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Petition filed to have FOID Act declared unconstitutional UPDATED 4/1


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#1 templar223

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Posted 19 October 2010 - 06:08 PM

Paul Vallandigham has a client who was arrested for having a non-functioning rifle in his basement without a valid FOID card.

The gent's card was expired for a few months. It's a long, sordid tale, but since his arrest, he has applied for and received a new FOID card.

The State really, really wants this guy something bad, but there are problems out the ying-yang with their case.

Instead of arguing the minutia, Paul's filed for the FOID statute to be invalidated, citing the McDonald decision.

This one has the potential to be a FOID-killer folks.

Smartest thing our anti-gun, anti-civil rights SA Julia Reitz could do is drop charges to make it a moot point.

I'm not sure we could have a better "defendant".

Stay tuned.

John



"I have filed a motion to declare the Illinois FOID card statute unconstitutional, in a criminal case filed in Champaign County, Illinois. My client is charged with possessing a firearm without a previously issued FOID card.

"Since McDonald vs. Chicago extended the Second Amendment rights to States, I believe this FOID card law is unconstitutional, as it makes exercising the RIGHT to KEEP and BEAR arms conditioned on the State granting you permission to do so. That makes your Right nothing more than a State granted " Privilege". Of course, this law was passed back in 1968, when the misinterpreted Miller vs. US was the Law that Illinois Courts applied. Under that interpretation, the courts held that the Second Amendment only guaranteed States the right to have militias( National Guards), and that this was not an Individual Right. McDonald, and Heller vs. D.C. before it, changed all that

More...

My client is charged with possessing a firearm without a previously issued FOID card. penalties range from $1.00 to $2500, and up to a year in jail. My client is retired, in his late 60s. He had a valid FOID card, that expired in 2009. He didn't renew it because the only gun he owned was a SKS type AK47, that he had let a friend borrow to test fire, in contemplation of buying it. The Friend was killed in a motor vehicle accident, and when he got the gun back he removed the bolt assembly to render the gun safe from his son, a recently release convict who was staying with him. Since then the bolt assembly has been "Lost" or misplaced, as he can't find it anywhere. Since the gun had been rendered " Non-Functional", he didn't think there was any need to get an FOID card. He could not shoot the ammo he had for the gun without the Bolt assembly, and he didn't know that you also have to have an FOID card to possess ammo. He was arrested by police who came looking for his son, who missed a court date on new drug charges, and found the gun parts leaning against the wall in the basement. The police also took his old FOID card. After his arrest, he applied for and has been issued a new FOID card.
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#2 Federal Farmer

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Posted 19 October 2010 - 06:30 PM

Sounds great, I'm looking forward to following this case.

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#3 burningspear

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Posted 19 October 2010 - 06:57 PM

Great. (And that is a shout.)

#4 abolt243

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Posted 19 October 2010 - 07:06 PM

FANTASTIC!! The right person at the right place at the right time. Keep us apprised of the progress Templar and let us know if there's anyway we can help or lend support ($). Do you see any of the gun groups (NRA,ISRA,SAF) getting involved? Or does this plaintiff have the resources and wherewithal to take it all the way??

The hits just keep on rollin'!

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#5 Bird76Mojo

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Posted 19 October 2010 - 09:40 PM

I feel for this old guy. I bet he's a ball of nerves at his age. I sincerely hope that he beats the state in this battle. God knows he wasn't doing any wrongs to anyone, and shouldn't be prosecuted. Let's hope that a few organizations jump in to help his case!


:frantics:
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#6 templar223

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Posted 19 October 2010 - 10:30 PM

FANTASTIC!! The right person at the right place at the right time. Keep us apprised of the progress Templar and let us know if there's anyway we can help or lend support ($). Do you see any of the gun groups (NRA,ISRA,SAF) getting involved? Or does this plaintiff have the resources and wherewithal to take it all the way??

The hits just keep on rollin'!

AB



I asked Paul about contacting SAF & maybe (just maybe) Alan Gura and he said, "Oh, I think I can handle the first step or two here myself."

I'll talk with him more in the coming days and share anything he's amenable to sharing.

I'd say those of you who know key people at the national level, you might tell them to keep their eyes open to this one. Again though, I wouldn't be surprised to see smarter heads prevail and charges be dropped. If that happens, the case goes up in smoke as far as killing the FOID Act.

John
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#7 templar223

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Posted 19 October 2010 - 10:32 PM

By the way, did you know IL law makes no provision for a definition of a gun?

With no legislative definition, we turn to the dictionary.

John
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#8 GarandFan

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Posted 20 October 2010 - 05:08 AM

Interesting.

Tagged for future updates.

Templar ... IL crim code defers to the definition of "firearm" in the FOID act, as follows:

"Firearm" means any device, by whatever name known, which is designed to expel a projectile or projectiles by the action of an explosion, expansion of gas or escape of gas; excluding, however [things that don't apply to the case you mention]

My simple reading is that an SKS, without a bolt, is still "designed to expel a projectile" by explosion or expanding gas.
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#9 RandyP

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Posted 20 October 2010 - 05:53 AM

To play Devil's Advocate........ so when that 'lost' AK bolt turns up in a drawer in the garage where the owner put it and forgot, that AK cannot be made to fire? Or should the owner purchase a replacement hardware part (a bolt for an AK) which does not require an FOID card, the firearm is still 'inoperable'?

I'm not a lawyer ( though since I work for a State Library System that will likely have to close its doors by Christmas for delinquent State funding, I wish I were, cuz then I'd still have some kind of a job) but I have always thought of a 'non-functioning' firearm (something that would not require an FOID) as a decoration that has been welded shut, receiver cut or substituted with a block of aluminum or otherwise rendered permanently inoperable. Like the many "wall hanger non-guns' that you find in mail order catalogs?

Just sayin'.

#10 eric2281

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Posted 20 October 2010 - 08:13 AM

I'm guessing it doesn't matter how "inoperable" he made it. Being in possesion of the receiver alone would require a foid.
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#11 Davey

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Posted 04 February 2011 - 04:18 AM

Does anyone know what happened to this?

#12 j600

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Posted 31 March 2011 - 11:28 PM

The foid card is illegal the court case murdock vs pennsylvania says a state cannot impose a license, tax, or fee on a constitutionally protected right

#13 TTIN

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Posted 01 April 2011 - 10:35 AM

The foid card is illegal the court case murdock vs pennsylvania says a state cannot impose a license, tax, or fee on a constitutionally protected right


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#14 oneshot

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Posted 01 April 2011 - 11:03 AM

Interesting.

Tagged for future updates.

Templar ... IL crim code defers to the definition of "firearm" in the FOID act, as follows:

"Firearm" means any device, by whatever name known, which is designed to expel a projectile or projectiles by the action of an explosion, expansion of gas or escape of gas; excluding, however [things that don't apply to the case you mention]

My simple reading is that an SKS, without a bolt, is still "designed to expel a projectile" by explosion or expanding gas.


That definition would cover a spitball out of a straw.

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#15 templar223

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Posted 01 April 2011 - 01:07 PM

Does anyone know what happened to this?


Judge Klaus threatened to hold Vallandigham in contempt if he even mentioned that the defendant currently had a FOID card or challenged the constitutionality of the FOID card.

Defendant convicted, pending sentencing.

Paul's already working on the appeal.

John
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#16 Chad

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Posted 01 April 2011 - 01:53 PM

Wow man.

#17 THE KING

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Posted 01 April 2011 - 01:58 PM


Does anyone know what happened to this?


Judge Klaus threatened to hold Vallandigham in contempt if he even mentioned that the defendant currently had a FOID card or challenged the constitutionality of the FOID card.

Defendant convicted, pending sentencing.

Paul's already working on the appeal.

John



So why would the judge hold Paul in comtempt for mentioning the FOID card or challenging the constitutionality of the FOID card itself !! :woohoo: :no:

Does his conviction actually work in favor of challenging the FOID card or not??

I do have to say that this conviction is so wrong in so many ways and my heart goes out for the older gentleman. Sometimes justice is no justice at all

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#18 jnaese08

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Posted 01 April 2011 - 02:26 PM


Interesting.

Tagged for future updates.

Templar ... IL crim code defers to the definition of "firearm" in the FOID act, as follows:

"Firearm" means any device, by whatever name known, which is designed to expel a projectile or projectiles by the action of an explosion, expansion of gas or escape of gas; excluding, however [things that don't apply to the case you mention]

My simple reading is that an SKS, without a bolt, is still "designed to expel a projectile" by explosion or expanding gas.


That definition would cover a spitball out of a straw.


Technically an air powered pellet gun,airsoft gun,and c02 powered pellet guns require a foid card. If I'm reading that right

#19 defaultdotxbe

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Posted 01 April 2011 - 02:31 PM

[quote name='jnaese08' date='01 April 2011 - 03:26 PM' timestamp='1301689588' post='258313']
[quote name='oneshot' date='01 April 2011 - 11:03 AM' timestamp='1301677409' post='258227']
[quote name='GarandFan' date='20 October 2010 - 06:08 AM' timestamp='1287572912' post='231615']
Interesting.

Tagged for future updates.

Templar ... IL crim code defers to the definition of "firearm" in the FOID act, as follows:

"Firearm" means any device, by whatever name known, which is designed to expel a projectile or projectiles by the action of an explosion, expansion of gas or escape of gas; excluding, however [things that don't apply to the case you mention]

My simple reading is that an SKS, without a bolt, is still "designed to expel a projectile" by explosion or expanding gas.
[/quote]

That definition would cover a spitball out of a straw.
[/quote]

Technically an air powered pellet gun,airsoft gun,and c02 powered pellet guns require a foid card. If I'm reading that right
[/quote]
they are excluded in the "[things that don't apply to the case you mention]" part

[quote] (1) any pneumatic gun, spring gun, paint ball gun or B‑B gun which either expels a single globular projectile not exceeding .18 inch in diameter and which has a maximum muzzle velocity of less than 700 feet per second or breakable paint balls containing washable marking colors;
(2) any device used exclusively for signalling or safety and required or recommended by the United States Coast Guard or the Interstate Commerce Commission;
(3) any device used exclusively for the firing of stud cartridges, explosive rivets or similar industrial ammunition; and
(4) an antique firearm (other than a machine‑gun) which, although designed as a weapon, the Department of State Police finds by reason of the date of its manufacture, value, design, and other characteristics is primarily a collector's item and is not likely to be used as a weapon.[/quote]

#20 GlockShooter

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Posted 01 April 2011 - 02:53 PM

[quote name='defaultdotxbe' date='01 April 2011 - 03:31 PM' timestamp='1301689870' post='258316']
[quote name='jnaese08' date='01 April 2011 - 03:26 PM' timestamp='1301689588' post='258313']
[quote name='oneshot' date='01 April 2011 - 11:03 AM' timestamp='1301677409' post='258227']
[quote name='GarandFan' date='20 October 2010 - 06:08 AM' timestamp='1287572912' post='231615']
Interesting.

Tagged for future updates.

Templar ... IL crim code defers to the definition of "firearm" in the FOID act, as follows:

"Firearm" means any device, by whatever name known, which is designed to expel a projectile or projectiles by the action of an explosion, expansion of gas or escape of gas; excluding, however [things that don't apply to the case you mention]

My simple reading is that an SKS, without a bolt, is still "designed to expel a projectile" by explosion or expanding gas.
[/quote]

That definition would cover a spitball out of a straw.
[/quote]

Technically an air powered pellet gun,airsoft gun,and c02 powered pellet guns require a foid card. If I'm reading that right
[/quote]
they are excluded in the "[things that don't apply to the case you mention]" part

[quote] (1) any pneumatic gun, spring gun, paint ball gun or B‑B gun which either expels a single globular projectile not exceeding .18 inch in diameter and which has a maximum muzzle velocity of less than 700 feet per second or breakable paint balls containing washable marking colors;
(2) any device used exclusively for signalling or safety and required or recommended by the United States Coast Guard or the Interstate Commerce Commission;
(3) any device used exclusively for the firing of stud cartridges, explosive rivets or similar industrial ammunition; and
(4) an antique firearm (other than a machine‑gun) which, although designed as a weapon, the Department of State Police finds by reason of the date of its manufacture, value, design, and other characteristics is primarily a collector's item and is not likely to be used as a weapon.[/quote]
[/quote]
You are partially correct, due to the section I bolded. I have an air rifle that fires at 1,000fps, and I did need my FOID to purchase it. However, it didn't require a 4473 or waiting period, so it's sort of a grey area. Firearm, no. FOID required, yes.

Gun control is not about guns, it's about control. Once they have all the guns, they'll also have complete control.
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#21 mauserme

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Posted 01 April 2011 - 05:50 PM

I think that comes down to airgun = firearm in Illinois but not at the federal level.
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#22 templar223

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Posted 01 April 2011 - 07:13 PM



Does anyone know what happened to this?


Judge Klaus threatened to hold Vallandigham in contempt if he even mentioned that the defendant currently had a FOID card or challenged the constitutionality of the FOID card.

Defendant convicted, pending sentencing.

Paul's already working on the appeal.

John



So why would the judge hold Paul in comtempt for mentioning the FOID card or challenging the constitutionality of the FOID card itself !! :lol: :geek:

Judge ruled against him in pre-trial motions outside earshot of jury. Judge thought it would prejudice the jury (God forbid) them to know that he had a FOID now and Paul's argument on the FOID statute. Klaus isn't well thought of among many on the local bar.



Does his conviction actually work in favor of challenging the FOID card or not??

Yup, sure does. Kinda hard to appeal an acquittal.


I do have to say that this conviction is so wrong in so many ways and my heart goes out for the older gentleman. Sometimes justice is no justice at all


Total bravo sierra.

I'm writing to Difanis, the chief judge, citing Klaus' rude behavior when I was on jury duty rotation last time. Klaus is up for re-appointment by judges (not voters) later this summer. Hopefully a few letters citing his ill-mannered behavior and sharp temper and discourteousness towards the public will sway his non-retention. Tip: You can't argue in said letters that he doesn't know the law... You're a lay-person, so stick to his demeanor to the public.

John
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#23 templar223

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Posted 01 April 2011 - 07:15 PM

[quote name='GlockShooter' date='01 April 2011 - 03:53 PM' timestamp='1301691218' post='258322']
[quote name='defaultdotxbe' date='01 April 2011 - 03:31 PM' timestamp='1301689870' post='258316']
[quote name='jnaese08' date='01 April 2011 - 03:26 PM' timestamp='1301689588' post='258313']
[quote name='oneshot' date='01 April 2011 - 11:03 AM' timestamp='1301677409' post='258227']
[quote name='GarandFan' date='20 October 2010 - 06:08 AM' timestamp='1287572912' post='231615']
Interesting.

Tagged for future updates.

Templar ... IL crim code defers to the definition of "firearm" in the FOID act, as follows:

"Firearm" means any device, by whatever name known, which is designed to expel a projectile or projectiles by the action of an explosion, expansion of gas or escape of gas; excluding, however [things that don't apply to the case you mention]

My simple reading is that an SKS, without a bolt, is still "designed to expel a projectile" by explosion or expanding gas.
[/quote]

That definition would cover a spitball out of a straw.
[/quote]

Technically an air powered pellet gun,airsoft gun,and c02 powered pellet guns require a foid card. If I'm reading that right
[/quote]
they are excluded in the "[things that don't apply to the case you mention]" part

[quote] (1) any pneumatic gun, spring gun, paint ball gun or B‑B gun which either expels a single globular projectile not exceeding .18 inch in diameter and which has a maximum muzzle velocity of less than 700 feet per second or breakable paint balls containing washable marking colors;
(2) any device used exclusively for signalling or safety and required or recommended by the United States Coast Guard or the Interstate Commerce Commission;
(3) any device used exclusively for the firing of stud cartridges, explosive rivets or similar industrial ammunition; and
(4) an antique firearm (other than a machine‑gun) which, although designed as a weapon, the Department of State Police finds by reason of the date of its manufacture, value, design, and other characteristics is primarily a collector's item and is not likely to be used as a weapon.[/quote]
[/quote]
You are partially correct, due to the section I bolded. I have an air rifle that fires at 1,000fps, and I did need my FOID to purchase it. However, it didn't require a 4473 or waiting period, so it's sort of a grey area. Firearm, no. FOID required, yes.
[/quote]


But as a spitball gun expels projectiles over .18", they would qualify as a "gun" in IL statutes.

John
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#24 GlockShooter

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Posted 01 April 2011 - 07:24 PM

But as a spitball gun expels projectiles over .18", they would qualify as a "gun" in IL statutes.

John

You are correct. I don't agree with it either.

Gun control is not about guns, it's about control. Once they have all the guns, they'll also have complete control.
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#25 Drylok

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Posted 01 April 2011 - 07:53 PM

I don't understand how the judge could get away with that! I guess the conviction is a good thing because now he can appeal and the case moves further up the judicial ladder.
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#26 JR1987

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Posted 19 April 2011 - 02:34 PM

Is the state really that desperate?

Sad, its just an old guy with a wall hanger... do we REALLY need to use all these lofty crazy arguments? If I were a cop I'd say "hey, get that receiver disabled or get a FOID card. You can't do that man".

Granted ignorance of the law is not an excuse, but as a cop I'd just say "get that disabled or get a FOID card. You could run into trouble".

Shame, just some retired guy sitting around in his home minding his own business.

Lets put another person behind bars at the tax payers expense who does not need to be there... yeah, that will make things better... Lets keep this trial up, because God knows the cost to the state is meaningless... just raise my taxes to keep going after some poor old man who really is not worth the time.

Why not spend some more of my money going after the real problems?

Nah, that's to hard and expensive. You want to easy stuff so you can show everyone your "wins".

What really bothers me is: if they really cared about protecting us from dangerous people, this man would not be on the top of the list. Not because he's old, but because he's not a criminal.

Spend my money going after gang members, drug traffickers, and the likes. Don't waste my tax money on this nonsense.

Is this case still active, and if so is there anyone I could write to to help the cause?

#27 Uncle Harley

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Posted 19 April 2011 - 06:03 PM

You are partially correct, due to the section I bolded. I have an air rifle that fires at 1,000fps, and I did need my FOID to purchase it. However, it didn't require a 4473 or waiting period, so it's sort of a grey area. Firearm, no. FOID required, yes.




No grey area, they have to both exceed .18 and over 700fps to be considered a firearm and if you buy a 22 cal pellet gun that shoots over the 700 then it will require a FOID and 24 hr waiting period and whole 9 yards. I think the reason you were required is because of company policy from whom ever you purchased it from. There is also a ATF reg that states that anything that shoots over 900 fps. MAY be treated as a firearm and to my knowledge it it up to the individule if they want to consider them firearms, but if they do then they require waiting period and all.
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#28 Davey

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Posted 27 May 2011 - 12:09 AM

Anyone have any updates on this one?

#29 Davey

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Posted 24 June 2011 - 02:04 AM

How does one find out any progress this case has made?

#30 Davey

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Posted 18 August 2011 - 09:21 AM

I take it this case isn't really going anywhere?