and throwing bottles at passing vehicles. This group included defendant, who Officer Harris noticed was holding the right side of his waist area. After watching the group walk into a nearby alley, Officer Harris radioed other officers who were nearby.
¶ 4 Officer John Dolan testified that, after receiving a radio communication from Officer Harris, he and Officers Wagner and Triantafillo traveled to 4217 West 25th Place. Once there, Officer Dolan watched several individuals walk into the backyard. The officers followed, and Officer Dolan heard defendant yell an expletive. Officer Dolan then saw that defendant had a gun in his right hand. Defendant dropped the gun to the ground, and Officer Dolan took defendant into custody while another officer recovered the gun. When Officer Dolan examined the gun, he saw that the serial number had been scratched off and that it was loaded with three live rounds of ammunition. Officer Dolan learned later that defendant did not live at 4217 West 25th Place.
¶ 5 Defense witness Romero Diaz testified that he lived at 4217 West 25th Place and that defendant was his friend. Diaz explained that, on the evening in question, he was with defendant and another friend in his backyard waiting for defendant's mother to pick up defendant, when three or four police officers entered the backyard with flashlights and ordered him and his friends to the ground. When defendant hesitated to comply, one of the officers tackled him to the ground. According to Diaz, defendant did not have a gun and did not drop a gun to the ground when the officers entered the backyard.
¶ 6 Defendant testified that, on the night of June 12, 2008, he was with friends at the corner of 26th Street and Keeler Avenue. After spending about 45 minutes there, he and another friend walked to Diaz's backyard. While defendant was waiting there for his mother to pick him up, three police officers entered the yard with flashlights and guns drawn. One officer yelled at defendant to get on the ground, and when defendant moved slowly, another of the officers tackled defendant. The officers then searched the yard, showed defendant a gun, and accused him of dropping it. Defendant denied ever having a gun that evening, and he denied dropping a gun to the ground.
¶ 7 After weighing the credibility of the witnesses, the trial court found defendant guilty of both the Class 4 form of section 24-1.6(a)(1), (a)(3), (d) and unlawful possession of a firearm (UPF) (720 ILCS 5/24-3.1(a)(1) (West 2008)). The trial court sentenced defendant to 24 months' probation for the AUUW conviction and did not impose sentence on the UPF conviction.
¶ 8 Defendant appealed, and the appellate court affirmed with one justice dissenting. 408 Ill.App.3d 136. We allowed defendant's petition for leave to ...