A very interesting Second Amendment case has developed in the Illinois state court system. The case challenges the requirement to qualify for, pay for, and have in possession, an Illinois Firearm Owner Identification card (FOID), to legally possess a firearm in the home for the purposes of self defense. The case is very clear. The Illinois court ruled the requirement to have an FOID was unconstitutional.
From illinoiscarry.com:
This is a case in my own circuit court that we have been monitoring for the past year. The court ruled the FOID Act unconstitutional in regards to the licensing and taxing requirement to be in possession of a firearm or ammunition in your own home. The IL Attorney General has appealed the case to the IL Supreme Court.
Cliff notes: Lady with a clean record, in possession of a single shot, bolt action rifle .22 in the home for personal protection. No FOID but otherwise eligible for a FOID. Judge ruled requiring a license and charging a fee/tax to exercise a Constitutional right in the home unconstitutional.
We were in contact with the attorney for this case and discovered he was retiring and will not be representing Ms. Brown at the IL Supreme Court level. We have sought legal representation for Ms. Brown and believe the case will be in good hands. More news to follow!
The first decision on the case made numerous findings. Here is part of the wording on requiring a person to obtain a permit and pay for the permit to legally exercise her rights under the Second Amendment. The case was decided at the district court level on 14 February, 2018. From Illinois vs Brown:
10. In this case the facts show the defendant possessed a gun, in her house, for the purpose of self-defense without a FOID card. To require the defendant to fill out a form, provide a picture ID and pay a $10 fee to obtain a FOID card before she can exercise her constitutional right to self-defense with a firearm is a violation of the Second Amendment to the United States Constitution as applied to the states and a violation of Article I, Section 22, of the Constitution of the State of Illinois, as applied to this case only.
11. Based upon the forgoing, the Court finds 430 ILCS 65/2(a)(1) unconstitutional as applied to this case.
There were several motions filed after the decision in February of 2018. The Court addressed those concerns and made additional findings on 16 October, 2018, in their Order denying the motion to reconsider the finding of unconstitutionality.
The court found the original ruling was correct, it found the requirement for the FOID card was impossible to comply with under the law. The law required the FOID card to be constantly on the person of the owner, 24 hours a day. If the person left the home, the card had to be both in the home and on the person. In addition, any person in the house with firearms in the home had to have an FOID card, whether they owned any firearms or not.
In the October ruling, the court found the FOID was unconstitutional under the Second Amendment and unconstitutional because it was impossible to comply with.
The State of Illinois appealed the case to the Illinois Supreme Court on 11 November, 2018.
The Illinois Supreme Court granted an extension to prepare a brief on 23 January, 2019.
Another extension was requested on 12 March, 2019. That was the final extension. The brief is due on 26 April, 2019. From illinoiscourts.gov:
124100 People State of Illinois, Appellant, v. Vivian Brown, Appellee. Appeal, Circuit Court (White).
Motion by Appellant for an extension of time for filing appellant’s brief to and including April 26, 2019. Allowed. Final extension.
Order entered by Chief Justice Karmeier
The implications of this case are large. If the Illinois Supreme Court upholds the District Court decision, the only appeal would be to the Supreme Court of the United States, which is not required to grant certiorari (accept the case).
A great deal of Illinois gun law is based on the FOID card. If requiring a picture ID, paying a fee, and applying for the FOID are infringements on the Second Amendment, how can the same requirements be constitutional, while defending yourself outside the home?
The District Court specifically quoted the “Shall not be infringed” clause of the Second Amendment.
State Supreme Courts tend to act with greater speed than the Federal court system.
We may see the Illinois State Supreme Court rule on this case in 2019. The Illinois State Supreme Court has been generally consistent in upholding Second Amendment rights under the Heller and McDonald decisions.
To reiterate, the only legal appeal from the State Supreme Court is directly to the United States Supreme Court.
Will Illinois gun owners be successful in getting the Firearm Owners ID (FOID) card requirement ruled unconstitutional? Share your answer in the comment section.
©2018 by Dean Weingarten
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Good thing that this never goes to the California 9th circuit.
Depends on the lawyers and the Judges.
This has implications for nearly every state. We will want to be watching this one closely. In fact, it’s my understanding that NY requires separate permits for each handgun owned, and for differing purposes (e.g. home and hunting). If this becomes the law it will really mess up that arrangement. ( NYers, if I’m wrong please set the record straight.)
Not exactly.
(NYS) counties (and specific cities) issue several different licence types- Full Carry, Restricted Carry, Residence, Hiking, Carry Guard, etc….
But the NYS Penal Law requires each license to list each pistol/revolver authorized by that particular license by make/model/serial # . Furthermore, NYC for example limits 8 pistols/revolvers on their Full Carry license, I think 2 on their Restricted Carry, but an unlimited number on their Residence license.
It’s about time for the citizens of Illinois to get some relief regarding the state’s interpretation of “gun control”. Illinois, or more specifically, Chicago and Cook County, have only made it more difficult for law abiding citizens to purchase, let alone own firearms. Their gun control laws have no effect on the criminal element, whose sole purpose is to prey on the weak.
What I am wondering is this: Since now the District courts have ruled the FOID card unconstitutional, while pending appeal, is the FOID act still enforceable. I have seen nothing that says the state has requested and gotten a stay of the District courts decision.
I hope it’s ruled unconstitutional. A right you have to pay for is not a right. Cook County Sheriff Tom Dart already proposed (after the Aurora shooting) to raise the price of the FOID card to pay for special units to seize the firearms of revoked FOID holders.
Some rights must be “more equal” than others. Can you imagine the screams if instead of a FOID fee, the discussion were around a poll tax, especially one set high enough to act as a disincentive to vote. I know lawyers make their living explaining and convincing that the blue of the sky that you think you see is really a shade of green, but the poll tax analogy should clearly play a part in the appeal arguments.
When I applied for my FOID Card, I was under the impression that that FOID Card allowed an individual to purchase and own a firearm; however, if the firearm was to be needed and used, it was only allowed to be used “in the home” and NOT allowed to be used for protection of property or self-protection “outside the home”.
j@r
FYI, On 4/2/20 the Illinois supreme court sent the case back to the appellate court to change their findings (?), based on another case they said that the appellate court did not need to find the law unconstitutional since they found another way to get the case dismissed. Sorry, not a lawyer.