2024 IL App (2d) 230305-U No. 2-23-0305 Order filed September 11, 2024
NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT ______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Kane County. ) Plaintiff-Appellee, ) ) v. ) No. 18-CF-2125 ) JIMMY M. MARTINEZ, ) Honorable ) David P. Kliment, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________
JUSTICE KENNEDY delivered the judgment of the court. Justices Hutchinson and Birkett concurred in the judgment.
ORDER
¶1 Held: Defendant’s second-amendment challenge to the statute criminalizing a felon’s possession of a firearm fails because (1) the amendment’s protection is reserved for law-abiding citizens and (2) even if felons fall within the letter of the second amendment, the challenged statute is valid because it is consistent with our Nation’s history of firearms regulation, in which there is precedent for disarming groups deemed potentially dangerous.
¶2 Defendant, Jimmy Martinez, appeals from his convictions of unlawful use or possession of
a weapon by a felon (UUPWF) (720 ILCS 5/24-1.1 (West 2018)). He contends that, under New
York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1 (2022), the UUPWF statute on its face 2024 IL App (2d) 230305-U
violates the second amendment to the United States Constitution (U.S. Const., amend II) and, thus,
his convictions must be reversed. We affirm.
¶3 I. BACKGROUND
¶4 On January 9, 2019, defendant was indicted on four felony charges, stemming from an
October 26, 2018, search of his Elgin home pursuant to a search warrant. Count I alleged that
defendant unlawfully possessed with the intent to deliver 15 grams or more but less than 100 grams
of a substance containing cocaine (720 ILCS 570/401(a)(2)(A) (West 2018)). Count II alleged that
defendant unlawfully possessed 15 grams or more but less than 100 grams of a substance
containing cocaine (id. § 402(a)(2)(A)). Count III charged UUPWF and alleged that defendant
knowingly possessed a firearm, “a Ruger 9mm pistol,” after having been previously convicted of
a felony, aggravated unlawful use of a weapon (in Cook County case No. 2011-C-3301060). Count
IV also charged UUPWF (id.) and alleged that defendant knowingly possessed a firearm, “a Ruger
9mm pistol,” after having been previously convicted of a felony, unlawful possession of a
controlled substance (in McHenry County case No. 13-CF-20).
¶5 On December 18, 2020, defendant filed a “Motion to Quash Search Warrant and Suppress
Evidence Illegally Seized,” arguing that the search warrant lacked probable cause. The State filed
a response on April 1, 2021. On February 10, 2022, the trial court denied the motion. Defendant’s
subsequent motion for reconsideration was denied on May 20, 2022.
¶6 On June 1, 2023, the matter proceeded to a stipulated bench trial. The evidence consisted
of two documents, each titled “Joint Stipulation of the Parties,” and various items admitted as
People’s exhibits Nos. 1 through 29. 1
1 There was no People’s exhibit No. 4. The two stipulations were admitted as People’s
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¶7 The stipulated evidence generally established the following. On October 26, 2018, officers
from the Illinois State Police Swat Team and the North Central Narcotics Task Force (Task Force)
executed a search warrant for defendant’s person and an Elgin apartment. Defendant was found in
the apartment, given a copy of the search warrant, and read his Miranda warnings (see Miranda v.
Arizona, 384 U.S. 436 (1966)) by Task Force Master Sergeant Backus. During the search, the
officers recovered (1) a clear plastic bag containing 32.2 grams of cocaine (People’s exhibit No. 1),
(2) four clear, knotted plastic bags weighing a combined 2.41 grams and containing suspected
(untested) cocaine (People’s exhibit No. 2), (3) a clear plastic bag weighing 2.31 grams and
containing suspected (untested) cocaine (People’s exhibit No. 3); (4) a Ruger 9-millimeter pistol
(People’s exhibit No. 5), (5) a loaded magazine found inside the Ruger 9-millimeter pistol
(People’s exhibit No. 6), (6) a black Apple iPhone (People’s exhibit No. 7), (7) a digital scale with
white powder residue (People’s exhibit No. 8), (8) an LG flip phone (People’s exhibit No. 9),
(9) 9-millimeter ammunition (People’s exhibit No. 10), (10) vehicle documentation belonging to
defendant (People’s exhibit No. 11), and (11) an insurance letter addressed to defendant (People’s
exhibit No. 12). People’s exhibit Nos. 13-28 were photographs taken at the scene, showing, among
other things, the foregoing items before collection. Also pictured was $1315 in U.S. currency
recovered from a bedroom dresser.
¶8 Edward McGill, a forensic scientist at the Illinois State Police Rockford Crime Laboratory,
would testify that, although People’s exhibit Nos. 2 and 3 were not tested for the presence of a
controlled substance, the contents of each exhibit were consistent in physical appearance with
People’s exhibit No. 1 and, in his opinion, contained cocaine.
exhibit Nos. 30 and 31.
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¶9 Backus would testify that, while escorting defendant to a squad car, defendant stated that
he lived alone at the apartment. Task Force Inspector Neamand would testify that, while
transporting defendant to the police department, defendant told Neamand that he lived alone in the
apartment but that his mother was the leaseholder. Later, Neamand and Task Force Inspector
Young interviewed defendant. Neamand and Young would testify that defendant admitted to
possessing the cocaine and the Ruger pistol but denied “sell[ing] drugs.”
¶ 10 Young, an expert “in the field of cannabis, cocaine, and drug trafficking,” would testify
that, in his opinion, defendant possessed the cocaine with the intent to deliver it. Young’s opinion
was based on (1) the amount of the cocaine, (2) the nature of the packaging, (3) the digital scale,
(4) the two cellular phones, (5) the $1315 in U.S. currency, (6) the loaded firearm, and (7) the
absence of “cocaine user paraphernalia.”
¶ 11 The stipulations further provided that, on October 26, 2018, (1) defendant had a previous
felony conviction of aggravated unlawful use of a weapon (in Cook County case No. 2011-C-
3301060); (2) defendant had a previous felony conviction of unlawful possession of a controlled
substance (in McHenry County case No. 13-CF-20); (3) defendant did not possess, and was not
eligible to obtain, a valid Firearm Owners Identification (FOID) card; and (4) the firearm
recovered was a “firearm” as defined by section 1.1 of the Firearm Owners Identification Card Act
(FOID Card Act) (430 ILCS 65/1.1 (West 2016)).
¶ 12 After the State rested, defendant indicated that he did not wish to present evidence but that
the stipulations should not be considered a waiver of his argument that the search warrant lacked
probable cause.
¶ 13 The trial court found defendant guilty of all counts and set the matter for sentencing.
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¶ 14 On September 11, 2023, defendant filed a motion for a new trial. Defendant argued that
the trial court erred in denying defendant’s motion to quash the search warrant and his subsequent
motion to reconsider.
¶ 15 On September 13, 2023, the trial court denied defendant’s motion for a new trial. Following
a sentencing hearing, the court merged count II into I and count IV into count III. It sentenced
defendant to seven years each on counts I and III, to run concurrently.
¶ 16 This timely appeal followed.
¶ 17 II. ANALYSIS
¶ 18 Defendant contends that, under the analysis recently established by the Supreme Court in
Bruen, the UUPWF statute is facially unconstitutional because it violates a felon’s second
amendment right to keep and bear arms. The State responds that the UUPWF statute is not
unconstitutional under Bruen, because the plain text of the second amendment does not apply to
convicted felons and, even if it did, historical analysis supports a tradition that allows for statutes
dispossessing felons of firearms. We agree with the State.
¶ 19 In considering the issue, we keep the following well-established principles in mind. “A
statute is presumed constitutional, and the party challenging the statute bears the burden of
demonstrating its invalidity.” People v. Graves, 207 Ill. 2d 478, 504 (2003). “A party raising a
facial challenge to a statute faces a particularly heavy burden.” People v. Bochenek, 2021 IL
125889, ¶ 10. “A statute will be deemed facially unconstitutional only if there is no set of
circumstances under which the statute would be valid.” Id. “We have a duty to construe the statute
in a manner that upholds the statute’s validity and constitutionality, if it can reasonably be done.”
People v. Hollins, 2012 IL 112754, ¶ 13. The constitutionality of a statute is a question of law,
which we review de novo. People v. Garvin, 219 Ill. 2d 104, 116 (2006).
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¶ 20 The UUPWF statute (720 ILCS 5/24-1.1(a) (West 2018)) provides in relevant part:
“(a) It is unlawful for a person to knowingly possess on or about his person or on
his land or in his own abode or fixed place of business any weapon prohibited under Section
24-1 of this Act or any firearm or any firearm ammunition if the person has been convicted
of a felony under the laws of this State or any other jurisdiction. This Section shall not
apply if the person has been granted relief by the Director of the Department of State Police
under Section 10 of the [FOID Card Act].[Footnote omitted.]”
The second amendment 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.
¶ 21 We begin with a review of the relevant Supreme Court decisions. In District of Columbia
v. Heller, 554 U.S. 570, 595 (2008), the Supreme Court declared for the first time that the second
amendment right to keep and bear arms is an individual right rather than a collective right. In
Heller, the Court struck down a series of District of Columbia laws that banned handgun
possession in the home and required other types of firearms to be kept unloaded and disassembled
or bound by a trigger lock or similar device. Id. at 575, 635. The Court held that the laws violated
the second amendment’s protection of “the right of law-abiding, responsible citizens to use arms
in defense of hearth and home.” (Emphasis added.) Id. The Court noted, however, that “the right
secured by the Second Amendment is not unlimited.” Id. at 626. The Court admonished that
“nothing in [its] opinion should be taken to cast doubt on longstanding prohibitions on the
possession of firearms by felons and the mentally ill[.]” Id.
¶ 22 Two years later, in McDonald v. City of Chicago, 561 U.S. 742, 789-91 (2010), the Court
held that the second amendment’s “right to keep and bear arms for the purpose of self-defense”
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applied to the States through the fourteenth amendment (U.S. Const. amend. XIV). Further, it
struck down laws enacted by the City of Chicago and a Chicago suburb similar to those in Heller.
Id. at 750. In so holding, the Court stated: “We made it clear in Heller that our holding did not cast
doubt on such longstanding regulatory measures as ‘prohibitions on the possession of firearms by
felons and the mentally ill[] ***.’ [Citation.] We repeat those assurances here.” Id. at 786.
¶ 23 In 2022, the Supreme Court decided Bruen. The issue in Bruen was whether “ordinary,
law-abiding citizens have a *** right to carry handguns publicly for their self-defense.” (Emphasis
added.) Bruen, 597 U.S. at 9. The Court held that, “consistent with Heller and McDonald, *** the
Second and Fourteenth Amendments” protect such a right. Id. at 10. Thus, it struck down New
York’s licensing laws that conditioned the issuance of public-carry licenses on a showing of a
special need. Id. at 11.
¶ 24 In deciding the issue, the Bruen Court recognized that, following Heller, “the Courts of
Appeals have coalesced around a ‘two-step’ framework for analyzing Second Amendment
challenges that combines history with means-ends scrutiny.” Id. at 17. At the first step, the
government could justify the firearm restriction by demonstrating that the impacted activity fell
outside the scope of the second amendment as originally understood. Id. at 18. If the government
proved that the regulated activity fell beyond the amendment’s original scope, the court would
uphold the regulation without further analysis. Id. If, however, it was unclear that the activity was
unprotected, the court would proceed to the second step, in which the court would weigh the
severity of the firearm regulation—the means—against the ends the government sought to achieve.
Id. The level of scrutiny would depend on how close the regulation came to the core of the second
amendment. Id.
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¶ 25 The Bruen Court “decline[d] to adopt” this framework, noting that “Heller and McDonald
do not support applying a means-end scrutiny in the Second Amendment context.” Id. at 19.
Instead, the Bruen Court set forth the following test for assessing the validity of statutes under the
second amendment:
“[W]hen the Second Amendment’s plain text covers an individual’s conduct, the
Constitution presumptively protects that conduct. To justify its regulation, the government
may not simply posit that the regulation promotes an important interest. Rather, the
government must demonstrate that the regulation is consistent with this Nation’s historical
tradition of firearm regulation. Only if a firearm regulation is consistent with this Nation’s
historical tradition may a court conclude that the individual’s conduct falls outside the
Second Amendment’s ‘unqualified command.’ ” Id. at 24 (quoting Konigsberg v. State Bar
of California, 366 U.S. 36, 50 n.10 (1961)).
Thus, under Bruen, the court must first ask whether the second amendment’s “plain text” covers
an individual’s conduct. Id. If it does, the question becomes whether the challenged statute is
“consistent with this Nation’s historical tradition of firearm regulation.” Id.
¶ 26 After briefing in this case was complete, the Court decided United States v. Rahimi, No. 22-
915, 2024 WL 3074728, *6 (U.S. June 21, 2024), which reaffirmed the Bruen test and emphasized
that “Heller never established a categorical rule that the Constitution prohibits regulations that
forbid firearm possession in the home.” Id. *10. “In fact,” the Court noted, “Heller stated that
many such prohibitions, like those on the possession of firearms by ‘felons and the mentally ill,’
are ‘presumptively lawful.’ ” Id. (quoting Heller, 554 U.S. at 626, 627 n.26). The Court in Rahimi
rejected a facial challenge to a federal statute (18 U.S.C. § 922(g)(8)) that prohibited firearm
possession by a person subject to a domestic-violence restraining order that protected an intimate
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partner or the partner’s child. Id. *4, 5. The Court held that the statute was not facially invalid
given that one of the bases for prohibiting firearm possession by the subject of the order was that
he or she presented a credible threat to the physical safety of the intimate partner or the partner’s
child. Id. *7 (citing 18 U.S.C § 922(g)(8)(C)(i)). For reasons not apparent, the Court did not apply
the first part of the Bruen test but considered only whether the statute was consistent with the
Nation’s history of firearms regulation. Id. *10. After reviewing historical analogs of the statute,
the Court found that “[o]ur tradition of firearm regulation allows the Government to disarm
individuals who present a credible threat to the physical safety of others.” Id. The Court concluded:
“An individual found by a court to pose a credible threat to the physical safety of another may be
temporarily disarmed consistent with the Second Amendment.” Id. *11.
¶ 27 Defendant’s challenge to the UUPWF statute fails at the first step of the Bruen analysis
because, contrary to defendant’s assertion, felons are not included in “the people” to whom the
second amendment refers.
¶ 28 We find instructive People v. Baker, 2023 IL App (1st) 220328, pet. for leave to appeal
pending, No. 130174 (filed Nov. 3, 2023). In Baker, the defendant argued that the UUPWF statute,
as applied to him, was unconstitutional under the framework announced in Bruen. Id. ¶¶ 33, 37.
The First District concluded that defendant could not mount a second-amendment challenge to the
statute because “Bruen just [did] not apply to him,” given his status as a felon. Id. ¶ 37. The court
explained:
“The Bruen Court could not have been more clear that its newly announced test applied
only to laws that attempted to regulate the gun possession of ‘law-abiding citizens,’ and
not felons like defendant. Bruen, 597 U.S. at [71], 142 S. Ct. at 2156 (the holding was
limited to laws affecting ‘law-abiding citizens’). Just in case a reader missed the first time
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that the court said it, the court repeated it 18 times. Bruen, 597 U.S. [1], 142 S. Ct. 2111
passim (the six justices in the majority repeated the phrase ‘law-abiding’ 18 times in their
majority opinion and their concurrences). Further, Justice Kavanaugh in his concurrence
quoted an earlier case that stated: ‘ “[N]othing in our opinion should be taken to cast doubt
on longstanding prohibitions on the possession of firearms by felons ***.” ’ Bruen, 597
U.S. at [81], 142 S. Ct. at 2162 (Kavanaugh, J., concurring, joined by Roberts, C.J.)
(quoting Heller, 554 U.S. at 626-27, 128 S. Ct. 2783). Justice Kavanaugh’s concurrence
was joined by Chief Justice Roberts, and they both joined the six-justice majority opinion.
Based on the plain, clear, and repeated language of the justices in the majority, defendant
is simply outside the box drawn by Bruen.” Baker, 2023 IL App (1st) 220328, ¶ 37.
¶ 29 As the State notes, we have recently issued two unpublished decisions that similarly
rejected Bruen-based challenges to the UUPWF statute by agreeing with Baker and holding that
felons are not a part of “the people” in the plain text of the amendment. 2 See People v. Echols,
2024 IL App (2d) 220281-U, ¶ 153, pet. for leave to appeal pending, No. 130680 (filed May 8,
2024) (“As defendant does not dispute that he is a convicted felon for purposes of the [UUPWF]
statute, he is not a ‘law-abiding’ citizen afforded the same second amendment protections enjoyed
by ‘the people’ referenced in the second amendment.”); People v. Gross, 2024 IL App (2d)
230017-U, ¶ 24, pet. for leave to appeal pending, No. 130714 (filed May 23, 2024) (“We *** hold
that ‘the people’ referenced in the second amendment are law-abiding citizens.”). In addition, in
People v. Smith, 2023 IL App (2d) 220340-U, ¶ 57, pet. for leave to appeal pending, No. 130343
2 Orders issued under Illinois Supreme Court Rule 23(b) (eff. Feb. 1, 2023) on or after
January 1, 2021, “may be cited for persuasive purposes.” Ill. S. Ct. R. 23(e)(1) (eff. Feb. 1, 2023).
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(filed Jan. 24, 2024), we similarly rejected a second amendment challenge under Bruen to the
armed habitual criminal (AHC) statute (720 ILCS 5/24-1.7 (West 2020)): “[A]s defendant
concedes that he is a repeat convicted felon for purposes of the [AHC] statute, he is not a ‘law-
abiding’ citizen afforded the same second amendment protections enjoyed by ‘the people’
reference in the second amendment.”
¶ 30 We agree with Baker and our previous decisions. As we noted in Echols:
“[T]he clear implication of Bruen is that ‘the people’ referenced in the second amendment
are ‘law-abiding’ citizens. See, e.g., United States v. Jackson, 69 F.4th 495, 504 (8th Cir.
2023) (‘Congress did not violate [the defendant’s rights] by enacting § 922(g)(1) [(18
U.S.C. § 922(g)(1) (2020) (the federal unlawful-possession-of-a-weapon-by-a-felon
statute)]. He is not a law-abiding citizen, and history supports the authority of Congress to
prohibit possession of firearms by persons who have demonstrated disrespect for legal
norms of society.’); United States v. Garrett, 650 F. Supp. 3d 638, 640 (N.D. Ill. 2023)
(‘Courts in this jurisdiction and elsewhere have relied on the focus in [Bruen, McDonald,
and Heller] on the rights of “law-abiding” citizens to hold that the government may,
consistently with Bruen[,] disqualify convicted felons from exercising the rights the
Second Amendment guarantees.’); United States v. Coleman, 2023 WL 122401, at *2
(N.D. W. Va. 2023) (‘The Supreme Court notes throughout its decisions that the
challenging parties are “law-abiding” citizens. The implication is clear: the reach of Bruen
ends at the feet of those individuals who are not law-abiding citizens.’); United States v.
Medrano, 2023 WL 122650, at *2 (N.D. W. Va. 2023) (‘The bottom line is [the
defendant’s] status as a felon removes him from “the people” enumerated in the Second
Amendment.’); United States v. Seiwert, 2022 WL 4534605, *1 (N.D. Ill. 2022) (quoting
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Heller, 554 U.S. at 635) (noting that the right secured by the second amendment ‘extends
only to “the people,” which encompasses only “law-abiding, responsible” citizens who
keep or bear arms for “lawful purposes.” ’); United States v. Ingram, 623 F. Supp. 3d 660,
664 (D. S.C. 2022) (‘By distinguishing non-law-abiding citizens from law-abiding ones,
the [dicta] in Heller and McDonald clarifies the bounds of the plain text of the Second
Amendment. This, coupled with the majority’s focus in Bruen on the Second Amendment
rights of “law-abiding citizens” throughout the opinion convinces this Court that the
Supreme Court would conclude that these statutes fail to infringe on any Second
Amendment rights.’).” Echols, 2024 IL App (2d) 220281-U, ¶ 153.
¶ 31 Further, we note that several published Illinois decisions have similarly concluded that the
second amendment protects the rights of only law-abiding citizens. See People v. Kelley, 2024 IL
App (1st) 230569, ¶ 22 (rejecting the defendant’s facial challenge to the AHC statute, stating that
“Bruen is clear that second amendment rights apply to law-abiding citizens for self-defense”);
People v. Burns, 2024 IL App (4th) 230428, ¶ 21 (rejecting the defendant’s constitutional
challenge to the UUPWF statute, holding that “Bruen simply does not apply to [the] defendant.
The second and fourteenth amendments protect the right of ‘law-abiding citizens’ to possess
handguns”); People v. Hatcher, 2024 IL App (1st) 220455, ¶¶ 56, 59, pet. for leave to appeal
pending, No. 130078 (filed May 22, 2024) (rejecting the defendant’s facial challenge to the
aggravated unlawful use of a weapon statute (720 ILCS 5/24-1.6(a)(1)(3)(A-5)(C), (I) (West
2018)), which criminalizes possession of a weapon under certain circumstances without a valid
license under the Firearm Concealed Carry Act (430 ILCS 66/1 et seq. (West 2018)) or a valid
FOID card, noting that “Bruen expressly and repeatedly limits the second amendment’s scope to
law-abiding citizens”); People v. Mobley, 2023 IL App (1st) 221264, ¶¶ 28, 29, pet. for leave to
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appeal pending, No. 130417 (filed Jan. 31, 2024) (where the record showed that the defendant had
“at least 14 felony convictions, including convictions for violent crimes,” the defendant could not
challenge under Bruen the UUPWF statute as applied to him because “Bruen strongly suggests the
test only applies when a regulation impacts a law-abiding citizen’s ability to keep and bear arms”).
¶ 32 Numerous unpublished Illinois decisions have read the second amendment’s text similarly.
See People v. Box, 2024 IL App (4th) 230649-U, ¶ 81, pet. for leave to appeal pending, No. 130803
(filed June 21, 2024) (rejecting the defendant’s constitutional challenge to the UUPWF statute,
holding that “Bruen does not apply to [the] defendant, as the second and fourteenth amendments
protect the right of ‘law-abiding citizens’ to possess handguns”); People v. Leonard, 2024 IL App
(4th) 230413-U, ¶ 15, pet. for leave to appeal pending, No. 130678 (filed May 8, 2024) (rejecting
the defendant’s facial and as-applied challenges to the AHC statute because the “defendant’s
previous felony convictions make him not a law-abiding citizen and, therefore, not protected by
the second amendment” (emphases in original)); People v. Langston, 2023 IL App (4th) 230162-
U, ¶ 19, pet. for leave to appeal pending, No. 130369 (filed Jan. 16, 2024) (rejecting the
defendant’s facial constitutional challenge to the UUPWF statute, finding “nothing in [the]
defendant’s arguments to persuade [the court] to believe Bruen does not apply to felons
simpliciter[.]”); People v. Muhammad, 2023 IL App (1st) 230121-U, ¶¶ 17-24, pet. for leave to
appeal pending, No. 130385 (filed Jan. 22, 2024) (relying on Baker and rejecting the defendant’s
facial and as-applied challenges to the UUPWF statute, holding that his status as a felon removed
him from the first step of the Bruen analysis); People v. Robinson, 2023 IL App (1st) 220959-U,
¶ 40, pet. for leave to appeal pending, No. 130398 (filed Jan. 24, 2024) (“In Heller, McDonald,
and Bruen, the Supreme Court made clear that felons are not, and have historically not been,
categorically protected by the second amendment as ‘law-abiding citizens.’ ”); People v. Boyce,
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2023 IL App (4th) 221113-U, ¶ 16, pet. for leave to appeal pending, No. 130220 (filed Nov. 20,
2023) (rejecting the defendant’s constitutional challenge to the UUPWF statute because “the Bruen
decision does not apply to felons”).
¶ 33 We recognize that one panel of the First District, in considering the constitutionality of the
UUPWF statute, has held that felon status is “irrelevant” at the first stage of the Bruen analysis
and, thus, even a felon’s possession of a firearm is “ ‘presumptively constitutional.’ [Citation.].”
See People v. Brooks, 2023 IL App (1st) 200435, ¶ 89, pet. for leave to appeal pending,
No. 130153 (filed Oct. 30, 2023). One panel of the Third District adopted Brooks’ reasoning when
considering facial and as-applied constitutional challenges to the AHC statute and the UUPWF
statute. See People v. Travis, 2024 IL App (3d) 230113, ¶ 26, pet. for leave to appeal pending, No.
130696 (filed May 16, 2024).
¶ 34 We decline to follow Brooks’ reasoning as to the first step of the Bruen analysis. 3 Instead,
we join the great weight of authority in Illinois and agree that the second amendment does not
apply to a felon’s firearm possession.
¶ 35 Even if we presumed that a felon’s firearm possession is covered under the plain text of
the second amendment, defendant’s challenge to the UUPWF statute would fail under Bruen’s
3 We note that both Brooks and Travis upheld the challenged statutes under the second stage
of the Bruen analysis. See Brooks, 2023 IL App (1st) 200435, ¶ 105 (“[W]e conclude that the
legislature’s ability to impose status-based restrictions disqualifying certain categories of people
from possessing firearms is consistent with the national historical tradition of firearm regulation.”);
Travis, 2024 IL App (3rd) 230113, ¶ 33 (“[W]e conclude there is a history and tradition dating
back to the founding era of identifying dangerous individuals and disarming them.”)
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second step, which asks whether the state can demonstrate that the UUPWF statute “is consistent
with the Nation’s historical tradition of firearm regulation.” Bruen, 597 U.S. at 24. Defendant
contends that there is no historical tradition of firearms regulation that supports a “flat ban” on
firearm possession by convicted felons. We disagree.
¶ 36 Despite our disagreement with Brooks’ conclusion that felons are covered under the plain
text of the second amendment, we nevertheless find particularly instructive Brooks’ analysis on
the issue of whether the UUPWF statute is consistent with the Nation’s historical tradition of
firearm regulation.
¶ 37 In Brooks, the court considered an as-applied challenge to the AHC statute. Brooks, 2023
IL App (1st) 200435, ¶ 1. The Brooks court summarized as follows the State’s burden under
Bruen’s second step:
“To carry this burden, the government must point to ‘historical precedent from
before, during, and even after the founding [that] evinces a comparable tradition of
regulation.’ [Citation.] Noting that ‘when it comes to interpreting the Constitution, not all
history is created equal,’ the Court made clear that the relevant inquiry centers on what the
founders understood the second amendment to mean. [Citation.] In other words, the Court
clarified that in looking to historical context, the most relevant time period is that of the
amendment’s enactment (in 1791). [Citation.] [Footnote omitted.]
In directing courts to canvass historical periods for context, the Court
acknowledged that the task would not always be ‘straightforward,’ particularly when it
involved ‘unprecedented societal concerns or dramatic technological changes.’ [Citation.]
Noting that in such circumstances ‘a more nuanced approach’ was necessary, the Court
instructed lower courts to seek out similar regulations and to reason by analogy. [Citation.]
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As the Court explained, it is not necessary to identify a ‘historical twin’; rather a ‘well-
established and representative [historical] analogue will do.’ (Emphasis in original.)
[Citation.]
The Court further clarified that ‘analogical reasoning’ under the second amendment
should not be ‘a regulatory straitjacket nor a regulatory blank check.’ [Citation.] As such,
‘courts should not “uphold every modern law that remotely resembles a historical
analogue,” because doing so “risk[s] endorsing outliers that our ancestors would never have
accepted.” ’ [Citation.] However, ‘even if a modern-day regulation is not a dead ringer for
historical precursors, it still may be analogous enough to pass constitutional muster.’
[Citation.] The core question is whether the challenged regulation and the proffered
analogue are ‘relevantly similar.’ [Citation.]
The Court then clarified two metrics to be used in comparing the government's
proffered analogues against the challenged law, namely: (1) how the challenged law
burdens the right to bear arms; and (2) why the law burdens that right. [Citation.] In short,
the Court explained that the proper inquiry turns on whether the ‘modern and historical
regulations imposes a comparable burden on the right of armed self-defense, and ***
whether that burden is comparably justified.’ [Citation.]” Id. ¶¶ 70-73.
¶ 38 The Brooks court engaged in an extensive historical analysis dating back to 17th century
England and ultimately concluded that “there is a historical tradition of legislatures exercising their
discretion to impose status-based restrictions disarming entire categories of persons who, based on
their past conduct, were presumed unwilling to obey the law.” (Internal quotations omitted.) Id.
¶ 97. “While the particular groups varied over time, the founders understood that felons were one
such group.” Id.
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¶ 39 The court began by noting that, in 17th Century England, the government “repeatedly
disarmed individuals whose conduct reflected that they could not be trusted to abide by the
sovereign and [his] dictates.” (Internal quotations omitted.) Id. ¶ 93. Those disarmed included,
first, “non-Anglican Protestants who refused to participate in the Church of England and those
who were dangerous to the Peace of the Kingdom” and, later, “Catholics who refused to renounce
their faith.” (Internal quotations omitted.) Id. The court noted that, later, “[i]n colonial America,
legislatures continued to disarm individuals whose status indicated that they could not be trusted
to obey the law.” Id. ¶ 94. “As such, Native Americans, and other minority groups, like Catholics
in Maryland and Pennsylvania were banned from owning firearms.” Id. The court next noted that,
“during the Revolutionary War, the Continental Congress, Massachusetts, Virginia, Pennsylvania,
Rhode Island, North Carolina, and New Jersey prohibited possession of firearms by people who
refused to swear loyalty oaths.” Id.
¶ 40 The Brooks court further noted that “[f]ounding-era criminal punishments also demonstrate
the widespread acceptance of the legislature’s authority to disarm felons.” Id. ¶ 96. For instance,
even for some nonviolent crimes such as deceit, forgery, and wrongful taking of property, the
punishment included death or forfeiture of a person’s entire estate (which the Brooks court
presumed included firearms). Id. “Even some non-capital offenses triggered the permanent loss of
an offender’s estate, including any firearms.” Id. An example was a 1786 New York statute that
punished individuals who counterfeited state bills of credit with life imprisonment and the
complete forfeiture of their estate (which, again, included firearms). Id. As one court has observed,
“if someone was subject to death and forfeiture of their entire estate then such laws would have
also foreclosed individuals from their right to keep and bear arms.” United States v. Ware, 673 F.
Supp. 3d 947, 959 (S.D. Ill. May 19, 2023). “As a matter of logic and experience, it makes sense
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that these extensive and exhaustive penalties for felonies—outright capital punishment and the
forfeiture of all property—qualify as powerful evidence that mere firearms dispossession of felons
is a ‘comparable burden’ as Bruen frames the standard *** to historical punishments for felonies.”
United States v. Hurnes, No. 1:22-CR-00057, 2024 WL 2701099 at *11 (N.D. Ill. May 24, 2024).
¶ 41 While Brooks’ historical survey uncovered no law that specifically prohibited felons from
owning firearms, Brooks did cite laws that were persuasive analogs to the UUPWF statute. As the
federal district court reasoned in United States v. Head, No. 23 CR 00450-1, 2024 WL 2292236,
*10 (N.D. Ill. May 21, 2024) 4, (quoting People v. Agee, No. 1:21-CR-00350-1, 2023 WL 6443924,
at *8 (N.D. Ill. Oct. 3, 2023)) the English disarmament laws “are relevant analogues to the [federal]
felon dispossession statute, because they disarmed groups ‘based on their perceived potential
disobedience to the law (or sovereign).’ ” In addition, the Colonial and Revolutionary-era laws are
evidence that, “ ‘by the time of the Second Amendment’s ratification in 1791, there already was a
historical tradition of legislatures disarming persons based on the perception (sometimes odious
perceptions) that certain groups could not be trusted to be abide [by] the law or sovereign.’ ” Id.
*11 (quoting Agee, *9).
¶ 42 Here, the State relies specifically on the “surety statutes” of the mid-19th century as
analogous to the UUPWF statute. The surety statutes “required certain individuals to post bond
before carrying weapons in public.” Bruen, 597 U.S. at 55. In Ware, 673 F. Supp. 3d at 959, the
4 The decisions of federal district courts may be considered as persuasive authority. Home
Star Bank & Financial Services v. Emergency Care & Health Organization, Ltd., 2012 IL App
(1st) 112321, ¶ 37 n.3.
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district court found that the surety statutes were analogous to the federal unlawful possession-of-
a-firearm-by-a-felon statute (18 U.S.C. § 922(g)(1)), stating:
“[The] [surety] statutes presumed a right to ‘carry [a firearm] that [could] be burdened only
if another could make out a specific showing of “reasonable cause to fear an injury, or
breach of the peace.” ’ Id. (quoting Mass. Rev. Stat., ch. 134 § 16 (1836)). *** [T]he
Second Amendment also begins with a presumption that the individual has the right to
carry. However, § 922(g)(1) burdens this right just as the surety statutes did nearly two
hundred years ago. Over 65% of prisoners in the United States will be arrested again within
three years of their release and over 80% within nine years of their release. [Citation.] Thus,
felons clearly fall within a category of people who are not only reasonably believed to, but
also probable to cause an injury or breach of the peace. Although surety statutes did not
disarm citizens, the statutes did burden the right guaranteed by the Second Amendment in
a similar fashion.”
¶ 43 As noted, the Court in Rahimi also reviewed the history of firearms regulation in England
and early America. See Rahimi, No. 22-0915, 2024 WL 3074728, *7-10. The Court observed that,
“[f]rom the earliest days of the common law, firearms regulations have included provisions barring
people from misusing weapons to harm or menace others.” Id. *7. “By the 1700s and early 1800s,
*** two distinct legal regimes had developed that specifically addressed firearms violence.” Id.
These were the surety statutes and the “ ‘going armed’ ” statutes. Id. *7-8. The latter “provided a
mechanism for punishing those who had menaced others with firearms.” Id. *8. These two sets of
laws, the Court concluded, “confirm what common sense suggests: When an individual poses a
clear threat of physical violence to another, the threatening individual may be disarmed.” Id. *9.
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¶ 44 Thus, even though there is no “historical twin” for the UUPWF statute, “there is evidence
that categorical bans are permissible and that individuals that have been deemed dangerous, non-
law abiding, or even reasonably likely to breach the peace may have their right to keep and bear
arms restricted.” Ware, 673 F. Supp. 3d at 959.
¶ 45 Defendant contends, however, that “the historical record does not support Illinois’ flat ban
on the possession of firearms by a convicted felon,” but his arguments are not persuasive. First, he
argues that the history of gun regulation demonstrates that most restrictions were based on
dangerousness, not criminal history or status. However, contrary to defendant’s argument, the
status-based restrictions were based not on individualized assessments of dangerousness, but “on
a conclusion that the category as a whole presented an unacceptable risk of danger if armed.” See
Jackson, 69 F. 4th at 504. Indeed, “[n]ot all persons disarmed under historical precedents—not all
Protestants or Catholics in England, not all Native Americans, not all Catholics in Maryland, not
all early Americans who declined to swear an oath of loyalty—were violent or dangerous persons.”
Id.
¶ 46 Defendant also argues that the status-based restrictions were temporary or easily
removable. For instance, he asserts that, in the case of Protestant monarchs prohibiting Catholics
from possessing firearms unless they swore an oath of loyalty and renounced their papism, a person
could remove the disability by appearing before a justice of the peace and swearing oaths of
allegiance to the King. However, as the State notes, an individual prohibited from possessing a
firearm under the UUPWF statute may analogously obtain relief under section 10(c) of the FOID
Card Act (430 ILCS 65/10 (West 2020)) by submitting a petition showing
“(1) the applicant has not been convicted of a forcible felony under the laws of this State
or any other jurisdiction within 20 years of the applicant’s application for a Firearm
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Owner’s Identification Card, or at least 20 years have passed since the end of any period
of imprisonment imposed in relation to that conviction; (2) the circumstances regarding a
criminal conviction, where applicable, the applicant’s criminal history and his reputation
are such that the applicant will not be likely to act in a manner dangerous to public safety;
(3) granting relief would not be contrary to the public interest; and (4) granting relief would
not be contrary to federal law.”
See Evans v. Cook County State’s Attorney, 2021 IL 125513, ¶ 35 (“The legislature clearly
intended for felons to be able to obtain relief under section 10 of the FOID Card Act [(see 430
ILCS 65/10 (West 2020))]. Section 24-1.1(a)’s prohibition on the possession of weapons by felons
says that it does not apply if the person has been granted relief under section 10 of the FOID Card
Act. We do not believe that the legislature’s intent was to create such a right and then make it
impossible for anyone to obtain relief.”). Although defendant argues that applying for
reinstatement of the right to possess a firearm under this provision is akin to the “special need”
provision struck down in Bruen, that case is distinguishable. There is a crucial difference between
the government (1) applying its discretion to enable a law-abiding citizen to exercise the right to
possess a firearm and (2) applying its discretion to reinstate a law-breaking citizen’s right to
possess a firearm.
¶ 47 Finally, defendant directs our attention to three “founding-era proposals” that were
ultimately not incorporated into the second amendment. In one proposal, a majority of the New
Hampshire convention suggested that the bill of rights limit the right to bear arms to those who
had not engaged in “ ‘actual rebellion.’ ” See Kanter v. Barr, 919 F.3d 437, 454 (2019) (Barrett,
J., dissenting) (quoting 1 Jonathan Elliot, The Debates in the Several State Conventions on the
Adoption of the Federal Constitution 326 (2d ed. 1891)). In the Massachusetts convention, Samuel
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Adams proposed that only “ ‘peaceable citizens’ ” have the right to bear arms. Id. (quoting 2
Benard Schwartz, The Bill of Rights: A Documentary History 675, 681 (1971)). In the
Pennsylvania convention, the influential Pennsylvania minority suggested that the citizens’ right
to bear arms not be infringed “ ‘unless for crimes committed, or real danger of public injury from
[the] individuals.’ ” Id. at 456 (quoting 2 Schwartz, at 662, 665). Defendant cites then-Judge
Barrett’s comment, in dissent, that “[t]he concern common to all three [proposals] is not about
felons in particular or even criminals in general; it is about threatened violence and the risk of
public injury.” Id. Thus, according to defendant, the proposals do not support the notion of a
blanket disarmament of felons.
¶ 48 However, as defendant notes, none of the proposals were incorporated into the second
amendment. It can be argued that this was because limitations on the rights of felons to keep and
bear arms were understood. Recently, in Head, the court observed that the existence of the
proposals supports “the proposition that it was ‘ “ ‘obvious’ ” to the Founders that persons who
committed crimes would properly be subject to disarmament laws.’ ” Head, No. 23 CR 00450-1,
2024 WL 2292236, *12 (quoting Agee, No. 1:21-CR-00350-1, 2023 WL 6443924, * 9, citing
Stephen P. Halbrook, The Founders’ Second Amendment: Origins of the Right to Bear Arms 273
(2008) (explaining that the Founders “did not object to the lack of an explicit exclusion of criminals
from the individual right to keep and bear arms” during the debates over “what became the Second
Amendment,” because this limitation “was understood”)). We agree with that reasoning.
¶ 49 In sum, defendant’s challenge to the UUPWF statute fails under the Bruen analysis because
felons, who are not law-abiding citizens, are not afforded the same second amendment protections
enjoyed by “the people” referenced therein. Further, even if the text of the second amendment was
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to be construed as presumptively protecting felons, the UUPWF statute is consistent with this
Nation’s historical tradition of firearms regulation.
¶ 50 III. CONCLUSION
¶ 51 For the reasons stated, we affirm the judgment of the circuit court of Kane County.
¶ 52 Affirmed.
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