The opinion
NOTICE
2025 IL App (5th) 231140-U
NOTICE
Decision filed 12/12/25. The
This order was filed under
text of this decision may be NO. 5-23-1140
Supreme Court Rule 23 and is
changed or corrected prior to
not precedent except in the
the filing of a Petition for IN THE limited circumstances allowed
Rehearing or the disposition of
under Rule 23(e)(1).
the same.
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Macon County.
)
v. ) No. 17-CF-1405
)
DANIEL C. HUDSON, ) Honorable
) Jeffrey S. Geisler,
Defendant-Appellant. ) Judge, presiding.
______________________________________________________________________________
PRESIDING JUSTICE CATES delivered the judgment of the court.
Justice Hackett concurred in the judgment.
Justice McHaney specially concurred.
ORDER
¶1 Held: The defendant failed to establish that the armed habitual criminal statute was
facially unconstitutional, or as applied to the defendant, under the United States
Constitution and the Illinois Constitution.
¶2 The defendant, Daniel Hudson, appeals after the denial of his pro se postconviction
petition. On appeal, he claims that we must vacate his conviction for the offense of armed habitual
criminal (AHC) (720 ILCS 5/24-1.7(a) (West 2016)) because the AHC statute violates the
defendant’s individual right to bear arms under the United States Constitution and Illinois
Constitution, raising both a facial and as-applied challenge. For the following reasons, we affirm.
¶3 I. BACKGROUND
¶4 On September 27, 2017, the defendant was charged by information with two counts of the
offense of armed habitual criminal (AHC) (720 ILCS 5/24-1.7(a) (West 2016)), two counts of
1
unlawful possession of weapons by felons (720 ILCS 5/24-1.1(a) (West 2016)), and one count of
unlawful possession of cannabis with intent to deliver (720 ILCS 550/5(e) (West 2016)). The
defendant pleaded guilty to one count of AHC and, in exchange for the guilty plea, the State
dismissed the remaining four counts.
¶5 On April 25, 2019, the circuit court held a hearing on the plea agreement. The State
presented a factual basis, which included that the defendant was hiding contraband on the vacant
property next to his house. Law enforcement responded to an anonymous tip regarding the
contraband and found a trash bag in the front of the vacant residence containing a Ruger .44
Magnum Revolver that was loaded with six bullets. The defendant’s DNA was identified on the
revolver. Law enforcement also found on the front porch a black t-shirt wrapped around a .38-
caliber special revolver with six bullets, and the defendant’s DNA was found on the t-shirt. On
that same front porch, a cardboard box with cannabis packaging and a document with the
defendant’s name written on it was recovered as well. There was a latent print on the packaging
that matched the defendant’s inked print. The State further identified that the defendant had
previous convictions in Macon County including possession of a controlled substance with intent
to deliver and possession of cannabis with intent to deliver. The circuit court accepted the plea
agreement.
¶6 A presentence report was prepared prior to a sentencing hearing. The report included
Macon County felonies, a charge in “US Federal Court” for “Distribution of Crack Cocaine,” a
Sangamon County felony for possession of a controlled substance, and several misdemeanor
charges. One of the defendant’s Macon County felonies listed on the report, a case from 1997,
included a charge for “Felon Poss/Use Weapon/Firearm.” On July 11, 2019, the defendant was
2
sentenced to eight years in the Illinois Department of Corrections for the offense of AHC (720
ILCS 5/24-1.7(a) (West 2016)). The defendant did not file a direct appeal.
¶7 Several years later, on August 7, 2023, the defendant filed a pro se postconviction petition.
The defendant argued that the circuit court should have suppressed the firearm evidence, his AHC
conviction violated the “Safe-T-Act” and People v. McClendon, 2022 IL App (1st) 163406, and
that his attorney was ineffective. The defendant did not provide further explanation or any
supporting documentation.
¶8 On October 11, 2023, the circuit court entered a formal written order denying the
defendant’s pro se postconviction petition at the first stage and noted that the defendant had not
provided any supporting documents or affidavits. The circuit court indicated that it had reviewed
the “Safe-T Act” and found no basis for vacating the defendant’s AHC conviction. The facts
presented in McClendon, 2022 IL App (1st) 163406, were found to be distinguishable from this
case. The circuit court found that the defendant had not stated a gist of a constitutional claim, and
the defendant’s petition was frivolous and patently without merit. This appeal followed.
¶9 II. ANALYSIS
¶ 10 On appeal, the defendant does not challenge the dismissal of the pro se postconviction
petition based on any reason set forth by the circuit court. Rather, the defendant argues that his
AHC conviction violated his individual right to bear arms under the United States Constitution
and the Illinois Constitution, raising both a facially and as-applied challenge. The defendant
acknowledges that he did not raise these issues in a motion to withdraw his plea, on direct appeal,
or in the pro se postconviction proceeding.
¶ 11 Generally, where a defendant fails to raise an issue in a postconviction petition, the
defendant may not raise an issue for the first time on review from a dismissal of the petition. People
3
v. Jones, 211 Ill. 2d 140, 148 (2004). However, a constitutional challenge to a criminal statute may
be raised at any time. People v. Wright, 194 Ill. 2d 1, 23 (2000).
¶ 12 “An as-applied challenge requires a showing that the statute violates the constitution as it
applies to the facts and circumstances of the challenging party.” People v. Thompson, 2015 IL
118151, ¶ 36. A defendant must present an as-applied constitutional challenge before the circuit
court and develop the record with specific facts and circumstances relevant to his claim. People v.
Brooks, 2023 IL App (1st) 200435, ¶ 57. If the record contains facts and circumstances to decide
the defendant’s claim, then the issue may be raised and reviewed for the first time on appeal.
Brooks, 2023 IL App (1st) 200435, ¶ 57.
¶ 13 “In contrast, a facial challenge requires a showing that the statute is unconstitutional under
any set of facts, i.e., the specific facts related to the challenging party are irrelevant.” Thompson,
2015 IL 118151, ¶ 36. A statute will be deemed facially unconstitutional only if there is no set of
circumstances under which the statute would be valid. Burns v. Municipal Officers Electoral Board
of the Village of Elk Grove Village, 2020 IL 125714, ¶ 13. All statutes carry a strong presumption
of constitutionality and the party making the challenge must clearly establish its invalidity to
overcome this presumption. People v. Mosley, 2015 IL 115872, ¶ 22. “Courts have a duty to uphold
the constitutionality of a statute whenever reasonably possible, resolving any doubts in favor of
the statute’s validity.” People v. Rizzo, 2016 IL 118599, ¶ 23. If it is reasonably possible to
construe the statute in a way that preserves its constitutionality, we must do so. Rizzo, 2016 IL
118599, ¶ 24. The question of whether a statute is constitutional is reviewed de novo. People v.
Aguilar, 2013 IL 112116, ¶ 15.
¶ 14 We first consider the defendant’s facial challenge of the AHC under the United States
Constitution before addressing whether the record supports the defendant’s as-applied challenge.
4
The second amendment to the United States Constitution provides: “A well regulated Militia,
being necessary to the security of a free State, the right of the people to keep and bear Arms, shall
not be infringed.” U.S. Const., amend. II. The United States Supreme Court in New York State
Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022), recognized that “the Second and Fourteenth
Amendments protect an individual’s right to carry a handgun for self-defense outside the home.”
Bruen, 597 U.S. at 10. Bruen announced a two-part analysis for review of laws affecting the right
to bear arms, and the standard for applying the second amendment is as follows:
“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 firearm regulation. Only then may a court conclude that the individual’s
conduct falls outside the Second Amendment’s ‘unqualified command.’ ” Bruen,
597 U.S. at 24.
Illinois courts have concluded that “the two-part process requires us to determine (1) whether
defendant’s conduct falls within the plain text of the second amendment and, if so, (2) whether
there is a justification for the regulation rooted in history and tradition.” People v. Travis, 2024 IL
App (3d) 230113, ¶ 24.
¶ 15 Bruen referenced the United States Supreme Court decisions in District of Columbia v.
Heller, 554 U.S. 570 (2008), and McDonald v. City of Chicago, 561 U.S. 742 (2010), which
recognized that “the Second and Fourteenth Amendments protect the right of an ordinary, law-
abiding citizen to possess a handgun in the home for self-defense.” Bruen, 597 U.S. at 8-9. Bruen
agreed that “the Second and Fourteenth Amendments protect an individual’s right to carry a
handgun for self-defense outside the home.” Bruen, 597 U.S. at 10. Courts have relied on dicta in
Heller and in Bruen as evidence that people with felony convictions may be categorically excluded
from the second amendment’s protections and found that the second amendment right belongs to
“law-abiding” citizens. See People v. Baker, 2023 IL App (1st) 220328, ¶ 37 (finding that Bruen
5
made it clear that its test applied only to laws that attempted to regulate the gun possession of “law-
abiding citizens” where the phrase was repeated 18 times in the majority opinion and concurrence).
¶ 16 We recognize that different panels of this court have disagreed about whether felons fall
within the scope of the second amendment. Travis, 2024 IL App (3d) 230113, ¶ 26. We recently
considered the Bruen decision in People v. Stephens, 2024 IL App (5th) 220828, and whether a
facial second amendment challenge applied to the unlawful use of a weapon by a felon (UUWF)
statute (720 ILCS 5/24-1.1(a) (West 2022)). In Stephens, we followed the reasoning in a federal
court decision in United States v. Ware, 673 F. Supp. 3d 947, 956 (S.D. Ill. 2023), and concluded
that the defendant fell “into the category of ‘the people’ protected by the second amendment,”
regardless of his status as a felon. Stephens, 2024 IL App (5th) 220828, ¶ 33. The defendant’s
argument aligns with the Stephens decision where he argues that his possession of a firearm is
protected by the plain text of the second amendment where the “law-abiding citizens” distinction
defies the plain language of the second amendment.
¶ 17 Stephens, however, did not ignore the defendant’s status as a felon and focused on the
defendant’s status as a felon under the second prong of the Bruen analysis. Stephens, 2024 IL App
(5th) 220828, ¶ 34. Stephens ultimately found section 24.1.1 of the UUWF statute to be
constitutional on its face under the second amendment where “the State has met its burden of
showing that section 24-1.1(a) is consistent with this nation’s historical tradition of firearm
regulation.” Stephens, 2024 IL App (5th) 220828, ¶ 39.
¶ 18 We additionally consider Range v. Attorney General United States, 124 F.4th 218 (3d Cir.
2024), as we granted the defendant’s motion to cite additional authority after this appeal was fully
briefed. In Range, a putative gun purchaser filed a declaratory action against the Attorney General,
among others, seeking a declaration that a federal statute prohibiting him from owning a weapon
6
because of his 1995 Pennsylvania conviction for making a false statement to obtain food stamps
violated his second amendment rights. Range, 124 F.4th at 222-23. Range found that the defendant
remained among “the people” even though he had a 1995 false statement conviction. Range, 124
F.4th at 228. “We are not bound to follow decisions by federal courts other than the United States
Supreme Court, though such decisions may be considered persuasive authority.” People v. Boss,
2025 IL App (1st) 221855, ¶ 34. We find the act of making a false statement to obtain food stamps
entirely different from the defendant’s criminal history of state and federal drug-related
convictions and an unlawful use or possession of a weapon by a felon conviction, and do not find
Range persuasive.
¶ 19 We also recently considered the Bruen analysis in People v. Smith, 2025 IL App (5th)
230656, ¶ 25, and determined that the federal and appellate court decisions which held that “felons
are not protected under the plain text of the second amendment” were better reasoned decisions.
Smith found that “a defendant who is in the process of committing a felony while possessing an
operational firearm does not fall into the category of ‘the people’ protected by the second
amendment.” Smith, 2025 IL App (5th) 230656, ¶ 25. Furthermore, the issue of whether the AHC
statute is facially unconstitutional has been raised in numerous cases outside of the Fifth District,
which have found that the statute is facially constitutional because felons are not part of “the
people” protected by the second amendment. People v. Lopez, 2025 IL App (1st) 232120, ¶ 22.
See People v. McTizic, 2025 IL App (1st) 240467-U, ¶¶ 8-13; People v. Gray, 2025 IL App (1st)
191086-B, ¶ 20; People v. Whitehead, 2024 IL App (1st) 231008-U, ¶¶ 85, 89; People v. Thomas,
2024 IL App (4th) 240315-U, ¶¶ 23-24; People v. Kelley, 2024 IL App (1st) 230569, ¶¶ 16-22.
We respectfully disagree with Stephens’s approach and follow our recent decision in Smith. See
Stephens, 2024 IL App (5th) 220828, ¶ 33; Smith, 2025 IL App (5th) 230656, ¶ 25.
7
¶ 20 Under the AHC statute, “[a] person commits the offense of being an armed habitual
criminal if he or she receives, sells, possesses, or transfers any firearm after having been convicted
a total of 2 or more times of any combination” of certain enumerated offenses. 720 ILCS 5/24-
1.7(a) (West 2016). The AHC statute explicitly states that a prerequisite to a conviction for being
an armed habitual criminal is two prior qualifying felonies. See People v. Gray, 2024 IL 127815,
¶ 22. The defendant has prior qualifying felony convictions. He pled guilty to one count under the
AHC, in exchange for the dismissal of four other charges, after two firearms and cannabis were
found on abandoned property next to the defendant’s residence and DNA evidence linked the
contraband to the defendant. As such, the defendant is not a law-abiding citizen and thus not
protected under the second amendment. Because we determined that the defendant is not a law-
abiding citizen who is protected under the second amendment, we need not address the second
step of the analysis in Bruen. The defendant has not demonstrated that the AHC statute violates
the second amendment on its face.
¶ 21 We turn to the defendant’s constitutional challenge to the AHC as applied to a nonviolent
felon. The defendant claims that he is a nonviolent felon with a criminal history related to
possession and distribution of controlled substances and has a prior conviction for unlawful use or
possession of a weapon by a felon. The State argues that the defendant has not properly developed
the record where there was no trial, the defendant did not raise this issue in a motion to withdraw
his plea, he did not file a direct appeal, and the defendant did not raise this constitutional challenge
in his postconviction petition, which was dismissed without a hearing on the merits.
¶ 22 While the record on appeal is sparse, the record sufficiently demonstrates that the defendant
has a criminal history revealing that he is not a law-abiding citizen. “The Bruen Court could not
have been more clear that its newly announced test applied only to laws that attempted to regulate
8
the gun possession of ‘law-abiding citizens,’ and not felons like defendant.” Baker, 2023 IL App
(1st) 220328, ¶ 37. Challenges seeking to create a distinction between being a “violent felon” and
a “nonviolent felon” for purposes of Bruen and the second amendment have been rejected. People
v. Lopez, 2025 IL App (1st) 232120, ¶ 26. For example, Travis found that the AHC is
constitutional, as applied to the defendant, “irrespective of the violent or nonviolent nature of [the
defendant’s] convictions.” Travis, 2024 IL App (3d) 230113, ¶ 37. In Brooks, the AHC was upheld
as constitutional, as applied to a defendant with prior nonviolent felonies because he was still “not
a law-abiding citizen.” Brooks, 2023 IL App (1st) 200435, ¶ 100.
¶ 23 Because we find that the defendant is not a law-abiding citizen based on his criminal
history, no further development of the record is necessary to determine whether he is a nonviolent
felon. Therefore, the defendant’s as-applied challenge is appropriate at this time, and the AHC is
constitutional as applied to him.
¶ 24 The defendant additionally claims that the AHC violates the defendant’s right to bear arms
under the Illinois Constitution. Article I, section 22, of the Illinois Constitution provides: “Subject
only to the police power, the right of the individual citizen to keep and bear arms shall not be
infringed.” Ill. Const. 1970, art. I, § 22.
¶ 25 Unlike the United States Constitution, the Illinois Constitution replaces the prefatory
language concerning the necessity of a well-regulated militia with the words “ ‘[s]ubject only to
the police power.’ ” Kalodimos v. Village of Morton Grove, 103 Ill. 2d 483, 491 (1984) (quoting
Ill. Const. 1970, art. I, § 22). The Illinois Constitution also replaces “the people” with “ ‘the
individual citizen.’ ” Kalodimos, 103 Ill. 2d at 491 (quoting Ill. Const. 1970, art. I, § 22).
¶ 26 In Kalodimos, our supreme court has explained that the phrase “[s]ubject only to the police
power” in the Illinois Constitution was intended to provide the government with an “extraordinary
9
degree of control” over the possession and use of firearms due to the “extraordinary threat to the
safety and good order of society” posed by those weapons. (Internal quotation marks omitted.)
Travis, 2024 IL App (3d) 230113, ¶¶ 41, 42. Furthermore, “ ‘the police power comprehends laws
“restraining or prohibiting anything harmful to the welfare of the people.” ’ ” Travis, 2024 IL App
(3d) 230113, ¶ 41 (quoting Kalodimos, 103 Ill. 2d at 496, quoting People v. Warren, 11 Ill. 2d 420,
245 (1957)). In Stephens, we determined that “the Illinois Constitution’s prohibition of the
possession of firearms by felons is a proper exercise of police power.” Stephens, 2024 IL App
(5th) 220828, ¶ 44. Furthermore, “the AHC *** statute[ ] [is] a proper exercise of the state’s police
power, which allows the state to exert, through legislation, control over the dangers posed by
firearms and the people who might use them to do harm.” Travis, 2024 IL App (3d) 230113, ¶ 43.
As such, we find the AHC is constitutional under the Illinois Constitution, facially and as applied
to the defendant.
¶ 27 III. CONCLUSION
¶ 28 For the foregoing reasons, we affirm the judgment of the circuit court of Macon County.
¶ 29 Affirmed.
¶ 30 JUSTICE McHANEY, specially concurring:
¶ 31 I agree with the majority’s ultimate conclusion. I write separately, because I believe the
proper approach to the second amendment post-Bruen is set forth in Stephens.
10