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


Molly B.

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I guess the moral of this story is, if Illinois passes laws that breach our Constitutional Rights, it's up to every single citizen to individually challenge the bad law to get their rights restored. I don't get most of this legal mumbo jumbo, but it seems outrageous that if a law is found unconstitutional, that it's not TOTALLY and IMMEDIATELY stricken. This nonsense that a unconstitutional law can only adversely effect ONE person and Only this ONE person is allowed a remedy, sounds utterly retarded.

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In today's weekly ISRA bulletin:

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This case will be back before the Illinois Supreme Court. The Illinois State Rifle Association and the Second Amendment Foundation will be there once again. It is pretty clear what will happen to the FOID card if we win. If we lose, we will be on the way to the United States Supreme Court.

...

What Richard Pearson failed to mention is that the appeal of the first decision was brought by the State of Illinois attempting to overturn the verdict. The winner (which was Brown) doesn't get to appeal the decision. There'd be no point. Unless Kwame Raoul appeals again, this case dies here. Has Raoul appealed?

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Ok, so from a legal perspective everyone who wants to ditch their FOID would have to challenge the state in court, they would have to apply or state the judges logic / ruling from this case.

 

So, how do you do it as a class action and skip 20k+ individual filings, and how do we get started?

 

All in say “arghh” like a pirate :lol:

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...

So, how do you do it as a class action and skip 20k+ individual filings, and how do we get started?

...

You're describing a "facial challenge," i.e., a law is unconstitutional as written. The problem is that the FOID has been around and withstood some legal challenges for a while, so it's been presumed constitutional for a while.

 

There are two distinct uses for a FOID: license to own and license to acquire. Arguably the Brown verdict only declares the license to own to be unconstitutional, which I believe was not originally part of the FOID Act. I'm not sure if the constitutionality of license to own for a FOID has ever been challenged in court by itself. I suspect a license to own in NY has been and survived. Maybe we could hope for a circuit split.

 

IANAL

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According to a Suntimes article from earlier this morning, the appeal was filed Thursday of last week:

 

 

... now the state’s top court is being asked to decide whether the Firearm Owner’s Identification cards — popularly called FOID cards — are a necessary safeguard or a violation of the U.S. Constitution.

 

Last week, a downstate judge ruled the FOID card system was unconstitutional, reducing residents’ Second Amendment rights to bear arms to a “façade.”

 

Gun control advocates denounced the ruling as “frightening and radical,” and Illinois Attorney General Kwame Raoul quickly appealed the decision to the Illinois Supreme Court.

 

The appeal filed last Thursday sets up a battle over whether the state can require its citizens to hold such an ID card in order to own a firearm.

...

(Giffords attorney Jonathan) Baum said he is “confident” the state Supreme Court will take up the case in the summer and reverse Webb’s ruling.

...

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According to a Suntimes article from earlier this morning, the appeal was filed Thursday of last week:

 

 

...

The appeal filed last Thursday sets up a battle over whether the state can require its citizens to hold such an ID card in order to own a firearm.

...

(Giffords attorney Jonathan) Baum said he is “confident” the state Supreme Court will take up the case in the summer and reverse Webb’s ruling.

...

 

Since the IL AG (Raoul) asked the IL Supreme Court to take up the motion (not the whole case), it's a pretty safe bet that the court will take it up. If the IL AG (whoever he is at any time) asked the court to consider the legality of ham sandwiches, it would consider the legality of ham sandwiches (although it would probably continue to allow ham sandwiches).

 

The Sun-Times article gets it right saying the ruling "sets up a battle over whether the state can require" FOIDs. The ruling was only "as applied" to the circumstances of the motion (a firearm in the home of Vivian Brown). It's an invitation to a battle. Raoul didn't have to RSVP saying he'd attend.

 

FYI, the ruling itself starts its logic with the $10 fee and builds from there. It would be interesting if the IL Supreme Court rules that the FOID is constitutional, but that the fee is not.

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FYI, the ruling itself starts its logic with the $10 fee and builds from there. It would be interesting if the IL Supreme Court rules that the FOID is constitutional, but that the fee is not.

LOL, it would be interesting to see how long the FOID lasted if it was no longer a honey pot of money for the state!

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This point may have been made elsewhere (didn't see it here) comparing the "tax" (fee) for the FOID to the old "poll tax" that was declared unconstitutional decades ago and I'm thinking that, even if not the same despicable situation, they are close enough to warrant action by the courts. Having to pay a "fee" or "tax" for an enumerated Constitutional right is unConstitutional and illegal.

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This point may have been made elsewhere (didn't see it here) comparing the "tax" (fee) for the FOID to the old "poll tax" that was declared unconstitutional decades ago and I'm thinking that, even if not the same despicable situation, they are close enough to warrant action by the courts. Having to pay a "fee" or "tax" for an enumerated Constitutional right is unConstitutional and illegal.

One thing to keep in mind, in terms of case law historically when it comes to licenses/permits for the exercise of certain rights: there is a difference between what is considered a “tax” and a “fee”. Fees have been largely upheld, as long as they are not so excessive that they are effectively prohibitive or implemented in a way that is discriminatory, and if they are used for purposes related to the implementation and enforcement of the license. Where they have been held unconstitutional is when they are used for general revenue for other purposes, or treated as a “tax”.

 

In terms of the FOID, it’s pretty easy for the State to make the case that it is used for implementation and enforcement purposes, when law enforcement is the agency that the money goes to (whether it is ISP or DNR). Even when the funds were swept, my guess is that argument can still be made, albeit a little looser, when there general revenue funds still go to fund officers on the roads (ie enforcement).

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  • 3 months later...

So what’s the latest on this case?

 

Has the state AG filed an appeal? I thought appeals had to be filed within 30 days? Or at least a request for extension to file an appeal. It is now August, 4 months later. So what’s the latest?

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On 5/3/2021 at 9:45 AM, MRE said:

One thing to keep in mind, in terms of case law historically when it comes to licenses/permits for the exercise of certain rights: there is a difference between what is considered a “tax” and a “fee”. Fees have been largely upheld, as long as they are not so excessive that they are effectively prohibitive or implemented in a way that is discriminatory, and if they are used for purposes related to the implementation and enforcement of the license. Where they have been held unconstitutional is when they are used for general revenue for other purposes, or treated as a “tax”.

 

In terms of the FOID, it’s pretty easy for the State to make the case that it is used for implementation and enforcement purposes, when law enforcement is the agency that the money goes to (whether it is ISP or DNR). Even when the funds were swept, my guess is that argument can still be made, albeit a little looser, when there general revenue funds still go to fund officers on the roads (ie enforcement).


If you read the opinion given in April by the Judge. 
 

The point he made multiple times with the various state arguments was the fact that every argument used by the state, was for cases relating to a firearm OUTSIDE the home. Even the cases talking about fees and or taxes, all relate to us of a firearm OUTSIDE the home. Even the purchase of a firearm is different.

 

Keep in mind, one example he used in the Opinion, was that we would never allow an administrative fee to allow someone to vote from home. There is even an Illinois law, that requires mail in votes to have return postage paid by the state. We can’t even ask or require them to pay the cost of a stamp. 
 

The difference and the Part of the FOID law he invalidated was simply two parts.

The part of needing a FOID for possession in the home, and paying a fee for the FOID. He did not invalidate needing a FOID for ammunition, or the purchase of a firearm or ammunition. He also didn’t invalidate the possibility of still needing a FOID if the state did not charge any fee either.

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I wonder if some of the legal logic used against abortion laws comes into play here.  States have made access to abortions illegal without making abortions illegal, and the courts have said that you cannot restrict access to a legal procedure.  So if having a firearm in your home is legal, and the FOID card law restricts access to something that is legal, does the same legal logic apply?

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On 8/20/2021 at 6:19 PM, lilguy said:

Sooooo, if you have a gun in your home already and you don’t have a FOID it’s unconstitutional to require it.

BUT its not unconstitutional to need one to buy a gun. So this would only protect those that never got a FOID to cover their already owned guns?

I guess it would apply to someone who had a FOID, bought a gun, and then let the FOID expire. Or someone who moved from out of state with guns and never got a FOID.

 

 

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On 8/20/2021 at 6:19 PM, lilguy said:

Sooooo, if you have a gun in your home already and you don’t have a FOID it’s unconstitutional to require it.

BUT its not unconstitutional to need one to buy a gun. So this would only protect those that never got a FOID to cover their already owned guns?

Based on the lower court ruling of that judge, yes it would be unconstitutional to require a FOID to own a gun in your home, but not to buy one. It is also unconstitutional to charge $10 for a FOID as well.

 

The thing is though, the Supreme Court does have a little leeway. They do have the capability to come back and say the entire FOID act is unconstitutional. However that is unlikely.  I suspect the Supreme Court will uphold the ruling that requiring a FOID card to have a firearm in your possession in your own home to be unconstitutional. 
They might say the same thing on charging $10 to have a FOID just to have a firearm in the home. But if they rule item 1 unconstitutional, then the fee is moot at that point. However it is possible they may rule the fee unconstitutional for the FOID no matter if it’s in the home or otherwise.

 

The latest I have found on the case from the State AG is that the states brief has a due date of September 9th, 2021. So sometime within 12 months after that, or before that date of 2022. We should have a ruling on this case.

 

Unless the state AG try’s to appeal to a Federal court. Which is possible but I doubt.

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On 8/20/2021 at 9:41 PM, DoYouFeelLucky said:

I wonder if some of the legal logic used against abortion laws comes into play here.  States have made access to abortions illegal without making abortions illegal, and the courts have said that you cannot restrict access to a legal procedure.  So if having a firearm in your home is legal, and the FOID card law restricts access to something that is legal, does the same legal logic apply?


Yes and no. If you read the opinion issued by the lower court, his logic was this…

 

He used the difference of being in the home, ones domicile, and being outside the home. Heller ruled that we have a right to have a firearm in our home, in our “castle”. 
The opinion compared to what is allowed in the home,  Verus public.

 

He used to examples. One voting, and two freedom of speech. We can make it illegal to yell “Fire” in public places when their is no fire. What we cant do, is to make it illegal to yell “fire” in your own home. in regards to voting. It would clearly be unconstitutional if we required a “fee” to be allowed to vote from home. In fact Illinois law even requires mail in votes to be return postage paid by the state, county, or city.

Thus we cant charge a fee, or require a license to exercise another constitutional right in your own home as well.

 

Whats interesting to note, is that his opinion clearly outlines in terms of for the home only. And that Vivian Brown was in her home, at the time of the “crime” and not outside of her home. So that’s the delineating factor.

 

HOWEVER…. One should note that his opinion is based on The Heller case, which was about having a firearm in the home. Within the next 12 months we hopefully will have a new case, the NY case, which hopefully will make it clear that we have a constitutional right to own carry and posses a firearm OUTSIDE of the home. Once we have that case in the books. I foresee the FOID act being challenged for the purpose of needing to have a FOID to buy or posses a firearm outside the home as well. That case, might even force Illinois to finally allow open carry as well. We won’t know though until opinions have been issued on both cases.

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On 8/22/2021 at 10:16 PM, Texasgrillchef said:


Yes and no. If you read the opinion issued by the lower court, his logic was this…

 

He used the difference of being in the home, ones domicile, and being outside the home. Heller ruled that we have a right to have a firearm in our home, in our “castle”. 
The opinion compared to what is allowed in the home,  Verus public.

 

He used to examples. One voting, and two freedom of speech. We can make it illegal to yell “Fire” in public places when their is no fire. What we cant do, is to make it illegal to yell “fire” in your own home. in regards to voting. It would clearly be unconstitutional if we required a “fee” to be allowed to vote from home. In fact Illinois law even requires mail in votes to be return postage paid by the state, county, or city.

Thus we cant charge a fee, or require a license to exercise another constitutional right in your own home as well.

 

Whats interesting to note, is that his opinion clearly outlines in terms of for the home only. And that Vivian Brown was in her home, at the time of the “crime” and not outside of her home. So that’s the delineating factor.

 

HOWEVER…. One should note that his opinion is based on The Heller case, which was about having a firearm in the home. Within the next 12 months we hopefully will have a new case, the NY case, which hopefully will make it clear that we have a constitutional right to own carry and posses a firearm OUTSIDE of the home. Once we have that case in the books. I foresee the FOID act being challenged for the purpose of needing to have a FOID to buy or posses a firearm outside the home as well. That case, might even force Illinois to finally allow open carry as well. We won’t know though until opinions have been issued on both cases.

 

FOID ACT Prohibits possession period, it makes no distinction between home or outside the home.

 

(430 ILCS 65/2) (from Ch. 38, par. 83-2)
Sec. 2. Firearm Owner's Identification Card required;
exceptions.
(a) (1) No person may acquire or possess any firearm, stun
gun, or taser within this State without having in his or her
possession a Firearm Owner's Identification Card previously
issued in his or her name by the Department of State Police
under the provisions of this Act.

(2) No person may acquire or possess firearm ammunition
within this State without having in his or her possession a
Firearm Owner's Identification Card previously issued in his or

https://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=1657&ChapterID...
5 of 34 8/24/2021, 1:55 PM
her name by the Department of State Police under the provisions
of this Act.

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As I recall, this was an "as applied" challenge so I don't know that the court needs to determine whether "inside" and "outside" are severable (indeed, they are should not be severable due to the way the statue was crafted).  I think that the court can instead look at the specific circumstances (which were indeed inside the home) and rule narrowly on the specific set of facts presented.

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On 8/25/2021 at 4:21 PM, Silhouette said:

As I recall, this was an "as applied" challenge so I don't know that the court needs to determine whether "inside" and "outside" are severable (indeed, they are should not be severable due to the way the statue was crafted).  I think that the court can instead look at the specific circumstances (which were indeed inside the home) and rule narrowly on the specific set of facts presented.


 

Th judge and thus the Supreme Court, will be looking at the Constitutionality of the FOID act as it relates to possession in the home. That is what the judge wrote his opinion on, that the FOID act is unconstitutional as it relates solely to th posses in in the home.

 

Many of us will argue that the Entire FOID act is unconstitutional, which it may very well be. However the Supreme Court of IL will only be looking at its constitutionality based on possession in solely in the home.

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On 8/25/2021 at 9:37 PM, Texasgrillchef said:


 

Th judge and thus the Supreme Court, will be looking at the Constitutionality of the FOID act as it relates to possession in the home. That is what the judge wrote his opinion on, that the FOID act is unconstitutional as it relates solely to th posses in in the home.

 

Many of us will argue that the Entire FOID act is unconstitutional, which it may very well be. However the Supreme Court of IL will only be looking at its constitutionality based on possession in solely in the home.

 

Unfortunately, even if the IL SC rules the statute unconstitutional as applied to Brown, there will still be further wrangling because this is not a facial challenge to the statue.  That said, the effect will be somewhat similar -- at least in the home.  On the bright side, it may have significant impact on firearm confiscation following revocation of a FOID.

 

 

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On 8/25/2021 at 11:09 PM, Silhouette said:

 

Unfortunately, even if the IL SC rules the statute unconstitutional as applied to Brown, there will still be further wrangling because this is not a facial challenge to the statue.  That said, the effect will be somewhat similar -- at least in the home.  On the bright side, it may have significant impact on firearm confiscation following revocation of a FOID.

 

 


A lot depends on how the opinion by the Supreme Court issued and if they rule those parts as invalid or not.

 

The other thing is known as case law. If the SC rules those parts unconstitutional as it relates to brown. Then Defense attorneys can use the same defense for other similar cases. Thus in effect making that section invalid. Ie… I move to Illinois, bring my firearms with me, and don’t get a FOID. Never take my firearms from the home. The police would be hard pressed to arrest me or confiscate my firearms. My defense would be brown. It would not be a winnable case by the DA.

 

Revocation of ones FOID, and firearm confiscation would be a different matter though. If your FOID was being revoked because you were just convicted of a crime that makes you ineligible to own a firearm under federal law, the brown case would not be of any significance. The only law Vivian Brown broke, was not having a FOID. 
If they were trying to confiscate your firearms simply because you let your FOID card expire, or moved to IL and failed to get a FOID, Then that would be a different issue. The Brown case would become a factor in your defense.


While this case pertains solely to the FOID and possession of a firearm in the home as well as paying a fee to posses a firearm in the home. The SC could easily rule and invalidate that section of the FOID act to require a FOID to posses a firearm in the home or even outside of the home. They could even invalidate the whole FOID act if they chose too. However I doubt they will. I don’t see them invalidating the FOID for firearm purchase either.

 

One other thing to keep in mind as well. As far as possibilities go. If SCOTUS rules against the state of NY on their LTC case, and IL SC rules in favor of brown even on a limited scope. I am sure, someone will file a lawsuit against the state of IL to try and invalidate the entire FOID act. Which IMHO May end up actually winning in our favor.

 

However as I have said in the past… it ain’t over till the fat lady sings, and we get a determination and opinions issued from the Supreme Court and from SCOTUS.

 

One other thing too… even if the IL SC rules against IL or even against Brown. Either party could and can still file an appeal to the Federal Circuit court and SCOTUS. It is rare for IL though to appeal a case on a Federal Level to SCOTUS though.

Edited by Texasgrillchef
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