2024 IL App (1st) 231500-U No. 1-23-1500 Order filed August 22, 2024 Fourth Division
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). ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 22 CR 2618 ) TEVIN NELSON, ) Honorable ) John F. Lyke Jr., Defendant-Appellant. ) Judge, presiding.
PRESIDING JUSTICE ROCHFORD delivered the judgment of the court. Justices Hoffman and Ocasio concurred in the judgment.
ORDER
¶1 Held: We affirm the denial of defendant’s petition for relief from judgment where he has not established that the subsection of the aggravated unlawful use of a weapon statute under which he was convicted is facially unconstitutional.
¶2 Defendant Tevin Nelson appeals from the circuit court’s order denying his petition for
relief from judgment filed pursuant to section 2-1401 of the Code of Civil Procedure (Code) (735
ILCS 5/2-1401 (West 2020)). He argues that his conviction for aggravated unlawful use of a
weapon (AUUW) should be vacated because the subsection of the statute under which he was
convicted (720 ILCS 5/24-1.6(a)(1), (a)(3)(A-5) (West 2020)) is facially unconstitutional under No. 1-23-1500
the second amendment to the United States Constitution (U.S. Const., amend. II). For the following
reasons, we affirm.
¶3 On August 22, 2022, defendant entered a negotiated guilty plea to one count of AUUW in
exchange for six years’ imprisonment and the nolle prosequi of other charges. He did not move to
withdraw his plea or file a direct appeal.
¶4 On February 8, 2023, defendant filed a petition for relief from judgment pursuant to section
2-1401 of the Code. He argued that the subsection of the AUUW statute under which he was
convicted was unconstitutional and his conviction should be vacated pursuant to People v. Aguilar,
2013 IL 112116, and its progeny. On May 8, 2023, the court denied defendant’s petition, noting
that the subsection of the AUUW statute under which he was convicted had not been found
unconstitutional.
¶5 On June 24, 2023, defendant mailed to this court a motion for leave to file a late notice of
appeal, which we allowed.
¶6 On appeal, defendant argues that, pursuant to the United States Supreme Court’s decision
in New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1 (2022), the subsection of the
AUUW statute under which he was convicted (720 ILCS 5/24-1.6(a)(1), (a)(3)(A-5) (West 2020))
violates the second amendment.
¶7 Section 2-1401 of the Code provides a statutory procedure by which final judgments may
be vacated more than 30 days after entry. 735 ILCS 5/2-1401(a) (West 2022); People v. Stoecker,
2020 IL 124807, ¶ 18. We review de novo a denial of a section 2-1401 petition on legal grounds.
People v. Abdullah, 2019 IL 123492, ¶ 13. We also review de novo the constitutionality of a statute,
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a question of law. People v. Smith, 2024 IL App (1st) 221455, ¶ 9 (citing People v. Davis, 2014
IL 115595, ¶ 26).
¶8 Section 24-1.6(a)(1), (a)(3)(A-5) of the Criminal Code of 2012 provides:
“(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:
(A-5) the pistol, revolver, or handgun possessed was uncased,
loaded, and immediately accessible at the time of the offense and the person
possessing the pistol, revolver, or handgun has not been issued a currently
valid license under the Firearm Concealed Carry Act[.]” 720 ILCS 5/24-
1.6(a)(1), (a)(3)(A-5) (West 2020).
¶9 Defendant claims that section 24-1.6(a)(1), (a)(3)(A-5) violates the second amendment on
its face. Facial challenges are “the most difficult challenge to mount.” Davis, 2014 IL 115595,
¶ 25. Statutes are presumed constitutional, and to rebut that presumption and show a statute is
facially unconstitutional, a party must establish that there are no circumstances under which the
-3- No. 1-23-1500
statute would be valid. People v. Bochenek, 2021 IL 125889, ¶ 10. “If it is reasonably possible to
construe the statute in a way that preserves its constitutionality, we must do so.” Id. A defendant
may challenge the constitutionality of a statute at any time. People v. Gunn, 2023 IL App (1st)
221032, ¶ 8.
¶ 10 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. In 2008, the United States Supreme Court issued its decision in District of Columbia v.
Heller, in which it stated that the second amendment elevated “the right of law-abiding,
responsible citizens to use arms in defense of hearth and home.” District of Columbia v. Heller,
554 U.S. 570, 635 (2008). In 2010, the Court issued its decision in McDonald v. City of Chicago,
in which it extended the right to keep and bear arms to the states under the fourteenth amendment.
McDonald v. City of Chicago, 561 U.S. 742 (2010). Following Heller and McDonald, courts
developed a two-step test for evaluating second amendment challenges to firearm regulations: the
court would consider whether the regulated activity fell outside the scope of the second amendment
as the amendment was originally understood and, if not, weigh the severity of the regulation
against the ends the government sought to achieve in enacting it. See Smith, 2024 IL App (1st)
221455, ¶ 11.
¶ 11 Then, in 2022, the Court issued Bruen, in which it announced a new test for evaluating the
constitutionality of firearm regulations:
“When the Second Amendment’s plain text covers an individual’s conduct, the
Constitution presumptively protects that conduct. The government must then justify its
regulation by demonstrating that it is consistent with the Nation’s historical tradition of
-4- No. 1-23-1500
firearm regulation. Only then may a court conclude that the individual’s conduct falls
outside the Second Amendment’s unqualified command.” (Internal quotation marks
omitted.) Bruen, 597 U.S. at 24.
¶ 12 In other words, the first question under Bruen is “Does the plain text of the second
amendment cover an individual’s conduct?” (Internal quotation marks omitted.) People v.
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2024 IL App (1st) 231500-U No. 1-23-1500 Order filed August 22, 2024 Fourth Division
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). ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 22 CR 2618 ) TEVIN NELSON, ) Honorable ) John F. Lyke Jr., Defendant-Appellant. ) Judge, presiding.
PRESIDING JUSTICE ROCHFORD delivered the judgment of the court. Justices Hoffman and Ocasio concurred in the judgment.
ORDER
¶1 Held: We affirm the denial of defendant’s petition for relief from judgment where he has not established that the subsection of the aggravated unlawful use of a weapon statute under which he was convicted is facially unconstitutional.
¶2 Defendant Tevin Nelson appeals from the circuit court’s order denying his petition for
relief from judgment filed pursuant to section 2-1401 of the Code of Civil Procedure (Code) (735
ILCS 5/2-1401 (West 2020)). He argues that his conviction for aggravated unlawful use of a
weapon (AUUW) should be vacated because the subsection of the statute under which he was
convicted (720 ILCS 5/24-1.6(a)(1), (a)(3)(A-5) (West 2020)) is facially unconstitutional under No. 1-23-1500
the second amendment to the United States Constitution (U.S. Const., amend. II). For the following
reasons, we affirm.
¶3 On August 22, 2022, defendant entered a negotiated guilty plea to one count of AUUW in
exchange for six years’ imprisonment and the nolle prosequi of other charges. He did not move to
withdraw his plea or file a direct appeal.
¶4 On February 8, 2023, defendant filed a petition for relief from judgment pursuant to section
2-1401 of the Code. He argued that the subsection of the AUUW statute under which he was
convicted was unconstitutional and his conviction should be vacated pursuant to People v. Aguilar,
2013 IL 112116, and its progeny. On May 8, 2023, the court denied defendant’s petition, noting
that the subsection of the AUUW statute under which he was convicted had not been found
unconstitutional.
¶5 On June 24, 2023, defendant mailed to this court a motion for leave to file a late notice of
appeal, which we allowed.
¶6 On appeal, defendant argues that, pursuant to the United States Supreme Court’s decision
in New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1 (2022), the subsection of the
AUUW statute under which he was convicted (720 ILCS 5/24-1.6(a)(1), (a)(3)(A-5) (West 2020))
violates the second amendment.
¶7 Section 2-1401 of the Code provides a statutory procedure by which final judgments may
be vacated more than 30 days after entry. 735 ILCS 5/2-1401(a) (West 2022); People v. Stoecker,
2020 IL 124807, ¶ 18. We review de novo a denial of a section 2-1401 petition on legal grounds.
People v. Abdullah, 2019 IL 123492, ¶ 13. We also review de novo the constitutionality of a statute,
-2- No. 1-23-1500
a question of law. People v. Smith, 2024 IL App (1st) 221455, ¶ 9 (citing People v. Davis, 2014
IL 115595, ¶ 26).
¶8 Section 24-1.6(a)(1), (a)(3)(A-5) of the Criminal Code of 2012 provides:
“(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:
(A-5) the pistol, revolver, or handgun possessed was uncased,
loaded, and immediately accessible at the time of the offense and the person
possessing the pistol, revolver, or handgun has not been issued a currently
valid license under the Firearm Concealed Carry Act[.]” 720 ILCS 5/24-
1.6(a)(1), (a)(3)(A-5) (West 2020).
¶9 Defendant claims that section 24-1.6(a)(1), (a)(3)(A-5) violates the second amendment on
its face. Facial challenges are “the most difficult challenge to mount.” Davis, 2014 IL 115595,
¶ 25. Statutes are presumed constitutional, and to rebut that presumption and show a statute is
facially unconstitutional, a party must establish that there are no circumstances under which the
-3- No. 1-23-1500
statute would be valid. People v. Bochenek, 2021 IL 125889, ¶ 10. “If it is reasonably possible to
construe the statute in a way that preserves its constitutionality, we must do so.” Id. A defendant
may challenge the constitutionality of a statute at any time. People v. Gunn, 2023 IL App (1st)
221032, ¶ 8.
¶ 10 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. In 2008, the United States Supreme Court issued its decision in District of Columbia v.
Heller, in which it stated that the second amendment elevated “the right of law-abiding,
responsible citizens to use arms in defense of hearth and home.” District of Columbia v. Heller,
554 U.S. 570, 635 (2008). In 2010, the Court issued its decision in McDonald v. City of Chicago,
in which it extended the right to keep and bear arms to the states under the fourteenth amendment.
McDonald v. City of Chicago, 561 U.S. 742 (2010). Following Heller and McDonald, courts
developed a two-step test for evaluating second amendment challenges to firearm regulations: the
court would consider whether the regulated activity fell outside the scope of the second amendment
as the amendment was originally understood and, if not, weigh the severity of the regulation
against the ends the government sought to achieve in enacting it. See Smith, 2024 IL App (1st)
221455, ¶ 11.
¶ 11 Then, in 2022, the Court issued Bruen, in which it announced a new test for evaluating the
constitutionality of firearm regulations:
“When the Second Amendment’s plain text covers an individual’s conduct, the
Constitution presumptively protects that conduct. The government must then justify its
regulation by demonstrating that it is consistent with the Nation’s historical tradition of
-4- No. 1-23-1500
firearm regulation. Only then may a court conclude that the individual’s conduct falls
outside the Second Amendment’s unqualified command.” (Internal quotation marks
omitted.) Bruen, 597 U.S. at 24.
¶ 12 In other words, the first question under Bruen is “Does the plain text of the second
amendment cover an individual’s conduct?” (Internal quotation marks omitted.) People v.
Hatcher, 2024 IL App (1st) 220455, ¶ 52. If the answer is no, the regulation is constitutional. Id.
If the answer is yes, the conduct is presumptively protected, and the court must answer the second
question: “Is the State’s regulation consistent with the Nation’s historical tradition of firearm
regulation[?]” (Internal quotation marks omitted.) Id.
¶ 13 Defendant argues that section 24-1.6(a)(1), (a)(3)(A-5) governs the conduct of publicly
carrying a firearm, which is covered by the second amendment. He notes that a valid concealed
carry license (CCL) under the Firearm Concealed Carry Act (Carry Act) (430 ILCS 66/1 et seq.
(West 2020)) cannot be obtained unless a person, inter alia, is 21 years old, completes firearms
training, and has a valid Firearm Owner’s Identification (FOID) card under the Firearm Owners
Identification Card Act (FOID Card Act) (430 ILCS 65/1 et seq. (West 2020)). See 430 ILCS
66/25 (West Supp. 2021).
¶ 14 In turn, a person cannot obtain a FOID card if, inter alia, he or she has been convicted of
a felony, is addicted to narcotics, has been a patient in a mental health facility in the prior five
years, or has an intellectual disability. 430 ILCS 65/4(a)(2)(ii)-(v) (West Supp. 2021). Obtaining
each license requires payment of certain fees. 430 ILCS 65/5(a) (West Supp. 2021); 430 ILCS
66/10(a)(3) (West Supp. 2021). The government is allowed 30 days to approve or deny an
application for a FOID card, and 90 days for a CCL, which is only valid for 5 years. 430 ILCS
-5- No. 1-23-1500
65/5(a) (West Supp. 2021); 430 ILCS 66/10(c), (e) (West Supp. 2021). According to defendant,
this scheme places “an onerous burden” on the right to carry a firearm and the State cannot prove
that a criminal penalty for failing to comply with the scheme has historical analogues.
¶ 15 The State initially responds that defendant lacks standing to challenge the Carry Act or the
FOID Card Act as there is no evidence that he applied for a FOID card or CCL. However, as the
State concedes, defendant was convicted under section 24-1.6(a)(1), (a)(3)(A-5) and he therefore
has standing to challenge that provision, which criminalizes noncompliance with the Carry Act.
See People v. Carter, 2022 IL App (1st) 210261, ¶¶ 67-69 (defendant had standing to raise facial
challenge to statute under which he had been convicted as he was injured by the statute’s
enforcement); see also People v. Kuykendoll, 2023 IL App (1st) 221266-U, ¶ 17 (defendant who
had been convicted of AUUW for failure to comply with FOID Card Act and Carry Act had
standing to challenge AUUW statute despite no evidence of attempt to procure FOID Card or
CCL). 1
¶ 16 Substantively, the State points out that the FOID Card Act and Carry Act are “shall issue”
licensing regimes. In other words, when an applicant meets the statutory criteria under those acts,
they “shall” be issued a license. (Emphasis in original.) Gunn, 2023 IL App (1st) 221032, ¶¶ 16,
22; see also 430 ILCS 65/5(a) (West Supp. 2021) (“every applicant found qualified” under the
FOID Card Act “shall be entitled to” a FOID card); 430 ILCS 66/10(a) (West Supp. 2021) (Illinois
State Police “shall issue” a CCL to applicants who satisfy statutory requirements).
Unpublished orders filed under Illinois Supreme Court Rule 23(b) after January 1, 2021, may be 1
cited for persuasive purposes. Ill. S. Ct. R. 23(b), (e)(1) (eff. Feb. 1, 2023).
-6- No. 1-23-1500
¶ 17 In Bruen, the Supreme Court differentiated between such “shall issue” licensing regimes
and the “may issue” licensing regime that was then before the Court, in which a license to carry
firearms in public would only issue to those who showed that “proper cause” existed. (Internal
quotation marks omitted.) Bruen, 597 U.S. at 11-15, 38 n.9. The Court in Bruen recognized that
Illinois was a shall-issue jurisdiction, and stated that nothing in its decision “should be interpreted
to suggest the unconstitutionality” of any shall-issue licensing regime, as objective requirements
like undergoing a background check or passing a firearm safety course did not prevent law-abiding,
responsible citizens from exercising their second amendment right. Id. at 13 n.1, 38 n.9.
¶ 18 According to the State, we therefore do not need to undergo the Bruen analysis to reject
defendant’s claim. Indeed, following Bruen, in Gunn, a defendant who had been convicted of
AUUW for possessing a weapon without a CCL or FOID card argued that his conviction was void
as the Carry Act and FOID Card Act were unconstitutional under Bruen. Gunn, 2023 IL App (1st)
221032, ¶ 7. We disagreed, on the basis that the acts were shall-issue regimes condoned by Bruen
as the background check and training requirements did not prevent law-abiding, responsible
citizens from exercising their second amendment right. Id. ¶¶ 19, 29, 32 (citing Bruen, 597 U.S. at
38 n.9). See also People v. Burns, 2024 IL App (4th) 230428, ¶¶ 32, 37-41 (rejecting challenge to
section 24-1.6(a)(1), (a)(3)(A-5) on same basis); Kuykendoll, 2023 IL App (1st) 221266-U, ¶¶ 24-
27 (same).
¶ 19 Defendant argues that Bruen’s endorsement of shall-issue licensing schemes comes only
from footnotes, is dicta, and references only the civil framework for obtaining a CCL and not the
criminalization of possessing a firearm in public without one. However, even disregarding Bruen’s
-7- No. 1-23-1500
discussion of licensing schemes, defendant’s claim that section 24-1.6(a)(1), (a)(3)(A-5) is
unconstitutional under the test set forth in Bruen still fails.
¶ 20 We recently resolved this question in Hatcher where, as here, the defendant argued that
section 24-1.6(a)(1), (a)(3)(A-5) was unconstitutional under Bruen. Hatcher, 2024 IL App (1st)
220455, ¶ 51. We noted that Bruen limited the scope of the second amendment to law-abiding
citizens. Id. ¶ 55 (citing Bruen, 597 U.S. at 71); see also People v. Baker, 2023 IL App (1st)
220328, ¶ 37 (noting that justices in Bruen majority repeated phrase “law-abiding” 18 times
between their majority opinion and concurrences). As the Carry Act prohibited possession of a
concealed firearm outside the home without a CCL, anyone who did so was violating civil law.
Hatcher, 2024 IL App (1st) 220455, ¶ 57. Section 24-1.6(a)(1), (a)(3)(A-5) merely criminalized
what was already non-law-abiding conduct. Id. Bruen and the second amendment therefore did not
apply to the conduct at issue and the defendant’s argument failed at Bruen’s first step. Id.
¶ 21 Defendant argues we should undertake a historical analysis under Bruen’s second step,
unlike the courts in Gunn and Hatcher. Even were we to do so, defendant’s argument would
nevertheless fail.
¶ 22 Another district of this court has already found that the concealed carry provision of section
24-1.6(a) is constitutional under the second step of the Bruen test. Sinnissippi Rod & Gun Club,
Inc. v. Raoul, 2024 IL App (3d) 210073, ¶¶ 14, 21-34. In Sinnissippi Rod & Gun Club, the court
found that the State provided historical examples regulating the manner in which persons could
carry firearms in public that were relevantly similar to Illinois’s concealed-carry statutory scheme.
Id. ¶¶ 27-34. For example, courts had explained “ ‘[f]rom Blackstone through the 19th-century
cases’ ” that the right to keep and bear arms was not a right to carry any weapon in any manner.
-8- No. 1-23-1500
Id. ¶ 28 (quoting Heller, 554 U.S. at 626). Rather, 19th-century prohibitions on carrying concealed
weapons were found lawful under the second amendment or “ ‘state analogues.’ ” Id. ¶ 29 (quoting
Bruen, 597 U.S. at 52). The public carry of firearms was commonly regulated in the colonies and
early Republic to prevent fear and terror, and in the 1800s “to reduce violence and protect the
public.” Id. ¶ 32. As section 24-1.6(a) likewise regulated the manner in which a person could
publicly carry a firearm and was not a total ban on the public carrying of firearms, it was therefore
constitutional under Bruen, Id. ¶¶ 33-34.
¶ 23 In sum, our courts have consistently rejected the argument that section 24-1.6(a)(1),
(a)(3)(A-5) is facially unconstitutional under Bruen. See Hatcher, 2024 IL App (1st) 220455;
Gunn, 2023 IL App (1st) 221032; Sinnissippi Rod & Gun Club, 2024 IL App (3d) 210073.
Defendant provides no persuasive reason to depart from the reasoning in these cases.
¶ 24 Moreover, even if we found some fault with the analysis contained in these prior decisions,
we would be compelled to reject defendant’s facial challenge to section 24-1.6(a)(1), (a)(3)(A-5)
due to the recent decision in United States v. Rahimi, 602 U.S. __, 144 S. Ct. 1889, 1898 (2024).
In that case, the Court rejected a facial challenge to a federal statute—18 U.S.C. § 922(g)(8)(C)(i)
(2020)—that prohibits an individual subject to a domestic violence restraining order from
possessing a firearm if that order includes a finding that the person represents a credible threat to
the physical safety of an intimate partner, or a child of the partner or individual. Id. at 1898. The
Court conducted the very analysis called for in its prior Bruen decision and stated that “we have
no trouble concluding that Section 922(g)(8) survives Rahimi’s facial challenge. Our tradition of
firearm regulation allows the Government to disarm individuals who present a credible threat to
the physical safety of others.” Id. 602 U.S. __, 144 S. Ct. at 1901.
-9- No. 1-23-1500
¶ 25 Obviously, the specific federal statute at issue in Rahimi is not directly at issue in this
appeal. However, here defendant has raised a facial challenge to section 24-1.6(a)(1), (a)(3)(A-5),
and as such he must show that the statute is unconstitutional under any set of facts and the specific
facts related to defendant are irrelevant. People v. Garvin, 219 Ill. 2d 104, 117 (2006). And, as
discussed above, section 24-1.6(a)(1), (a)(3)(A-5) makes it a felony to possess a firearm without
having been issued a currently valid CCL. 720 ILCS 5/1.6(a)(1), (a)(3)(A-5) (West Supp. 2021).
Furthermore, a valid CCL cannot be obtained unless a person, inter alia, has a valid FOID card
(430 ILCS 65/1 et seq. (West 2020)). See 430 ILCS 66/25 (West Supp. 2021). In turn, a person
cannot obtain a FOID card if, inter alia, he or she “is prohibited from acquiring or possessing
firearms or firearm ammunition by any Illinois State statute or by federal law.” (Emphasis added.)
430 ILCS 65/8(n) (West 2020). A person subject to Section 922(g)(8) of the federal code is just
such a person.
¶ 26 Thus, because there is at least one instance where it would be constitutional under the
second amendment and the Bruen analysis to deny a FOID card and therefore also deny a CCL to
an applicant, and because possessing a firearm without a CCL in that instance would violate section
24-1.6(a)(1), (a)(3)(A-5), we must reject defendant’s facial challenge to that statute. Hill v. Cowan,
202 Ill. 2d 151, 157 (2002) (“so long as there exists a situation in which a statute could be validly
applied, a facial challenge must fail.”).
¶ 27 For these reasons, we affirm the circuit court’s denial of defendant’s petition for relief filed
under section 2-1401 of the Code.
¶ 28 Affirmed.
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