Illinois Prosecutor Asks State Supreme Court To "Void The FOID"

AP Photo/Michael Hill

Illinois is one of a handful of states around the country that require a government permission slip to simply own a firearm. The state’s Firearm Owner ID system has been in place for a couple of decades, and has drawn grumbles and legal challenges from gun owners over the years, particularly as the delays in processing FOID applications have reached 12 months or more for some would-be gun owners.

In fact, there’s a case before the state Supreme Court right now that could determine the future of the FOID. An Illinois circuit judge ruled in People v. Vivian Brown that the Illinois resident had her constitutional rights violated when she was arrested for possessing a gun in her home without a valid FOID card. Brown was legally eligible to receive a FOID card, but hadn’t applied for one. According to the judge, she shouldn’t have been required to do so simply to keep a gun in her house.

The circuit court of White County dismissed the charge, finding that, as applied to the facts of the case, requiring a FOID card was unconstitutional under the second amendment to the United States Constitution (U.S. Const., amend. II) and article I, section 22, of the Illinois Constitution of 1970

In his ruling, Judge Webb stated, “A citizen in the State of Illinois is not born with a Second Amendment right. Nor does that right insure when a citizen turns 18 or 21 years of age. It is a façade. They only gain that right if they pay a $10 fee, complete the proper application, and submit a photograph. If the right to bear arms and self-defense are truly core rights, there should be no burden on the citizenry to enjoy those rights, especially within the confines and privacy of their own homes. Accordingly, if a person does something themselves from being able to exercise being able to exercise that right, like being convicted of a felony or demonstrating mental illness, then and only then may the right be stripped from them.”

That was back in April of this year, but so far the Illinois Supreme Court hasn’t done much with the case. Oral arguments have yet to be scheduled, and it this point it seems a distinct possibility that the state’s highest court will hold off until the Supreme Court issues its decision in New York State Rifle & Pistol Association v. Bruen, which is expected sometime next summer. While the Illinois case doesn’t involve the right to carry, the Supreme Court’s decision is anticipated to include clear guidance to lower courts about the standard of review that should be used when determining the constitutionality of gun control laws, so it does make some sense that the Illinois justices would want to hold off until they hear what SCOTUS has to say.

While we’re all waiting, however, one prosecutor in Illinois is weighing in on the Brown case with an amicus brief to the Illinois Supreme Court arguing that the FOID card needs to disappear.

Illinoisans must have a Firearm Owners Identification card to legally own guns, but Madison County State’s Attorney Tom Haine, a first-term Republican, said the law violates the Second Amendment and should be struck down. “Even in your own home you have to ask permission from the state to possess a gun or it’s a criminal violation,” Haine said. “That reaches right into the core of Second Amendment rights.”

Haine said he decided to file a document known as an amicus brief supporting Brown because the city of Chicago and Cook County all had filed briefs supporting FOID. “We wanted to make clear where Madison County stood,” Haine said.

While Chicago and Cook County argued in their briefs that the FOID law prevents gun violence, it doesn’t have the same effect in Madison County, the state’s attorney said. The Madison County state’s attorneys office has prosecuted 200 violations of the law since 2016, of which only a third resulted in convictions, according to the brief. The office prosecuted more than 20,000 felonies in general during that same time.

Cook County and Chicago may have more people than Madison County, but I think Haine has the better argument. Defenders of the FOID maintain that the system prevents violent criminals from getting ahold of guns, which makes me wonder if they’ve actually read any recent headlines from Chicago.

Violent criminals aren’t waiting for the Illinois State Police to give them permission to own a gun. They’re stealing firearms, getting them through straw purchases, buying them off the street or even passing them around among fellow gang members. Illinois’ FOID requirement is doing far more to delay or deprive law-abiding citizens of their right to keep arms than it is to prevent carjackings, armed robberies, and home invasions in Chicago, and I’m in full agreement with Haine here: it’s time for the state Supreme Court to void the FOID and help restore the Second Amendment in Illinois.