Well court watchers, this is yet another strange one in Springfield. Attorneys have been back in front of the Illinois Supreme Court in March of this year, in the same FOID Constitutionality case the judges declined to address last year. The Supremes have not been too welcoming to FOID challenges, but this case circled back and additional arguments for and against the FOID card law were heard in March of 2022.
Back to our regularly scheduled story: In 2017, down state resident Vivian Brown, got a knock on the door from local police. An anonymous call to 911 said there were shots fired at that address. Ms Brown let the police in, believing her estranged husband called in the phony report, and when police went through the house there was no evidence of gunshots, but found a .22 rifle. Ms Brown was arrested for possession of the rifle because she did not possess an Illinois Firearms Owners Identification Card, which as we all know allows possession and purchase of firearms and ammunition within the state.
The case was dismissed in county court, and then was appealed up to the state Supreme Court on constitutional grounds. The Supreme Court declined to hear any challenge about the Constitutionality of Illinois FOID requirements and sent the case back down to the original trial court with the admonition “Dude. You don’t have to go all Constitutional on it. Get rid of it on other grounds”… (I may have paraphrased a bit on the translation.) So, the case goes back down to trial court-where it was dismissed again. Yes, that is two times dismissed … not double jeopardy since there was no conviction.
The trial judge back in White County, the Honorable Judge T. Scott Webb, said the Illinois FOID provision was unconstitutional in this case, and left some pointed comments on the record about 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.” He also said “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.” I like the sound of that Judge!
Only four states have an additional law like the Illinois FOID requirement to purchase or possess firearms above and beyond federal guarantees to keep and bear arms. The Illinois FOID process is very publicly maligned and mismanaged program. Horror stories abound. The program has constant backlogs, has lost millions of dollars mysteriously, and rarely meets statutory mandates for processing of the cards-despite the law requiring them to meet timeliness requirements.
How does the FOID stand up in the court system if other laws already cover possession and purchase of firearms? Courts have allowed states to put additional limits or limited burdens on Constitutional rights, such as with the right to free speech. Even though the First Amendment guarantees free speech, states can still make it illegal to yell fire in a crowded theater for safety reasons. Under the Second Amendment states have been allowed to limit citizens access to purchase/possess guns and ammunition by age, types of weapons or ammunition (Yes, I am still smarting after Gov Arnold Schwarzenegger outlawed .50 Barretts in California for “safety reasons” despite the fact they had never been used in a crime.) Even magazine capacity limits have been upheld when put in place by states and even cities like Chicago.
So how did this twice dismissed, and once appealed case get back to the state Supreme Court for arguments this second time? Ms Brown’s attorneys asked the court to review its own order directing the case to go back to the trial court without touching the Constitutionality question. Is this FOID card unnecessarily limiting law abiding citizens from their Second Amendment rights?
During oral arguments back in front of the Supremes, the state side argued the FOID law was a “minimal burden” which allows the state to determine if someone is a law-abiding citizen, and since Ms Brown never applied for an FOID she should not get to claim the law is burdensome in this case. The Appellate Defense seem to go straight at it, and said the law is a significant burden and makes criminal penalties for people who don’t comply even if they could own a gun via state and federal laws. Anyone in Ms. Brown’s house could be charged with no valid FOID since there was a gun in her house! This was coupled with the well-known Illinois “Only we know what is best for you” argument, which claims our law is the best law even though state and federal laws already exist to prevent convicted criminals and the mentally ill from buying guns and ammunition-why must Illinois inflict their “really super good law” to put one more step in place to limit firearm ownership? They did the same thing in the last year, setting up a state level law and panel to review firearms sellers-federally licensed firearms sellers. The stated reason? “Um, uh, well our new good law is a really good law, and um, well, we are really serious.”
What will the Supreme Court do with Ms Brown’s FOID case? Well, first consider every Supreme Court in the U.S. tries very hard to not have to declare things completely unconstitutional. They avoid ripping up long established laws like the 1968 FOID requirement. Why that way lies anarchy! Could the state have been wrong all this time and no one challenged it?
In the original Brown case, they sent it back to trial court on procedural grounds-and did not have to look at whether the whole thing was unconstitutional. They don’t want to touch it if they don’t have to.
Second, one of the justices was reported to have made comments during the March recent oral arguments asking how Ms. Brown’s defense attorney could bring this back in front of the Supreme Court after his client already “won” when the trial court dismissed the whole thing. This may be a tip off how the Supreme Court, who is now preparing their response, might once again decline to rule whether the FOID Card law is just overly burdensome, duplicitous and illegal.
One of the other funny highlights of the case, is the City of Chicago and Cook County, filed an amicus brief (a non-binding third party position paper filed by a “friend of the court”) in support of the FOID law. They claim it is good law and helps them combat gun violence…yes, they delivered that one with a straight face too. Consider, the City of Chicago-shooting gallery on the banks of Lake Michigan, in 2021 alone, had 4543 human beings shot and 852 homicides within the city limits. Imagine their position if the FOID card was not available to their gun crime efforts…why people might begin to shoot other people all willy-nilly!
COMPLETE AND UTTER ILLINOIS NONSENSE SIDEBAR: Hey, it’s Illinois. How weird? Well kids, as an aside, we have the Chief Justice of the Illinois Supreme Court, (I respect her career and position, like all judges, and don’t know anything else about her.) Now her husband, if you don’t recall, is a former powerful Chicago Alderman. Yes, the same Alderman who was under a 14 count Federal indictment for Corruption and Racketeering at the time his wife was named the head of the Illinois State Supreme Court. What other state could pull that one off with a straight face? Imagine ordinary dinner talk at home…”What did you do today honey?” … “Objection! Hearsay! Hearsay!”
Is this at all related to GSL’s suit challenging the FOID? How is that one going?