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People v. Brown - FOID ruled unconstituional in IL District Court


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#241 chemical operator1

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Posted 10 September 2019 - 03:28 PM

Depends on the state. Some states you are barred forever if you have certain convictions. Other states reinstate your firearm rights after a certain length of time automatically after sentence is served. You would have to look up each states laws.



#242 Flynn

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Posted 10 September 2019 - 03:43 PM

Depends on the state. Some states you are barred forever if you have certain convictions. Other states reinstate your firearm rights after a certain length of time automatically after sentence is served. You would have to look up each states laws.

 

One thing to note, is that in many cases the individuals still can't pass a NICS test as the state doesn't 'expunge' the convictions, but the state allows those individuals to make  private purchases and have ownership after having the rights restored even if they still fail a NICS check...  Think of it as similar to where medical marijuana users are stuck currently, able to have a gun at the state level but not at the federl level without commiting perjury.


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#243 chemical operator1

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Posted 10 September 2019 - 03:46 PM

 

Depends on the state. Some states you are barred forever if you have certain convictions. Other states reinstate your firearm rights after a certain length of time automatically after sentence is served. You would have to look up each states laws.

 

One thing to note, is that in many cases the individuals still can't pass a NICS test as the state doesn't 'expunge' the convictions, but the state allows those individuals to make  private purchases and have ownership after having the rights restored even if they still fail a NICS check...  Think of it as similar to where medical marijuana users are stuck currently, able to have a gun at the state level but not at the federl level without commiting perjury.

 

Well said....but if the FOID is abolished then everyone with restored rights are technically back to square one....and only a pardon would work.



#244 MrSmallie

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Posted 10 September 2019 - 06:56 PM

Well said....but if the FOID is abolished then everyone with restored rights are technically back to square one....and only a pardon would work.

 

 

Not quite.

 

18 U.S.C. § 921 (20) states in part  "....Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter.

 

So if your rights have already been restored, you're good.

If you haven't appealed and won yet, it will depend on what happens to 430 ILCS 65 and what, if anything, takes its place.

 

As for passing NICS, Illinois would need to remove the disqualifier.  



#245 kevinmcc

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Posted 10 September 2019 - 10:51 PM

Anyone read the State's reply? That was a piece of work.

Garson S. Fischer should be fired for submitting that garbage, but then again that is about all the state has to support their case.
 


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#246 mrmagloo

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Posted 11 September 2019 - 07:18 AM

Listening to the audio, Sigale for Brown had two problems in his arguments.

Vivian Brown never even tried to apply for a FOID, so it's difficult to argue that she had exhausted her options to obtain a FOID, including finding the cost of a FOID beyond her means. Exhaustion will probably be important for the case as applied specifically to her.

Sigale kept introducing hypotheticals, which are more appropriate for a facial challenge, but this case is only about Vivian Brown.

The lower court ruling simply asserted that the requirement to obtain a FOID as a condition to exercise a 2nd Amendment right was enough to make the FOID requirement unconstitutional.

I think it could go either way.

 

x100 - If Sigale had simply made ANY mention of Browns inability to afford the $10 fee, that could have been a crucial point. Totally omitting that barrier to exercising her right to self-defense was a huge mistake, imho.



#247 Molly B.

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Posted 11 September 2019 - 08:00 AM

 


 

x100 - If Sigale had simply made ANY mention of Browns inability to afford the $10 fee, that could have been a crucial point. Totally omitting that barrier to exercising her right to self-defense was a huge mistake, imho.

 

 

He did mention the ability to pay and even mentioned proposed increases in the fee.


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#248 mrmagloo

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Posted 11 September 2019 - 08:19 AM

 

 


 

x100 - If Sigale had simply made ANY mention of Browns inability to afford the $10 fee, that could have been a crucial point. Totally omitting that barrier to exercising her right to self-defense was a huge mistake, imho.

 

 

He did mention the ability to pay and even mentioned proposed increases in the fee.

 

 

I was listening to the recording the best I could while working. I seem to recall him bringing up ability to pay as part of a number of broad hypotheticals, but not as it relates to Brown herself.  Ultimately meaning, he did not say Vivian, is for example, a retired widow on a fixed income and simply could not afford the $10.  He never even broached the topic of what barrier prevented her from getting a FOID that would allow her to exercise her right to protect herself in her own home.

 

Did I miss that?   If not, that was a huge tactical mistake.  


Edited by mrmagloo, 11 September 2019 - 08:22 AM.


#249 mauserme

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Posted 11 September 2019 - 09:26 AM

I could be that it's less important too specify the exact barrier than it is to get the court to recognize any barrier as unconstituional, at least as far as possession in the home is concerned. 



#250 mrmagloo

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Posted 11 September 2019 - 10:00 AM

I am certainly no legal expert but if Heller confirmed the right to screen certain folks from having firearms - IE, Felons, Mentally Challenged, etc, what other mechanism exists to allow that?  Naturally, the portion about the state agreeing the actual admin costs are only $3, and the surplus revenues funds other things is a glaring issue, but my thoughts are, if the SCOTUS agreed screening is OK, that essentially validates the FOID provided we are only charged the actual admin costs, and it doesn't include addition taxes above and beyond.  Obviously, I'm hoping that we win here, but in the event we don't, I'm really praying that we get a cap on costs, that would kill the increases and additional burdens the liberals are currently pushing. 



#251 Molly B.

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Posted 11 September 2019 - 10:24 AM

in my opinion, the U.S. Supreme Court said there is a right to screen people who should NOT be in possession of firearms.  IL screens who CAN.  That is so wrong.


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#252 stockboyy

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Posted 11 September 2019 - 10:36 AM

in my opinion, the U.S. Supreme Court said there is a right to screen people who should NOT be in possession of firearms.  IL screens who CAN.  That is so wrong.

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#253 mrmagloo

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Posted 11 September 2019 - 11:31 AM

in my opinion, the U.S. Supreme Court said there is a right to screen people who should NOT be in possession of firearms.  IL screens who CAN.  That is so wrong.

 

Molly, you get that I'm on your side right? To filter anything, you need to start with a gross universe so that you can compare that against a defined population for a match, which in this case would be a rejection.  While I like the way you crafted your thoughts, until which point we can get all of the restricted folks to agree NOT to purchase or posses firearms on their own, with 100% reliability, there is no way to screen them out without screening the negative matches as well. Essentially, if we can prevent inappropriate folks from ever having guns in the first place, then there would be no need for a screen.

 

Imho, if this case was at the SCOTUS, I believe they would rule the FOID as constitutional based on Heller, provided the barrier was not excessive.  I'm of the opinion that Brown is a long shot, and our focus at that point would be to minimize the barrier and hope to put a severely restrictive cap in place to prevent anyone from making things worse - which is already in the works.  



#254 Flynn

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Posted 11 September 2019 - 12:09 PM

Imho, if this case was at the SCOTUS, I believe they would rule the FOID as constitutional based on Heller, provided the barrier was not excessive.

 

If that ever happened it the SCOTUS just put themselves between a rock and a hard place by allowing a tax, background check and permission slip to exercise a right, a burden that they would then have to allow to be applied to other rights based on their precedent or set a double standard and/or set a hierarchy for the rights enumerated in the Constitution, a big can of worms.  At the end of the day the 2nd is a right or it isn't and if it's a right it needs to be treated just like all the other rights.

 

I agree with Molly, 48 other states seem to manage to allow their citizens to exercise the right without a government permission slip like the FOID, so it would certainly appear it's not a "narrowly tailored law to achieve that interest" the standard that should apply to exercising a right.


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#255 mauserme

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Posted 11 September 2019 - 12:58 PM

 

in my opinion, the U.S. Supreme Court said there is a right to screen people who should NOT be in possession of firearms.  IL screens who CAN.  That is so wrong.

 
Molly, you get that I'm on your side right? To filter anything, you need to start with a gross universe so that you can compare that against a defined population for a match, which in this case would be a rejection.  While I like the way you crafted your thoughts, until which point we can get all of the restricted folks to agree NOT to purchase or posses firearms on their own, with 100% reliability, there is no way to screen them out without screening the negative matches as well. Essentially, if we can prevent inappropriate folks from ever having guns in the first place, then there would be no need for a screen.
 
Imho, if this case was at the SCOTUS, I believe they would rule the FOID as constitutional based on Heller, provided the barrier was not excessive.  I'm of the opinion that Brown is a long shot, and our focus at that point would be to minimize the barrier and hope to put a severely restrictive cap in place to prevent anyone from making things worse - which is already in the works.

 


Unlike the Federal system which defaults to allow the purchase if no prohibiting factors are found, Illinois' system is a default disallow under most circumstances. It acts as a prior restraint, requiring an individual to prove that they have not been disqualified.



#256 mrmagloo

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Posted 11 September 2019 - 01:36 PM

Mauser, I can only hope that the judges in this case agree with you. However, if they agree that screening is appropriate as a result of Heller, and the FOID is an determined to be an acceptable screening mechanism, we loose. That point we all agree.  Only in that case does admin costs, excessive taxes, and barriers become points that were not driven home strongly enough in my opinion.



#257 borgranta

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Posted 11 September 2019 - 01:58 PM

Mauser, I can only hope that the judges in this case agree with you. However, if they agree that screening is appropriate as a result of Heller, and the FOID is an determined to be an acceptable screening mechanism, we loose. That point we all agree.  Only in that case does admin costs, excessive taxes, and barriers become points that were not driven home strongly enough in my opinion.

The existence of the NICS system negates the necessity of the FOID act and FTIP system.  The FOID act is now an unnecessary burden in light of the NICS system.  The FOID act predated the NICS system and was needed prior to the NICS system but it is now redundant and superfluous.


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#258 mrmagloo

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Posted 11 September 2019 - 02:19 PM

Hopefully, the court agrees.


Edited by mrmagloo, 11 September 2019 - 02:19 PM.


#259 cls74

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Posted 11 September 2019 - 02:40 PM

How long does ISC usually take to give their decision?



#260 Euler

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Posted 11 September 2019 - 02:53 PM

Mauser, I can only hope that the judges in this case agree with you. However, if they agree that screening is appropriate as a result of Heller, and the FOID is an determined to be an acceptable screening mechanism, we loose. That point we all agree.  Only in that case does admin costs, excessive taxes, and barriers become points that were not driven home strongly enough in my opinion.


The existence of the NICS system negates the necessity of the FOID act and FTIP system.  The FOID act is now an unnecessary burden in light of the NICS system.  The FOID act predated the NICS system and was needed prior to the NICS system but it is now redundant and superfluous.


The FOID does one thing NICS doesn't. It allows unlicensed individuals to check each other. NICS is for licensed individuals only.

You could argue that the FOID is a government system maintained to provide easy access (in a mostly non-privacy-invasive way) to common people to the records it keeps on them.

It's too bad it's essentially being used as a permitting system and a tax collection scheme. Change the FOID to IRIS (Illinois Resident Identification System), make everyone get one for everything (like voting, too, oh no!), and keep it cheap (or "free" - i.e., tax-funded). Don't repeat all the problems with SSNs, though. That way lies disaster.

In the meantime, Brown still has a good chance of losing, so the FOID probably won't go away, no matter how much some of us dislike it.

Edited by Euler, 11 September 2019 - 02:54 PM.

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#261 Flynn

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Posted 11 September 2019 - 03:11 PM

Change the FOID to IRIS (Illinois Resident Identification System), make everyone get one for everything (like voting, too, oh no!), and keep it cheap (or "free" - i.e., tax-funded)

 

Just allow citizens to run basic background checks on existing state IDs and drivers licenses, the check would not have to give details just a yes/no confirmation for things like firearm purchases, voting or to see if the person is say a registered sex offender heck use it for alchohol and smoking verification as well to confirm the ID is legit and not fake.


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#262 Glock23

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Posted 11 September 2019 - 03:12 PM

The FOID does one thing NICS doesn't. It allows unlicensed individuals to check each other. NICS is for licensed individuals only.
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#263 soundguy

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Posted 11 September 2019 - 03:31 PM

 

Change the FOID to IRIS (Illinois Resident Identification System), make everyone get one for everything (like voting, too, oh no!), and keep it cheap (or "free" - i.e., tax-funded)

Just allow citizens to run basic background checks on existing state IDs and drivers licenses, the check would not have to give details just a yes/no confirmation for things like firearm purchases, voting or to see if the person is say a registered sex offender heck use it for alchohol and smoking verification as well to confirm the ID is legit and not fake.

 

What fun... we could just attach a variety of personal statistics to the DL and use it for everything from gun purchase eligibility to renter/deadbeat status, credit checks, your permanent work record for prospective employers to check on you. A complete and accurate dossier...


Edited by soundguy, 11 September 2019 - 03:34 PM.

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#264 Euler

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Posted 11 September 2019 - 03:50 PM

Change the FOID to IRIS (Illinois Resident Identification System), make everyone get one for everything (like voting, too, oh no!), and keep it cheap (or "free" - i.e., tax-funded)


Just allow citizens to run basic background checks on existing state IDs and drivers licenses, the check would not have to give details just a yes/no confirmation for things like firearm purchases, voting or to see if the person is say a registered sex offender heck use it for alchohol and smoking verification as well to confirm the ID is legit and not fake.


What fun... we could just attach a variety of personal statistics to the DL and use it for everything from gun purchase eligibility to renter/deadbeat status, credit checks, your permanent work record for prospective employers to check on you. A complete and accurate dossier...


Yes, I know it's purple, but those would be instances of repeating the problems with SSNs, not doing which got edited out of the quote.
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#265 Bird76Mojo

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Posted 11 September 2019 - 03:57 PM

 

Change the FOID to IRIS (Illinois Resident Identification System), make everyone get one for everything (like voting, too, oh no!), and keep it cheap (or "free" - i.e., tax-funded)

 

Just allow citizens to run basic background checks on existing state IDs and drivers licenses, the check would not have to give details just a yes/no confirmation for things like firearm purchases, voting or to see if the person is say a registered sex offender heck use it for alchohol and smoking verification as well to confirm the ID is legit and not fake.

 

Sounds great! Let's just do away with privacy rights altogether..


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#266 Flynn

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Posted 11 September 2019 - 04:11 PM

 

 

Change the FOID to IRIS (Illinois Resident Identification System), make everyone get one for everything (like voting, too, oh no!), and keep it cheap (or "free" - i.e., tax-funded)

 

Just allow citizens to run basic background checks on existing state IDs and drivers licenses, the check would not have to give details just a yes/no confirmation for things like firearm purchases, voting or to see if the person is say a registered sex offender heck use it for alchohol and smoking verification as well to confirm the ID is legit and not fake.

 

Sounds great! Let's just do away with privacy rights altogether..

 

 

How is verifying you are who you and and are eligable to exercise the right and/or privilege an invasion of privacy?  Sorry but I support verificaiton at the basic level as I understand that even rights are not absolute, and accept that age, citizenship and to see if a due process has removed the right/privilege verifications are well within acceptable regulations or should be.


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#267 Molly B.

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Posted 11 September 2019 - 04:59 PM

Interesting article

 

https://www.thecente...OgnsiS707H5nG9s


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#268 steveTA84

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Posted 11 September 2019 - 06:58 PM

In a nutshell: if a victory, you’ll only need a FOID for transporting, buying, selling. Not for owning a long gun in the home.

#269 Flynn

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Posted 11 September 2019 - 07:13 PM

In a nutshell: if a victory, you’ll only need a FOID for transporting, buying, selling. Not for owning a long gun in the home.

 

The NY case might very well moot such a limited 'applicable in home only' ruling if there is a victory in both cases.  Heck a victory in NY very well could moot FOID down the line as I personally don't believe it meets the threshold of strict scrutiny.


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#270 steveTA84

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Posted 11 September 2019 - 07:37 PM

In a nutshell: if a victory, you’ll only need a FOID for transporting, buying, selling. Not for owning a long gun in the home.

 
The NY case might very well moot such a limited 'applicable in home only' ruling if there is a victory in both cases.  Heck a victory in NY very well could moot FOID down the line as I personally don't believe it meets the threshold of strict scrutiny.

It’s baby steps. Shame that it’s not bigger, but like the antis do, it’s chipping away little by little. We’re way behind though




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