NOTICE

This Order was filed under FILED NO. 4-22-0958 September 14, 2023 Supreme Court Rule 23 and is Carla Bender not precedent except in the IN THE APPELLATE COURT 4th District Appellate limited circumstances allowed Court, IL under Rule 23(e)(1). OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Boone County RAPHAEL L. SMITH, ) No. 20CF47 Defendant-Appellant. ) ) Honorable ) C. Robert Tobin III, ) Judge Presiding.

PRESIDING JUSTICE DeARMOND delivered the judgment of the court. Justice Doherty concurred in the judgment. Justice Turner specially concurred.

ORDER ¶1 Held: The appellate court affirmed, finding the circuit court did not err in dismissing defendant’s postconviction petition.

¶2 In January 2022, defendant, Raphael L. Smith, pleaded guilty to aggravated

unlawful use of a weapon (AUUW). Defendant did not file a postplea motion or a notice of

appeal. In September 2022, defendant filed a pro se postconviction petition, which the circuit

court dismissed for failing to state the gist of a constitutional claim. Defendant appeals, arguing

the AUUW statute under which he was convicted is unconstitutional pursuant to the United

States Supreme Court’s decision in New York State Rifle & Pistol Ass’n, Inc. v. Bruen,

(2022). We affirm the circuit court’s judgment.

¶3 I. BACKGROUND ¶4 On March 5, 2020, the State charged defendant with AUUW and possession of a

firearm without a requisite firearm owner’s identification (FOID) card. See 720 ILCS

5/24-1.6(a)(1), (a)(3)(C) (West 2020); 430 ILCS 65/2(a)(1) (West 2020).

¶5 On January 27, 2022, defendant entered a negotiated guilty plea to AUUW in

exchange for a sentence of four years’ imprisonment, and the State dismissed the second count.

According to the plea’s factual basis, officers performed a traffic stop of a vehicle in which

defendant was a passenger. The officers’ canine unit alerted to the odor of narcotics, and the

officers searched the vehicle, where they discovered a handgun in a sock resting in the

“passenger side trunk liner.” The vehicle’s driver, who said she was defendant’s girlfriend, told

the officers that “she had seen [defendant] with the gun inside the sock at his mom’s house,” and

“[defendant] did not have permission to bring the gun inside the vehicle.” Defendant was

previously convicted of AUUW in 2007, and he did not have a valid FOID card. The circuit

court accepted defendant’s plea as knowing and voluntary and sentenced him to four years’

imprisonment. Defendant did not file a postplea motion or notice of appeal.

¶6 On September 26, 2022, defendant filed a pro se postconviction petition, arguing

he was “coerced by force” to plead guilty, the officers improperly extended the traffic stop, and

the officers’ search of the vehicle violated defendant’s fourth amendment rights (see U.S. Const.,

amend. IV). The circuit court summarily dismissed the petition on October 5, 2022, finding it

failed to state the gist of a constitutional violation.

¶7 This appeal followed.

¶8 II. ANALYSIS

¶9 As a preliminary matter, we note defendant has abandoned his postconviction

petition’s allegations on appeal. While this generally results in forfeiture, “a challenge to the

-2- constitutionality of a statute may be raised at any time.” (Internal quotation marks omitted.) In re

M.I.,

,

. Thus, defendant’s argument is not forfeited.

¶ 10 Defendant argues his two AUUW convictions—one in this case and one in a 2007

case—should be vacated because the FOID card requirement found in subsection 24-1.6(a)(3)(C)

of the Criminal Code of 2012 (Code) is facially unconstitutional. Our review pertains only to

defendant’s 2022 conviction. “A statute will be deemed facially unconstitutional only if there is

no set of circumstances under which the statute would be valid.” People v. Bochenek,

,

. “Statutes are presumed constitutional, and the party challenging

the constitutionality of a statute has the burden of clearly establishing its invalidity. A court must

construe a statute so as to uphold its constitutionality if reasonably possible.” People v. Gray,

,

. We review de novo whether a statute is facially

unconstitutional. Bochenek,

.

¶ 11 Defendant contends his AUUW convictions should be vacated because the Code’s

FOID card requirement is inconsistent with our nation’s historical tradition of firearm regulation.

Defendant relies on the test articulated by the United States Supreme Court in Bruen, which held

a government, when regulating conduct presumptively covered by the second amendment (U.S.

Const., amend. II), “must demonstrate that the regulation is consistent with this Nation’s

historical tradition of firearm regulation.” Bruen,

. In Bruen, the Court struck

down a New York firearm licensing regime that required individuals to demonstrate “some

additional special need” to carry a handgun publicly for self-defense, rather than “issu[ing]

licenses to carry based on objective criteria.” Bruen,

. Defendant insists the

Code’s FOID card requirement is unconstitutional, pursuant to Bruen, because it diverges from

this country’s history of firearm regulation.

-3- ¶ 12 A. Bruen Did Not Find Shall-Issue Licensing Regimes Unconstitutional

¶ 13 Section 24-1.6(a)(1), (a)(3)(C) of the Code, which contains the FOID card

requirement, provides:

“(a) A person commits the offense of aggravated unlawful use of a weapon when

he or she knowingly: (1) Carries on or about his or her person or in any vehicle or

concealed on or about his or her person except when on his or her land or in his or

her abode, legal dwelling, or fixed place of business, *** any pistol, revolver, stun

gun or taser or other firearm; [and] *** (3) One of the following factors is

present: *** (C) the person possessing the firearm has not been issued a currently

valid Firearm Owner’s Identification Card.” 720 ILCS 5/24-1.6(a)(1), (a)(3)(C)

(West 2020).

To obtain a FOID card, an individual must submit an application and evidence showing,

inter alia, they are not a convicted felon, they have not been convicted of domestic battery or a

substantially similar offense, they have not been convicted of battery or a substantially similar

offense in the last five years, they are not addicted to narcotics, and they have not been a patient

in a mental health facility in the last five years. See 430 ILCS 65/4(a)(1), (a)(2) (West 2020).

“[E]very applicant found qualified *** shall be entitled to a [FOID] Card,” and all applications

shall be approved or denied “within 30 days from the date they are received.” 430 ILCS 65/5(a)

(West 2020).

¶ 14 The FOID card application process constitutes a shall-issue licensing regime,

which Bruen did not find unconstitutional. See 720 ILCS 5/24-1.6(a)(1), (a)(3)(C) (West 2020);

430 ILCS 65/5(a) (West 2020); Bruen,

n.9. The Court pointedly differentiated

between may-issue licensing regimes, where “authorities have discretion to deny concealed-carry

-4- licenses even when the applicant satisfies the statutory criteria,” and shall-issue licensing

regimes, where “authorities must issue concealed-carry licenses whenever applicants satisfy

certain threshold requirements, without granting licensing officials discretion to deny licenses

based on a perceived lack of need or suitability.” Bruen,

. The Court held

the New York licensing regime in question was an unconstitutional may-issue regime, but it

cautioned its holding should not be misconstrued as finding existing shall-issue regimes

unconstitutional:

“To be clear, nothing in our analysis should be interpreted to suggest the

unconstitutionality of the 43 States’ ‘shall-issue’ licensing regimes, under which

‘a general desire for self-defense is sufficient to obtain a [permit].’ [Citation.]

Because these licensing regimes do not require applicants to show an atypical

need for armed self-defense, they do not necessarily prevent ‘law-abiding,

responsible citizens’ from exercising their Second Amendment right to public

carry. [Citation.] Rather, it appears that these shall-issue regimes, which often

require applicants to undergo a background check or pass a firearms safety

course, are designed to ensure only that those bearing arms in the jurisdiction are,

in fact, ‘law-abiding, responsible citizens.’ [Citation.]” Bruen,

n.9.

¶ 15 Bruen’s concurrences reiterated the decision’s boundaries. Justice Kavanaugh’s

concurrence, which Chief Justice Roberts joined, emphasized, “[T]he Court’s decision does not

prohibit States from imposing licensing requirements for carrying a handgun for self-defense. In

particular, the Court’s decision does not affect the existing licensing regimes—known as

‘shall-issue’ regimes—that are employed in 43 States.” Bruen,

(Kavanaugh,

-5- J., concurring, joined by Roberts, C.J.). Justice Alito’s concurrence asserted, “Our holding

decides nothing about *** the requirements that must be met to buy a gun. *** Nor have we

disturbed anything we said in Heller or [McDonald] about restrictions that may be imposed on

the possession or carrying of guns.” Bruen,

(Alito, J., concurring). Justice

Kavanaugh drove the point home further, declaring, “Going forward, therefore, the 43 States that

employ objective shall-issue licensing regimes for carrying handguns for self-defense may

continue to do so.” Bruen,

(Kavanaugh, J., concurring, joined by Roberts,

C.J.).

¶ 16 Unlike the licensing regime at issue in Bruen, the Firearm Owners Identification

Card Act (FOID Card Act) dictates an application must be approved when the applicant satisfies

the objective criteria laid out in the act. See 430 ILCS 65/5(a) (West 2020). Officials are not

empowered to deny licenses “based on a perceived lack of need or suitability.” Bruen,

. While Bruen did not rule out the possibility that successful challenges may be brought

against shall-issue regimes “where, for example, lengthy wait times in processing license

applications or exorbitant fees deny ordinary citizens their right to public carry” (Bruen,

n.9), this case does not present a challenge to those aspects of the FOID Card Act.

Under the FOID Card Act, applications are to be processed within 30 days of receipt, and an

applicant need only pay for their criminal history record check (430 ILCS 65/4(a-25) (West

2020)) and “a $10 fee and applicable processing fees,” which “shall be limited to charges by the

State Treasurer for using the electronic online payment system.” 430 ILCS 65/5(a) (West 2020).

Here, respondent does not argue the FOID Card Act’s fees or processing period render it invalid

for infringing on his second amendment rights. Defendant briefly mentions these aspects of the

statute but fails to analyze their validity. Inadequate development of the argument forfeits it for

-6- purposes of appellate review. See City of East Peoria v. Melton,

.

Consequently, we express no opinion regarding the validity of the FOID Card Act’s fees or

processing period. We simply find the FOID card application process and the AUUW statute’s

FOID card requirement are distinguishable from the may-issue licensing regime challenged in

Bruen.

¶ 17 B. The Historical Analysis Approach Has Already Found Favor With Illinois

Courts

¶ 18 Even if our FOID card requirement was not distinguishable from the New York

licensing regime in Bruen, Illinois courts have consistently found the requirement constitutional

after performing historical analyses.

¶ 19 In articulating the test courts should apply when determining a firearm

regulation’s constitutionality, Bruen rejected the two-step analysis developed by lower courts

after District of Columbia v. Heller,

(2008), and McDonald v. Chicago,

(2010), which “combine[d] history with means-end scrutiny.” Bruen,

. The

Court held the two-step approach was “one step too many,” as “Heller and McDonald do not

support applying means-end scrutiny in the Second Amendment context.” Bruen,

. Instead, the Court specified Heller “demands a test rooted in the Second Amendment’s

text, as informed by history,” and it found “the government must affirmatively prove that its

firearms regulation is part of the historical tradition that delimits the outer bounds of the right to

keep and bear arms.” Bruen,

.

¶ 20 Since Heller and McDonald, Illinois courts have used historical analyses to find

the AUUW statute’s FOID card requirement is a constitutional regulation. Applying both a strict

scrutiny analysis and the “text, history, and tradition” approach, the First District determined

-7- subsection (a)(3)(C) “does not violate the right to bear arms guaranteed under the second

amendment.” People v. Taylor,

,

. In People v.

Mosley,

,

(favorably citing Taylor,

), our supreme court found “the FOID card requirement of subsection (a)(3)(C)

is consistent with [the Illinois Supreme Court’s] recognition that the second amendment right to

possess firearms is still subject to meaningful regulation.” (Internal quotation marks omitted.)

“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.” People v.

Wiggins,

,

.

¶ 21 Defendant acknowledges these cases and their holdings, but he argues they are

irrelevant because they preceded Bruen. However, as previously discussed, Bruen repeatedly

distinguished between may-issue and shall-issue licensing regimes, and it explicitly excepted

shall-issue regimes from its holding. See Bruen,

, 2138 n.9, 2161

(Kavanaugh, J., concurring, joined by Roberts, C.J.). While defendant urges us to dismiss this

distinguishing language as mere dicta, we will not ignore Bruen’s unambiguous efforts to

exclude shall-issue regimes from its decision.

¶ 22 Bruen requires courts to determine whether a firearm regulation is part of our

nation’s historical tradition. Bruen,

. Illinois courts have repeatedly

performed historical analyses of subsection (a)(3)(C) and found it constitutional. See Mosley,

; Wiggins,

; Taylor,

. Additionally, Bruen repeatedly distinguished between may-issue and

shall-issue licensing regimes and found shall-issue licensing regimes may continue. See Bruen,

-8-

n.9, 2161-62 (Kavanaugh, J., concurring, joined by Roberts, C.J.).

Accordingly, we affirm the circuit court’s dismissal of his postconviction petition.

¶ 23 III. CONCLUSION

¶ 24 For the foregoing reasons, we affirm the circuit court’s judgment.

¶ 25 Affirmed.

¶ 26 JUSTICE TURNER, specially concurring:

¶ 27 I concur in the majority order affirming the circuit court’s judgment dismissing

defendant’s postconviction petition. However, my concurrence is based only on the analysis set

forth in paragraphs 1 through 16 of the majority order (supra ¶¶ 1-16), and I take no part in the

majority’s analysis in paragraphs 17 through 22 (supra ¶¶ 17-22).

-9-