People v. Lewis

2024 IL App (1st) 230568-U

Opinion

2024 IL App (1st) 230568-U No. 1-23-0568 Order filed June 7, 2024

Fifth Division

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).

IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) ) Appeal from the Respondent-Appellee, ) Circuit Court of Cook County. ) v. ) No. 10 CR 20217 ) MICHAEL LEWIS ) Honorable Tyria Walton, ) Judge, Presiding. Petitioner-Appellant. )

JUSTICE NAVARRO delivered the judgment of the court. Justices Mikva and Lyle concurred in the judgment.

ORDER

¶1 Held: The circuit court’s order denying defendant’s section 2-1401 petition is affirmed over defendant’s contention that the subsection of the aggravated unlawful use of a weapon statute under which he was convicted violates the second amendment of the United States Constitution under the framework set forth by the United States Supreme Court in New York State Rifle & Pistol Ass’n, Inc., v. Bruen, 597 U.S. 1 (2022).

¶2 In 2010, petitioner, Michael Lewis, pled guilty to aggravated unlawful use of a weapon

(AUUW) based on possessing a firearm outside the home while under the age of 21 and not

engaged in lawful wildlife activities (720 ILCS 5/24-1.6(a)(1), (a)(3)(I) (West 2010)) and was

sentenced to boot camp. In 2012, Lewis violated the terms of boot camp, and was resentenced to No. 1-23-0568

four years in prison. In 2023, Lewis filed a petition for relief from judgment under section 2-1401

of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2022)), arguing that the

subsection of the AUUW statute under which he was convicted was unconstitutional. The circuit

court denied his petition, and Lewis now appeals that order. For the following reasons, we affirm.

¶3 I. BACKGROUND

¶4 In December 2010, Lewis entered into a negotiated plea agreement whereby in

exchange for a sentence of boot camp and payment of fees, he pled guilty to one count of AUUW,

in that he possessed a firearm outside of his home while he was under the age of 21 and was not

engaged in lawful activities under the Wildlife Code (720 ILCS 5/24-1.6(a)(1), (a)(3)(I) (West

2010)). He was eligible for a Class 2 sentence based on a prior felony conviction (id. § 24-1.6(d))

for aggravated driving under the influence. In March 2012, Lewis violated the terms of his boot

camp sentence, so the court held a resentencing hearing. At the hearing, the State told the court

that Lewis had four prior felony convictions as well as misdemeanor convictions for domestic

battery, “driving on a suspended”, resisting an officer, and criminal damage. The court resentenced

Lewis to four years in prison.

¶5 In January 2023, Lewis filed a pro se petition for relief from judgment under section

2-1401 of the Code, in which he argued that the subsection of the AUUW statute under which he

was convicted was unconstitutional and violated the second amendment of the United States

Constitution (U.S. Const., amend II) under People v. Aguilar, 2013 IL 112116, as well as District

of Columbia v. Heller, 554 U.S. 570 (2008), McDonald v. City of Chicago, 561 U.S. 742 (2010),

and Moore v. Madigan, 702 F. 3d 933 (7th Cir. 2012).

¶6 In February 2023, the circuit court denied Lewis’ petition. This appeal follows.

¶7 II. ANALYSIS

2 No. 1-23-0568

¶8 Lewis contends that his conviction under subsection 24-1.6(a)(1), (a)(3)(I) of the

AUUW statute is facially unconstitutional and void ab initio. He argues that this subsection in the

AUUW statute that bans persons under the age of 21 from possessing handguns, unless the person

is engaged in specified wildlife activities, does not comply with the test set forth by the United

States Supreme Court in New York State Rifle & Pistol Ass’n, Inc., v. Bruen, 597 U.S. 1 (2022),

because the regulation is inconsistent with the nation’s historical tradition of firearm regulation.

He argues therefore that under Bruen, subsection 24-1.6(a)(1), (a)(3)(I) of the AUUW statute

violates the second amendment of the United States Constitution (U.S. Const., amend II).

¶9 Generally, under section 2-1401 of the Code, a party has two years to file a petition to

vacate a judgment that is older than 30 days. 735 ILCS 5/2-1401(c) (West 2022). However, when

a defendant raises a challenge to a final judgment based on a facially unconstitutional statute, as

here, the defendant may do so at any time. People v. Thompson, 2015 IL 118151, ¶ 32. Further, “a

motion to vacate a void judgment is properly raised in a petition for relief from judgment under

section 2-1401” (People v. Ligon, 2016 IL 118023, ¶ 9), which authorizes a circuit court to “vacate

or modify a final order or judgment older than 30 days.” People v. Abdullah, 2019 IL 123492, ¶

13. We review the constitutionality of a statute de novo. People v. Baker, 2023 IL App (1st)

220328, ¶ 21. We also review a circuit court’s dismissal of a section 2-1401 petition de novo.

People v. Moran, 2012 IL App (1st) 111165, ¶ 12. Under this standard of review, we “may affirm

on any basis found in the record.” People v. Jackson, 2021 IL App (1st) 190263, ¶ 38.

¶ 10 Initially, we note that the State argues Lewis forfeited his challenge based on Bruen

because he entered into a knowing and voluntary guilty plea. Our supreme court has concluded

that “a guilty plea does not preclude a defendant from arguing on appeal that he was sentenced

under a statute that was facially unconstitutional and void ab initio.” People v. Guevara, 216 Ill.

3 No. 1-23-0568

2d 533, 542-43 (2005). Further, our supreme court has explained that “[d]efendants convicted

under a facially unconstitutional statute may challenge the conviction at any time, even after a

guilty plea, because the state or government had no power to impose the conviction to begin with.”

In re N.G., 2018 IL 121939, ¶ 49. Accordingly, Lewis did not forfeit his argument that, under

Bruen, the subsection in the AUUW statute under which he was convicted and sentenced was

facially unconstitutional.

¶ 11 We now address Lewis’ argument that under Bruen, the subsection of the AUUW

statute under which he was convicted is facially unconstitutional in violation of the second

amendment of the United States Constitution (U.S. Const., amend II). Lewis contends that under

the framework for analyzing firearm regulations set forth in Bruen, the AUUW statute that bans

persons under 21 from possessing handguns outside the home unless that person is engaged in

specified wildlife activities is unconstitutional. He maintains that Bruen calls into question the

Illinois Supreme Court’s decision in People v. Mosley, 2015 IL 115872, ¶¶ 37-38, which concluded

that prohibiting persons under 21 from possessing handguns outside the home unless they are

engaged in lawful hunting activities did not violate the second amendment rights of 18- to 20-year-

old persons.

¶ 12 A judgment that is based on a statute that is facially unconstitutional is void ab initio.

(Abdullah, 2019 IL 123492, ¶ 13), which “means that the statute was constitutionally infirm from

the moment of its enactment and, therefore, unenforceable.” Thompson, 2015 IL 118151, ¶ 32. We

presume a statute is constitutional and must construe it “in a manner that upholds its validity and

constitutionality if reasonably possible.” People v. Taylor, 2019 IL App (1st) 160173, ¶ 26. “To

rebut the presumption, the challenging party must clearly establish a constitutional violation.”

People v. Jenk, 2016 IL App (1st) 143177, ¶ 21. “A facial challenge to the constitutionality of a

4 No. 1-23-0568

statute is the most difficult challenge to mount.” People v. Davis, 2014 IL 115595, ¶ 25. To succeed

on a facial challenge, a defendant must show that the statute is unconstitutional “under any set of

facts.” People v. Hilliard, 2023 IL 128186, ¶ 21.

¶ 13 The AUUW statute under which Lewis was convicted provides, in part, as follows:

“(a) A person commits the offense of aggravated unlawful use of a weapon when he or

she knowingly:

(1) Carries on or about his or her person or in any vehicle or concealed on or about his

or her person except when on his or her land or in his or her abode, legal dwelling, or

fixed place of business, or on the land or in the legal dwelling of another person as an

invitee with that person’s permission, any pistol, revolver, stun gun or taser or other

firearm; ***

*** and

(3) One of the following factors is present:

***

(I) the person possessing the weapon was under 21 years of age and in possession of a

handgun as defined in Section 24-3, unless the person under 21 is engaged in lawful

activities under the Wildlife Code or described in subsection 24-2(b)(1), (b)(3), or 24-

2(f).” 720 ILCS 5/24-1.6(a)(1), (a)(3)(I) (West 2010).

Accordingly, the subsection in the AUUW statute under which Lewis was convicted penalizes

persons under the age of 21 from possessing a handgun outside the home unless the person is

engaged in certain lawful wildlife activities. Id.; see Interest of C.P., 2023 IL App (1st) 231033-

U, ¶ 4, pet. for leave to appeal pending, No. 130294 (filed Jan. 30, 2024)1.

1 Unpublished Rule 23 orders filed on, or after, January 1, 2021, “may be cited for persuasive purposes.” Ill S. Ct. R. 23(e)(1) (eff. Feb. 1, 2023).

5 No. 1-23-0568

¶ 14 The second amendment of the United States Constitution 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. Through the fourteenth amendment of the

United States Constitution (U.S. Const., amend XIV), this second amendment right applies to the

States. McDonald, 561 U.S. at 750. In McDonald and Heller, 554 U.S. 570, the United States

Supreme Court held that the second and fourteenth amendments “protect an individual right to

keep and bear arms for self-defense.” Bruen, 597 U.S. at 17. In Bruen, the United States Supreme

Court clarified that, consistent with Heller and McDonald, “the Second and Fourteenth

Amendments protect an individual’s right to carry a handgun for self-defense outside the home.”

Id. at 8-10. However, the Supreme Court has also explained that, “the right secured by the Second

Amendment is not unlimited” and that “[f]rom Blackstone through the 19th-century cases,

commentators and courts routinely explained that the right was not a right to keep and carry any

weapon whatsoever in any manner whatsoever and for whatever purpose.” Heller, 554 U.S. at 626;

see Aguilar, 2013 IL 112116, ¶ 26. The Court “recognized the constitutionality of several

‘longstanding prohibitions on the possession of firearms’ ” and “emphasized that its list of

presumptively lawful regulatory measures provided only examples and did ‘not purport to be

exhaustive.’ ” In re Jordan G., 2015 IL 116834, ¶ 23 (quoting Heller, 554 U.S. at 626-27).

¶ 15 Most recently, in Bruen, the Supreme Court explained that, following Heller and

McDonald, the lower courts had “coalesced around a ‘two-step’ framework for analyzing Second

Amendment challenges that combines history with means-end scrutiny.” Bruen, 597 U.S. at 17. In

Illinois, our supreme court in Wilson v. County of Cook, 2012 IL 112026, ¶ 41, adopted this two-

part test for analyzing challenges to the second amendment. Mosley, 2015 IL 115872, ¶ 34; see In

re D.B., 2023 IL App (1st) 231146-U, ¶ 24, pet. for leave to appeal pending, No. 130425 (filed

6 No. 1-23-0568

Feb. 2, 2024); Interest of C.P., 2023 IL App (1st) 231033-U, ¶ 5. Under the test set forth in Wilson,

the first question when analyzing a firearm regulation was “whether the challenged law imposes a

burden on conduct falling within the scope of the second amendment guarantee” and this inquiry

involved a “textual and historical inquiry to determine whether the conduct was understood to be

within the scope of the right at the time of ratification.” Wilson, 2012 IL 112026, ¶ 41. If the

regulated conduct fell outside the scope of the second amendment right “as it was understood at

the relevant historical time, then the regulated activity is categorically unprotected.” In re Jordan

G., 2015 IL 116834, ¶ 22. If, however, the historical evidence was “inconclusive or suggest[ed]

that the regulated activity” was “not categorically unprotected, then the court, applying the

appropriate level of means-end scrutiny, conduct[ed] a second inquiry into the strength of the

government’s justification for restricting or regulating the exercise of second amendment rights.”

Mosley, 2015 IL 115872, ¶ 34.

¶ 16 In Bruen, the Court rejected the “two-step approach” adopted by the federal and state

courts, concluding that it is “one step too many” and that the means-end scrutiny does not apply

to the second amendment and was inconsistent with Heller’s historical approach. Bruen, 597 U.S.

at 19, 24. The Court explained that, instead, the “government must affirmatively prove that its

firearms regulation is part of the historical tradition that delimits the outer bounds of the right to

keep and bear arms.” Id. at 19. The Court set forth the standard that courts should use when

analyzing challenges to firearm regulations under the second amendment. Id. at 24. The Court

explained that, “[w]hen the Second Amendment’s plain text covers an individual’s conduct, the

Constitution presumptively protects that conduct.” Id. If the conduct is covered by the second

amendment, “[t]he government must then justify its regulation by demonstrating that it is

7 No. 1-23-0568

consistent with the Nation’s historical tradition of firearm regulation.” Id.; see Interest of C.P.,

2023 IL App (1st) 231033-U, ¶ 8.

¶ 17 Lewis contends that under the Bruen framework, the plain text of the second

amendment covers the conduct regulated by subsection (a)(1), (a)(3)(I) of the AUUW statute,

which is the possession of handguns outside the home of persons under the age of 21 who are not

engaged in certain lawful wildlife activities. He asserts that under the second part of the Bruen

framework, the State cannot show that the regulation is consistent with the nation’s history and

tradition of firearm regulation.

¶ 18 Our supreme court has previously rejected challenges to statutes that prohibit firearm

possession based on age. Aguilar, 2013 IL 112116, ¶¶ 23-28; Mosley, 2015 IL 115872, ¶¶ 37-38;

In re Jordan G., 2015 IL 116834, ¶¶ 24-25; see Interest of C.P., 2023 IL App (1st) 231033-U, ¶ 2;

In re D.B., 2023 IL App (1st) 231146-U, ¶ 23. Although these supreme court decisions were issued

before Bruen, this court has concluded that “their reasoning is consistent with the ‘plain text’ and

historical analysis that Bruen requires.” People v. Hatcher, 2024 IL App (1st) 220455, ¶ 58, pet.

for leave to appeal pending, No. 130708 (filed May 22, 2024); see Interest of C.P., 2023 IL App

(1st) 231033-U, ¶ 3; In re D.B., 2023 IL App (1st) 231146-U, ¶¶ 23, 33.

¶ 19 In Aguilar, the supreme court rejected the defendant’s argument that the section in the

unlawful possession of a firearm statute that barred persons under the age of 18 from possessing

any firearm which may be concealed upon the person violated the second amendment because “at

the time the second amendment was drafted and ratified, the right to keep and bear arms extended

to persons 16 and 17 years of age.” Aguilar, 2013 IL 112116, ¶¶ 25-26. In its analysis, the court

explained that after Heller, several courts undertook a historical examination of laws prohibiting

the possession of firearms by minors and concluded that “the possession of handguns by minors is

8 No. 1-23-0568

conduct that falls outside the scope of the second amendment’s protection.” Id. ¶¶ 26-27; see In re

D.B., 2023 IL App (1st) 231146-U, ¶¶ 25, 31. The court stated that, “these cases explain that,

although many colonies permitted or even required minors to own and possess firearms for

purposes of militia service, nothing like a right for minors to own and possess firearms has existed

at any time in this nation’s history” and “laws banning the juvenile possession of firearms have

been commonplace for almost 150 years and both reflect and comport with a ‘longstanding

practice of prohibiting certain classes of individuals from possessing firearms—those whose

possession poses a particular danger to the public.’ ” (Emphasis in original.) Aguilar, 2013 IL

112116, ¶ 27 (quoting United States v. Rene E., 583 F.3d 8, 15 (1st Cir. 2009)); see In re D.B.,

2023 IL App (1st) 231146-U, ¶ 25. The court stated that it need not repeat the historical evidence

set forth in these decisions and that it “need only express our agreement with the obvious and

undeniable conclusion that the possession of handguns by minors is conduct that falls outside the

scope of the second amendment’s protection.” Aguilar, 2013 IL 112116, ¶ 27.

¶ 20 In Mosley, the 19-year-old defendant contended that the subsections in the AUUW

statute that prohibited possession of a firearm outside the home while under 21 years of age

violated the second amendment because they “impose burdens on those ***, aged 18 to 20 which

amount to an unconstitutional flat ban on their second amendment rights” and “adults 18 and over

are among ‘the People’ protected by the second amendment.” Mosley, 2015 IL 115872, ¶¶ 5-6, 32-

33. Our supreme court concluded that “the restriction on persons under the age of 21 who are not

engaged in lawful hunting activities is both historically rooted and not a core conduct subject to

second amendment protection” and that subsection (a)(3)(I) “provides for multiple exceptions and

exemptions to protect the rights of law-abiding persons under the age of 21.” Id. ¶ 37. In reaching

this conclusion, the court relied on its decision in Aguilar and concluded it was “unnecessary to

9 No. 1-23-0568

repeat the historical evidence set forth in the decisions cited” therein. Id. ¶¶ 36-37; see Interest of

C.P., 2023 IL App (1st) 231033-U, ¶¶ 11-12. The court concluded that, because subsection

(a)(3)(I) of the AUUW statute passed the first part of the Wilson analysis, it need not conduct an

analysis under the second part of the test, i.e., the means-end analysis. Mosley, 2015 IL 115872, ¶

37; see Interest of C.P., 2023 IL App (1st) 231033-U, ¶¶ 11-13.

¶ 21 In In re Jordan G, 2015 IL 116834, ¶¶ 21, 25, our supreme court also rejected the

argument that subsection (a)(1), (a)(3)(I) violated the second amendment rights of people under

the age of 21. The court concluded that Aguilar’s conclusion that “age based restrictions on the

right to keep and bears arms are historically rooted” applied “equally to those persons under 21

years of age.” Id. ¶ 25. The court explained that in Aguilar, it “cited with approval several cases

finding it evident from a review of the relevant historical record that age based regulations on

minors’ access to firearms for the purpose of ensuring public safety were commonplace and

persisted well beyond the Founding Era.” Id. ¶ 24 (citing Aguilar, 2013 IL 112116, ¶ 27).

¶ 22 Relying on Aguilar, Mosley, and Jordan G., this court has previously rejected similar

challenges to age-based restrictions on firearms based on Bruen, including challenges to subsection

(a)(1), (a)(3)(I) of the AUUW statute at issue here. Hatcher, 2024 IL App (1st) 220455, ¶ 58; In

re D.B., 2023 IL App (1st) 231146-U, ¶¶ 23, 33-34; Interest of C.P., 2023 IL App (1st) 231033-

U, ¶¶ 3, 18. Likewise, here, following our supreme court precedent set forth above, subsection 24-

1.6(a)(1), (a)(3)(I) of the AUUW statute under which Lewis was convicted is not unconstitutional

and does not implicate the second amendment. See Hatcher, 2024 IL App (1st) 220455, ¶ 58;

Interest of C.P., 2023 IL App (1st) 231033-U, ¶ 18 (concluding that the respondent’s challenge to

subsection (a)(3)(I) of the AUUW statute fails “[u]nder the binding precedent of Mosley, Jordan

G., and Aguilar”); In re D.B., 2023 IL App (1st) 231146-U, ¶¶ 33-34.

10 No. 1-23-0568

¶ 23 Lewis asserts that no Illinois Supreme Court case has upheld subsection (a)(1), (a)(3)(I)

of the AUUW statute using Bruen’s framework and that we should not follow the Illinois decisions

that apply a pre-Bruen framework. However, as previously noted, in rejecting similar challenges

to age-based restrictions on firearms based on Bruen, this court has held that, although our supreme

court’s decisions were issued before Bruen, the court in these cases did not apply the means-end

scrutiny that Bruen rejected, and “their reasoning is consistent with the ‘plain text’ and historical

analysis that Bruen require[ed].” Hatcher, 2024 IL App (1st) 220455, ¶ 58; see Interest of C.P.,

2023 IL App (1st) 231033-U, ¶ 9 (stating that the laws challenged, including subsection (a)(1),

(a)(3)(I) of the AUUW statute, “have never been justified by application of the means-end scrutiny

that Bruen eliminated” and noting that our supreme court has held that the challenged subsections

were “firmly justified by text and historical tradition”) (Emphasis in original); In re D.B., 2023 IL

App (1st) 231146-U, ¶ 30 (rejecting the respondent’s argument that Bruen was a “doctrinal reset”

as it “pertains to age-based restrictions in Illinois” and “[h]istorical analysis has been the focal

point for our supreme court and it continues to be so under Bruen”).

¶ 24 We similarly reject Lewis’ argument that we should not follow the decisions from our

supreme court that were issued before Bruen and that upheld age-based restrictions, including

subsection (a)(1), (a)(3)(I) of the AUUW statute at issue here that prohibits persons under 21 years

old from possessing a handgun outside the home, unless the person is engaged in lawful wildlife

activities. Hatcher, 2024 IL App (1st) 220455, ¶ 58 (following the holdings of Mosley and Jordan

G. and concluding that Bruen did not change these holdings). Even if we would assume that under

the first step in the Bruen test, the possession of a firearm outside the home of persons under the

age of 21 is covered by the second amendment’s plain text, then under the second step, our supreme

court has previously concluded that “age-based restrictions are consistent with our country’s

11 No. 1-23-0568

historical tradition of firearm regulation.” See In re D.B., 2023 IL App (1st) 231146-U, ¶¶ 31-34

(concluding that even if it found that “a minor’s right to keep and bear arms is covered by the

second amendment’s plain text, our supreme court has already answered the second step” in the

Bruen analysis, noting that it “explicitly addressed the historical roots of age-based restrictions on

the right to keep and bear arms,” and “determined that age-based restrictions are historically rooted

in this nation’s traditions”).

¶ 25 Lewis asserts that Aguilar addressed the wrong age group, as it assessed the unlawful

possession of a firearm statute applying to children under 18, not individuals aged 18 to 21.

However, as previously discussed, in Mosley and Jordan G., our supreme court concluded that the

statute prohibiting persons under the age of 21 from possessing handguns who are not engaged in

lawful hunting activities did not violate the second amendment rights of 18- to 20-year-olds.

Mosley, 2015 IL 115872, ¶¶ 37-38; In re Jordan G, 2015 IL 116834, ¶ 25; see In re D.B., 2023 IL

App (1st) 231146-U, ¶ 33 (“Mosley and Jordan G. adopted Aguilar’s reasoning and concluded that

it applied to persons under 21 years of age”). Further, our supreme court explained that “the term

‘minor’ must be considered in the context of the right at issue, and as historically understood,

generally applied to individuals under the age of 21 and remained under 21 in most states until the

1970s” and “our conclusion in Aguilar, that age based restrictions on the right to keep and bear

arms are historically rooted, applies equally to those persons under 21 years of age.” In re Jordan

G., 2015 IL 116834, ¶ 25. Accordingly, based on our supreme court precedent, Aguilar’s holding

applies here, and we conclude that the subsection in the AUUW statute that prohibits persons under

21 years of age from possessing a firearm outside the home unless the person is engaged in lawful

wildlife activities under the Wildlife Code does not violate the second amendment. Lewis’

12 No. 1-23-0568

conviction under subsection (a)(1), (a)(3)(I) of the AUUW statute is therefore not facially

unconstitutional. The circuit court correctly denied Lewis’ section 2-1401 petition.

¶ 26 III. CONCLUSION

¶ 27 For the foregoing reasons, we affirm the circuit court’s judgment.

¶ 28 Affirmed.