Illinois Supreme Court once again avoids a decision about FOID card constitutionality

For five years now, an Illinois woman named Vivian Brown has been trying to get her conviction for possessing a rifle in her home without a valid Firearms Owner ID card thrown out on constitutional grounds, to no avail. While a trial judge ruled that the state’s FOID requirement was unconstitutional as applied to guns in the home, the state Supreme Court in 2020 threw out that decision and remanded the case back to the White County Circuit Court, where the judge once again ruled that Brown shouldn’t have been convicted of a crime.


The case was reheard by the state Supreme Court in March, and it was widely expected that this time around the court would have no choice but to weigh in directly on whether or not the FOID statute was constitutional. However, on Thursday the court issued its second opinion in the Brown case, and once again managed to completely avoid the question at issue.

“The circuit court was directed to enter a modified order dismissing defendant’s information on the alternative nonconstitutional ground, thereby allowing the normal appellate process to proceed,” the majority opinion said. “The circuit court concluded, however, that it would not be in the ‘best interests of justice’ to enter such an order.”

Ordering the case back to the circuit court, the majority ordered a modified circuit court order that was originally entered in 2020.

“On remand, the circuit court shall not entertain any motion from any party, nor take any action other than entering the modified order,” the opinion said. “Because the circuit court’s orders must be vacated, we do not reach any other issue in this appeal.”

The majority consisted of Chief Justice Anne Burke, Justice Mary Jane Theis, Justice P. Scott Neville, Jr. and Justice Robert Carter.

Dissenting were Justice Michael Burke, Justice Rita Garman and Justice David Overstreet. On Thursday, they said the majority referring to the first hearing of the case as an “unexpected and pointless exercise” and a “meaningless and wasteful act” is exactly what Thursday’s majority decision is and “the trial court did absolutely nothing wrong.”

In a move that appears to be unprecedented in Illinois jurisprudence, this court, while expressing no opinion on the merits of the case, forces the trial court to take a particular position on the merits and denies that court its inherent power to reconsider its own ruling,” the dissenting justices said.


This gets confusing, but basically the trial judge ruled that the FOID statute was unconstitutional as applied in the home, but also that the state legislature never intended it to apply in the home. The first time the state Supreme Court heard the case, it sent it back to the trial judge with an order to remove the language about the constitutionality of the law because it “was not necessary to the resolution of this case”; the ruling that the state legislature never intended for the FOID statute to apply in the home was the only argument that could be used.

When the case when back to White County, a new judge agreed to a request Brown’s attorney to reconsider the modified court order, and  ultimately vacated that order and replaced it with one that again found the FOID statute to be unconstitutional, and this time that was the only factor listed. Because there was now no argument other than the question of constitutionality, the state Supreme Court couldn’t possibly bypass a decision, right?

Wrong. From today’s opinion:

The circuit court’s order of April 26, 2021, finding section 2(a)(1) of the FOID Card Act unconstitutional, and the order of June 15, 2020, vacating the modified order of June 4, 2020, must both be vacated because the court had no authority to enter those orders. The controlling rule is clear and unconditional. When a cause is “remanded by the reviewing court with instructions to the circuit court to enter a specific order, the reviewing court’s judgment is, with respect to the merits, ‘the end of the case,’ and there is ‘nothing which the circuit court [is] authorized to do but enter the decree.’ ”


The three dissenting judges, however, say that the majority has “painted itself into a corner” with its circular logic on how much power and authority the circuit court had when the case was remanded back to White County.

In a nutshell, the conundrum for the majority is this: either (1) the order entered by the trial court was in reality the judgment of this court, in which case it could not be reviewed by the appellate court, or (2) the order could be reviewed by the appellate court, in which case it could not be the judgment of this court. And if it is the latter, then there is no reason why the trial court could not exercise its inherent power to reconsider its own ruling.

If the order is subject to review on the merits by the appellate court, then it is subject to reconsideration on the merits by the trial court. The majority never explains why it is perfectly fine with the appellate court reversing the order but considers it an affront to this court’s authority for the circuit court to reconsider it. Nor does the majority explain why, if this court has not considered the merits of the statutory issue, it is forcing the trial court to maintain a certain position on that issue. Ironically, the majority claims that it is forced to decide the case as it does to avoid “upending our hierarchical judicial system.” But the only thing upending our hierarchical judicial system is the majority opinion, which says that the appellate court may review a judgment of this court that was final and conclusive upon all the parties.

In reality, the judgment of the circuit court was not a judgment of this court that was final and conclusive on all the parties because this court declined to reach the merits of the statutory analysis and only vacated the circuit court’s judgment on procedural grounds. Accordingly, the trial court was free to reconsider the merits of that ruling, and nothing about it doing so upends our hierarchical judicial system.


Illinois State Rifle Association executive director Richard Pearson says today’s ruling means the case is “back to square one,” calling it “incredibly unfair” to Vivian Brown but vowing to fight on.

Not only is it unfair, I’d argue it’s cowardly of the court to duck the constitutional question at hand. And by once again sending this case back to the starting line, they’ve created another years’ long delay before they have to come up with another lame excuse as to why they can’t or won’t answer the central question of this case: does a government requirement that citizens obtain a permission slip to keep a gun in your home infringe on their right to keep and bear arms?

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