Capitol - Your Illinois News Radar » Not too hard to predict how this judge is gonna rule
SUBSCRIBE to Capitol Fax      Advertise Here      Mobile Version     Exclusive Subscriber Content     Updated Posts    Contact
To subscribe to Capitol Fax, click here.
Not too hard to predict how this judge is gonna rule

Thursday, Jan 26, 2023 - Posted by Rich Miller

* Illinois Review

On Wednesday morning, in a hearing to discuss Democratic Gov. JB Pritzker’s assault weapons ban, White County Judge T. Scott Webb heard arguments from representatives of Attorney General Kwame Raoul’s office, and from Tom DeVore, who is representing over 1,600 plaintiffs, including former Illinois State Senator and Republican nominee for governor Darren Bailey; 68 federal firearms dealers and 92 counties, saying the case is “under advisement” and that a ruling would follow after further review.

Due to the weather, the hearing was held over zoom.

The lawsuit raises the same claims as the one filed last week in Effingham County and names Gov. JB Pritzker, State Senate President Don Harmon, D, Illinois House Speaker Christopher Welch, D, and Attorney General Kwame Raoul, D, as defendants.

* From April of 2021

A White County Circuit Court judge has again ruled Illinois’ Firearm Owner Identification Card is unconstitutional, setting the stage for the Illinois Supreme Court to reexamine the issue.

In 2017, Vivian Brown, an elderly resident of White County, was charged with violating the FOID card law for owning a rifle without possessing a FOID card.

In February 2018, the White County Circuit Court sided with Brown and found the FOID card law unconstitutional when applied to her case. The state appealed directly to the Illinois Supreme Court a few months later.

Last April, the Illinois Supreme Court didn’t make a decision on the case, calling into question the process the circuit court used.

On Tuesday, White County Judge T. Scott Webb dismissed the charges against Brown and ruled the FOID card law was unconstitutional, saying it makes the Second Amendment a “facade,” turning a right into a privilege.

Maybe ask a lobbyist about the fees and regulations and reporting requirements they have to follow for the privilege of exercising their First Amendment rights. Or ask political candidates about the myriad state and federal regulations put on them. And then ask people who want to demonstrate about the public permitting process.


  1. - Michelle Flaherty - Thursday, Jan 26, 23 @ 10:21 am:

    Years ago, downstate judges ruled the seat belt law was unconstitutional and some jurisdictions refused to enforce.
    Then the Supreme Court decided the matter, said it was constitutional and, as of 2021, the NHTSA reported 93.5 percent of Illinoisans buckle up.

  2. - thisjustinagain - Thursday, Jan 26, 23 @ 10:24 am:

    Maybe the lobbyists and candidates should start fighting for their rights, which is what pro-2nd Amendment individuals, groups, and businesses are doing today.

  3. - Just Me 2 - Thursday, Jan 26, 23 @ 10:27 am:

    It never occurred to me but you’re absolutely right. Having to register, pay a fee, and report every two weeks on the exercise of the 1st Amendment rights seems pretty onerous, but much easier than what the NRA is complaining about.

  4. - Norseman - Thursday, Jan 26, 23 @ 10:27 am:

    The only question will be whether he will go along with the other judges refusal to recognize the enrolled bill rule.

  5. - TheInvisibleMan - Thursday, Jan 26, 23 @ 10:28 am:

    I have a right to vote.

    That doesn’t mean I have a right to vote in every local election in the state. Semantically, that is an infringement on my right to vote. Realistically, it isn’t.

    The state has a compelling interest to structure the individuals right to vote the way it is structured.

    Or can I come down to White county and start voting in their local elections? How about if I get a bus of people to do the same, say an amount of people that is slightly larger than the margin of victory that has put this judge on the bench.

    I doubt this judge would be so dismissive of the compelling interests of the state in such case.

  6. - Franklin - Thursday, Jan 26, 23 @ 10:47 am:

    Go read the witness slips on any controversial bill. Tell me about how many of the thousands of slips filed are from registered lobbyists and then tell me how lobbyist registration is preventing the average citizen from exercising their first amendment right.

  7. - Streator Curmudgeon - Thursday, Jan 26, 23 @ 10:53 am:

    Wait. Isn’t it the GOP who’s complaining about activist judges?

  8. - Jerry - Thursday, Jan 26, 23 @ 10:58 am:

    FOID cards are Constitutional since gun owners are members of “A well regulated militia”.

  9. - Ron Burgundy - Thursday, Jan 26, 23 @ 11:04 am:

    -Isn’t it the GOP who’s complaining about activist judges?-

    It’s only activism if they don’t like the result.

  10. - Free Market - Thursday, Jan 26, 23 @ 11:11 am:

    To the previous point give me a break. Both sides do it. Does the Dobbs decision and the subsequent total nationwide freak out on the left ring a bell?

  11. - Unionman - Thursday, Jan 26, 23 @ 11:13 am:

    Isn’t this why the substitution of judge rule exists?

  12. - Oswego Willy - Thursday, Jan 26, 23 @ 11:15 am:

    === Both sides do it. Does the Dobbs decision and the subsequent total nationwide freak out on the left ring a bell?===

    Dobbs was a SCOTUS decision.

    Is there another SCOTUS that cases can shopped to?

  13. - Donnie Elgin - Thursday, Jan 26, 23 @ 11:20 am:

    On Tuesday, White County Judge T. Scott Webb dismissed the charges against Brown and ruled the FOID card law was unconstitutional

    The Vivian Brosm case has had many turns - it has been up to Illinois Suprmes twice. With the charges being dropped Brown may have no standing to more appeals. Thus the bigger question of FOID constitutionally seems done for now. Perhaps Todd can chime in.

  14. - H-W - Thursday, Jan 26, 23 @ 11:31 am:

    @ Jerry
    == FOID cards are Constitutional since gun owners are members of “A well regulated militia”. ==

    Why do you assume I would belong to a well-regulated militia? Are you suggesting if I refuse to join a militia (regulated or otherwise), I cannot own a gum?

    You need to find a better argument. Your militia argument is irrelevant to the 2nd Amendment ownership clause.

  15. - Pretzel - Thursday, Jan 26, 23 @ 11:39 am:

    Brown was dismissed after Supreme Court found it should be dismissed for reasons other than finding the FOID act unconstitutional. So, they found they did not need to weigh in on the issue. There is ongoing litigation on the FOID act though. Not sure where that stands.

  16. - RNUG - Thursday, Jan 26, 23 @ 11:51 am:

    No pending charge, no standing.

    There still remains a question as to whether the FOID is constitutional or not. So far it has been mostly presumed to be constitutional, but there is a valid question about whether requiring a fee be paid to exercise a delineated right is legal.

    If you want to compare the right to bear arms to the right to vote, SCOTUS has ruled a poll tax, or even a voter ID the citizen has to pay for, is unconstitutional. By that logic, having to pay for a FOID, regardless of the fact the fee is minimal and not a barrier to most people, should also be considered unconstitutional.

    Doesn’t mean the State of Illinois can’t require a FOID; registration requirements would clearly be constitutional, just like the requirement to register to vote, but the State shouldn’t be able to charge for it.

    I can see how Webb could reach his conclusion, but unless the State pursues the case by recharging, that dismissal effectively took the constitutionality question off the table, regardless of the Judge’s statement.

  17. - Red Ketcher - Thursday, Jan 26, 23 @ 11:58 am:

    RNUG above = astute analysis - Thank You

  18. - Todd - Thursday, Jan 26, 23 @ 12:07 pm:

    Rich –

    I get you’re looking at the fee, but that is only one small part of the FOID objections. As a lobbyist I could walk in the building and talk to people for a few days before having to register and even then as I did so online I was eligible immediately to walk over and get the badge that let me walk around security.

    Here, before we can legally exercise our right to own, possess or acquire a firearm, we must submit to the state. Then the state can take up to 12 weeks to approve it. Previously they were taking months beyond that and during covid I saw people waiting over a year as first time gun owners. That is a problem and a deprivation of rights.

    We have had two auditor general reports about how broken the FOID system is and the firearms services bureau is so badly managed. They don’t get background checks done in time, they have had all kinds of problems issuing the “pre-purchase” license from the state. So yea it is more than an inconvenience. Now they want fingerprints on top of that, as if there are never enough hoops for us to jump through to satisfy their dislike of guns and gun owners. And waiting a year to be able to exercise that right is beyond the pale.

    Rnug is right on the poll tax, I disagree about registration with him. And lets not forget that a once in a lifetime $10 fee on marriage licenses was deemed unconstitutional by Illinois Supreme Court.

  19. - Jerry - Thursday, Jan 26, 23 @ 12:11 pm:

    Sorry if a FOID card is a bother for gun people. I guess the folks who attended the 4th of July parade and watched their kid get their head blown off decided to exercise their Constitutional Right to “regulate the militia”.

  20. - Jerry - Thursday, Jan 26, 23 @ 12:16 pm:

    Then change get the Constitution changed, HW. Till then the Supreme Court said everyone who owns a gun is militia member.

  21. - New Day - Thursday, Jan 26, 23 @ 12:38 pm:

    I love judges who understand neither the law nor the Constitution. No constitutional right is absolute. Restrictions have existed on every constitutional right since the founding of the republic. Ever heard of time, manner and place restrictions? Or the don’t have a first amendment right to should fire in a crowded theater or engage in libelous or slanderous speech?

    For some reason, gun folks thinks this doesn’t apply to the second amendment. They are very, very wrong. As is this judge.

  22. - Todd - Thursday, Jan 26, 23 @ 12:51 pm:

    Donnie – the case went to the Supremes; they ruled without getting to the constitutionality of the case. It is at the appellate court waiting to be resent to the trial judge again for action constant with the Court’s order.

    I suggest the judge dismiss the case as the Court ordered. I would then have Ms. Brown move for a writ of replevin to get her gun back with the statement she is NOT applying for a FOID and demands the “state” return he property immediately.

    The Sheriff will say we can’t because she doesn’t have a FOID, to which the judge can make a finding that the FOID is unconstitutional along the same lines he did before, having dismissed the charges as instructed by the Supreme Court. Now he is acting on a separate motion to return the property and in an compliance with the Court’s directive and away we go all over again, which could have been avoided if the Court had simply answered the question before. Yes it’s constitutional, we appeal to SCOTUS. No it’s unconstitutional, Kwame has a decision to make go up or not.

    There is a pending GSL case in Sangamon right now, briefing is completed waiting to see what the judge says or does and then we start all over again. And the arguments the state has been making are truly bush league kinda stuff trying to bootstrap New York’s footnote about 43 lawful shall issue permits as to somehow applying to the FOID card.

  23. - Pretzel - Thursday, Jan 26, 23 @ 12:54 pm:

    New Day, There is a difference between restriction of rights and deprivation of rights, as Todd correctly put it. Citizens of this state have no second amendment rights at all until their FOID card gets issued, which the state frequently delays for long periods of time.

  24. - Mason born - Thursday, Jan 26, 23 @ 12:55 pm:

    –Till then the Supreme Court said everyone who owns a gun is militia member–

    That’s quite the pronouncement Jerry, curious what case that was stated in?

  25. - Mason born - Thursday, Jan 26, 23 @ 12:57 pm:

    As much as I loathe DeVore I have to give him credit he knows how to keep his grift going. It’s despicable but he’s good at it.

  26. - Anonymusings - Thursday, Jan 26, 23 @ 1:07 pm:

    ==Why do you assume I would belong to a well-regulated militia?

    Are you an able-bodied person residing in the State of Illinois?


    The State militia consists of all able-bodied persons residing in the State except those exempted by law.
    (Source: Illinois Constitution.)

  27. - CornAl DoGooder - Thursday, Jan 26, 23 @ 1:27 pm:

    These lawsuits are just a waste of taxpayer money at this point. How do you justify filing largely the same suit, challenging the same state law, twice, and it not be seen as frivolous? We see complaints about courts being overworked, and this can’t be helpful to that issue. DeVore better be charged for the court costs and the costs to the AG’s office for when these suits fail spectacularly.

  28. - Ron Burgundy - Thursday, Jan 26, 23 @ 1:36 pm:


    Keep reading…

    The military shall be in strict subordination to the civil power.

  29. - Donnie Elgin - Thursday, Jan 26, 23 @ 1:43 pm:

    “Doesn’t mean the State of Illinois can’t require a FOID;…but the State shouldn’t be able to charge for it.”

    To me it is not about a poll tax, rather the bigger issue is the right to bear arms to protect yourself. In Vivian Brown’s case – she did not even use the weapon but she was charged. In a simpler hypothetical case – where a husband/wife live together, the husband has FOID and legally owns a pistol for self-defense. The husband is away for the weekend and someone breaks-in and poses an imminent threat of bodily harm or death. Under Illinois law, if the wife (who does not have a FOID but would be eligible like Vivian Brown) uses the gun to protect herself she is likely to be charged with a crime.

  30. - JS Mill - Thursday, Jan 26, 23 @ 2:45 pm:

    =Thus the bigger question of FOID constitutionally seems done for now. Perhaps Todd can chime in.=

    Yeah, because he is a Justice of the USSC right?

    =Citizens of this state have no second amendment rights at all until their FOID card gets issued, which the state frequently delays for long periods of time.=

    Explain background checks then. They have been held as constitutional. You cannot have the gun until it is complete. REgardless of how long the delay is, it is still a delay that deprives a person of their weapon for an amount of time.

    =Your militia argument is irrelevant to the 2nd Amendment ownership clause.=

    Then explain the first words in the Second Amendment (A well regulated Militia, being necessary to the security of a free State). Your belief would make the entire amendment irrelevant.

    We will know if the FOID is unconstitutional when the USSC makes a ruling to that effect. Given its longstanding existence, that seems dubious.

  31. - Todd - Thursday, Jan 26, 23 @ 3:22 pm:

    JS — background checks actually haven’t been tested in the courts, and the feds have a timeline of 3 days after which the sale can proceed even without an approval. They have been alluded to in some dicta or footnotes.

    we have explained the first words in the 2A, repeatedly poste here to which you ignore and have no answer to the pronouncement of the court that:

    “The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.

    The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms.”

    are you willfully ignoring the pronouncement of the SCOTUA or is that above your comprehension level ?

    The FOID is not longstanding. it came about the same time as the ‘68 gun control act, which added non-violent felons to the disqualifications list. The Chief judge in the 7th COA recently said that was NOT longstanding. the SCOTUS tossed the New York good cause from a law dating back to 1907 and the three other statutes cited by the State were deemed neither longstanding of within the history and tradition of the nation.

    Given only 4 states have anything like the FOID, I think it will be gone in 18 months at the outside.

  32. - RNUG - Thursday, Jan 26, 23 @ 3:52 pm:

    == Yeah, because he is a Justice of the USSC right? ==

    No, but he does consult regularly with the various firearms organizations and subsequently has a broad view of their overall legal strategies. Yeah, he’s an advocate for a specific point of view, but he is an informed one.

  33. - Hemi345 - Thursday, Jan 26, 23 @ 4:55 pm:

    I applied for my FOID renewal 90 days before it was to expire. It took over 180 days for the state police to issue the renewal. I could not even purchase ammunition. It took one state representative and two state senators asking the FOID section where it was at before I finally received it. According to the law the Department of State Police was in violation. Maybe Brendan Kelly should have been charged in any case my 2nd amendment right was infringed

  34. - Hemi345 - Thursday, Jan 26, 23 @ 5:00 pm:

    Before anyone starts making comments I have held an FOID for 40 years. My training was at the Illinois State Police Academy, I have been a hunter safety instructor and hold multiple concealed carry permits

  35. - Huh? - Thursday, Jan 26, 23 @ 6:35 pm:

    Wonder if I could get debore to file a lawsuit claiming my 2A rights were being violated because I can’t buy any .410 shotgun shells. /s

  36. - Original Anon - Thursday, Jan 26, 23 @ 8:49 pm:

    Exactly right. Courts have always permitted some regulation of constitutionally protected rights. The only open question here will be whether bans on specific weapons is deemed too much of a burden on the rights.

TrackBack URI

Sorry, comments for this post are now closed.

* Afternoon roundup
* Illinois Credit Unions Oppose Regulatory Fee Increase
* Today's good news: Coffee station to open in Statehouse
* Another day, another Chicago mayoral poll
* CTBA: After adjusting for inflation since 2000, state higher ed funding is down 46 percent and tuition is up 110 percent
* It’s just a bill
* Today's quotable
* Question of the day
* Comed 4 trial coverage roundup
* Johnson's anti-gay rights supporters and Vallas' Daley people
* Keep Uber Affordable. Stop Lawsuit Abuse. Oppose HB 2231
* SUBSCRIBERS ONLY - Supplement to today's edition
* Bishop Paprocki: "Our nation is divided today over the question of abortion as it was in the 19th century over the question of slavery"
* Better management, please
* SUBSCRIBERS ONLY - Today's edition of Capitol Fax (use all CAPS in password)
* Open thread
* Isabel’s morning briefing
* *** ComEd 4 trial live coverage ***
* Live coverage
* Yesterday's stories

Visit our advertisers...





Main Menu
Pundit rankings
Subscriber Content
Blagojevich Trial
Updated Posts

March 2023
February 2023
January 2023
December 2022
November 2022
October 2022
September 2022
August 2022
July 2022
June 2022
May 2022
April 2022
March 2022
February 2022
January 2022
December 2021
November 2021
October 2021
September 2021
August 2021
July 2021
June 2021
May 2021
April 2021
March 2021
February 2021
January 2021
December 2020
November 2020
October 2020
September 2020
August 2020
July 2020
June 2020
May 2020
April 2020
March 2020
February 2020
January 2020
December 2019
November 2019
October 2019
September 2019
August 2019
July 2019
June 2019
May 2019
April 2019
March 2019
February 2019
January 2019
December 2018
November 2018
October 2018
September 2018
August 2018
July 2018
June 2018
May 2018
April 2018
March 2018
February 2018
January 2018
December 2017
November 2017
October 2017
September 2017
August 2017
July 2017
June 2017
May 2017
April 2017
March 2017
February 2017
January 2017
December 2016
November 2016
October 2016
September 2016
August 2016
July 2016
June 2016
May 2016
April 2016
March 2016
February 2016
January 2016
December 2015
November 2015
October 2015
September 2015
August 2015
July 2015
June 2015
May 2015
April 2015
March 2015
February 2015
January 2015
December 2014
November 2014
October 2014
September 2014
August 2014
July 2014
June 2014
May 2014
April 2014
March 2014
February 2014
January 2014
December 2013
November 2013
October 2013
September 2013
August 2013
July 2013
June 2013
May 2013
April 2013
March 2013
February 2013
January 2013
December 2012
November 2012
October 2012
September 2012
August 2012
July 2012
June 2012
May 2012
April 2012
March 2012
February 2012
January 2012
December 2011
November 2011
October 2011
September 2011
August 2011
July 2011
June 2011
May 2011
April 2011
March 2011
February 2011
January 2011
December 2010
November 2010
October 2010
September 2010
August 2010
July 2010
June 2010
May 2010
April 2010
March 2010
February 2010
January 2010
December 2009
November 2009
October 2009
September 2009
August 2009
July 2009
June 2009
May 2009
April 2009
March 2009
February 2009
January 2009
December 2008
November 2008
October 2008
September 2008
August 2008
July 2008
June 2008
May 2008
April 2008
March 2008
February 2008
January 2008
December 2007
November 2007
October 2007
September 2007
August 2007
July 2007
June 2007
May 2007
April 2007
March 2007
February 2007
January 2007
December 2006
November 2006
October 2006
September 2006
August 2006
July 2006
June 2006
May 2006
April 2006
March 2006
February 2006
January 2006
December 2005
April 2005
March 2005
February 2005
January 2005
December 2004
November 2004
October 2004

Blog*Spot Archives
November 2005
October 2005
September 2005
August 2005
July 2005
June 2005
May 2005


RSS Feed 2.0
Comments RSS 2.0

Hosted by MCS SUBSCRIBE to Capitol Fax Advertise Here Mobile Version Contact Rich Miller