People v. Burns, 2015 IL 117387

Background

Police responded to shots-fired; officers blocked a parked Nissan and observed Edward Burns (defendant) exit the passenger seat holding a gun, toss it back into the car, and flee. A loaded magazine was recovered during the chase and matched a gun found in the vehicle.
Burns was indicted on multiple counts including aggravated unlawful use of a weapon (AUUW) under 720 ILCS 5/24-1.6(a)(1), (a)(3)(A) (uncased, loaded, immediately accessible firearm in a vehicle/public place).
The State nol-prossed several counts and proceeded on AUUW count based on (a)(1),(a)(3)(A). At trial Burns was convicted at a bench trial; sentencing used separate certified records to establish prior felonies and a 10-year term was imposed.
Burns argued on appeal that section 24-1.6(a)(1),(a)(3)(A) is facially unconstitutional under the Second Amendment, relying on this Court’s decision in People v. Aguilar.
The appellate court upheld the conviction, reading Aguilar as limited to a “Class 4 form” and holding that the statute could validly apply to felons (raising the penalty to Class 2).
The Illinois Supreme Court reversed: it held there is a single AUUW offense in subsection (a) and that the (a)(1),(a)(3)(A) provision is facially unconstitutional in all applications; therefore Burns’s AUUW conviction and sentence were vacated.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether 720 ILCS 5/24-1.6(a)(1),(a)(3)(A) is facially unconstitutional under the Second Amendment	State: statute could be applied constitutionally to felons; statute valid in some applications	Burns: provision is a flat ban on carrying ready-to-use guns outside the home and is facially invalid per Aguilar	Court: provision is facially unconstitutional in all applications; vacated conviction
Whether prior felony status is an element of AUUW or merely a sentencing factor	State: enhancing factors affect punishment only; statute valid as applied to felons	Burns: legislature did not make felony status an element; cannot condition constitutionality on proof of felony status	Court: prior felony is a sentencing factor (subsection d), not an element; but that does not save subsection (a)(1),(a)(3)(A) from facial invalidity
Whether Aguilar’s earlier limitation to a “Class 4 form” preserves enforceability as to felons	State & appellate court: Aguilar’s holding limited to Class 4, so Class 2 (felon) applications survive	Burns: there is no separate "Class 4" or "Class 2" form—only one offense; Aguilar applies to the provision itself	Court: Aguilar’s prior limiting language was inappropriate; there is one offense and the statute is unconstitutional without limitation
Whether the court may judicially rewrite the statute to save it by applying it only to felons	State: constitutional as applied to felons; courts can construe statute to avoid invalidity	Burns: rewriting would usurp legislative role	Court: cannot rewrite statute to add felony-status element; doing so would substitute judicial for legislative function and is improper

Key Cases Cited

People v. Aguilar, 2013 IL 112116 (held that the AUUW provision operated as a ban on carrying ready-to-use guns outside the home and is unconstitutional)
Moore v. Madigan, 702 F.3d 933 (7th Cir.) (recognized Second Amendment protection to carry outside the home; described bans as flat prohibitions)
District of Columbia v. Heller, 554 U.S. 570 (established individual right to possess firearms for self-defense and noted presumptively lawful prohibitions such as felon dispossession)
McDonald v. City of Chicago, 561 U.S. 742 (incorporated Second Amendment against the states)
City of Los Angeles v. Patel, 576 U.S. _, 135 S. Ct. 2443 (explained focus of facial challenges on applications that the law actually regulates)
United States v. Salerno, 481 U.S. 739 (facial challenge standard: statute invalid only if no set of circumstances exists under which it would be valid)
Apprendi v. New Jersey, 530 U.S. 466 (facts increasing penalty must be proved to a jury beyond a reasonable doubt)
Ayotte v. Planned Parenthood of Northern New England, 546 U.S. 320 (courts should not rewrite statutes; prefer narrow tailoring or severance over wholesale invalidation)
People v. Zimmerman, 239 Ill. 2d 491 (elements of AUUW are contained in subsection (a); sentencing in subsection (d))