People v. Chariez

2018 IL 121417

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

(Docket No. 121417)

THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.

JULIO CHAIREZ, Appellee.

Opinion filed February 1, 2018.

CHIEF JUSTICE KARMEIER delivered the judgment of the court, with

opinion.

Justices Freeman, Thomas, Kilbride, Garman, Burke, and Theis concurred in

the judgment and opinion.

OPINION

¶1 At issue in this appeal is the constitutionality of section 24-1(a)(4), (c)(1.5) of

the unlawful use of a weapon (UUW) statute (720 ILCS 5/24-1(a)(4), (c)(1.5)

(West 2012)), which, in pertinent part, prohibits an individual from carrying or

possessing a firearm within 1000 feet of a public park.

¶2 PRINCIPAL STATUTE INVOLVED

¶3 At the time of the proceedings herein, the UUW statute provided:

Ҥ 24-1. Unlawful Use of Weapons.

(a) A person commits the offense of unlawful use of weapons when he

knowingly:

***

(4) Carries or possesses in any vehicle or concealed on or about his

person except when on his land or in his own 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, except that this subsection (a)(4) does not apply to or

affect transportation of weapons that meet one of the following conditions:

(i) are broken down in a non-functioning state; or

(ii) are not immediately accessible; or

(iii) are unloaded and enclosed in a case, firearm carrying box,

shipping box, or other container by a person who has been issued a

currently valid Firearm Owner’s Identification Card[.] ***

***

(c) Violations in specific places.

***

(1.5) A person who violates subsection 24-1(a)(4) *** on any public

way within 1,000 feet of the real property comprising any school, public

park, courthouse, public transportation facility, or residential property

owned, operated, or managed by a public housing agency or leased by a

public housing agency as part of a scattered site or mixed-income

development commits a Class 3 felony.” 720 ILCS 5/24-1(a)(4), (c)(1.5)

(West 2012).

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¶4 BACKGROUND

¶5 On April 24, 2013, pursuant to a negotiated plea agreement, defendant Julio

Chairez pled guilty in the circuit court of Kane County to possessing a firearm

within 1000 feet of Virgil Gilman Trail, a park in Aurora, Illinois, in exchange for

the State’s agreement to file a nolle prosequi for several other charges and the

recommendation that defendant receive a sentence of two years’ probation.

¶6 On November 5, 2015, defendant filed a postconviction petition, seeking to

vacate the conviction on the basis that the statute was unconstitutional under the

second amendment to the United States Constitution. U.S. Const., amend. II. The

circuit court heard arguments by counsel for defendant and the State regarding

defendant’s petition for relief. At the hearing, defendant argued that an individual

who is barred from carrying a firearm within 1000 feet of the many locations listed

in section 24-1(c)(1.5) of the UUW statute is essentially barred from carrying a

firearm in public. Therefore, counsel reasoned, section 24-1(c)(1.5) was more

closely akin to a blanket prohibition than a restriction on carrying a gun in certain

sensitive places. In response, the State argued that the firearm restriction is not a

blanket prohibition because it prevents people from carrying firearms only in

certain proscribed areas.

¶7 In its oral ruling given on July 29, 2016, the circuit court declared section

24-1(a)(4), (c)(1.5) of the UUW statute unconstitutional. In so ruling, the court

found that the 1000-foot firearm restriction was not a reasonable regulation on the

second amendment. On this point, the court stated:

“The effect of the thousand foot language on gun rights is a near

comprehensive ban. The practical effect is that a person cannot leave his house

with his licensed firearm because he would constantly be in jeopardy of

accidentally and unknowingly entering within a thousand feet of a school,

public park, public transportation facility, or residential property owned,

operated or managed by [a] public housing agency[ ].”

¶8 Comparing the language of section 24-1(a)(4) to that of the offenses declared

facially unconstitutional in People v. Aguilar, 2013 IL 112116, and People v.

Mosley, 2015 IL 115872, the circuit court found the offense established by section

24-1(a)(4), (c)(1.5) unconstitutional. The court went on to further note that the

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language concerning defendant’s charge of possessing a firearm within 1000 feet of

a public park, albeit different from the facially unconstitutional statutes in Aguilar

and Mosley, “does not rescue the Statute.” Accordingly, the court ruled defendant’s

conviction void, granted his motion, and vacated his UUW conviction.

¶9 On September 7, 2016, the circuit court entered its written order, as required by

Illinois Supreme Court Rule 18 (eff. Sept. 1, 2006). Pursuant to Illinois Supreme

Court Rule 603 (eff. Feb. 6, 2013), the State’s appeal from the circuit court’s

finding of statutory unconstitutionality comes directly to this court.

¶ 10 ANALYSIS

¶ 11 As an initial matter, we must address some discrepancies and incomplete

portions of the circuit court’s Rule 18 order finding section 24-1(a)(4), (c)(1.5)

unconstitutional. The court’s order is the latest of recent direct appeals in which we

have been required to discern the scope of the written order declaring a statute to be

unconstitutional. See People v. Rizzo, 2016 IL 118599, ¶ 25 (Rule 18 order lacked a

sufficient discussion or analysis); People v. Schweihs, 2015 IL 117789, ¶ 17

(same); Mosley, 2015 IL 115872, ¶ 11 (discrepancy as to which section of the

aggravated UUW (AUUW) statute the circuit court actually found

unconstitutional). Here, we are again faced with a ruling that is conclusory and

unsupported by a clear legal analysis or explanation despite Rule 18’s requirement

that the circuit court “clearly identif[y]” in a written or transcribed oral order what

portions of the statute are being held unconstitutional and on what specific grounds.

Rather, the court’s single-page order simply restated the requirements set forth in

the rule, and concluded that section 24-1(a)(4), (c)(1.5) was unconstitutional “for

reasons previously stated of record.” 1 Without a clear explanation for its ruling, this

1

Rule 18 requires that a court “shall not” find a statute unconstitutional unless the court

makes a finding in a written or transcribed oral order; the order clearly identifies which

portion of the statute is unconstitutional; and the order states the specific grounds of

unconstitutionality, including the constitutional provision upon which the finding is based,

whether the statute is invalid on its face or as applied, whether the statute can be construed

in a manner that could preserve its constitutionality, that the finding cannot rest on an

alternate ground, and that proper notice has been served on the State. Ill. S. Ct. R. 18 (eff.

Sept. 1, 2006).

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court is left with the difficult task of determining the basis of the circuit court’s

ruling. We reiterate, again, “ ‘[w]hen a circuit court does something as serious as

holding that a statute violates the constitution, then the circuit court must also be

mindful to clearly state *** the legal basis for that ruling.’ ” Schweihs, 2015 IL

117789, ¶ 17 (quoting People v. Cornelius, 213 Ill. 2d 178, 189 (2004)).

¶ 12 Not readily apparent from the written order or the court’s oral pronouncement

is a clear answer to the important question of whether the statute was

unconstitutional facially or as applied. From what we can construe from the record,

the circuit court held that the restricted conduct under section 24-1(a)(4) within

1000 feet of schools, public parks, courthouses, public housing, and public

transportation facilities was facially unconstitutional. We arrive at this conclusion

based on the court’s continuous reference and application of the holdings in

Aguilar and Mosley. The circuit court found that the language of section 24-1(a)(4)

of the UUW statute was “almost identical” to the comprehensive firearm ban on the

possession of a firearm for self-defense purposes declared unconstitutional in

Aguilar and Mosley. The court determined further that the 1000-foot language in

section 24-1(c)(1.5) does not save the statute because the additional restriction is a

“near comprehensive ban on the [d]efendant’s [s]econd [a]mendment rights,” by

prohibiting carriage in areas where Aguilar and Mosley allow an individual to

carry. Central to the court’s concern was the practical inability of any individual to

bypass the various areas protected under section 24-1(c)(1.5) and the lack of an

exception for carrying or possessing a firearm in self-defense. The court’s

reasoning makes it clear the court held section 24-1(a)(4), (c)(1) unconstitutional

on its face as violative of the second amendment because it viewed the regulation as

a comprehensive firearm restriction on all individuals. Moreover, our finding is

supported by the fact that the parties have confined their contentions before this

court on the basis that the circuit court made a facial unconstitutionality

declaration.

¶ 13 Next, we must determine whether the circuit court touched upon legal questions

not before it. Addressing this same concern, this court in Mosley reaffirmed the

general rule that “courts do not rule on the constitutionality of a statute where its

provisions do not affect the parties [citation], and decide constitutional questions

only to the extent required by the issues in the case.” Mosley, 2015 IL 115872, ¶ 11.

The circuit court’s order conflicts with this rule by finding unconstitutional the

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entirety of section 24-1(a)(4), (c)(1.5), without limitation to the single offense of

which defendant was convicted under the statute. Because defendant was convicted

of violating section 24-1(a)(4), (c)(1.5) by being within 1000 feet of a public park,

the various other “specific places” offenses set forth in section 24-1(c)(1.5) were

not before the circuit court, and therefore defendant lacked standing to challenge

the constitutionality of the offenses of which he was not charged. See Exelon Corp.

v. Department of Revenue, 234 Ill. 2d 266, 296 (2009) (Thomas, J., specially

concurring) (“A court cannot rule on the constitutionality of a statute that is not

before it, nor can the court rule on the merits of a case over which it lacks

jurisdiction.”). Therefore, the circuit court’s finding as to the constitutionality of

the other offenses included under section 24-1(c)(1.5) constituted an advisory

opinion, which Illinois courts are not permitted to render. Mosley, 2015 IL 115872,

¶ 11. Accordingly, we limit our discussion to the firearm restriction under section

24-1(a)(4), (c)(1.5) to which defendant pled guilty—possession of a firearm within

1000 feet of a public park. To the extent that the circuit court’s order or statements

could be interpreted as finding any other portion of section 24-1(a)(4), (c)(1.5),

which is not at issue, as being unconstitutional, such finding is vacated. Id. ¶ 12.

We make no finding, express or implied, with respect to the constitutionality or

unconstitutionality of any offense within the UUW statute other than what is

properly before this court. Id.

¶ 14 Merits

¶ 15 Turning to the merits of this case, all statutes are presumed constitutional, and

courts have a duty to construe legislative enactments so as to uphold their validity if

reasonably possible. Aguilar, 2013 IL 112116, ¶ 15. To overcome this

presumption, the party challenging the constitutionality of a statute has the burden

of clearly establishing that it violates the constitution. Mosley, 2015 IL 115872,

¶ 22. The question of whether a statute is unconstitutional is a question of law,

which this court reviews de novo. Id.

¶ 16 Defendant first argues that this court need not engage in any constitutional

analysis because the case is controlled by our recent decision in People v. Burns,

2015 IL 117387. In Burns, the defendant was convicted of violating section

24-1.6(a)(1), (a)(3)(A) of the AUUW statute (720 ILCS 5/24-1.6(a)(1), (a)(3)(A)

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(West 2008)). Burns, 2015 IL 117387, ¶ 1. At sentencing, pursuant to the

sentencing provision of the AUUW statute, section 24-1.6(d), the State presented,

for the first time, proof of defendant’s prior felony conviction to enhance the

classification of the offense from a Class 4 felony to a Class 2 felony. Id. ¶ 13.

Before this court, defendant Burns argued that his conviction of the Class 2 form of

the offense must be reversed in light of Aguilar, which found the Class 4 form of

the same AUUW offense to be unconstitutional. Id. ¶ 20. This court agreed with

defendant’s contention and reversed his conviction and sentence. Id. ¶ 32. In doing

so, we found that section 24-1.6(a)(1), (a)(3)(A) of the AUUW statute is facially

unconstitutional “without limitation” (id. ¶ 29) because “[t]he offense, as enacted

by the legislature, does not include as an element of the offense the fact that the

offender has a prior felony conviction” (id. ¶ 25). As such, we held there is only one

offense of AUUW based on section 24-1.6(a)(1), (a)(3)(A), and a prior felony

conviction that enhances the felony classification at sentencing is not an element of

that offense but, rather, a sentencing factor which enhances the penalty from a

Class 4 felony to a Class 2 felony. Id. ¶ 24.

¶ 17 Here defendant argues that the penalty enhancement found under section

24-1(c)(1.5) of the UUW statute acts similarly to the sentencing enhancement of

section 24-1.6(d) of the AUUW statute. Defendant, however, is mistaken on a

fundamental point. Unlike in Burns where the felony enhancement came after the

defendant was found guilty of the charged offense, the felony enhancement under

section 24-1(c)(1.5) is a specific fact that must be proved to the trier of fact prior to

a guilty finding. This difference is significant to our finding because any fact, other

than a prior conviction, which, by law, increases the penalty for a crime, is an

element of a distinct and aggravated crime that must be submitted to the jury. See

Alleyne v. United States, 570 U.S. 99, ___, ___, 133 S. Ct. 2151, 2155, 2163

(2013); Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). That is the precise

situation here where, in order to enhance the offense from a Class 4 felony to a

Class 3 form of UUW, the State must prove the aggravating fact that defendant was

within 1000 feet of a public park. 720 ILCS 5/24-1(a)(4), (c)(1.5) (West 2012).

¶ 18 This conclusion is supported by the plain language of the UUW statute. Unlike

in Burns where the enhancement issue came from the specific sentencing provision

of the AUUW statute, section 24-1(c)(1.5) is separate and apart from the sentencing

provision of the UUW statute, section 24-1(b). Thus, we presume that the General

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Assembly intended that, if proven at trial, the specific locations enumerated in

section 24-1(c)(1.5) are to be separate offenses that carry their own enhanced

sentences different from the prescribed sentences in section 24-1(b). See People v.

Goossens, 2015 IL 118347, ¶ 12 (“It is well settled that when the legislature uses

certain language in one instance of a statute and different language in another part,

we assume different meanings were intended.”). Accordingly, we find the

sentencing enhancement in Burns distinguishable from the provision at issue in this

case because it adds an extra element to the Class 4 felony offense of UUW.

¶ 19 We also reject defendant’s alternative argument that because section 24-1(a)(4)

was declared unconstitutional in Moore v. Madigan, 702 F.3d 933, 942 (7th Cir.

2012), his conviction, which incorporates section 24-1(a)(4), cannot stand. 2

Defendant’s argument fails because, as explained, his conviction is qualitatively

different from that in Moore, as it incorporates an additional element—being

within 1000 feet of a public park. This additional location element creates a

separate offense from the offense at issue in Moore.

¶ 20 Constitutionality of Section 24-1(a)(4), (c)(1.5) of the UUW Statute

2

The Moore court remanded both consolidated cases for entry of a declaration of

unconstitutionality and a permanent injunction, but stayed its mandate for 180 days to

permit the Illinois General Assembly to “craft a new gun law that will impose reasonable

limitations, consistent with the public safety and the Second Amendment.” Moore, 702

F.3d at 942. The stay was extended an additional 30 days to accommodate the General

Assembly’s legislative process in enacting the Firearm Concealed Carry Act. Pub. Act

98-63 (eff. July 9, 2013). On the same day the law became effective, defendants filed a

motion to dismiss on the grounds that plaintiffs’ claims were moot. Shepard v. Madigan,

958 F. Supp. 2d 996, 997 (S.D. Ill. 2013). The United States District Court for the Southern

District of Illinois agreed with the defendants’ motion, holding that the mandate’s directive

for a declaration of unconstitutionality and issuance of a permanent injunction was

rendered moot by the enactment of the Firearm Concealed Carry Act. Id. at 1000. The

Seventh Circuit Court of Appeals affirmed. Shepard v. Madigan, 734 F.3d 748, 752 (7th

Cir. 2013). Neither the Firearm Concealed Carry Act nor the amended UUW statute is at

issue in this case.

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¶ 21 In holding a portion of the UUW statute unconstitutional, the circuit court of

Kane County found the offense of possessing a firearm within 1000 feet of a public

park (720 ILCS 5/24-1(a)(4), (c)(1.5) (West 2012)) violated defendant’s right to

keep and bear arms, as guaranteed by the second amendment to the United States

Constitution. U.S. Const., amend. II. To answer the question presented, our

analysis involves a two-part approach. Mosley, 2015 IL 115872, ¶ 34 (citing Wilson

v. County of Cook, 2012 IL 112026, ¶ 41). First, we conduct a textual and historical

analysis 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 falls

outside of the scope of the second amendment, then the regulated activity “is

categorically unprotected,” and the law is not subject to further second amendment

review. Id. But if the historical evidence is inconclusive or suggests that the

regulated activity is not categorically unprotected, then we apply the appropriate

level of heightened means-ends scrutiny and consider the strength of the

government’s justification for restricting or regulating the exercise of second

amendment rights. Id. (citing Ezell v. City of Chicago, 651 F.3d 684, 701-04 (7th

Cir. 2011) (Ezell I)).

¶ 22 Step One: Scope of the Regulated Activity

¶ 23 The second amendment to the United States Constitution provides that “[a] well

regulated Militia, being necessary to the security of a free State, the right of the

people to keep and bear Arms shall not be infringed.” U.S. Const., amend. II.

Through the fourteenth amendment to the United States Constitution (U.S. Const.,

amend. XIV), this right is “fully applicable to the States.” McDonald v. City of

Chicago, 561 U.S. 742, 750 (2010).

¶ 24 In District of Columbia v. Heller, 554 U.S. 570, 592 (2008), the United States

Supreme Court determined that there is a guaranteed “individual right to possess

and carry weapons in case of confrontation,” based on the second amendment.

However, Heller instructs that even though the second amendment guarantees an

individual right to bear arms, that right is “not unlimited.” Id. at 626. Specifically,

the Court explained, in dicta, that its holding should not “cast doubt on

longstanding prohibitions on the possession of firearms by felons and the mentally

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ill, or laws forbidding the carrying of firearms in sensitive places such as schools

and government buildings.” Id. In a footnote, the Court emphasized that its list of

“presumptively lawful regulatory measures” provided only examples and that the

list did “not purport to be exhaustive.” Id. at 627 n.26.

¶ 25 In Moore, 702 F.3d 933, the Seventh Circuit broadened Heller and McDonald

by ruling that the offenses proscribed under sections 24-1(a)(4) and 24-1(a)(10) of

the UUW statute (720 ILCS 5/24-1(a)(4), (10) (West 2010)) as well as the Class 4

form of section 24-1.6(a)(1), (a)(3)(A), (d) of the AUUW statute (id. § 1.6(a)(1),

(a)(3)(A), (d)) were unconstitutional since they prohibited carrying ready-to-use

firearms outside of a person’s home. Moore, 702 F.3d at 942. The Moore court

reached this conclusion after determining that the historical evidence supporting a

tradition of public carriage of firearms was more persuasive than evidence to the

contrary. See id. at 939 (“In sum, the empirical literature on the effects of allowing

the carriage of guns in public fails to establish a pragmatic defense of the Illinois

law.”). Further, the court found that Illinois’s blanket prohibition on carrying

firearms in public “prevents a person from defending himself anywhere except

inside his home; and so substantial a curtailment of the right of armed self-defense

requires a greater showing of justification than merely that the public might benefit

on balance from such a curtailment, though there is no proof it would.” (Emphasis

in original.) Id. at 940. The court, however, stated in contrast, “when a state bans

guns merely in particular places, such as public schools, a person can preserve an

undiminished right of self-defense by not entering those places; since that’s a lesser

burden, the state doesn’t need to prove so strong a need.” Id.

¶ 26 Adopting the reasoning in Moore, this court in People v. Aguilar, 2013 IL

112116, ¶ 21, recognized that “the second amendment protects the right to possess

and use a firearm for self-defense outside the home.” As such, we held the offense

set forth in section 24-1.6(a)(1), (a)(3)(A) of the AUUW statute, which prohibited

carrying on one’s person or in any vehicle, outside the home, an uncased, loaded,

and immediately accessible firearm, to be unconstitutional on its face. Id. ¶¶ 21-22.

Two years later, in Mosley, 2015 IL 115872, ¶ 25, we extended Aguilar’s finding of

facial unconstitutionality to another portion of the AUUW statute, section

24-1.6(a)(2), (a)(3)(A) (720 ILCS 5/24-1.6(a)(2), (a)(3)(A) (West 2012)), which

prohibited carrying an uncased, loaded, and immediately accessible firearm on a

public way. Collectively, this court has held that the second amendment protects an

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individual’s right to carry a ready-to-use gun outside the home, subject to certain

regulations. Mosley, 2015 IL 115872, ¶ 25; Aguilar, 2013 IL 112116, ¶ 26. The

question, then, is whether the offense of possessing a firearm within 1000 feet of a

public park, as set forth under section 24-1(a)(4), (c)(1.5) of the UUW statute,

impermissibly encroaches on conduct at the core of the second amendment.

¶ 27 The State argues that the conduct of possessing a firearm within 1000 feet of a

public park is unprotected by the second amendment because the prohibition falls

within Heller’s declaration that “laws forbidding the carrying of firearms in

sensitive places such as schools and government buildings” do not violate the

second amendment rights of those prosecuted under such laws. Heller, 554 U.S. at

626. For support, the State cites various historical sources, chiefly the 1328 Statute

of Northampton (Statute of Northampton 1328, 2 Edw. 3, c. 3 (Eng.)), to support its

argument that possessing a firearm within 1000 feet of a public park is not a

protected right.

¶ 28 Defendant, on the other hand, contends that regardless of whether a public park

qualifies as a sensitive place, the 1000-foot firearm restriction surrounding a public

park falls outside of Heller’s presumptively lawful restrictions. Defendant argues

that the preposition “in,” which precedes “sensitive places” in Heller’s statement,

makes the list of presumptively lawful regulations limited to the actual sensitive

place, not an exclusion zone around the particular place. Defendant finds support

for his argument in Moore’s statement that “when a state bans guns merely in

particular places, such as public schools, a person can preserve an undiminished

right of self-defense by not entering those places.” Defendant claims that Moore

supports his position that public spaces outside of the particular place are protected

by the second amendment. Thus, he reasons that the conduct of possessing a

firearm within 1000 feet of a public park does not meet one of Heller’s

presumptively lawful regulatory measures. Defendant also notes the court in Moore

rejected the various sources the State cites, including the fourteenth-century Statute

of Northampton.

¶ 29 Beyond Heller’s two examples of “sensitive places,” i.e., “schools and

government buildings,” the Supreme Court has not yet provided a list of additional

sensitive places that fall outside the second amendment protection or given any

guidance on the breadth of its statement. Among the few cases that have

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specifically addressed Heller’s statement, we are unable to find a federal circuit

case that has addressed a 1000-foot firearm restriction around a public park.

Instead, most cases have been limited to laws restricting firearms within the

disputed location. See e.g., United States v. Masciandaro, 638 F.3d 458, 473 (4th

Cir. 2011) (holding that a defendant’s conviction for possession of a loaded weapon

in a motor vehicle on national park land in violation of then-applicable regulations,

did not violate his second amendment right to keep and bear arms).

¶ 30 We, however, need not address whether the 1000-foot firearm restriction falls

outside of the ambit of the second amendment because we agree with the approach

taken by other courts that assume some level of scrutiny must apply to Heller’s

“presumptively lawful” regulations. See United States v. Williams, 616 F.3d 685,

692 (7th Cir. 2010) (explaining that courts should apply some level of scrutiny even

to regulations identified in Heller as presumptively lawful); Woollard v. Gallagher,

712 F.3d 865, 875 (4th Cir. 2013) (stating that the court was not “obliged to impart

a definitive ruling at the first step” but, rather, “deemed it prudent” to resolve some

post-Heller challenges to firearm prohibitions at the second step), cert. denied, ___

U.S. ___, 134 S. Ct. 422 (2013); National Rifle Ass’n of America, Inc. v. Bureau of

Alcohol, Tobacco, Firearms, & Explosives, 700 F.3d 185, 204 (5th Cir. 2012)

(“Although we are inclined to uphold the challenged federal laws [banning the sale

of firearms to persons under the age of 21] at step one of our analytical framework,

in an abundance of caution, we proceed to step two.”). Accordingly, our analysis

moves to the second step.

¶ 31 Step Two: Level of Scrutiny

¶ 32 Although the Heller Court did not explicitly designate a level of scrutiny for

evaluating second amendment restrictions (see Heller, 554 U.S. at 634

(acknowledging the dissent’s criticism of the majority for not adopting a level of

scrutiny)), the majority rejected the rational basis test, stating that it “could not be

used to evaluate the extent to which a legislature may regulate a specific,

enumerated right,” such as “the right to keep and bear arms.” Id. at 628 n.27. As a

result, courts generally recognize that Heller’s reference to any standard of scrutiny

means any heightened level of scrutiny and not rational-basis scrutiny. See Wilson

v. County of Cook, 2012 IL 112026, ¶ 42 (citing Ezell I, 651 F.3d at 702-04, United

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States v. Chester, 628 F.3d 673, 680 (4th Cir. 2010), United States v. Marzzarella,

614 F.3d 85, 91 (3d Cir. 2010), and Heller v. District of Columbia, 670 F.3d 1244,

1251-53 (D.C. Cir. 2011) (Heller II)).

¶ 33 Defendant advocates for this court to apply strict scrutiny to the 1000-foot

firearm restriction around a public park. Defendant argues that, since Heller

declared the right to bear arms in self-defense to be a fundamental right, and this

court in Aguilar and Mosley extended that right outside of the home and onto the

public ways, the right to possess a firearm for self-defense outside the home is

infringed when the 1000-foot firearm restriction around a public park extends onto

public ways. Such a firearm restriction, he contends, directly impacts the second

amendment protection of self-defense in public.

¶ 34 The State urges us to use intermediate scrutiny to uphold the statute’s ban on

possessing a firearm within 1000 feet of a public park. The State argues that the

challenged restriction is substantially related to an important government objective

in preventing harm to children and other vulnerable populations.

¶ 35 In any event, the Seventh Circuit, which this court has followed when analyzing

second amendment challenges (see Mosley, 2015 IL 115872, ¶ 34; Aguilar, 2013

IL 112116, ¶ 20), teaches us that the argument is not strict versus intermediate

scrutiny but rather how rigorously to apply intermediate scrutiny to second

amendment cases. 3 Under this approach, the second step of the inquiry requires the

court to examine the strength of the government’s justifications for restricting

3

We note that some federal circuits have used different approaches when addressing

second amendment claims. For example, the Fourth Circuit Court of Appeals has applied a

sliding scale approach and has applied a level of scrutiny based on the context of the

restriction upon second amendment rights. Masciandaro, 638 F.3d at 470. The Second

Circuit Court of Appeals has required a showing that the regulation “operate[s] as a

substantial burden on the ability of law-abiding citizens to possess and use a firearm for

self-defense (or for other lawful purposes)” before a heightened scrutiny is triggered.

United States v. Decastro, 682 F.3d 160, 166 (2d Cir. 2012). As stated, we elect to continue

to follow the Seventh Circuit Court of Appeals. For a comprehensive overview of the

various standards of review courts have applied in second amendment cases, see Nicholas

J. Johnson, David B. Kopel, George A. Mocsary & Michael P. O’Shea, Firearms Law and

the Second Amendment Regulation, Rights, and Policy, 903-83 (2d ed. 2018).

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certain firearm activity by evaluating the restriction the government has chosen to

enact and the public-benefits ends it seeks to achieve. Ezell I, 651 F.3d at 703;

Wilson, 2012 IL 112026, ¶ 42. The Seventh Circuit stated in Ezell I that “a severe

burden on the core Second Amendment right of armed self-defense will require an

extremely strong public-interest justification and a close fit between the

government’s means and its end.” Ezell I, 651 F.3d at 708. However, “laws

restricting activity lying closer to the margins of the Second Amendment right,

laws that merely regulate rather than restrict, and modest burdens on the right may

be more easily justified.” Id. Thus, the heightened means-end inquiry is a sliding

scale that is neither fixed nor static. Id.; Illinois Ass’n of Firearms Retailers v. City

of Chicago, 961 F. Supp. 2d 928, 934 (N.D. Ill. 2014).

¶ 36 On one end of the scale are cases that categorically restrict the possession of

firearms by persons convicted of misdemeanor domestic violence (United States v.

Skoien, 614 F.3d 638 (7th Cir. 2010) (en banc)) or convicted felons (United States

v. Williams, 616 F.3d 685 (7th Cir. 2010)).

¶ 37 In Skoien, an en banc decision, the Seventh Circuit considered the

constitutionality of a federal law that forbids convicted domestic-violence

misdemeanants from possessing firearms. 614 F.3d at 639. The defendant, who was

twice convicted for misdemeanor crimes of domestic violence, challenged the

statute’s validity, in part on the basis of Heller. Id. The court rejected defendant’s

reliance on Heller’s declaration of presumptive validity for longstanding

prohibitions, holding the declaration was “precautionary language,” intended only

to “warn[ ] readers not to treat Heller as containing broader holdings than the Court

set out to establish.” Id. at 640. Following its own analytical route, the Skoien court

concluded that it was possible for a “categorical limit on the possession of

firearms” to be constitutional. Id. at 641. Applying what it characterized as “some

form of strong showing,” the court upheld the statute after finding it “substantially

related to an important governmental objective.” Id.

¶ 38 In Williams, the defendant was charged with possessing a firearm after an

Indiana robbery conviction. 616 F.3d at 693. The defendant claimed the

felon-in-possession statute violated his second amendment rights, while the

government argued that the ban on possession of firearms by felons falls outside the

scope of the second amendment because the restriction is one of the “presumptively

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lawful” regulatory measures specifically identified in Heller. Id. at 692-93. Despite

Heller’s clear language, the Seventh Circuit explained that “the government does

not get a free pass” because “it still must prove that the ban is constitutional, a

mandate that flows from Heller itself.” Id. at 692. After applying intermediate

scrutiny, the Williams court found that the government had met its burden because

the government’s interest in keeping “firearms out of the hands of violent felons”

was important because defendant’s prior felony robbery conviction was violent and

because taking away his right to possess a firearm was substantially related to the

government’s important interest. Id. at 692-94.

¶ 39 On the other end of the scale are cases dealing with a categorical ban on the

second amendment right. For instance, in Ezell I, the plaintiffs sought a preliminary

injunction against a City of Chicago ordinance that prohibited firing ranges within

the city. 651 F.3d at 689-90. At the time, the City had a prerequisite of firing range

training before people could exercise their core constitutional right to possess guns

in their own home for self-defense. Id. at 691. However, the City had, at the same

time, prohibited firing ranges within the city limits. Id. In reviewing the ordinance,

the court indicated that the ban was “a serious encroachment on the right to

maintain proficiency in firearm use, an important corollary to the meaningful

exercise of the core right to possess firearms for self-defense.” Id. at 708. The Ezell

I court noted that plaintiffs were “the law-abiding, responsible citizens whose

Second Amendment rights are entitled to full solicitude under Heller, and their

claim comes much closer to implicating the core of the Second Amendment right.”

(Internal quotation marks omitted.) Id. After analyzing first amendment

jurisprudence, which Heller, 554 U.S. at 582, and McDonald, 561 U.S. at 783,

suggest is an appropriate analogue, the Ezell I court, as outlined above, set forth the

scope of heightened means-end scrutiny when dealing with second amendment

challenges:

“First, a severe burden on the core Second Amendment right of armed

self-defense will require an extremely strong public-interest justification and a

close fit between the government’s means and its end. Second, laws restricting

activity lying closer to the margins of the Second Amendment right, laws that

merely regulate rather than restrict, and modest burdens on the right may be

more easily justified. How much more easily depends on the relative severity of

the burden and its proximity to the core of the right.” Ezell I, 651 F.3d. at 708.

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¶ 40 Applying this standard, the court reasoned that because the ordinance reached

close to the core of the second amendment and curtailed the rights of all

law-abiding citizens within its jurisdiction, the court had to apply “a more rigorous

showing than that applied in Skoien *** if not quite ‘strict scrutiny.’ ” 4 Id. The

court took issue with the City’s defense of the challenged regulation, which rested

on sheer “speculation” about accidents and thefts from firing ranges. Id. at 709. For

instance, the City had argued that gun ranges cause secondary harmful effects such

as gun theft, fire hazards, and airborne lead contamination. Id. at 694. The court

noted, however, that the City “produced no evidence to establish that these are

realistic concerns, much less that they warrant a total prohibition on firing ranges.”

Id. at 709. The court concluded further that the City had not shown an extremely

strong public-interest justification or a close fit between the government’s means

and its ends. Accordingly, the court granted the plaintiffs’ request for a preliminary

injunction. Id. at 709-10.

¶ 41 After Ezell I was decided, the City responded by promulgating a new

comprehensive regulatory scheme governing firing ranges, including licensing

provisions, construction requirements, environmental regulations, and zoning

restrictions for firing ranges. Ezell v. City of Chicago, 846 F.3d 888, 891 (7th Cir.

2017) (Ezell II). In a second round of litigation, plaintiffs returned to court

mounting a facial attack on each of the City’s regulations, generally contending that

none of the ordinances can survive heightened constitutional scrutiny. Id. at 890. At

issue were three zoning provisions that (1) allowed gun ranges only as special uses

in manufacturing districts; (2) prohibited gun ranges within 100 feet of another

range or within 500 feet of a residential district, school, place of worship, or

multiple other uses; and (3) barred anyone under the age of 18 from entering a

shooting range. Id.

¶ 42 Reviewing the revised provisions under the framework articulated in Ezell I,

the court determined that the City must meet the requirement of establishing “a

close fit between the challenged zoning regulations and the actual public benefits

they serve—and to do so with actual evidence, not just assertions.” Id. at 894. In

4

The Seventh Circuit later held that laws that come near to the core of the second

amendment right must satisfy “a strong form of intermediate scrutiny.” Ezell v. City of

Chicago, 846 F.3d 888, 893 (7th Cir. 2017).

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striking down the City’s revised zoning ordinance, the court stated that although the

provisions did not create an outright ban, the new provisions “severely limit[ed]

where shooting ranges may locate” so that “no publicly accessible shooting range

yet exist[ed] in Chicago.” Id. at 894-96. In fact, the court noted that the combined

effect of the zoning regulations meant “only about 2.2% of the city’s total acreage

[is] even theoretically available to site a shooting range (10.6% of the total acreage

currently zoned for business, commercial, and manufacturing use).” Id. As such,

the court determined that the zoning regulations, “though not on their face an

outright prohibition of gun ranges, nonetheless severely restrict the right of

Chicagoans to train in firearm use at a range.” Id. The court, therefore, found that

the ordinance directly, and meaningfully, interfered with the ability of city

residents to maintain firearms proficiency, a right found to be an “important

corollary” to the core right to bear arms. (Internal quotation marks omitted.) Id. at

893. As in Ezell I, the Ezell II court rejected the City’s “speculative claims of harm

to public health and safety,” which the court stated were “not nearly enough to

survive the heightened scrutiny that applies to burdens on Second Amendment

rights.” Id. at 890.

¶ 43 In Moore, the Seventh Circuit applied Ezell I-like scrutiny to invalidate

Illinois’s blanket ban on the public carrying of firearms under the UUW and

AUUW statutes. 702 F.3d 933. In doing so, the court conducted an analysis of

Supreme Court jurisprudence, the history of the second amendment, and the plain

meaning of the second amendment’s language to find that, under Heller and

McDonald, the second amendment’s core right of armed self-defense extends past

the four walls of the home and into public. Id. at 942. The Moore court reached this

conclusion after determining that the Supreme Court’s interpretation of the second

amendment conferred a right to bear arms for self-defense, which the Moore court

believed was as important outside the home as it was inside. Id. at 936 (“The right

to ‘bear’ as distinct from the right to ‘keep’ arms is unlikely to refer to the home.”).

The court noted that “[a] blanket prohibition on carrying gun[s] in public prevents a

person from defending himself anywhere except inside his home; and so substantial

a curtailment of the right of armed self-defense requires a greater showing of

justification than merely that the public might benefit on balance from such a

curtailment, though there is no proof it would.” (Emphasis in original.) Id. at 940.

While, conversely, “when a state bans guns merely in particular places, such as

public schools, a person can preserve an undiminished right of self-defense by not

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entering those places; since that’s a lesser burden, the state doesn’t need to prove so

strong a need.” Id. Determining that since the curtailment of gun rights concerned

the entire law-abiding adult population of Illinois, the court stated that the State

“would have to make a stronger showing” than in Skoien. Id.

¶ 44 Implementing the factors of a second amendment analysis, the Moore court

went on to assess the State’s public-safety rationales for banning public gun

carriage, finding that the State’s empirical evidence did not provide a justification

for a complete public-carriage ban. Thus, the court held that the State failed to

make an extremely strong showing that the law furthered public safety. Id. at

937-39, 942.

¶ 45 In sum, what is taught from these cases is that step two of our second

amendment analysis begins with a balance of considerations where the quantity and

persuasiveness of the State’s evidence required to justify the challenged restrictions

varies depending on how much it affects the core second amendment right to armed

self-defense and whose right it affects. See Ezell I, 651 F.3d at 703. The rigor of this

means-end analysis “depends on ‘how close the law comes to the core of the

Second Amendment right and the severity of the law’s burden on the right.’ ” Ezell

II, 846 F.3d at 892 (quoting Ezell I, 651 F.3d at 703). The closer in proximity the

restricted activity is to the core of the second amendment right and the more people

affected by the restriction, the more rigorous the means-end review. If the State

cannot proffer evidence establishing both the law’s strong public-interest

justification and its close fit to this end, the law must be held unconstitutional. Ezell

I, 651 F.3d at 703.

¶ 46 Applying this framework to the law at issue here requires an initial

determination of where on the sliding scale of intermediate scrutiny the law should

be analyzed. To answer this question, our first task is to determine the breadth of

the law and the severity of its burden on the second amendment.

¶ 47 The State argues that prohibiting possession of a firearm within 1000 feet of a

public park falls outside the core protection of the second amendment because it

has no impact on the right to use arms “in defense of hearth and home” and is not a

ban on carrying arms for self-defense in public. Rather, the State argues, it is a part

of the well-established class of regulations that limit carriage in sensitive locations.

Citing Skoien, the State maintains it is subject to plain intermediate scrutiny.

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¶ 48 We believe the State defines the core right protected by the second amendment

too narrowly. According to this court’s holding in Aguilar, neither Heller nor

McDonald expressly limited the second amendment protections to the home.

Aguilar, 2013 IL 112116, ¶¶ 18-20. To the contrary, both Heller and McDonald at

least strongly suggest that the second amendment right to keep and bear arms

extends beyond the home. Id. ¶ 20. Moreover, the State’s reliance on

Skoien—which did not involve the core self-defense component of the right to bear

arms—is misplaced. We find that the 1000-foot firearm restriction at issue more

closely resembles the restrictions at issue in Ezell I, Ezell II, Moore, and Aguilar. In

fact, the 1000-foot firearm restriction not only directly implicates the core right to

self-defense, it does so more severely than the regulations at issue in the Ezell

cases. That is so because section 24-1(a)(4), (c)(1.5) of the UUW statute prohibits

the carriage of weapons in public for self-defense, thereby reaching the core of the

second amendment. While in the Ezell cases, the laws only affected a right

(maintain firearm proficiency) that was merely a “corollary” to the right to possess

firearms for self-defense. Although the firearm restriction at issue is not a

comprehensive statewide ban, like in Moore or Aguilar, the restriction is not

minimal. The firearm restriction not only covers a vast number of public areas

across the state, it encompasses areas this court held in Mosley to be areas where an

individual enjoys second amendment protection, i.e., public ways. See Mosley,

2015 IL 115872, ¶ 25.

¶ 49 As to the second variable on the sliding scale, the severity of the law’s burden

on the right, the law at issue affects the gun rights of the entire law-abiding

population of Illinois like the laws in Moore, Ezell, Aguilar, and Mosley. As in

those cases, the law functions as a categorical prohibition without providing an

exception for law-abiding individuals. It is therefore a severe burden on the

recognized second amendment right of self-defense.

¶ 50 All of this suggests that elevated intermediate scrutiny should apply. And under

this more rigorous review, the government bears the burden of showing a very

strong public-interest justification and a close fit between the government’s means

and its end, as well as proving that the “public’s interests are strong enough to

justify so substantial an encumbrance on individual Second Amendment rights.”

Ezell I, 651 F.3d at 708-09. That means the State must establish a close fit between

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the 1000-foot firearm restriction around a public park and the actual public interests

it serves.

¶ 51 Turning to the State’s proffered public-interest justifications, the State claims a

compelling interest in public safety is served by reducing firearm possession within

1000 feet of a public park. In support, the State relies heavily on an analysis of

school violence and the 1000-foot firearm ban surrounding schools. For instance,

the State references the federal Gun Free School Zones Act of 1990, which restricts

firearm possession within 1000 feet of school grounds. 18 U.S.C. § 921(a)(25)

(2012). The State claims that it was in the atmosphere behind the passage of the

Gun Free School Zones Act—a rise in school violence in the late 1980s—that the

General Assembly passed the law extending the existing restriction on drugs within

1000 feet of schools, public parks, and public housing to also ban firearms from

these locations. The State attempts to relate the reasoning behind the gun-free

school zones to public parks, stating that because there is a substantial and

distinctive interest in protecting those in parks due to a large number of children

who frequent these places, prohibiting firearms near public parks is substantially

related to the important government interest in protecting these children and others.

According to the State, the goal of the 1000-foot firearm restriction around public

parks is to extend the distance where a shooter might fire a weapon.

¶ 52 We certainly accept the general proposition that preventing crime and

protecting children are important public concerns. See Schall v. Martin, 467 U.S.

253, 264 (1984) (“The ‘legitimate and compelling state interest’ in protecting the

community from crime cannot be doubted.”). After all, “[g]uns are inherently

dangerous instrumentalities.” Loitz v. Remington Arms Co., 138 Ill. 2d 404, 419

(1990). The State, however, cannot simply invoke these interests in a general

manner and expect to satisfy its burden.

¶ 53 Just as in Ezell I and II, the State’s propositions are devoid of any useful

statistics or empirically supported conclusions. See Ezell I, 651 F.3d at 709

(“shoddy data or reasoning” and speculative claims are insufficient; there must be

sufficient evidence to support the State’s rationale. (Internal quotation marks

omitted.)). First, the State cites data on school shootings from 1993 to 1999

purporting to show the pervasiveness of guns and violence in schools. It fails to

connect these statistics to the challenged restriction in any meaningful way—it

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merely recites numbers and concludes that children need to be protected from gun

violence. Secondly, the State cites data showing that, in Illinois between 1982 and

1991, there was an increase in the number of juvenile arrests for both weapons

violations and for murder by use of a firearm. Based on these statistics, the State

concludes that “juvenile violence is inextricably linked to firearms.” The State’s

third statistic merely provides that during the 1992-93 school years, 158 firearms

“were confiscated on or near public school grounds in Chicago.”

¶ 54 In sum, based on the record, the State provides no evidentiary support for its

claims that prohibiting firearms within 1000 feet of a public park would reduce the

risks it identifies. Without specific data or other meaningful evidence, we see no

direct correlation between the information the State provides and its assertion that a

1000-foot firearm ban around a public park protects children, as well as other

vulnerable persons, from firearm violence. The State merely speculates that the

proximity of firearms within 1000 feet threatens the health and safety of those in

the public park. The lack of a valid explanation for how the law actually achieves

its goal of protecting children and vulnerable populations from gun violence

amounts to a failure by the State to justify the restriction on gun possession within

1000 feet of a public park.

¶ 55 There is another flaw in the State’s position. The State claims that the

restriction is not overly burdensome because there are areas throughout Illinois

where one could exercise their core second amendment right. Although this may be

true, Ezell II found that despite the existence of areas where the shooting range

restriction was constitutionally valid, that fact alone did not save the restriction

because it nonetheless “severely restrict[ed] the right of Chicagoans.” Ezell II, 846

F.3d at 894. Indeed an individual can preserve an undiminished right of

self-defense by not entering one of the restricted areas. But the State conceded at

oral argument that the 1000-foot firearm restriction zone around a public park

would effectively prohibit the possession of a firearm for self-defense within a vast

majority of the acreage in the city of Chicago because there are more than 600 parks

in the city. See About Us, Chicago Park District, http://www.chicago

parkdistrict.com/about-us/ (last visited Jan. 10, 2018). Aside from the sheer number

of locations and public areas that would qualify under the law, not only in the City

of Chicago, but throughout Illinois, the most troubling aspect is the lack of any

notification where the 1000-foot restriction zone starts and where it would end.

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Innocent behavior could swiftly be transformed into culpable conduct if an

individual unknowingly crosses into a firearm restriction zone. The result could

create a chilling effect on the second amendment when an otherwise law-abiding

individual may inadvertently violate the 1000-foot firearm-restricted zones by just

turning a street corner. Likewise, in response to a question at oral argument, the

State conceded that an individual who lives within 1000 feet of a public park would

violate section 24-1(a)(4), (c)(1.5) every time that individual possessed a firearm

for self-defense and walked to his or her vehicle parked on a public street. To

remain in compliance with the law, the State said that the individual would need to

disassemble his or her firearm and place it in a case before entering the restricted

zone. This requirement, however, renders the ability to defend oneself inoperable

and is in direct contradiction to this court’s decisions in Aguilar, which recognized

that the right to carry firearms for self-defense may be especially important when

traveling outside of the home, and perhaps even more important than while at

home. Aguilar, 2013 IL 112116, ¶¶ 19-20. Moreover, the State’s proposition

conflicts with Heller’s decision that struck down the requirement that firearms be

kept “unloaded and disassembled or bound by a trigger lock” because it “makes it

impossible for citizens to use them for the core lawful purpose of self-defense.”

(Internal quotation marks omitted.) Heller, 554 U.S. at 630. Thus, the State’s

suggestion runs counter to established law.

¶ 56 For these reasons, the State has not established the required means-end fit

between the challenged law and its justifications. 5 Accordingly, we hold that

possessing a firearm within 1000 feet of a public park in violation of section

24-1(a)(4), (c)(1.5) of the UUW statute is facially unconstitutional.

¶ 57 Severability

¶ 58 Having found the charged offense under section 24-1(a)(4), (c)(1.5) of the

UUW statute unconstitutional, we must now consider whether the invalid provision

in the statute is severable from the remaining provisions absent the invalid one.

5

We do not pass judgment on whether a less restrictive firearm zone regulation may

satisfy court scrutiny if it were carefully crafted to serve public interests while at the same

time upholding the constitutional right to bear arms in self-defense.

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Resolving this issue involves a question of statutory construction, which first

requires ascertaining and giving effect to the intent of the legislature by looking at

either the statute’s own specific severability provision, if one exists, or the Statute

on Statutes’ general severability provision (5 ILCS 70/1.31 (West 2012)). In re

Jordan G., 2015 IL 116834, ¶ 17.

¶ 59 Because the UUW statute at issue does not contain its own specific severability

provision, pursuant to the Statute on Statutes (5 ILCS 70/1.31 (West 2012)), we

must determine whether the invalid portion and the remaining portions of the

statute are essentially and inseparably connected in substance, such that the General

Assembly would not have passed the valid portions of the statute absent the invalid

portion. Mosley, 2015 IL 115872, ¶ 30. The unconstitutional portion of a statute

may be severed “if what remains is complete in and of itself, and is capable of being

executed wholly independently of the severed portion.” Id. We have the obligation

of upholding the constitutionality of the remainder of the statute if reasonably

possible. People v. Sanders, 182 Ill. 2d 524, 534 (1998).

¶ 60 As explained earlier, to convict a defendant of the Class 3 form of section

24-1(a)(4), (c)(1.5) of the UUW statute, the State must prove beyond a reasonable

doubt the elements set forth in section 24-1(a)(4) and one of the several specific

location factors in section 24-1(c)(1.5). 720 ILCS 5/24-1(a)(4), (c)(1.5) (West

2012). Possession of a firearm within 1000 feet of a public park is one of several

specific locations that can operate in conjunction with the offense of section

24-1(a)(4) to comprise the substantive Class 3 form of the offense. Id. Other

offenses in section 24-1(c)(1.5) include, “on any public way within 1,000 feet of

the real property comprising any school, public park, courthouse, public

transportation facility, or residential property owned, operated, or managed by a

public housing agency or leased by a public housing agency as part of a scattered

site or mixed-income development.” Id. § 24-1(c)(1.5).

¶ 61 We find that the severability question in this case is similar to the issue in

Mosley and Jordan G. In both cases, this court severed the unconstitutional

provision, section 24-1.6(a)(3)(A), from the AUUW statute, finding that the

remainder of the statute could be executed without the invalid provision because

the provision operated only to criminalize possession of a loaded, uncased firearm

in public. Mosley, 2015 IL 115872, ¶ 31; Jordan G., 2015 IL 116834, ¶ 19. In doing

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so, we held that the other provisions in the AUUW statute of not possessing a valid

Firearm Owner’s Identification card or being under the age of 21 could “stand

independently without the inclusion of subsection factor (a)(3)(A)” because they

criminalize other firearm violations. Mosley, 2015 IL 115872, ¶ 31; Jordan G.,

2015 IL 116834, ¶ 19.

¶ 62 The purpose of the UUW statute, like that of the AUUW statute, is to protect the

police and public from dangerous weapons. Mosley, 2015 IL 115872, ¶ 31.

Subsection (c)(1.5) continues to accomplish that aim with and without inclusion of

the offense of possession of a firearm within 1000 feet of a public park. Although

section 24-1(c)(1.5) is not drafted as clearly as the factors in the AUUW statute, our

finding is supported by the fact that some of the other areas protected with

1000-foot restrictions under section 24-1(c)(1.5) were separately enacted. See, e.g.,

Pub. Act 86-465 (eff. Jan. 1, 1990) (adding carriage ban in public housing to

existing ban on carriage in schools); Pub. Act 87-930 (eff. Jan. 1, 1993) (adding

carriage ban in public parks and creating carriage ban within 1000 feet of schools,

public parks, and public housing); Pub. Act 88-156 (eff. July 28, 1993) (adding

carriage ban within 1000 feet of courthouses); Pub. Act 96-41 (eff. Jan. 1, 2010)

(adding carriage ban within 1000 feet of public transportation facility). As such, the

history is indicative that the legislature intended for each separate location to be

enforced wholly independently of the ban on carriage within 1000 feet of a public

park. Removing this single location offense does not undermine the completeness

of the remaining locations in section 24-1(c)(1.5). The remaining specific locations

are capable of being executed without the offense of possessing a firearm within

1000 feet of a public park. We, therefore, find the unconstitutional portion of the

statute at issue severable from the remaining portions of the statute.

¶ 63 Reinstatement of Nol-Prossed Charges

¶ 64 Finally, the State requests that if this court vacates defendant’s conviction, we

should revisit our recent decision in People v. Shinaul, 2017 IL 120162, in order to

reinstate the charges it agreed to nol-pros as part of defendant’s negotiated plea

agreement. In Shinaul, we held that where the statute of limitations has run, it acts

as an “absolute bar” on reinstating such charges following a defendant’s successful

motion to vacate a guilty plea. Id. ¶ 18. The State concedes that in light of Shinaul,

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the nol-prossed charges may not be reinstated because the three-year statute of

limitations has run. We decline the State’s invitation to revisit Shinaul.

¶ 65 CONCLUSION

¶ 66 For the reasons set forth above, we affirm the circuit court’s judgment vacating

defendant’s Class 3 felony conviction of UUW in violation of section 24-1(a)(4),

(c)(1.5) within 1000 feet of a public park, which we find to be unconstitutional. We

vacate the circuit court’s judgment to the extent that it declared portions of section

24-1(a)(4), (c)(1.5) of the UUW statute not at issue in this case unconstitutional.

¶ 67 Circuit court judgment affirmed in part and vacated in part.

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