Supreme Court Summaries

Opinion filed September 12, 2013Modified upon denial of rehearing December 19, 2013.



People v. Aguilar, 2013 IL 112116


Appellate citation: 408 Ill. App. 3d 136.


      JUSTICE THOMAS delivered the judgment of the court, with opinion.

      Justices Freeman, Kilbride, Karmeier, and Burke concurred in the judgment and opinion.

      Chief Justice Garman dissented upon denial of rehearing, with opinion.

      Justice Theis dissented upon denial of rehearing, with opinion.


      This defendant was convicted in a Cook County bench trial of aggravated unlawful use of a weapon and was sentenced to 24 months of probation. Chicago police officers gave testimony that, in 2008, a group of male teenagers was screaming, making gestures, and throwing bottles at passing vehicles in the vicinity of 4217 West 25th Place in Chicago. The group retired to the backyard of that address, which was not the place of this defendant’s residence. Previously, while still in the street, he had been observed holding the right side of his waist area. In the backyard, defendant was heard yelling an expletive and was then seen with a gun in his right hand before he dropped it to the ground. The gun, which was recovered, had its serial number scratched off and was loaded with three live rounds of ammunition.

      The defendant testified that police searched the yard, showed him a gun and accused him of dropping it. He denied having a gun that evening and dropping it to the ground. A friend of his gave testimony corroborating this version of events, but none of the defense testimony was of any benefit to the defendant. In addition to his conviction for aggravated unlawful use of a weapon, he was also found guilty of unlawful possession of a firearm, but no sentence was imposed on the latter offense. The appellate court affirmed.

      There have been numerous developments concerning second amendment firearm rights since these events. This defendant was charged and convicted of carrying a firearm which was “uncased, loaded and immediately accessible” (720 ILCS 5/24-1.6(a)(1), (a)(3)(A), (b) (West 2008)). Although decisions of the appellate court in Illinois have upheld the constitutionality of this statute, on the federal level, the Seventh Circuit Court of Appeals held in 2012 that the statute under which the defendant was sentenced is effectively “a flat-ban on carrying ready-to-use guns outside the home” and, as such, violates the second amendment, which protects not only the right to keep but also the right to “bear” arms.

      This federal decision (Moore v. Madigan, 702 F.3d 933 (2012)) held that Illinois’ statute on aggravated unlawful use of a weapon is unconstitutional on its face. The State of Illinois did not appeal this decision, and the Illinois Supreme Court agreed in this opinion that this analysis is correct. However, the Illinois court said that it is in no way saying that the right to self-defense outside the home is unlimited or is not subject to regulation, but only that the comprehensive ban at issue here, which categorically prohibits the possession and use of an operable firearm for self-defense outside the home, is unconstitutional. The conviction for which the defendant was sentenced must be reversed.

      Aguilar was also convicted for the offense of unlawful possession of a firearm, but was not sentenced for it. Statute prohibits possession of a firearm of a size which may be concealed upon the person by one who is under 18 years of age. The defendant was 17. Despite historical arguments that 15-year-olds served in the early militias contemplated by the second amendment, the Illinois Supreme Court reiterated that the right to bear arms is not unlimited. Therefore, statutes may incorporate restrictions based on age. “Possession of handguns by minors is conduct that falls outside the scope of the second amendment’s protection,” said the court.

      Although the conviction for aggravated unlawful use of a weapon must be reversed, on remand, the circuit court should impose sentence for unlawful possession of a firearm.