THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ERIC K. NOBLE, Defendant-Appellant.
Appeal No. 3-23-0089
APPELLATE COURT OF ILLINOIS THIRD DISTRICT
November 15, 2024
2024 IL App (3d) 230089-U
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). Circuit No. 05-CF-1978. Honorable David M. Carlson, Judge, Presiding.
Justice Hettel concurred in the judgment.
Presiding Justice McDade dissented.
ORDER
Held: The aggravated unlawful use of a weapon statute is not facially unconstitutional for requiring firearm owners to obtain a Firearm Owners’ Identification (FOID) card, and the FOID Card Act is not unconstitutional for prohibiting felons from possessing firearms.
¶ 1 Defendant, Eric K. Noble, appeals from the denial of his petition for relief from judgment pursuant to
I. BACKGROUND
¶ 2 On February 17, 2006, defendant pled guilty to one count of AUUW (
II. ANALYSIS
¶ 3 On appeal, defendant argues his conviction was void because the AUUW statute is facially unconstitutional under the second amendment. Specifically, defendant challenges the statute‘s requirement that a defendant possess a FOID card. Defendant further contends his conviction resulted from the enforcement of two unconstitutional provisions of the FOID Card Act (
¶ 4 Defendant did not raise these arguments below. However, a challenge to the facial constitutionality of a statute may be raised at any time. People v. Thompson, 2015 IL 118151, ¶ 32. To the extent defendant seeks to raise an as-applied constitutional challenge for the first time on appeal, such a claim is forfeited. Id. ¶¶ 35-37. An as-applied challenge is “not one of
¶ 5 Constitutional challenges carry the heavy burden of rebutting the strong judicial presumption of a statute‘s constitutionality. People v. Rizzo, 2016 IL 118599, ¶ 23. Meeting that burden requires the party challenging a statute to “clearly establish its invalidity.” People v. Mosley, 2015 IL 115872, ¶ 22. “Courts have a duty to uphold the constitutionality of a statute whenever reasonably possible, resolving any doubts in favor of the statute‘s validity.” Rizzo, 2016 IL 118599, ¶ 23. We review the constitutionality of a statute de novo. Aguilar, 2013 IL 112116, ¶ 15.
¶ 6 An as-applied constitutional challenge requires the petitioner to show the statute “violates the constitution as it applies to the facts and circumstances of the challenging party. [Citation.] In contrast, a facial challenge requires a showing that the statute is unconstitutional under any set of facts, i.e., the specific facts related to the challenging party are irrelevant.” Thompson, 2015 IL 118151, ¶ 36.
“A party raising a facial challenge to a statute faces a particularly heavy burden. [Citation.] A statute will be deemed facially unconstitutional only if there is no set of circumstances under which the statute would be valid. [Citation.] The particular facts related to the challenging party are irrelevant. [Citation.] If it is reasonably possible to construe the statute in a way that preserves its constitutionality, we must do so.” People v. Bochenek, 2021 IL 125889, ¶ 10.
¶ 7 The second amendment to the
¶ 8 Defendant maintains that the requirement to obtain a FOID card prior to carrying a firearm violates the second amendment. Defendant also suggests that the provisions of the FOID Card Act, specifically those provisions requiring applicants to be (1) nonfelons and (2) at least 21 years old or obtain the consent of a parent or legal guardian, are unconstitutional. See
A. Requirement to Obtain a FOID Card
¶ 9 Defendant first argues that Illinois‘s regulatory scheme, which requires its citizens to obtain a FOID card prior to possessing a firearm, is unconstitutional. Defendant cites New York State Rifle & Pistol Ass‘n, Inc., v. Bruen, 597 U.S. 1 (2022), for the proposition that “[t]he imposition of criminal punishment for possessing a firearm without a FOID card *** must be re-examined” because “there is no historical evidence for criminalizing the act of publicly carrying a gun without a license.” Specifically, defendant points to the requirements of the FOID Card Act that applicants wait up to 30 days for the Illinois State Police to approve or deny the application, pay a $5 fee, and provide personal information, which the police can use to verify the applicant‘s criminal and mental health history.
¶ 11 After reviewing the relevant history, the Court concluded New York‘s requirement to demonstrate a special need for self-defense violated the second amendment. Id. at 70. In reaching its decision, the Court also drew a distinction between so-called “shall-issue” licensing regimes and the discretionary regulations enacted by New York, holding that “shall-issue” licensing regimes were not affected by its decision because “they do not necessarily prevent ‘law-abiding, responsible citizens’ from exercising their Second Amendment right to public carry.” Id. at 38 n.9 (quoting Heller, 554 U.S. at 635).
¶ 12 Illinois is a “shall-issue” state. People v. Gunn, 2023 IL App (1st) 221032, ¶ 16. The FOID Card Act requires the Illinois State Police to issue a FOID card to any applicant who meets the criteria set forth in the statute. Id.;
B. Felon Status
¶ 13 Next, defendant argues there is no historical precedent for banning felons from possessing firearms. Despite this country‘s “longstanding prohibitions on the possession of firearms by felons and the mentally ill,” (Heller, 554 U.S. at 626) defendant contends ”Bruen represented a watershed change to Second Amendment analysis.” As we recently observed, under Bruen‘s framework
“[t]he first inquiry is: Does the plain text of the second amendment cover an individual‘s conduct? [Citation.] If not, the regulation is constitutional because it falls outside the scope of protection. But if it does, the individual‘s conduct is presumptively protected by the second amendment, and we move to the second inquiry: Is the State‘s regulation ‘consistent with the Nation‘s historical tradition of firearm regulation[?]’ ” Sinnissippi Rod & Gun Club, Inc. v. Raoul, 2024 IL App (3d) 210073, ¶ 13 (quoting Bruen, 597 U.S. at 24).
¶ 14 After defendant filed his appeal, we issued our decision in People v. Travis, 2024 IL App (3d) 230113, pet. for leave to appeal pending, No. 130696 (filed May 16, 2024), in which we considered the constitutionality of banning felons from possessing firearms. The defendant in
¶ 15 Utilizing the framework articulated in Bruen, we first found the second amendment‘s plain text covered the challenged conduct, possessing a firearm. Id. ¶ 25. We then analyzed the history and tradition of disarming felons (id. ¶¶ 29-32) and concluded the challenged statutes “are consistent with this nation‘s history of preventing potentially dangerous individuals from exercising the right to bear arms, and their effects on law-abiding citizens’ right to self-defense are minimal.” Id. ¶ 33. We adopt the reasoning set forth in Travis here and conclude that the provisions of the FOID Card Act denying felons the ability to obtain a FOID card are constitutionally sound.1
C. Age-Based Restrictions
¶ 16 Defendant was convicted of AUUW for possessing a firearm without a FOID card, having been previously convicted of a felony. See
III. CONCLUSION
¶ 17 The judgment of the circuit court of Will County is affirmed.
¶ 18 Affirmed.
¶ 19 PRESIDING JUSTICE McDADE, dissenting:
¶ 20 I respectfully dissent from the majority‘s decision. Instead, I would find that Illinois firearm dispossession statutes are unconstitutional where they require a categorical ban on firearm ownership for all felons, regardless of whether the felony convictions were violent in nature.
¶ 21 Defendant in this case was convicted of AUUW (
¶ 22 As written, Illinois law prohibits gun possession by felons, regardless of the predicate offense. However, there are many felony offenses that are nonviolent, including unlawful or syndicated gambling (
¶ 23 Moreover, while there is historical precedence for disarming dangerous and violent individuals, there is no historical analogue for disarming nonviolent offenders.
“Early twentieth-century practice reflected the traditions of previous centuries throughout American history: violent or otherwise dangerous persons were sometimes disarmed, but peaceable citizens—even if not necessarily law-abiding were not. At Massachusetts‘s ratifying convention, Samuel Adams proposed an amendment guaranteeing that ‘the said constitution be never construed...to prevent the people of the United States who are peaceable citizens,
from keeping their own arms.’ American tradition reflects the right Adams envisioned.” Joseph G.S. Greenlee, The Historical Justification for Prohibiting Dangerous Persons from Possessing Arms, 20 Wyo. L. Rev. 249, 274-75 (2020).
Previous historical laws even specifically allowed nonviolent felons to retain their firearms. See id. at 284-85. “Therefore, firearm prohibitions on peaceable citizens contradict the original understanding of the Second Amendment and are thus unconstitutional.” id. at 286.
¶ 24 During the pendency of this appeal, the United States Supreme Court issued a decision in United States v. Rahimi, 602 U.S. ___, 144 S. Ct. 1889 (2024), that supports this conclusion. Rahimi stated that, “Since the founding, our Nation‘s firearm laws have included provisions preventing individuals who threaten physical harm to others from misusing firearms.” Id. at ___, 144 S. Ct. at 1896. The Court conducted a detailed historical analysis of firearm laws and came to the conclusion that, “When an individual poses a clear threat of physical violence to another, the threatening individual may be disarmed.” Id. at ___, 144 S. Ct. at 1901. Therefore, “Our tradition of firearm regulation allows the Government to disarm individuals who present a credible threat to the physical safety of others.” Id. at ___, 144 S. Ct. at 1902. In so deciding, the Court rejected the argument that Rahimi could be disarmed because he was not “responsible.” Id. at ___, 144 S. Ct. at 1903. As expounded upon by the dissent,
“[The Government] argues that the Second Amendment allows Congress to disarm anyone who is not ‘responsible’ and ‘law-abiding.’ Not a single Member of the Court adopts the Government‘s theory. Indeed, the Court disposes of it in half a page—and for good reason. [Citation.] The Government‘s argument lacks any basis in our precedents and would eviscerate the Second Amendment altogether.” Id. at ___, 144 S. Ct. at 1944 (Thomas, J., dissenting).
¶ 26 Because Illinois law dictates a categorical, permanent ban on firearm possession for all felons, regardless of the person‘s dangerousness, I would find that it is unconstitutional as it is at odds with the traditional conception of the second amendment. Therefore, I would reverse the denial of defendant‘s