Opinion

Arizona -(Ammoland.com)- 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 a 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 regard 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. The 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 foregoing, 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 a 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 [as well as states like New Jersey] 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.





About Dean Weingarten:

Dean Weingarten has been a peace officer, a military officer, was on the University of Wisconsin Pistol Team for four years, and was first certified to teach firearms safety in 1973. He taught the Arizona concealed carry course for fifteen years until the goal of constitutional carry was attained. He has degrees in meteorology and mining engineering, and recently retired from the Department of Defense after a 30 year career in Army Research, Development, Testing, and Evaluation.