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Southern Illinois judge rules FOID card unconstitutional

Tuesday, Apr 27, 2021 - Posted by Rich Miller

* ISRA press release…

White County Resident Judge T. Scott Webb has ruled Illinois’s FOID card law unconstitutional, paving the way for the Illinois Supreme Court to take up the issue, according to Richard Pearson, executive director of the Illinois State Rifle Association.

The case is The People of Illinois vs. Vivian Claudine Brown. In March of 2017, Brown was accused of possessing a firearm without a FOID card. In dismissing the charges against Brown, Judge Webb also ruled the FOID card unconstitutional.

In his ruling, Judge Webb stated, “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 that right, like being convicted of a felony or demonstrating mental illness, then and only then may the right be stripped from them.”

Pearson said he is hopeful for a positive outcome when the Illinois Supreme Court takes up this case.

“The rights afforded to us in the Constitution are rights guaranteed to every American,” Pearson said. “The right to bear arms should not be contingent on paying a fee. Right now, there is legislation pending in Springfield to make these fees even costlier. It is absolutely ridiculous that honest citizens should have to pay fees, fill out applications and wait on government to respond to their requests just to be able to exercise their rights. Illinois is one of only four states with the arcane FOID laws. We need to join the other 46 states that place a premium on our Constitution liberties.”

Another local trial judge legislating from the bench.

       

42 Comments
  1. - Hannibal Lecter - Tuesday, Apr 27, 21 @ 2:56 pm:

    Ironic that for years liberal judges were decried as the “activist judges”. I wonder how the legal conservatives feel about this type of activism from the right.


  2. - TheInvisibleMan - Tuesday, Apr 27, 21 @ 3:00 pm:

    If I recall correctly, this case came about due to a transfer of antique firearms after the death of a family member, and into her possession.

    She was notified of the laws, and after consulting with the ISRA *chose* to ignore them to make a case out of this, which was what eventually led to her being charged with the violation.

    Barring a reversal of precedence, it has been held many times by state and federal courts that states retain the right to regulate firearms for the purposes of public safety. The statements made by the judge seem to be ignoring that rather critical part of his job function.


  3. - The Fellow Edgar - Tuesday, Apr 27, 21 @ 3:00 pm:

    It took the Judiciary to get concealed carry. Perhaps this is what it will take to end this failed program.


  4. - Demoralized - Tuesday, Apr 27, 21 @ 3:02 pm:

    This fee argument is a load of malarkey. You have to pay fees sometimes to exercise your 1st Amendment rights. Do we throw out all of those as well? I’m sick of some of the “way out there” 2nd Amendment types holding out the 2nd Amendment as somehow more special than the other ones.


  5. - fs - Tuesday, Apr 27, 21 @ 3:02 pm:

    == Pearson said he is hopeful for a positive outcome when the Illinois Supreme Court takes up this case.==

    And I am hopeful that I just bought the winning Powerball ticket.

    There are arguments to be made as to the Constitutionality of certain gun laws, but a licensure requirement has been upheld numerous times. I doubt the Illinois Supreme Court rules otherwise this time.

    The more interesting, and possibly more impactful, case to watch in the New York case the United States Supreme Court just agreed to hear. That won’t result in a ruling that says licensure violates the 2nd amendment, but it could result in a ruling that limits the burden a State can place on a person to obtain a license.


  6. - Sterling - Tuesday, Apr 27, 21 @ 3:05 pm:

    “ It is absolutely ridiculous that honest citizens should have to pay fees, fill out applications and wait on government to respond to their requests just to be able to exercise their rights”

    So when do I get my free TV station?


  7. - @misterjayem - Tuesday, Apr 27, 21 @ 3:07 pm:

    “A citizen in the State of Illinois is not born with a First 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 tens of millions of dollars to purchase a chain of television stations and newspapers.”

    But somehow I get by.

    – MrJM


  8. - NuthinBurger - Tuesday, Apr 27, 21 @ 3:09 pm:

    * So when do I get my free TV station? *

    Buy an antenna, there are several free stations out there.


  9. - illinifan - Tuesday, Apr 27, 21 @ 3:09 pm:

    Next lawyers will challenge their licensing fees. This is just a ploy to collect money for the right to exercise free speech.


  10. - Chicago Cynic - Tuesday, Apr 27, 21 @ 3:11 pm:

    Too bad this argument is completely unsupported by case law. Rights enshrined in the Constitution and Bill of Rights are not unlimited, not even the 2nd amendment. Government has the right to pass reasonable restrictions as long as they are not determined by ideology or other similar factors. 2nd amendment extremists are completely oblivious, but that has been the law since the founding of our nation.


  11. - Fred - Tuesday, Apr 27, 21 @ 3:11 pm:

    Perhaps, he just interpreted “shall not be infringed” to mean exactly what it says.


  12. - Alex - Tuesday, Apr 27, 21 @ 3:12 pm:

    Unlike the plaintiff in the case, I’m not going to lose sleep over a $10 fee. But when the state cannot renew a card in four months, and the holder has done nothing to cause doubt of his fitness, I think the requirement should be suspended.


  13. - Bruce( no not him) - Tuesday, Apr 27, 21 @ 3:13 pm:

    I like this ruling, but I don’t think there is a chance in … that it will stand.


  14. - JB13 - Tuesday, Apr 27, 21 @ 3:14 pm:

    Psshhh. Why do we even allow Southern Illinois to have judges anymore? Can’t we just send all matters of real importance to those always highly qualified, definitely non-political jurists in Cook County?


  15. - Demoralized - Tuesday, Apr 27, 21 @ 3:19 pm:

    ==he just interpreted “shall not be infringed” to mean exactly what it says.==

    No Constitutional right is absolute. Not. One.


  16. - RNUG - Tuesday, Apr 27, 21 @ 3:20 pm:

    The fee argument cuts both ways. SCOTUS has ruled against a poll tax to vote. SCOTUS has also ruled against photo voter ID’s based on the possible fees charged.

    If there can be no fees associated with the basic right to vote, there should be no fees to exercise your 2A rights.

    Personally, while it is a State Law being challenged, I think it is in the wrong venue, but it needs to go through the State Court system first.

    I have no idea how this will turn out in the long run (and we won’t know for years), but if it gets decided in favor of the plaintiff, it will be ironic that Illinois was involved in two key 2A decisions.

    Full disclosure: I had held a FOID since 1975 and don’t consider the current fees / rules overly restrictive. Don’t think they do much good either since the enforcement seems to be hit and miss.


  17. - DuPage Saint - Tuesday, Apr 27, 21 @ 3:26 pm:

    I would think the 13th amendment is absolute


  18. - Precinct Captain - Tuesday, Apr 27, 21 @ 3:26 pm:

    RNUG, the 24th Amendment bans poll taxes for federal elections expressly and in plain language


  19. - Donnie Elgin - Tuesday, Apr 27, 21 @ 3:26 pm:

    =due to a transfer of antique firearms after the death of a family member, and into her possession=

    details of the case…
    Vivian Claudine … did not have a criminal record and would have been eligible to have a FOID card. On March 18, 2017, Brown’s husband, from whom she was separated, alleged Brown was shooting a gun inside, according to court documents. Police found no evidence the rifle had been fired in the residence. However, Brown later was charged with possession of a firearm without the required FOID card, a class A misdemeanor.

    “Are you prohibited from having a FOID card? The judge said ‘I don’t think so’,” Pearson said. “She didn’t do a thing wrong except wanting to defend her own life.”

    https://www.myjournalcourier.com/news/article/State-Supreme-Court-to-hear-gun-owner-13996095.php


  20. - fs - Tuesday, Apr 27, 21 @ 3:31 pm:

    == The fee argument cuts both ways. SCOTUS has ruled against a poll tax to vote. SCOTUS has also ruled against photo voter ID’s based on the possible fees charged.==

    Fees and id requirements have been upheld to an extent. They just cannot be so high as to effectively prohibit someone from exercising a right because they can’t afford it. Voter id laws, for example, have been upheld in some States where it is possible for a person to get an id for free.


  21. - Stas - Tuesday, Apr 27, 21 @ 3:31 pm:

    RNUG you beat me to what I was going to say … you are 100% correct in everything you said.

    I’ve held a FOID since 1996.


  22. - DuPage Guy - Tuesday, Apr 27, 21 @ 3:33 pm:

    ===Perhaps, he just interpreted “shall not be infringed” to mean exactly what it says.===

    Perhaps he forgot the first part of the Amendment: “A well-regulated militia”, otherwise he would not take the argument that the state can’t regulate it.


  23. - RNUG - Tuesday, Apr 27, 21 @ 3:45 pm:

    == They just cannot be so high as to effectively prohibit someone from exercising a right because they can’t afford it. ==

    The unanswered question is What fee is too much?


  24. - fs - Tuesday, Apr 27, 21 @ 3:49 pm:

    == The unanswered question is What fee is too much?==

    That depends largely on who brings the case and whether they can afford it. There have been fees of over $100 in other States upheld, but the plaintiffs in those cases essentially said they could pay it. A good case comes from having a good plaintiff.


  25. - Candy Dogood - Tuesday, Apr 27, 21 @ 3:49 pm:

    ===Perhaps, he just interpreted “shall not be infringed” to mean exactly what it says. ===

    Ah yes, so we should be allowing felons to own and collect fire arms and I should be able to mount a .50 caliber machine gun on the front porch, not because I plan to use it, but because that’s how my grandpa used to deal with Nazis.


  26. - TheInvisibleMan - Tuesday, Apr 27, 21 @ 3:51 pm:

    I stand corrected. Thanks for the details Donnie.

    Now I’m going to try to figure out which case I Was confusing this one with.


  27. - jimbo - Tuesday, Apr 27, 21 @ 3:56 pm:

    ==he just interpreted “shall not be infringed” to mean exactly what it says.==

    I must admit, ever since I was little I’ve thought it’d be cool to have a howitzer in my front yard like the VFW. Guess it’s time to check ebay


  28. - BTO2 - Tuesday, Apr 27, 21 @ 3:58 pm:

    I understand ISP and SOS are under separate constitutional officers, why not transfer to SOS and make it a drivers license option. 1 card vs 2.


  29. - thisjustinagain - Tuesday, Apr 27, 21 @ 4:38 pm:

    To DuPage Guy comment regarding needing to be in a militia: In Heller v. D.C., the US Supreme Court ruled the right to bear arms is an individual right, and does not depend on the Militia Clause, nor limited to militia service.


  30. - Todd - Tuesday, Apr 27, 21 @ 4:54 pm:

    I’ll comment more later, but jumbo, nothing in state law prevents you from having said howitzer you might need a type 09 license to get ammo


  31. - DuPage - Tuesday, Apr 27, 21 @ 5:08 pm:

    @- Candy Dogood - Tuesday, Apr 27, 21 @ 3:49 pm:

    ===Ah yes, so we should be allowing felons to own and collect fire arms…===

    The judge said if the person does something like become a felon, the right to a firearm can be taken away.


  32. - Pelonski - Tuesday, Apr 27, 21 @ 5:12 pm:

    If you think the “well-regulated” language in the second amendment has anything to do with government regulation, you really need to do some historical research on the term. Ther are many valid arguments in support of restrictions on gun ownership and possession, but citing this language in the amendment is not one of them.


  33. - DuPage Guy - Tuesday, Apr 27, 21 @ 5:21 pm:

    To thisjustinagain: I’m aware, and also the fact that in Heller SCOTUS said you can regulate firearms.

    The point is the “plain reading” crowd conveniently forgets to read the first four words.

    Also, prior to the 14th Amendment and incorporation by DC vs Heller, the 2nd was solely a restriction on the Federal government. It was to preserve the States’ right to have their own self-defense forces for a number of reasons. Hence the amendment starts “A well-regulated militia, being necessary to the security of a free State”


  34. - Jocko - Tuesday, Apr 27, 21 @ 5:21 pm:

    ==does not depend on the Militia Clause, nor limited to militia service.==

    Antonin Scalia also said there should be “…prohibitions on the possession of firearms by felons and the mentally ill…” two groups that still enjoy unfettered access to guns


  35. - Pelonski - Tuesday, Apr 27, 21 @ 5:40 pm:

    DuPage Guy,

    Your interpretation of the 2nd amendment was rejected by the court in DC vs Heller. You may not agree with their ruling, but that is the current law of the land with regards to the meaning and impact of the second amendment.


  36. - PublicServant - Tuesday, Apr 27, 21 @ 7:58 pm:

    He conveniently forgets the “well regulated” part of the second amendment. That’s fine. Less partisan, level-headed judges will set him straight.


  37. - chicagojames - Tuesday, Apr 27, 21 @ 9:05 pm:

    I don’t know if my experience is typical, but here’s my FOID card experience. Lost my FOID card, requested a replacement card in June. According to the FOID portal, they mailed out my card on Dec 30. After waiting weeks and not receiving a card, I call the ISP. I was on hold for more than 1.5 hrs before I was able to speak to a human. They told me that due to some glitch in the system, there was a printing error on Dec 31 and my card was sent out in early February. They then told me I had to wait two months per policy for the card to be delivered to my house before they’d issue a new card. FYI I’m a schoolteacher with no criminal record


  38. - Jj - Tuesday, Apr 27, 21 @ 10:30 pm:

    There should be no permit nor fee to exercise a constitutional right on your own property period. If Illinois wants to enforce FOID for people carrying guns in the public “square” then so be it. But hopefully this issue is also answered by the Supreme Court this fall.


  39. - anon2 - Wednesday, Apr 28, 21 @ 2:43 am:

    We have freedom of speech, but we still need to get a permit to hold a parade. We have freedom of religion, but we still need to have a building occupancy permit to open a church.


  40. - Todd - Wednesday, Apr 28, 21 @ 6:49 am:

    Well where to begin as there is no much fodder here.

    Activist judge really Rich? He made a finding of fact we shall see what the Supreme court says. speaking of which, the challenge tot he Cook county gun and ammo tax is being heard by them on may 13th I believe.

    The FOID card could be gone by this time next year. And the Ney York case couple paly a prominent role in that. while most everyone is looking at the carry part of the case, most fail to see that in order for the judges to get to the good cause requirement violating their rights, they must set a standard of review. The 7th circuit hear set up a 2 part test and has relied on some heightened form intermediate scrutiny.

    the real take away will be if SCOTUS sets a bright line and strict scrutiny for possession, ownership and carry. That is the holy grail and if we get that in New york, then kiss the FOID card good bye along with a bunch of other laws

    unlike the last case I doubt New York will pass shall issue to moot the case nor do I think the judges will fall for that twice.

    Now since the FOID issue is heading to the State Supreme Court, maybe now is a good time for Villavalim and Willis to pas their FOID bill. You know add in fingerprints and $75 FOID cards and all that stuff right in front of a challenge to FOID that can get fast tracked tot he court and pile up just how much BS and fees and redtape gun owners must go through just to own a firearm. please oh please through me into that briar patch.

    I would wager New york will be heard before this case makes it for argument here and will be telling.


  41. - thisjustinagain - Wednesday, Apr 28, 21 @ 10:35 am:

    Heller vs. District of Columbia clearly found the 2nd Amendment to be an individual right, and the “Militia Clause” does not limit that right to militia service only.

    As for “activist judge legislating from the bench”, a finding of unconstitutionality starts at the Circuit Court level in Illlnois, and the finding was entirely consistent with the powers of the Court.


  42. - Anonymous - Wednesday, Apr 28, 21 @ 3:58 pm:

    Why do people think that the second amendment “gives them the right” to own a firearm?

    It just says that that right cannot be infringed.

    It seems to imply that we as Americans have that right already…before that quill ever touched the parchment to write the Bill of Rights.


Sorry, comments for this post are now closed.


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