Saturday, March 30, 2019

Illinois FOID Second Amendment Case Appealed to Illinois Supreme Court




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 Illinolis 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.


©2019 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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4 comments:

Paul Weber said...

If being a citizen isn't sufficient to exercise a right, then it isn't a right.

Paul Weber said...

In Illinois you have to get a Firearm Owner ID card in order to exercise your 2nd Amendment right, but they say getting an ID card to vote is too much trouble.

ExpatNJ said...

"FOID card be constantly on owner, 24hrs/day. If person left home, card had to be both in home and on person [at the same time? - ExpatNJ]. Any person with firearms in home had to have FOID card, whether they owned any firearms or not." [abridged]

The FOID 'rules' (and, rules were MADE to be broken) above can NOT be logically complied-with. This has been the goal of ALL disarmists: issue contradictory directives, that, no matter what, will ensnare firearms owners, one way or another.

Besides violating the real laws of physics, such FOID diktat also violates the Right of freedom of association as guaranteed in the First Amendment.

The disarmists are NOT "crazy"; they know EXACTLY what they are trying do.
But, in the end, they will NOT succeed, and will fail.

Anonymous said...

One Supreme court ruling after another back up the second amendment, rights cross state lines. The constitution and the tenth amendment make it clear any thing covered by the US constitution can not be addressed by the states so how do we have individual state laws amending the second amendment? Shall not be infringed is an all encompassing phrase. It means the same to day as it did in 1787 when the second amendment was written. Federally guaranteed rights can not be taxed or licensed. individual states have no authority to place limits on any right.