People v. Wiggins , 2016 IL App (1st) 153163 ( 2017 )

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People v. Wiggins, 2016 IL App (1st) 153163Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption PETER WIGGINS, Defendant-Appellant.
District & No. First District, Fourth Division
Docket No. 1-15-3163
Filed December 8, 2016
Decision Under Appeal from the Circuit Court of Cook County, No. 13-C6-60044; the
Review Hon. Michele Pitman, Judge, presiding.
Judgment Affirmed.
Counsel on Andrew S. Gable, of Chicago, for appellant.
Appeal
Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg and
Gina DiVito, Assistant State’s Attorneys, of counsel), for the People.
Panel PRESIDING JUSTICE ELLIS delivered the judgment of the court,
with opinion.
Justices McBride and Howse concurred in the judgment and opinion.
OPINION
¶1 Generally, under Illinois law, an Illinois resident must possess a Firearm Owner’s
Identification (FOID) card to possess a firearm in Illinois. A non-Illinois resident may be
exempt from the FOID card requirement, and thus may possess a firearm in Illinois, if, among
other reasons, that person is “licensed” to carry that firearm in that person’s home state. The
first question in this appeal is whether a non-Illinois resident, whose home state allows him to
possess a firearm without requiring him to first obtain a license, is deemed “licensed” in that
other state for the purposes of the Illinois FOID card exemption. We hold that he is not. The
second question is whether this result violates the second amendment to the United States
Constitution, as applied to this individual. We hold that it does not.
¶2 Defendant Peter Wiggins was seen in possession of a handgun outside a bar in Chicago
Heights. After police searched his car, they found a handgun inside. The State charged
defendant with two counts of aggravated unlawful use of a weapon (AUUW) predicated on his
lacking a FOID card—one for carrying the gun on his person without a FOID card, and one for
possessing the gun in his car without a FOID card. 720 ILCS 5/24-1.6(a)(1), (a)(3)(C) (West
2012). After a bench trial, defendant was convicted of both counts.1
¶3 Wiggins, an army veteran and a resident of Texas, had a permit to possess the gun issued
by the Fort Bliss Provost Marshal’s Office and was authorized to possess his firearm in Texas.
He argues on appeal that he thus qualified for an exception to the AUUW statute’s FOID card
requirement as a “[n]onresident” who is “currently licensed *** to possess a firearm in [his]
resident state.” See 430 ILCS 65/2(b)(10) (West 2012). He further argues that, if he does not fit
within this exception to the FOID card requirement, the statute under which he was convicted
violated the second amendment to the United States Constitution.
¶4 We affirm defendant’s AUUW convictions. Even though the state of Texas did authorize
defendant to possess a firearm in Texas, it did not first require a licensure procedure and issue
him a license to do. Thus, he was not “licensed *** to possess” that firearm in Texas. Id. Nor
does defendant’s military permit qualify him for that exemption. Defendant thus cannot fit
within this exception to the FOID card requirement. His convictions for possession of a firearm
without a FOID card therefore stand.
¶5 We further find that the FOID card requirement incorporated into the AUUW statute under
which defendant was convicted is a reasonable regulatory requirement that did not violate the
second amendment. We thus affirm defendant’s convictions in all respects.
¶6 I. BACKGROUND
¶7 Noel Tenayuca testified that, around 4 a.m. on November 15, 2012, he was at a bar in
Chicago Heights. He stepped outside with a friend who was smoking and saw defendant
walking back into the bar. Tenayuca said that, earlier, there had been a disagreement inside the
bar, and defendant seemed “a little upset.” Tenayuca said that, as defendant went in, he lifted
his shirt, revealing a gun with a brown handle. Tenayuca thought it was the handle of the gun
1
The acts at issue in this case occurred on November 15, 2012, several months before the Illinois
General Assembly first allowed the issuance of concealed-carry permits in the Firearm Concealed
Carry Act (430 ILCS 66/1 et seq. (West 2014)), which became effective July 9, 2013. This ruling does
not involve or affect any interpretation of that later-enacted law.
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and told a bouncer or bartender that defendant had a gun. Tenayuca admitted that he only
“vaguely remember[ed]” any of the events of that night.
¶8 Officer Benjamin Hofrichter, a Chicago Heights police officer, testified that he went to the
bar after receiving a call about a man with a gun. When he pulled up, he saw defendant either
getting into or out of a black SUV with Texas plates. Defendant shut the door to the car when
Hofrichter pulled up. Hofrichter testified that defendant knelt and raised his hands in the air,
and people outside the bar said that defendant was the person with the gun. Hofrichter patted
defendant down and asked defendant if he had a gun. Defendant said he did not.
¶9 Hofrichter asked defendant for permission to search his car, and defendant said that, if
Hofrichter could get into the car, he could search it. One of the bouncers at the bar loaned
Hofrichter a “lockout kit” because he also worked as a tow truck driver. Hofrichter used the
lockout kit to unlock defendant’s car.
¶ 10 Hofrichter put his hand down on the driver’s seat, which had a seat cover over it. He felt a
hard object underneath the cover and discovered that it was a loaded, .45-caliber
semiautomatic handgun with brown wooden grips. Hofrichter arrested defendant and later
learned that the black SUV was registered to him. Defendant had a Texas driver’s license on
him.
¶ 11 The State played a video from the exterior surveillance cameras at the bar during trial,
although that video is not contained in the record on appeal.
¶ 12 The State also introduced a certified record from the Illinois State Police showing that
defendant had never been issued a FOID card. The State then rested.
¶ 13 Defendant moved for a directed finding, arguing that the evidence showed that defendant
was a Texas resident, that Texas allowed him to possess a weapon without a permit, and thus
he was a licensed nonresident exempt from the FOID card requirement. The court denied the
motion.
¶ 14 Defendant testified that he was in the army reserves from 2007 to 2014 and was stationed at
Fort Bliss, Texas. At the time of his arrest, he was inactive. Defendant testified that, on
November 15, 2012, he was a resident of Texas but was visiting family in Chicago Heights.
Defendant said that he had purchased the gun found in his car at the army base at Fort Bliss.
Defendant identified the permit that he obtained to purchase the gun on the base.
¶ 15 On cross-examination, defendant testified that, if he had gone to another post, he would
have had to register his firearms at that new post. Defendant acknowledged that the United
States Army had issued the permit, not the state of Texas.
¶ 16 The permit was labeled, “FT BLISS WEAPON PERMIT” and indicated that it had been
issued by the Fort Bliss “Provost Marshals Office.” It was valid from May 25, 2011, the date it
had been issued, until May 25, 2014. The permit listed two firearms, including a .45-caliber
pistol that defendant identified as the gun he had in his car on November 15, 2012.
¶ 17 In his closing argument, defense counsel argued that “a valid permit or license from
another state can substitute for the FOID card requirement” and, because defendant had a valid
permit to carry a gun in Texas, he could not be found guilty of AUUW based on his lack of a
FOID card. The State responded that defendant’s military permit did not absolve him of
liability because it was not issued by a state: “Provost marshal is not a state. It is part of the
United States Army, which is not a state.”
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¶ 18 The court found defendant guilty of both counts of AUUW, noting that the military permit
was “not a [FOID] card or the equivalent of it from the State of Texas.”
¶ 19 Defendant filed a posttrial motion arguing that he was not guilty of AUUW because of his
military permit. He noted that Texas does not issue permits that are equivalent to FOID cards
and that only Illinois residents may apply for FOID cards. The State responded, “Just because
Texas doesn’t require a permit to own a weapon does not mean that that absolves a Texas
resident from the FOID requirements in the state of Illinois.”
¶ 20 The court denied defendant’s motion, making the following findings:
“[Defendant] had—I don’t have the document in front of me, but the exhibit that I
was tendered was based upon him being authorized to carry a firearm while he was
either owe [sic] a post or something to do with the national guard with regards to him
being in the national guard. It is not a license to carry a firearm in any other state. It is
not a license to possess a firearm. It indicates that he can carry it in his duties with
regards to being in the national guard.
***
So, counsel, I respect your argument, but he could not carry that weapon in
Illinois.”
¶ 21 The court sentenced defendant to 30 months’ felony probation. Defendant filed this appeal.
¶ 22 II. ANALYSIS
¶ 23 On appeal, defendant raises two challenges to his convictions. First, he claims that the State
could not prove him guilty of AUUW beyond a reasonable doubt because he was allowed to
carry a firearm in the state of Texas and via his military permit, each of which absolves him of
the necessity to obtain a FOID card in Illinois. Second, he claims that the AUUW statute, both
on its face and as applied to him, violated his right to bear arms under the second amendment.
We first address defendant’s sufficiency-of-the-evidence argument, then turn to his
constitutional claims.
¶ 24 A. Nonresident Exception
¶ 25 Defendant was convicted of two counts of AUUW. Count II of the information charged
defendant with possessing a weapon in his car without a FOID card. In Count V, the State
charged defendant with carrying the firearm on his person while not possessing a FOID card.
Relevant to this case, a person commits AUUW when he or she knowingly “[c]arries on or
about his or her person or in any vehicle or concealed on or about his or her person *** any
pistol, revolver, stun gun or taser or other firearm” and “the person possessing the firearm has
not been issued a currently valid [FOID] Card.” 720 ILCS 5/24-1.6(a)(1), (a)(3)(C) (West
2012).
¶ 26 Defendant takes issue with the second of the two elements. He admits that he did not have
a currently valid FOID card but claims that he was not required to obtain one. He relies on an
exemption in the Firearm Owners Identification Card Act (FOID Card Act) for “[n]onresidents
who are currently licensed or registered to possess a firearm in their resident state.” 430 ILCS
65/2(b)(10) (West 2012). Defendant is a resident of Texas, which authorizes him to possess a
weapon without obtaining a license. See Tex. Penal Code Ann. § 46.02(a) (West 2012). He
also obtained a permit to possess a firearm while serving in the United States Army Reserves in
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Fort Bliss, Texas. According to defendant, because Texas authorized him to possess the
firearm in question and the Fort Bliss permit authorized him to do so, he was “licensed” to
possess the firearm both at Fort Bliss and in Texas.2
¶ 27 Defendant is correct that, if he fits within the FOID Card Act exemption for nonresidents
who are “currently licensed *** to possess a firearm in their resident state,” then he cannot be
prosecuted for AUUW based on his lack of a FOID card. In People v. Holmes, 241 Ill. 2d 509,
521 (2011), the Illinois Supreme Court held that section 2(b)(10) of the FOID Card Act
functions as an exception to liability under the AUUW statute. The AUUW statute’s
prohibition on possessing a firearm without a FOID card must be read in conjunction with the
FOID Card Act, so if a defendant qualified for an exemption from the FOID Card Act, that
defendant likewise could be not be convicted under that provision of the AUUW statute. Id.Simply put, if a nonresident is “licensed” to possess the firearm in his resident state, he cannot
be convicted under the AUUW for possession of a firearm without a FOID card. Id.¶ 28 This raises a question of statutory construction, whether defendant was “licensed” to
possess his firearm in Texas, under section 2(b)(10) of the FOID Card Act (430 ILCS
65/2(b)(10) (West 2012)), when Texas authorized this use of his weapon without first
requiring a licensure process. Though defendant casts his argument in terms of the sufficiency
of the evidence, our interpretation of section 2(b)(10) is a question of law that we review
de novo. See, e.g., People v. Ward, 215 Ill. 2d 317, 324 (2005) (applying de novo review where
“[d]efendant’s sufficiency-of-the-evidence argument devolve[d] into an issue of statutory
interpretation”).
¶ 29 The question is what the General Assembly intended in drafting an exception to the FOID
card requirement for “[n]onresidents who are currently licensed or registered to possess a
firearm in their resident state.” 430 ILCS 65/2(b)(10) (West 2012). The State says that the
word “licensed” is limited only to actual, physical licenses, that an individual is “licensed” in
his or her “resident state” only if that resident state has issued the individual an official
document—a license—to possess a firearm. Thus, because defendant’s resident state of Texas
did not issue him a formal license to possess a firearm, defendant does not fit within this
exception.
¶ 30 Defendant, on the other hand, claims that the word “licensed” should be read more broadly.
He says that the General Assembly, in section 2(b)(10), was not referring only to states that
have issued official licenses to gun owners but also, more generally, to states that authorize gun
possession without requiring a license in the first place. Thus, because defendant’s home state
of Texas authorized him to possess a firearm without requiring a license, defendant qualifies as
being “licensed” in Texas.
¶ 31 A federal district court recently addressed this very question and agreed with the more
expansive view urged by defendant here. In Mishaga v. Schmitz, 136 F. Supp. 3d 981, 993
(C.D. Ill. 2015), the plaintiff, an Ohio resident, sought an order declaring the FOID Card Act
unconstitutional. Id. at 984. The plaintiff frequently traveled to Illinois to visit friends and
wanted to possess a firearm while in her friends’ Illinois home. Id. She did not “wish to possess
2
Defendant does not claim that he was “registered” in the state of Texas for the purposes of the
section 2(b)(10) exception, only that he was “licensed.” We will thus limit our analysis to whether
defendant was “licensed” to possess the firearm by a non-Illinois governmental entity. 430 ILCS
65/2(b)(10) (West 2012).
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or carry a functional firearm outside of her friends’ home.” Id. The plaintiff believed that the
FOID Card Act prohibited her from possessing a gun in her friends’ home. Id. at 985.
¶ 32 The district court, in considering whether the plaintiff had standing to challenge the
constitutionality of the FOID Card Act, noted that she could only have standing if she faced a
credible threat of prosecution under the FOID Card Act. Id. at 987. So the question became
whether plaintiff faced a credible threat of prosecution for gun possession under the AUUW
statute in Illinois when she brought her gun to Illinois, or whether section 2(b)(10) of the FOID
Card Act exempted her from liability. Id. at 989.
¶ 33 Recognizing that the Illinois Supreme Court had not addressed this question and that the
FOID Card Act did not define “licensed,” the court turned to dictionary definitions of “license”
and “licensed.” After a thorough review of definitions from Black’s Law Dictionary and lay
dictionaries, the court found the word “licensed,” standing alone, to be ambiguous, as many
definitions suggested that being “licensed” involved the receipt of a written certificate or other
formal document of approval (the interpretation urged by the State here), while other
definitions suggested that mere permission or consent sufficed (consistent with defendant’s
interpretation here). Id. at 990-91.
¶ 34 For example, the court noted that the tenth edition of Black’s Law Dictionary defined
“licensed” as “ ‘[h]aving official permission to do something, usu. as evidenced by a written
certificate.’ ” Id. at 990 (quoting Black’s Law Dictionary (10th ed. 2014)). That same
dictionary defined “license” as “ ‘[a] privilege’ ” or “ ‘permission’ ” and included the word
“permit” as a synonym. Id. at 991 (quoting Black’s Law Dictionary (10th ed. 2014)). An earlier
edition of that same dictionary defined “license” as both “ ‘permission by a competent
authority’ ” and a “ ‘certificate or the document itself which gives permission.’ ” Id. (quoting
Black’s Law Dictionary 829 (5th ed. 1979)). A lay dictionary gave competing definitions that
likewise cut both ways, defining the verb “license” as “ ‘to issue a license to’ ” and “ ‘to permit
or authorize esp. by formal license’ ” and merely “ ‘to give permission or consent to.’ ” Id.
(quoting Merriam Webster’s Collegiate Dictionary 671 (10th ed. 1997)).
¶ 35 Having found nothing definitive from the dictionaries, the court then considered the fact
that the word “licensed” does not stand alone in section 2(b)(10); the operative phrase is
“licensed or registered” in one’s home state. (Emphasis added.) 430 ILCS 65/2(b)(10) (West
2012). The court reasoned that the word “registered” unmistakably connoted some official
state action, such as the enrolling of one’s name on an official list. Mishaga, 136 F. Supp. 3d at
993. The court concluded that licensure must therefore mean something beyond such official
state action; otherwise, it would be redundant with registration:
“If a person were already enrolled in an official list to possess a firearm in her resident
state, what further purpose would a license, as [the plaintiff] insists is required, serve to
impart proper state authorization? *** ‘Licensed,’ as used in [section 2(b)(10)], must,
therefore, mean something other than to be entered onto official lists. In light of the
definitions that show that the concept of ‘license’ does not require a document and the
deployment of the nonsurplusage canon to distinguish ‘licensed’ from ‘registered,’ the
Court concludes that [the] Defendants’ definition of ‘licensed’—legal eligibility, with
or without a license document—provides the more persuasive reading of [section
2(b)(10)].” (Emphasis added.) Id.
¶ 36 The court also noted that a majority of states do not have registration requirements like the
FOID Card Act or any licensure requirements at all. Id. at 996-97. Thus, if “licensed” meant
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only being issued a physical license to own a firearm, then “nonresidents hailing from 37 states
in all, including *** Ohio, could never qualify under [section 2(b)(10)].” Id. at 997. The court
declined to read section 2(b)(10) as requiring a physical document in all circumstances to
avoid what it considered an “absurd” result. Id. Thus, the court ruled that the proper
interpretation of “licensed” meant not only being issued an official, physical license to possess
a firearm but also including, more generally, legal eligibility to possess a firearm. Id.
¶ 37 We are not bound by a federal court’s interpretation of an Illinois statute. People v. Nance,
189 Ill. 2d 142, 146 (2000). For the reasons that follow, we respectfully disagree with
Mishaga’s interpretation of section 2(b)(10). We hold, instead, that when the General
Assembly provided an exemption to the FOID card requirement for nonresidents “currently
licensed or registered to possess a firearm in their state,” the word “licensed” referred only to
nonresidents who had received an official license from their home state to possess a firearm.
430 ILCS 65/2(b)(10) (West 2012).
¶ 38 First, we take issue with the notion that the term “licensed” in subsection (b)(13) is
ambiguous. No doubt, as Mishaga points out, the dictionaries contain competing definitions of
“licensed” as well as the noun or verb “license.” And in the past, the word “license” was used
in at least one context in Illinois to describe someone who had permission, expressed or
implied, to enter onto someone’s land when conducting business for his own purpose—a
“licensee”—which obviously did not involve the issuance of a formal certificate of approval.
See, e.g., Stephen v. Swiatkowski, 263 Ill. App. 3d 694, 698 (1994) (“A licensee *** is ‘one
who enters upon the premises of another by permission for his own purposes.’ ” (quoting
Kapka v. Urbaszewski, 47 Ill. App. 2d 321, 325 (1964))).
¶ 39 So there are, to be sure, contexts in which a “license” to do something does not involve the
formal issuance of a certificate from the government. But we do not believe that this is one of
those contexts.
¶ 40 The FOID Card Act is a regulatory act. See People v. Mosley, 2015 IL 115872, ¶ 36
(referring to FOID card requirements as “meaningful regulation” (internal quotation marks
omitted)); Coram v. State of Illinois, 2013 IL 113867, ¶ 103 (Burke, J., specially concurring,
joined by Freeman, J.) (referring to FOID Card Act as “state regulatory scheme”). It requires
the issuance of a license—a FOID card—for the possession of a firearm and contains many
provisions governing the circumstances under which the FOID card will be allowed or denied,
as well as many exceptions to the requirement. Section 1 of the FOID Card Act states that its
intended purpose is to “establish[ ] a practical and workable system by which law enforcement
authorities will be afforded an opportunity to identify those persons who are prohibited” from
buying or possessing firearms. 430 ILCS 65/1 (West 2012).
¶ 41 There are criminal penalties attached to some of the provisions, but that does not change
the fact that the purpose of the law is to set up a regulatory system for the possession of
firearms in Illinois. In fact, the existence of criminal penalties only bolsters that point. Every
statutory scheme of regulation first prohibits an activity generally and then, of course, allows
for that activity to be conducted through an official government permit or license, which will
only be granted under certain specified circumstances. This is true of gambling, the sale of
liquor, the practice of medicine, the issuance of insurance, and countless other activities.
¶ 42 This point is significant because, in the sense of a regulatory statute, the word “licensed”
does not strike us as ambiguous at all. “In the context of professional regulation, a license is
defined as ‘a right or permission granted in accordance with law by a competent authority to
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engage in some business or occupation, to do some act, or to engage in some transaction which
but for such license would be unlawful.’ ” Christmas v. Dr. Donald W. Hugar, Ltd., 409 Ill.
App. 3d 91, 96 (2011) (quoting Webster’s Third New International Dictionary 1304 (1981));
see also Wilkie v. City of Chicago, 188 Ill. 444, 453 (1900) (defining “license” in context of
regulatory statute governing plumbing to be “a formal permission from proper authorities to
perform certain acts or carry on a certain business which without such permission would be
illegal”). Again, the point is that there must be official action by the government to permit the
activity, which otherwise has been rendered illegal by that government.
¶ 43 We thus disagree with defendant, and the court in Mishaga, that the word “licensed” in
subsection (b)(10) refers to authorization by a state without any formal approval or licensure
requirement. In the context of the FOID Card Act, we think the only reasonable interpretation
of the word “licensed” is the one commonly understood in the regulatory context—a right
granted formally by the government to engage in an activity that otherwise would be illegal
under that government’s law. We believe that the subsection (b)(10) reference to nonresidents
“currently licensed *** to possess a firearm in their state” can only refer to nonresidents who
have complied with a required governmental process and received an official license from their
home state to possess a firearm. 430 ILCS 65/2(b)(10) (West 2012).
¶ 44 Our conclusion is bolstered by reference to another exception to the FOID Card Act found
in section 2, that was added after subsection (b)(10). See In re Detention of Lieberman, 201 Ill.
2d 300, 320-21 (2002) (“A subsequent amendment to a statute may be an appropriate source
for discerning legislative intent.”); People v. Parker, 123 Ill. 2d 204, 211 (1988) (same).
¶ 45 That more recent exception is subsection (b)(13) of section 2. See 430 ILCS 65/2(b)(13)
(West 2012). We lay out that exception, which applies to nonresident hunters, along with the
exception at issue in this case, subsection (b)(10), below:
“(b) The provisions of this Section regarding the possession of firearms, firearm
ammunition, stun guns, and tasers do not apply to:
***
(10) Nonresidents who are currently licensed or registered to possess a firearm
in their resident state;
***
(13) Nonresident hunters whose state of residence does not require them to be
licensed or registered to possess a firearm and only during hunting season, with
valid hunting licenses, while accompanied by, and using a firearm owned by, a
person who possesses a valid Firearm Owner’s Identification Card and while in an
area within a commercial club licensed under the Wildlife Code where hunting is
permitted and controlled, but in no instance upon sites owned or managed by the
Department of Natural Resources[.]” (Emphasis added.) 430 ILCS 65/2(b)(10),
(13) (West 2012).
¶ 46 Subsection (b)(13) was added to section 2 in 1988 by Public Act 85-1336, after subsection
(b)(10) was already in existence. See Pub. Act 85-1336, § 1 (eff. Aug. 31, 1988). Public Act
85-1336 did two things. First, it amended the Wildlife Code to create a certain number of free
permits to hunt turkey and deer for shareholders of corporations that owned a certain amount of
property in Illinois, and only for hunting on that property, regardless of whether those
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shareholders resided in Illinois or elsewhere. Id. § 2. Second, it created this exception to the
FOID Card Act for nonresident hunters. Id. § 1.
¶ 47 Obviously, subsection (b)(13) uses different language to describe nonresidents than does
subsection (b)(10). While subsection (b)(10) refers to nonresidents “currently licensed or
registered to possess a firearm in their resident state,” subsection (b)(13) refers to nonresident
hunters “whose state of residence does not require them to be licensed or registered to possess
a firearm.” 430 ILCS 65/2(b)(10), (13) (West 2012).
¶ 48 The inescapable conclusion from this comparison is that, by explicitly mentioning states
that “do[ ] not require” licensure or registration to possess a gun in subsection (b)(13), the
General Assembly was signaling that it understood subsection (b)(10) as applying only to
states that do require licensure or registration and to those nonresidents who have complied
with that licensure or registration requirement. In other words, if subsection (b)(10) included
states that authorized gun possession without a formal licensure or registration requirement, as
defendant here claims and as Mishaga held, there would have been no need for the legislature
to use the language it did in subsection (b)(13)—those states already would have been covered
in subsection (b)(10).
¶ 49 The only possible way that we could read subsections (b)(10) and (b)(13) otherwise, but
still in harmony with one another, would be if for some reason, the General Assembly only
wanted subsection (b)(13) to apply to nonresidents of those states that do not require licensure
or registration for the possession of firearms—in other words, if for some reason, the
legislature intended to exclude nonresidents who have received actual licenses, or have
actually registered, in their home states. If that were the case, then it would not matter whether
subsection (b)(10) included both categories of states or only one, because either way, the
legislature would have needed to specifically describe only non-licensure/registration states in
subsection (b)(13).
¶ 50 The problem with that alternative possibility is that there is nothing in the language of
subsection (b)(13) that leads us to believe that this particular exception was intended to be
limited to only that specific category of states. Nor is there any sensible reason why the
General Assembly would want to exclude from the reach of subsection (b)(13) those
nonresidents who have actually gone through a licensing or registration process, while
including those who were not required to do anything to possess their guns.
¶ 51 If there is any doubt in that regard, the meager legislative history on subsection (b)(13)
gives us some insight. Only one legislator spoke to the substance of subsection (b)(13) in floor
debate:
“[T]his amendment addresses only those controlled hunting areas which are private
hunting clubs not open space. *** What occurs is salesmen and company presidents
invite some of their clients to these controlled hunting areas. They all have hunting
licenses. In some cases, they do not have a FOID card. This amendment provides that
the individual who is a member of the club is responsible as long as he or she has a
valid hunting license. They can hunt there and the person who invites them down as
their guest has a FOID card, it would cover these individuals. *** It is not open to all
areas of the State where hunting is permitted and I explained the intent in total.” 85th
Ill. Gen. Assem., House Proceedings, June 16, 1988, at 47 (statements of
Representative Mautino).
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¶ 52 The co-sponsor’s comments suggest that, as the language provides, the purpose behind
subsection (b)(13) is to allow members of private hunting clubs, who possess FOID cards, to
invite “some of their clients”—non-Illinois residents—to that club. We see no indication here
that the co-sponsor was limiting the geographic location of those clients only to states that do
not have licensure or registration requirements, and that the sponsor wanted to be sure to
exclude from this new amendment people who lived in states that required licensure or
registration before possessing a firearm.
¶ 53 The only reasonable interpretation of the interplay between subsection (b)(10) and
subsection (b)(13) is that the General Assembly felt the need to specify states that “do[ ] not
require” licensure or registration for gun possession because the legislature understood
subsection (b)(10) as not already including that group of states.
¶ 54 The court in Mishaga held otherwise. The court recognized the “persuasive force” of the
impact of subsection (b)(13) on an analysis of subsection (b)(10). Mishaga, 136 F. Supp. 3d at
1000. But it rejected the argument on three grounds. First, it viewed the public act that created
subsection (b)(13) in its entirety and concluded that “the purpose of Public Act 85-1336 was
not to carve out a new FOID Act exception for nonresident hunters on private club land.
Rather, the purpose was only to clarify the regulations that would apply to private club land,
dictating how many hunting permits would be issued, who was permitted to hunt on that land,
and under what circumstances.” Id. at 999.
¶ 55 We respectfully disagree with this interpretation of the public act. We do not see how we
could conclude that the purpose of Public Act 85-1336 “was not to carve out a new FOID Act
exception for nonresident hunters on private club land” (id.) when, in fact, that is precisely
what that public act did. We are not suggesting that this was the act’s only purpose, or even its
predominant purpose. But this rather short public act did only two things—it amended the
Wildlife Code to allow a certain number of no-fee permits to hunt turkey and deer on corporate
land, and it amended the FOID Card Act to create this new nonresident-hunter exception—and
we cannot interpret it as if it did only one of those two things.
¶ 56 Next, the court in Mishaga reasoned that subsection (b)(13) substantially overlapped with
an earlier nonresident-hunter exception embodied in subsection (b)(5) (430 ILCS 65/2(b)(5)
(West 2012)). Mishaga, 136 F. Supp. 3d at 999. That exception very generally exempts
“[n]onresident hunters during hunting season, with valid nonresident hunting licenses and
while in an area where hunting is permitted.” 430 ILCS 65/2(b)(5) (West 2012). The court in
Mishaga found it “difficult to ascertain” any additional conduct in subsection (b)(13) that was
not already covered by subsection (b)(5). Mishaga, 136 F. Supp. 3d at 999. We agree that it is
hard to understand what, exactly, additional conduct was covered by subsection (b)(13) that
was not already covered in subsection (b)(5). Subsection (b)(5) is not limited by the
nonresident’s home state in any way, says nothing about licensure or registration, and covers a
rather large swath of conduct in few words, while subsection (b)(13) is extremely narrow,
containing multiple qualifiers. But we are not sure what that fact adds to our analysis. The fact
that a piece of legislation is duplicative or even unnecessary does not deprive it of the force of
law, nor does it permit a court to ignore it.
¶ 57 The court in Mishaga’s third reason for disregarding the comparison to subsection (b)(13)
was that doing so would conflict with its previous textual interpretation of “licensed” in
subsection (b)(10). Id. But we have already registered our disagreement with that analysis and
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found that the term “licensed” is not ambiguous in the context of a regulatory statute such as
the FOID Card Act.
¶ 58 The later amendment of subsection (b)(13) only clarifies what we believe is already clear,
that it was the intent of the General Assembly, in drafting subsection (b)(10), to cover only
those “licensed” nonresidents who complied with a required licensing process in their home
state—who were granted a right that otherwise would be illegal in their home state, absent that
license—and not to residents of states that have no such process.
¶ 59 The court in Mishaga found it “absurd” that subsection (b)(10) would apply only to states
with affirmative licensure or registration requirements, which according to Mishaga amounted
to only 12 other states in the country besides Illinois. Id. at 997. But we do not find such a result
to be absurd. It would not be “absurd” for the General Assembly to have a different view of
nonresidents hailing from states that attach some governmental process to the possession of
guns, compared to those that freely allow gun possession with no official oversight. A
licensure procedure might involve a vetting process to ensure that a gunowner first satisfies
certain safety or eligibility requirements. A registration process would at least track the
identity of gunowners, and possibly the guns they acquire as well. And a system of identifying
those eligible to possess firearms, versus those ineligible to do so—the very purpose of the
FOID Card Act (see 430 ILCS 65/1 (West 2012))—could be more efficiently served where a
nonresident is able to immediately produce an official document to a peace officer in Illinois,
be it a license or evidence of registration in one’s home state.
¶ 60 We are not suggesting that the General Assembly’s decision to make this distinction
among the states was a finely-tuned response, was wholly or even marginally effective, or was
a prudent decision versus an overbearing, paternalistic one. The salient point is that we
disagree with Mishaga that this result is so “absurd” that it cannot be what the General
Assembly intended.
¶ 61 We hold that the section 2(b)(10) application to nonresidents “currently licensed *** to
possess a firearm in their resident state” applies only to nonresidents who have complied with
an official state process for licensure in their home state. 430 ILCS 65/2(b)(10) (West 2012).
As defendant concedes that his resident state of Texas does not have a licensure or registration
requirement in his home state for the mere possession of firearms, he can find no refuge under
section 2(b)(10) for his convictions on counts II and V.
¶ 62 Defendant also contends that his military permit satisfied section 2(b)(10), because it was
the functional equivalent of a state license. He argues that, by obtaining the military permit at
Fort Bliss, he satisfied the purpose of the FOID Card Act by having an official record of his
firearm ownership.
¶ 63 We reject defendant’s argument. The plain language of section 2(b)(10) refers to a
defendant’s license or registration in his or her “resident state.” (Emphasis added.) 430 ILCS
65/2(b)(10) (West 2012). Thus, section 2(b)(10) requires a defendant to obtain a license or
register a firearm with the state where he resides, not with a military installation.
¶ 64 Critically, other exceptions in section 2(b) refer specifically to members of the military:
“(b) The provisions of this Section regarding the possession of firearms, firearm
ammunition, stun guns, and tasers do not apply to:
***
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(2) Members of the Armed Forces of the United States or the National Guard,
while engaged in the operation of their official duties;
***
(4) Members of bona fide veterans organizations which receive firearms
directly from the armed forces of the United States, while using the firearms for
ceremonial purposes with blank ammunition[.]” (Emphases added.) 430 ILCS
65/2(b)(2), (4) (West 2012).
These provisions show that the legislature intended to consider the armed forces of the United
States as a separate entity from states and knew how to specify that entity when it so desired.
Had the legislature intended to include the armed forces as a body from which a defendant
could obtain a license or register his or her firearm, it would have used those words in section
2(b)(10). The absence of any reference to the armed forces in section 2(b)(10) suggests that the
legislature did not intend to allow military licensure or registration to fall within the scope of
that exception. See People v. Hudson, 228 Ill. 2d 181, 193 (2008) (when legislature uses
certain language in one part of statute and different language in another, court may assume
different meanings were intended).
¶ 65 With regard to defendant’s position that his military permit served the basic informational
purpose of the FOID Card Act, we lack sufficient information to make that determination. The
record contains no information regarding Illinois’s access to Fort Bliss’s firearm ownership
records or whether Fort Bliss even makes that information public. Nor do we know if Texas
receives information from Fort Bliss regarding firearm ownership. But we note that it would
appear to be illogical for Texas to compile any such information, since Texas does not require
any licensing for firearm ownership for nonmilitary residents. Without additional information,
and given the plain language of the FOID Card Act, defendant’s military permit cannot be said
to serve the same function as the legislature intended under section 2(b)(10).
¶ 66 We recognize that defendant testified that the permit allowed him to own the weapon “on
post and off post.” But Texas requires no license for mere firearm ownership. So of course he
could own the weapon off-base with his military permit; he needed no permit at all to own a
weapon off of the base in Texas. But as we stated above, defendant could not satisfy section
2(b)(10) unless he completed some form of licensure or registration process through the state
of Texas. We have no evidence that he did so and hold that defendant was not exempt from
liability under section 2(b)(10).
¶ 67 We must address one additional matter, specific only to count V, the count that charged
defendant with possession of the firearm on his person, not in his vehicle. Recall that the police
officer who recovered the firearm from defendant’s car did not observe defendant in
possession of the firearm previously that night, outside the car. Rather, the conviction on count
V was based on Noel Tenayuca’s testimony that defendant was carrying a gun in his waistband
as he entered the bar.
¶ 68 Defendant argues that the evidence was insufficient to support a conviction on count V. He
argues that Tenayuca’s testimony about defendant’s possession of a gun was “weak” and
“vague” because he testified that he did not remember much of the night. But Tenayuca
testified more than two years after the occurrence. It is reasonable to conclude that his memory
of the night would be diminished, aside from the memorable fact that he saw defendant display
a firearm. In any event, the trial court was tasked with evaluating Tenayuca’s credibility and
memory. See People v. Wheeler, 226 Ill. 2d 92, 115 (2007) (when reviewing sufficiency of
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evidence, trier of fact’s credibility determinations entitled to “great weight,” since trier of fact
“saw and heard the witnesses”); People v. DePue, 229 Ill. App. 3d 615, 621 (1992) (“[T]he
trial judge, as the trier of fact, was in the best position to judge the witnesses’ demeanors and
memories as they testified, and to determine the weight to be given their testimony.”). We see
no reason to second-guess that conclusion on appeal.
¶ 69 We thus hold that the evidence was sufficient to support defendant’s AUUW conviction
under Count V, regarding his possession of a firearm on his person outside the bar.
¶ 70 Having found sufficient evidence to convict defendant on both counts II and V, we now
turn to defendant’s constitutional claims regarding his AUUW convictions.
¶ 71 B. Constitutional Challenge
¶ 72 Defendant contends that “[t]he Illinois FOID card requirement” violates the Second
Amendment to the United States Constitution. U.S. Const., amend. II.
¶ 73 At the outset, we must clarify what statute defendant possesses standing to challenge.
While defendant does not specify what statute or statutes he is challenging, we take his claim
to be a challenge to the element of the AUUW statute relating to the absence of a FOID card
(720 ILCS 5/24-1.6(a)(1), (a)(3)(C) (West 2012)), as that is the statute defendant was
convicted of violating. See People v. Aguilar, 2013 IL 112116, ¶ 12 (defendant possessed
standing to challenge statute he was convicted of violating). Moreover, as we mentioned
above, the Illinois Supreme Court has incorporated the exceptions in section 2(b) of the FOID
Card Act into the AUUW statute, meaning that defendant has standing to challenge the scope
of the nonresident exception in section 2(b)(10) insofar as it relates to the AUUW statute. But
defendant cannot challenge the constitutionality of the FOID Card Act itself, as he has not been
convicted of violating any of the provisions of that statute. See People v. Myers, 181 Ill. App.
3d 769, 771 (1989) (defendant lacked standing to challenge statute he was not convicted of
violating).
¶ 74 Next, we clarify the standard of review applicable to a challenge to the constitutionality of
a statute. Statutes are presumed to be constitutional, and the party challenging the
constitutionality of a statute bears the burden of proving that the statute is unconstitutional.
Aguilar, 2013 IL 112116, ¶ 15. We have a duty to construe any statute in a manner that upholds
the statute’s constitutionality. Id. We apply de novo review. Id.¶ 75 Defendant contends that the FOID card requirement of the AUUW statute violates the
second amendment both on its face and as applied to him. A party challenging a statute’s facial
constitutionality bears the burden of showing that the statute is unconstitutional in all of its
applications. People v. Burns, 2015 IL 117387, ¶ 27. But, in addressing a facial challenge, we
still focus on “the group for whom the law is a restriction, not the group for whom the law is
irrelevant.” (Internal quotation marks omitted.) Id. By contrast, an “ ‘as applied’ ”
constitutional challenge requires a defendant to show that the statute violates the constitution
as it applies to him. People v. Garvin, 219 Ill. 2d 104, 117 (2006). If a statute is constitutional
as applied to a defendant, a facial challenge to the same statute will necessarily fail because
that means there is at least one set of facts where the statute may be constitutionally applied. Id.
at 125. Thus, we first address defendant’s as-applied challenge to the FOID card element of
AUUW.
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¶ 76 We apply a two-step approach to a second amendment challenge. People v. Mosley, 2015
IL 115872, ¶ 34. First, we look to the text and history of the second amendment “to determine
whether the challenged law imposes a burden on conduct that was understood to be within the
scope of the second amendment’s protection at the time of ratification.” Id. If the conduct is not
within the scope of the second amendment, then the regulated activity “is categorically
unprotected.” Id. But if the historical evidence is inconclusive or suggests that the regulated
activity is not unprotected, then we apply “the appropriate level of means-ends scrutiny” and
look to “the strength of the government’s justification for restricting or regulating the exercise
of second amendment rights.” Id.¶ 77 With respect to the first step, in Aguilar, 2013 IL 112116, ¶ 21, the Illinois Supreme Court
recognized that “the second amendment protects the right to possess and use a firearm for
self-defense outside the home.” The statute at issue in Aguilar, section 24-1.6(a)(1), (a)(3)(A),
(d) of the AUUW statute (720 ILCS 5/24-1.6(a)(1), (a)(3)(A), (d) (West 2008)), violated that
right because it operated as a “ ‘flat ban on carrying ready-to-use guns outside the home.’ ”
Aguilar, 2013 IL 112116, ¶ 19 (quoting Moore v. Madigan, 702 F.3d 933, 940 (7th Cir. 2012)).
¶ 78 Based on Aguilar, defendant’s possession of a firearm outside his home was entitled to
some protection by the second amendment. But as the court in Aguilar recognized, the fact that
the second amendment protects the right to possess and use a firearm for self-defense outside
the home does not mean “that such a right is unlimited or is not subject to meaningful
regulation.” Aguilar, 2013 IL 112116, ¶ 21.We thus turn to the second question: whether the
government could regulate defendant’s possession of a firearm in this case.
¶ 79 In Mosley, the Illinois Supreme Court held that “the FOID card requirement of [the AUUW
statute] is consistent with [the supreme court’s] recognition that the second amendment right to
possess firearms is still ‘subject to meaningful regulation.’ ” Mosley, 2015 IL 115872, ¶ 36
(quoting Aguilar, 2013 IL 112116, ¶ 21). In reaching that conclusion, the court cited People v.
Taylor, 2013 IL App (1st) 110166, ¶¶ 28-32, where this court upheld the FOID card
requirement as a reasonable restriction on the second amendment rights of an individual.
Mosley, 2015 IL 115872, ¶ 36. These cases make clear that, as a general matter, the FOID card
requirement in the AUUW statute is a constitutional means of regulating firearm possession.
See also Berron v. Illinois Concealed Carry Licensing Review Board, 825 F.3d 843, 847 (7th
Cir. 2016) (upholding concealed-carry licensure requirement in Illinois against second
amendment challenge: “If the state may set substantive requirements for [gun] ownership,
which Heller says it may, then it may use a licensing system to enforce them.”).
¶ 80 This case law is consistent with decisions in other states where courts upheld licensure or
registration requirements as prerequisites to possessing a firearm inside or outside the home.
See, e.g., Kwong v. Bloomberg, 723 F.3d 160, 168-69 (2d Cir. 2013) (New York City’s
licensure fee for handgun possession, even within home, did not violate second amendment);
Drake v. Filko, 724 F.3d 426, 435 (3d Cir. 2013) (New Jersey licensure requirement that
applicant show “justifiable need” to carry firearm in public was constitutional); Heller v.
District of Columbia, 670 F.3d 1244, 1254-55 (D.C. Cir. 2011) (requirement to register firearm
did not violate second amendment); Williams v. Puerto Rico, 910 F. Supp. 2d 386, 395 (D.P.R.
2012) (Puerto Rico law requiring license to carry firearm did not violate second amendment);
Hertz v. Bennett, 751 S.E.2d 90, 94 (Ga. 2013) (Georgia law requiring licensure to carry
weapon was constitutional); Delgado v. Kelly, 8 N.Y.S.3d 172 (App. Div. 2015) (New York
licensing requirement to possess handgun in home did not violate second amendment); People
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v. Perkins, 880 N.Y.S.2d 209, 210 (App. Div. 2009) (New York’s firearm licensing regulations
did not violate second amendment); Commonwealth v. McGowan, 982 N.E.2d 495, 501 (Mass.
2013) (“We have consistently held *** that the decisions in Heller and McDonald did not
invalidate laws that require a person to have a firearm identification card to possess a firearm in
one’s home or place of business, and to have a license to carry in order to possess a firearm
elsewhere.”).
¶ 81 Simply put, under Mosley and Taylor, it is constitutional to require an individual to comply
with a licensure process before permitting that person to possess a handgun in Illinois.
¶ 82 But our question is a bit more complicated. Defendant is not a resident of Illinois and thus
is ineligible for a FOID card. See 430 ILCS 65/4(a)(2)(xiv) (West 2012) (requiring FOID card
applicant to submit proof that he is “a resident of the State of Illinois”). And we have just held
above that the exception to the FOID card requirement for nonresidents “licensed *** to
possess a firearm” in their home state applies only to nonresidents who have complied with an
official state process for licensure in their home state. 430 ILCS 65/2(b)(10) (West 2012).
Because Texas does not have a licensure process for the mere possession of firearms in his
state, defendant thus claims that the effect of the FOID card requirement, incorporated into the
AUUW statute, results in a flat ban on his ability to lawfully possess a firearm in Illinois.
¶ 83 The flaw in defendant’s argument is that Texas does have a licensure process to obtain a
concealed-carry permit in Texas that would have allowed him to carry a firearm on his person
or in his car in Texas—a license that clearly would qualify him as being “licensed” in Texas to
possess a firearm under section 2(b)(10) of the FOID Card Act. See Tex. Gov’t Code Ann.
§ 411.172(a) (West 2012). It is undisputed that defendant did not obtain a concealed-carry
license from Texas.
¶ 84 And while it is not necessary that the Texas licensing requirement match up perfectly with
the Illinois licensure requirement for a FOID card, it so happens that the licensure requirements
are substantially similar. An applicant for a concealed-carry license in Texas is subject to age
and residency requirements; cannot have committed a felony or certain other criminal or
juvenile offenses; cannot suffer from a substance-abuse problem or psychiatric infirmity;
cannot be delinquent in child support payments or taxes; and cannot be the subject of a
protective order. See id. To obtain a FOID card in Illinois, an applicant must satisfy an age and
residency requirement; cannot have committed a felony or certain other criminal or juvenile
offenses; may not suffer from substance abuse or a psychiatric, developmental, or intellectual
disability; cannot be subject to a protective order; and cannot be an immigrant living illegally
in the country or, if an immigrant residing legally in the United States, must satisfy certain
criteria. See 430 ILCS 65/4 (West 2012).
¶ 85 By requiring that defendant satisfy this licensing process in Texas in order to fit within the
FOID card exemption in Illinois, and thus avoid liability under the AUUW statute, the state of
Illinois is essentially requiring little more of defendant than it would require of its own
residents to obtain a FOID card. A Texas resident such as defendant has no basis to portray the
AUUW’s FOID card requirement as unduly burdensome, much less a “flat ban” on his right to
lawfully possess a firearm in Illinois. In any event, as the FOID card requirement, itself,
satisfies the second amendment under Mosley and Taylor, likewise any supposed burden
placed on a resident of Texas to fit within the relevant exemption to the FOID card requirement
is consistent with the second amendment.
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¶ 86 Nor do we find anything unreasonable about the FOID card requirement as incorporated
into the AUUW statute. As we previously noted, the purpose of the FOID card requirement is
“to provide a system of identifying persons who are not qualified to acquire or possess
firearms.” 430 ILCS 65/1 (West 2012). In order to identify a person who is unqualified to
acquire or possess a firearm, there must be some record of their qualifications. Section 2(b)(10)
provides that, if a nonresident can create some record of their capability to handle firearms in
their home state—whether by obtaining some form of a physical license to carry a firearm or
registering his or her firearm ownership with his or her home state—then the nonresident can
escape liability under the AUUW statute. Without some type of licensure or registration, the
purposes of the FOID card requirement would be undermined. There is nothing unreasonable,
arbitrary, or oppressive in the AUUW’s FOID card requirement.
¶ 87 We thus reject defendant’s as-applied challenge to the AUUW statute. Because we have
found at least one set of facts—the one before us—in which the AUUW statute can be
constitutionally applied to nonresidents such as defendant, his facial challenge likewise fails.
Garvin, 219 Ill. 2d at 125 (if statute is constitutional as applied to individual challenging it,
defendant cannot sustain facial challenge, which requires showing that statute is
unconstitutional in all its applications).
¶ 88 We emphasize again what we mentioned in a footnote at the outset—that this case does not
involve or affect any interpretation of the Firearm Concealed Carry Act (430 ILCS 66/1 et seq.
(West 2014)), a law that was enacted after the acts constituting defendant’s offenses, and a law
which to a large extent has changed the landscape of firearm possession and use in this state.
¶ 89 We also stress that defendant does not claim that Illinois has improperly discriminated
against him under the federal privileges and immunities clause (U.S. Const., art. IV, § 2) or the
equal protection clause (U.S. Const., amend. XIV), nor does defendant allege an
unconstitutional interference with interstate commerce (see U.S. Const., art. I, § 8). Thus, the
question before us is not whether Illinois improperly discriminated against nonresidents; it is
whether, under the second amendment, Illinois could require nonresidents within its borders to
possess some kind of licensure or registration for loaded firearms. Because licensure is a
reasonable regulation of the possession of loaded firearms outside the home for self-defense,
we reject defendant’s constitutional challenges and affirm his convictions for AUUW.
¶ 90 III. CONCLUSION
¶ 91 For all of these reasons, we affirm defendant’s convictions.
¶ 92 Affirmed.
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