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#1 Tvandermyde

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Posted 27 October 2010 - 07:20 PM

Wednesday, October 27, 2010

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<A href="http://onlygunsandmo....html">Illinois FOID Challenge - Plaintiffs Respond to Motion to Dismiss
As I posted a little more than a week ago, the State of Illinois sought to have the case brought by the Mountain States Legal Foundation on behalf of Ellen Mishaga challenging the state's FOID requirements dismissed. They maintained that the FOID Card Act provided exceptions for out-of-state residents and thus they had not abridged her constitutional right to keep and bear arms nor her right to travel freely.

Attorney Jim Manley filed a reply in opposition to the defendant's motion to dismiss yesterday. He gives a two-fold argument as to why the court should not dismiss this case: standard of review and that no FOID Act exceptions apply to Ms. Mishaga's claims.

Courts, when reviewing motions to dismiss for failure to state a claim, must view the initial complaint in such a way as to be most favorable to the plaintiff. This includes accepting as true all factual allegations and all possible inferences stemming from those allegations. Thus, as the plaintiff argues:

Accepting the truth of the allegations in the Complaint, and drawing all inferences in the light most favorable to Ms. Mishaga, this Court should deny Defendant’s Motion to Dismiss.

The defendant suggested that 430 ICLS 65/2(:shtf:(9) and (10) would be exceptions that would apply to Ms. Mishaga and allow her to possess a firearm in the state of Illinois without a FOID Card. The plaintiff's reply argues that neither of these apply to Ms. Mishaga's case. First, 430 ICLS 65/2(:headbang1:(9) states that "nonresidents whose firearms are unloaded and enclosed in a case" are not required to hold a FOID Card. However, an unloaded and cased firearm is inoperable and not available for self-defense. The plaintiff argues that "this subsection of the FOID Act suffers from the same constitutional infirmity as the law struck down by the Supreme Court in District of Columbia v. Heller." The Supreme Court said in Heller that inoperable firearms make it impossible for citizens to use them in self-defense and thus it was unconstitutional.

Subsection (9) specifically prohibits the constitutionally-protected activity Ms. Mishaga intends to engage in by requiring nonresidents’ firearms to be “unloaded and enclosed in a case” at all times. 430 ILCS 65/2(:thumbsup:(9). Thus, even if 430 ILCS 65/2(B)(9) were not unconstitutional, this exception to the FOID Act would offer no support for Defendant’s Motion to Dismiss. Accordingly, Ms. Mishaga respectfully requests that the Court deny Defendant’s Motion to Dismiss.

The second exception to the FOID Card noted by the defendant involved citizens licensed or registered to possess a firearm in their resident state. However, Ms. Mishaga is a resident of Ohio which requires no licensing or registration to possess a firearm in that state. Indeed, as the plaintiff's points out:

Ohio law forbids such licensing or registration. See Ohio Rev. Code § 9.68(A) (“[A] person, without further license, permission, restriction, delay, or process, may own, possess, purchase, sell, transfer, transport, store, or keep any firearm, part of a firearm, its components, and its ammunition.”)

Lawful possession in one's state of residence is not the same as either registration or licensing though this seems to be the argument of the defendant. If that were the case, then Ms. Mishaga could possibly lawfully possess a functional firearm in Illinois without a FOID Card. As the brief in opposition notes:

Defendant conflates “licensed or registered” possession of a firearm with “lawful” possession of a firearm; however, the statutory exception applies only to the former....Unfortunately, neither Defendant nor this Court has the power to rewrite Illinois law. Virginia v. American Booksellers a**’n, 484 U.S. 383, 397 (1988) (“we will not rewrite a state law to conform it to constitutional requirements.”); United States v. Wilburn, 473 F.3d 742, 746 (7th Cir. 2007) (“[I]t is not our role to rewrite the law.”). Accordingly, Ms. Mishaga respectfully requests that the Court deny Defendant’s Motion to Dismiss.

Frankly, having read both the motion to dismiss and the plaintiff's reply in opposition, I was amazed that Illinois made the arguments that they did in the first place. One argument provided for an inoperable firearm when it was clear from the original complaint that Ms. Mishaga was seeking to possess a functional firearm for self-defense. The other argument made the erroneous assumption that Ohio required licensing or registration. It may be too much to expect that Illinois will continue to make these types of errors in the future but one can always hope. Posted by John Richardson at 6:36 PM 0 comments Posted Image Posted Image
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#2 Bud

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Posted 27 October 2010 - 07:33 PM

This may very well be a sleeper
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#3 Howard Roark

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Posted 27 October 2010 - 09:15 PM

This is getting interesting!
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#4 Howard Roark

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Posted 27 October 2010 - 09:41 PM

I'm going to speculate a bit on this. If that's boring, just turn the page...

It appears that portions of the FOID Act are unconstitutional including that it does not allow self defense "in the home" for visitors to Illinois. OK, so let's assume that the US District Court strikes down the FOID Act due to those provisions. Won't the Chicago-packed Illinois legislature just tweak the FOID Act to allow issuance of FOID cards to non-residents? Then the plaintiff Mishaga will get her out-of-state FOID card and there will be no change to Illinois onerous unconstitutional law banning "bearing of arms".

Where's the silver lining? I'd like to see the FOID Act torn down entirely and the "bear arms" clause of the Bill of Rights restored in Illinois. Where's the real leverage in this case?
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#5 Tvandermyde

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Posted 27 October 2010 - 09:46 PM

the answer is no FOID requirement for out of staters get s the state off the hook. Can't force a non-resident to have a IL drivers license just for driving through.

one more nail inthe coffin of getting rid of the FOID card.
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#6 THE KING

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Posted 28 October 2010 - 08:59 AM

I really like this argument by Ms. Mishaga's attorney !!

The plaintiff argues that "this subsection of the FOID Act suffers from the same constitutional infirmity as the law struck down by the Supreme Court in District of Columbia v. Heller." The Supreme Court said in Heller that inoperable firearms make it impossible for citizens to use them in self-defense and thus it was unconstitutional.

So, it sounds like our FOID card creates an unconstitutional act. :shtf:

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#7 Hatchet

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Posted 28 October 2010 - 10:34 AM

Illinois is a unconstitutional act...
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#8 Howard Roark

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Posted 28 October 2010 - 06:28 PM

the answer is no FOID requirement for out of staters get s the state off the hook. Can't force a non-resident to have a IL drivers license just for driving through.

one more nail inthe coffin of getting rid of the FOID card.


Hi Todd. Can the state of Utah force me to have a license just to carry a gun if I visit there? (I have such an out-of-state Utah gun-carry license.) Is Utah's law unconstitutional? If you say yes, I'd agree with you, but I don't think I'm yet seeing a strong argument against IL FOID in this case. But I agree the case is interesting, but maybe it will just result in the legislature re-writing the FOID Act to require IL FOID's be issued to non-residents. Please school me on where I am wrong ( I hope I am ).
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#9 Tvandermyde

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Posted 28 October 2010 - 10:22 PM

Howard --

it would seem that possession or ownership is different that carrying. Much like you can own and drive a car on your own land without insurance or a license, but take it on the public highway and it's different.

They can't force you to get a dirvers license for every state you drive through or register your car in every place you go to.

Utah may not force you to have a license to keep one in your hotel room. But on the public way, I think they can based upon Heller and McDonald
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#10 05FLHT

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Posted 29 October 2010 - 04:06 AM

Todd,

Driving is a privilege, bearing arms is a constitutionally protected, fundamental right. There is no difference in the protection given by the Second Amendment between owning and carrying. The right is after all, to keep and bear arms. If there is a portion of Heller or McDonald that you believe does offer this distinction, please let me know.
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#11 Tvandermyde

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Posted 29 October 2010 - 06:32 AM

05 I know that driving is a priviledge, and 2A is a fundimental right.

It's the best analogy I can come up with and as mush as you or I want a consitutional carry provision read into Heller, I don't think we will get there very soon, and the Court will allow the state to require a permit for carrying in public. I think they will get to a shall issue permit with some repstrictions on where, but that is where I thin the courts will end up.

that being said, that is why I used the analisys I did
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#12 05FLHT

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Posted 29 October 2010 - 07:03 AM

05 I know that driving is a priviledge, and 2A is a fundimental right.

It's the best analogy I can come up with and as mush as you or I want a consitutional carry provision read into Heller, I don't think we will get there very soon, and the Court will allow the state to require a permit for carrying in public. I think they will get to a shall issue permit with some repstrictions on where, but that is where I thin the courts will end up.

that being said, that is why I used the analisys I did


The court decided in Heller, and affirmed in McDonald, that the Second Amendment can be regulated, and specifically mentioned carrying (bearing) concealed weapons. The justices reasoned in their decisions that the concealing of arms is a 'privilege' that a State may regulate. I find it hard to believe, given the entire line of reasoning in Heller, the openly bearing of arms for the fundamental right of self defense may also be regulated (read banned).

To put it simply, we have the fundamental right to bear arms (openly) for self defense. If the State wishes to regulate who may conceal a firearm, fine, but the State may not do both. This is why Illinois is unique, and ripe for legal challenge. Illinois is the only State that legislatively bans the bearing of arms for the fundamental right of self defense.
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#13 Tvandermyde

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Posted 29 October 2010 - 08:00 AM

my analogy is one of regulation, not prohibition.

I agree that we are ripe for challenge, however, I think somepeople do not want the charge of the light brigade with no clear understanding of the level of scrutiny. And don't want to rry to take this up until some of that has been established.
While a 9 mm or .40 caliber bullet may or may not expand, it is an undeniable fact that a .45 caliber bullet will never shrink.

#14 THE KING

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Posted 29 October 2010 - 08:59 AM

05 I know that driving is a priviledge, and 2A is a fundimental right.

It's the best analogy I can come up with and as mush as you or I want a consitutional carry provision read into Heller, I don't think we will get there very soon, and the Court will allow the state to require a permit for carrying in public. I think they will get to a shall issue permit with some repstrictions on where, but that is where I thin the courts will end up.

that being said, that is why I used the analisys I did


I still think this area that I bolded in your quote is up for grabs. Yes, I have read Heller and I still think that the SCOTUS would have ruled a permit or license unconstituitonal. In Heller they DID NOT address the permit issue because Heller conceded to the permit process as long as it was not done arbitrarily or capreciously.

Now why would the SCOTUS even consider addressing the permit or licensing requirement if they didn't have an issue with it. To me the writing is on the wall when you read that section of the Heller decision. Not that I am a mind reader, but I believe they would have ruled against any permit process if Heller did not concede to it.

I could be wrong, and I have been wrong before, but I don't think my take on this is too far off base. :thinking:

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#15 burningspear

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Posted 29 October 2010 - 09:13 AM

O5 and TV: Actually, for what it's worth, both of you are correct. Also, a legislative solution to, at least, partially undo Illinois' confusing firearm laws and the unconstitutional ban on carrying, may be quicker than a judicial determination. However, with a strict scrutiny level of review, the judicial solution may nullify significant portions of Illinois' gun laws, laws that make peaceable citizens "jump through hoops" but have no effect on drive-by shooters and killers.

#16 05FLHT

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Posted 29 October 2010 - 10:44 AM

O5 and TV: Actually, for what it's worth, both of you are correct. Also, a legislative solution to, at least, partially undo Illinois' confusing firearm laws and the unconstitutional ban on carrying, may be quicker than a judicial determination. However, with a strict scrutiny level of review, the judicial solution may nullify significant portions of Illinois' gun laws, laws that make peaceable citizens "jump through hoops" but have no effect on drive-by shooters and killers.



I do agree looking to the legislature for a RTC bill would be the quickest solution at this point. However, leverage of a judicial solution to the matter may compel some to stop dragging their feet and 'do the right thing.'
If the election does not turn out conducive to a RTC bill being passed, I for one do not plan on taking a 'wait and see' approach for the next four years.
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#17 Tvandermyde

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Posted 23 November 2010 - 11:08 PM

Mtn to dismiss denied in Illinois FOID card case
Posted by David Hardy · 23 November 2010 06:30 PMThe district court has denied the State's motion to dismiss in Mishaga v. Monken, which challenges Illinois' requirement of an FOID card to possess a firearm, while at the same time making nonresidents ineligible to obtain such a card.

What I find interesting is that the judge suggests the parties should at some point argue whether there is a difference between possession in one's own home (Heller and McDonald) and possession while staying at someone else's home. I find that interesting because only a few years ago a right to arms challenge would have been laughed off, while today judges are treating it as something quite interesting -- "Can I make new law here? Is there some issue that I can be the first to explore?" When I went to law school in the 70s the rest of the Bill of Rights had some hot issues -- defamation, search and seizure, pornography, Miranda's application, 14th Amendment and the question of "State action." Today, they're all settled by thirty years of precedent. Not true of the right to arms!
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#18 05FLHT

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Posted 24 November 2010 - 05:18 AM

The only thing I don't like about this case is the fact that logically it could have been taken one step further to argue Mishaga's right to travel to and from her own home with a useable firearm for self defense. I read and like the judges ruling; however, I am confused on why he would want the parties to address the issue of Mishaga's right to possess the weapon in her friends home in light of HB182.

In this case, Mishaga is a guest in someone else’s home. The parties do not address whether Mishaga’s right to possess a weapon as a guest may be more limited than the homeowner in Heller because she is not protecting her own home and because her loaded weapon may present dangers to the permanent residents of the home or to other Illinois citizens. At some point in this proceeding, the parties may need to address the exact scope of the constitutional right of a guest to possess a weapon in the home of another person.


If Mishaga is an invitee on private property, with permission from the owner to possess the firearm (assuming of course she is in possession of a FOID card, or the FOID statute is amended in some way as to allow her possession) how is this issue relevant? The line "The parties do not address whether Mishaga’s right to possess a weapon as a guest may be more limited than the homeowner in Heller because she is not protecting her own home and because her loaded weapon may present dangers to the permanent residents of the home or to other Illinois citizens," especially jumps out as a possible 'think of the children' argument that clearly is irrelevant to this case.

Maybe I am over thinking this...but, I definitely think the judge in this case may be too.
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#19 Tvandermyde

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Posted 24 November 2010 - 06:06 AM

05 --

Actaully your not and you gave me an idea.

in the criminal code there is a doctrine called lesser included. Say the penalty for XX is a felony. But under a different statute, the same kind of conduct gets you a Class A. you are entitle to argue that you should get the class A under XXX statute and not the felony your are charged with.

If you apply the same kind of logic, under 24-1 you are allowed to have a firearm in your DWELLING or on the land of another with permission. so there could be an arguement that the FOID card Act is inconsistant with the criminal code and the conflict needs to be resolved. I'm going to remember this for session when I appear infront of the Jud committee.

However, the judge is also trygin to get at the Heller comment of keep and carry in case of confrontation, as well as flush out does Heller only apply to the home. The antis have made a big stand on Heller applies ONLY to handguns in the home. We all know that is not what Heller said, so I think the judge is looking with an open mind towards defining this part of Heller. Or at least flushing it out a bit more.
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#20 05FLHT

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Posted 24 November 2010 - 06:49 AM

However, the judge is also trygin to get at the Heller comment of keep and carry in case of confrontation, as well as flush out does Heller only apply to the home. The antis have made a big stand on Heller applies ONLY to handguns in the home. We all know that is not what Heller said, so I think the judge is looking with an open mind towards defining this part of Heller. Or at least flushing it out a bit more.


I hope your right. If the issue is not fully fleshed out in this case, it does lend itself quite well to be built on for further challenge to the current UUW/Ag UUW statute. Logically, the next step is the ability to possess a functional firearm "for the core fundamental right of self defense" while traveling to and from the home. This argument builds well on the dicta laid out in Heller in regards to the application of the right outside of the home. Sensitive places may be valid prohibition, but Illinois is going to be hard pressed at justifying the entire state a necessary gun free zone.
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#21 Tvandermyde

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Posted 24 November 2010 - 07:25 AM

05 --

I agree. I'm impressed with the way the lawyer inthe case is walking the line and sees the deifferance between the unloaded/cased vs functioning firearm for sefl defense. I would argue the dwelling aspect and toss in when his client were to stay at a hotel. Or campground etc etc.

the AG's work is the typical subpar that they do on gun stuff. This is going to make a good year. I already have a bill drafted to fix this little problem, but we'll see how it goes
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#22 kermit315

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Posted 03 February 2011 - 07:00 PM

any updates on this. I am passing the link to a gunnie in Florida that is wanting to bring guns to Illinois to shoot at a relatives place.
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#23 Federal Farmer

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Posted 24 March 2011 - 02:35 PM

Via Only Guns And Money:

Mishaga v. Monken, the challenge to Illinois's FOID Card regulation brought by the Mountain States Legal Foundation, has been reassigned from Chief District Court Judge Michael McCuskey to newly confirmed District Court Judge Sue E. Myersclough. It is a common occurance for new judges to have cases reassigned to them.


Link includes Myersclough's answers regarding the 2nd Amendment during Senate confirmation hearings.

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#24 Sigma

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Posted 24 March 2011 - 05:51 PM

lol the new judge was nominated by both clinton and Obama
will she be fair?
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#25 dmefford

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Posted 08 September 2011 - 01:38 AM

lol the new judge was nominated by both clinton and Obama
will she be fair?


Bump...... Any thing new here?

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#26 NakPPI

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Posted 08 September 2011 - 09:04 AM

Bench trial 1/9/12 set on the judge's motion. Follow up again this time next year...
Stung by the result of McDonald v. City of Chicago, 130 S. Ct. 3020 (2010), the City quickly enacted an ordinance that was too clever by half. Recognizing that a complete gun ban would no longer survive Supreme Court review, the City required all gun owners to obtain training that included one hour of live‐range instruction, and then banned all live ranges within City limits. This was not so much a nod to the importance of live‐range training as it was a thumbing of the municipal nose at the Supreme Court.

#27 Federal Farmer

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Posted 26 October 2011 - 12:29 PM

New commentary on this at Calguns.net:

After reading this response, it appears to me that the Defendant is stating that Plaintiffs misread the law and no paper or license of any kind is needed [see below]. Thus, Mishaga does not need a license of any kind to possess her handgun while visiting an Illinois home.


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#28 KBrown1

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Posted 24 October 2012 - 12:01 AM

.....