Illinois County Judge Finds FOID Unconstitutional

By Mike Keleher

On Tuesday, April 27, 2021, a county judge in White County reviewed a Firearms Owners Identification (FOID) violation case for the second time and made statements to the effect the Illinois FOID requirement was unconstitutional in the case of The People of the State of Illinois vs. Vivian K Brown.

Details of the case, which started in 2017, state a woman was charged after police found a firearm in her home and Brown had no valid FOID which would allow legal possession.

The Illinois State Rifle Association Bulletin this week included additional info on Ms Brown and her case. They stated she is a disabled female who obtained a single shot .22 rifle and kept it near her bed as she was afraid of attack by her estranged husband. An allegedly spurious call was made to police of shots fired at the Brown residence- in an effort to get Ms Brown in trouble. Police responded, found no evidence of shots fired, but did find the rifle inside the house. Ms Brown was arrested for possession of the weapon without a FOID card. She was an otherwise law abiding citizen and would not have been precluded from owning a gun if she had the state FOID.

Ms Brown was appointed a Public Defender and the case dismissed at the county level. Being a Constitutional challenge, the case was referred directly to the state Supreme Court, skipping the appellate court. The Supreme Court reviewed the process and did not make a decision on the constitutionality of the FOID card. Rather, they sent the case back down to the county court where it was dismissed again this week.

Judge T. Scott Webb said the Illinois FOID provision was unconstitutional in this case. The implication being the federal Second Amendment right to keep and bear arms trumps the state requirement to obtain a state issued FOID card before a lawful citizen can possess a firearm.

Judge Webb left some pointed comments on the record about the case and the FOID requirement which he said treats citizens as having no Second Amendment rights in Illinois until they apply for and receive an FOID card.

“A citizen in the State of Illinois is not born with a Second Amendment right. Nor does that right insure when a citizen turns 18 or 21 years of age,”

“It is a façade. They only gain that right if they pay a $10 fee, complete the proper application, and submit a photograph. If the right to bear arms and self-defense are truly core rights, there should be no burden on the citizenry to enjoy those rights, especially within the confines and privacy of their own homes.”

“Accordingly, if a person does something themselves from being able to exercise being able to exercise that right, like being convicted of a felony or demonstrating mental illness, then and only then may the right be stripped from them.”

This is quite an amazing finding by a county judge, and unfortunately only applies to this individual case. If the State’s Attorneys Office wants to take the matter up the chain to the state Supreme Court again, it risks a more sweeping decision about the questionable constitutionality of the FOID card. The ISRA says they and the Second Amendment Foundation will support putting the FOID card in front of the state supreme court, and even taking it to the U.S. Supreme Court.

This all comes at at time when Springfield legislators keep introducing new stronger and more onerous FOID bills in the last two sessions to bolster the much maligned purported crime fighting ID card.

Good for you Judge Scott for stating your honest opinion of the law in your court room.