Court of Appeals of Illinois, First District, Fourth Division
from the Circuit Court of Cook County, No. 13-C6-60044; the
Hon. Michele Pitman, Judge, presiding.
S. Gable, of Chicago, for appellant.
M. Alvarez, State's Attorney, of Chicago (Alan J.
Spellberg and Gina DiVito, Assistant State's Attorneys,
of counsel), for the People.
PRESIDING JUSTICE ELLIS delivered the judgment of the court,
with opinion. Justices McBride and Howse concurred in the
judgment and opinion.
1 Generally, under Illinois law, an Illinois resident must
possess a Firearm Owner's Identification (FOID) card to
possess a firearm in Illinois. A non-Illinois resident may be
exempt from the FOID card requirement, and thus may possess a
firearm in Illinois, if, among other reasons, that person is
"licensed" to carry that firearm in that
person's home state. The first question in this appeal is
whether a non-Illinois resident, whose home state allows him
to possess a firearm without requiring him to first obtain a
license, is deemed "licensed" in that other state
for the purposes of the Illinois FOID card exemption. We hold
that he is not. The second question is whether this result
violates the second amendment to the United States
Constitution, as applied to this individual. We hold that it
2 Defendant Peter Wiggins was seen in possession of a handgun
outside a bar in Chicago Heights. After police searched his
car, they found a handgun inside. The State charged defendant
with two counts of aggravated unlawful use of a weapon (AUUW)
predicated on his lacking a FOID card-one for carrying the
gun on his person without a FOID card, and one for possessing
the gun in his car without a FOID card. 720 ILCS
5/24-1.6(a)(1), (a)(3)(C) (West 2012). After a bench trial,
defendant was convicted of both counts.
3 Wiggins, an army veteran and a resident of Texas, had a
permit to possess the gun issued by the Fort Bliss Provost
Marshal's Office and was authorized to possess his
firearm in Texas. He argues on appeal that he thus qualified
for an exception to the AUUW statute's FOID card
requirement as a "[n]onresident" who is
"currently licensed *** to possess a firearm in [his]
resident state." See 430 ILCS 65/2(b)(10) (West 2012).
He further argues that, if he does not fit within this
exception to the FOID card requirement, the statute under
which he was convicted violated the second amendment to the
United States Constitution.
4 We affirm defendant's AUUW convictions. Even though the
state of Texas did authorize defendant to possess a firearm
in Texas, it did not first require a licensure procedure and
issue him a license to do. Thus, he was not "licensed
*** to possess" that firearm in Texas. Id. Nor
does defendant's military permit qualify him for that
exemption. Defendant thus cannot fit within this exception to
the FOID card requirement. His convictions for possession of
a firearm without a FOID card therefore stand.
5 We further find that the FOID card requirement incorporated
into the AUUW statute under which defendant was convicted is
a reasonable regulatory requirement that did not violate the
second amendment. We thus affirm defendant's convictions
in all respects.
6 I. BACKGROUND
7 Noel Tenayuca testified that, around 4 a.m. on November 15,
2012, he was at a bar in Chicago Heights. He stepped outside
with a friend who was smoking and saw defendant walking back
into the bar. Tenayuca said that, earlier, there had been a
disagreement inside the bar, and defendant seemed "a
little upset." Tenayuca said that, as defendant went in,
he lifted his shirt, revealing a gun with a brown handle.
Tenayuca thought it was the handle of the gun and told a
bouncer or bartender that defendant had a gun. Tenayuca
admitted that he only "vaguely remember[ed]" any of
the events of that night.
8 Officer Benjamin Hofrichter, a Chicago Heights police
officer, testified that he went to the bar after receiving a
call about a man with a gun. When he pulled up, he saw
defendant either getting into or out of a black SUV with
Texas plates. Defendant shut the door to the car when
Hofrichter pulled up. Hofrichter testified that defendant
knelt and raised his hands in the air, and people outside the
bar said that defendant was the person with the gun.
Hofrichter patted defendant down and asked defendant if he
had a gun. Defendant said he did not.
9 Hofrichter asked defendant for permission to search his
car, and defendant said that, if Hofrichter could get into
the car, he could search it. One of the bouncers at the bar
loaned Hofrichter a "lockout kit" because he also
worked as a tow truck driver. Hofrichter used the lockout kit
to unlock defendant's car.
10 Hofrichter put his hand down on the driver's seat,
which had a seat cover over it. He felt a hard object
underneath the cover and discovered that it was a loaded,
.45-caliber semiautomatic handgun with brown wooden grips.
Hofrichter arrested defendant and later learned that the
black SUV was registered to him. Defendant had a Texas
driver's license on him.
11 The State played a video from the exterior surveillance
cameras at the bar during trial, although that video is not
contained in the record on appeal.
12 The State also introduced a certified record from the
Illinois State Police showing that defendant had never been
issued a FOID card. The State then rested.
13 Defendant moved for a directed finding, arguing that the
evidence showed that defendant was a Texas resident, that
Texas allowed him to possess a weapon without a permit, and
thus he was a licensed nonresident exempt from the FOID card
requirement. The court denied the motion.
14 Defendant testified that he was in the army reserves from
2007 to 2014 and was stationed at Fort Bliss, Texas. At the
time of his arrest, he was inactive. Defendant testified
that, on November 15, 2012, he was a resident of Texas but
was visiting family in Chicago Heights. Defendant said that
he had purchased the gun found in his car at the army base at
Fort Bliss. Defendant identified the permit that he obtained
to purchase the gun on the base.
15 On cross-examination, defendant testified that, if he had
gone to another post, he would have had to register his
firearms at that new post. Defendant acknowledged that the
United States Army had issued the permit, not the state of
16 The permit was labeled, "FT BLISS WEAPON PERMIT"
and indicated that it had been issued by the Fort Bliss
"Provost Marshals Office." It was valid from May
25, 2011, the date it had been issued, until May 25, 2014.
The permit listed two firearms, including a .45-caliber
pistol that defendant identified as the gun he had in his car
on November 15, 2012.
17 In his closing argument, defense counsel argued that
"a valid permit or license from another state can
substitute for the FOID card requirement" and, because
defendant had a valid permit to carry a gun in Texas, he
could not be found guilty of AUUW based on his lack of a FOID
card. The State responded that defendant's military
permit did not absolve him of liability because it was not
issued by a state: "Provost marshal is not a state. It
is part of the United States Army, which is not a
18 The court found defendant guilty of both counts of AUUW,
noting that the military permit was "not a [FOID] card
or the equivalent of it from the State of Texas."
19 Defendant filed a posttrial motion arguing that he was not
guilty of AUUW because of his military permit. He noted that
Texas does not issue permits that are equivalent to FOID
cards and that only Illinois residents may apply for FOID
cards. The State responded, "Just because Texas
doesn't require a permit to own a weapon does not mean
that that absolves a Texas resident from the FOID
requirements in the state of Illinois."
20 The court denied defendant's motion, making the
"[Defendant] had-I don't have the document in front
of me, but the exhibit that I was tendered was based upon him
being authorized to carry a firearm while he was either owe
[sic] a post or something to do with the national
guard with regards to him being in the national guard. It is
not a license to carry a firearm in any other state. It is
not a license to possess a firearm. It indicates that he can
carry it in his duties with regards to being in the national
So, counsel, I respect your argument, but he could not carry
that weapon in Illinois."
21 The court sentenced defendant to 30 months' felony
probation. Defendant filed this appeal.
22 II. ANALYSIS
23 On appeal, defendant raises two challenges to his
convictions. First, he claims that the State could not prove
him guilty of AUUW beyond a reasonable doubt because he was
allowed to carry a firearm in the state of Texas and via his
military permit, each of which absolves him of the necessity
to obtain a FOID card in Illinois. Second, he claims that the
AUUW statute, both on its face and as applied to him,
violated his right to bear arms under the second amendment.
We first address defendant's sufficiency-of-the-evidence
argument, then turn to his constitutional claims.
24 A. Nonresident Exception
25 Defendant was convicted of two counts of AUUW. Count II of
the information charged defendant with possessing a weapon in
his car without a FOID card. In Count V, the State charged
defendant with carrying the firearm on his person while not
possessing a FOID card. Relevant to this case, a person
commits AUUW when he or she knowingly "[c]arries on or
about his or her person or in any vehicle or concealed on or
about his or her person *** any pistol, revolver, stun gun or
taser or other firearm" and "the person possessing
the firearm has not been issued a currently valid [FOID]
Card." 720 ILCS 5/24-1.6(a)(1), (a)(3)(C) (West 2012).
26 Defendant takes issue with the second of the two elements.
He admits that he did not have a currently valid FOID card
but claims that he was not required to obtain one. He relies
on an exemption in the Firearm Owners Identification Card Act
(FOID Card Act) for "[n]onresidents who are currently
licensed or registered to possess a firearm in their resident
state." 430 ILCS 65/2(b)(10) (West 2012). Defendant is a
resident of Texas, which authorizes him to possess a weapon
without obtaining a license. See Tex. Penal Code Ann. §
46.02(a) (West 2012). He also obtained a permit to possess a
firearm while serving in the United States Army Reserves in
Fort Bliss, Texas. According to defendant, because Texas