Cook County residents arrested and charged with possessing a firearm without a FOID card or carry license could soon get a second chance at exercising their Second Amendment rights, at least if the new State's Attorney gets her wish. 

Eileen Burke, who was elected as Cook County's top prosecutor last November, issued a press release last Friday proposing a major change to the state's gun laws that she says would "provide meaningful opportunities for non-violent, first-time offenders to get into compliance with the law." Under Burke's proposal, individuals charged with possessing a non-automatic firearm could enter a diversionary program for first time offenders that would not only wipe the felony charge off their record, but allow them to obtain the state-issued permission slips necessary to keep and bear arms under Illinois law. 

Burke's idea is a good one, though her press release manages to get at least one of the basic facts about Illinois law wrong.

Illinois law allows its citizens to carry handguns if they have a valid Firearm Owner’s Identification (FOID) card. This program provides otherwise law-abiding citizens without criminal history who were arrested because they failed to obtain a FOID card, a pathway to come into compliance with those licensing regulations.

No, you can't carry a gun with only a FOID card. A Firearms Owner ID card is necessary to possess a firearm in the home, but in order to carry a handgun in public you must possess a valid Illinois Concealed Carry License, which is an entirely separate permission slip. 

Still, if first-time offenders can get their record wiped clean and obtain a FOID card, they should also be eligible to get a carry license, even if that's not spelled out in the bill Burke's backing. 

An individual’s criminal history could preclude their participation and qualification for this program. Non-violent individuals charged with a first offense may be sent to a diversion program, such as the First Time Weapons Offense Program, and upon completion their charges will be dismissed. However, current law does not allow the individual to apply for a FOID card until after the charges are dismissed and in many cases the offender leaves the diversion program still without the necessary licensing to avoid being charged again despite successful completion of the program.

The changes were introduced this week by State Senator Elgie R. Sims Jr. (17th District – Chicago) in Senate Bill 1899, and State Representative Justin Slaughter (27th District – Chicago) in House Bill 3496. The proposal will allow eligible first-time diversion program participants to apply for a FOID card while participating in a diversion program and receive their FOID card after completing the program. All of the current requirements for lawful gun ownership remain the same, and the Illinois State Police could deny any application if the person remains ineligible for a FOID card.

“There are far too many guns in the hands of far too many people who have no business having them in our communities, and that should be our focus,” Sen. Sims said. “Nonviolent, first-time offenders who are eligible and willing to participate in a program centered on safety and responsible gun ownership should have the opportunity to obtain a FOID card rather than be subject to a cycle of gun charges that can derail their lives. This bill provides a valuable diversion opportunity while placing the responsibility to comply with the law squarely where it belongs: with the individual.”

“This bill is smart public safety reform that prioritizes education and legal compliance over punitive measures that lead to recidivism and the detrimental consequences that result from repeated interactions with the justice system,” Rep. Slaughter said. “I’m looking forward to working with State’s Attorney Burke to ensure that nonviolent offenders in our community have the opportunity to rehabilitate and comply fully with the law.”

SB 1899 and HB 3496 would definitely be an improvement over the status quo, but there's a much easier solution to the problem that Sims, Slaughter, and Burke are trying to solve: getting rid of the FOID card altogether. At least two judges in the state have already concluded that the FOID mandate violates the Second Amendment, though the state Supreme Court has managed to avoid issuing its own ruling by finding technical flaws in those lower court decisions. In fact, the Second Amendment Foundation sent out a press release on Monday afternoon celebrating their latest victory challenging the FOID mandate in a case called State of Illinois v. Vivian Claudine Brown. From the release:

In his 15-page decision, White County Resident Circuit Judge T. Scott Webb observed, “The Defendant's possession of a .22 caliber rifle within the confines of her home, even without a valid FOID card falls squarely within the protections afforded her by the Second Amendment.

“If an intruder had entered Ms. Brown's home,” Judge Webb added, “and threatened violence towards her and, God forbid, she was forced to use that .22 rifle to defend herself, she would have committed a class A misdemeanor carrying with it a possible penalty of up to 364 days in the county jail. She could claim self-defense, but that does not change the fact that she possessed a firearm without a valid FOID Card. Such an outcome is asinine especially in this great nation that so cherishes the right to be secure and defend oneself within the home.”

“This is an important ruling in a case that has been up and down the Illinois judicial ladder a couple of times already,” noted SAF founder and Executive Vice President Alan M. Gottlieb. “We expect the state to appeal again, which could put the case right back before the Illinois Supreme Court for the third time, and we are confident we will win. It’s hard to see how the Illinois Supreme Court avoids the constitutional issue, as they have done on the previous two visits.”

The FOID card requirement is already on thin legal ice, but there's another related issue that this legislation also fails to address: the lack of range access in Chicago (and to a lesser extent, Cook County), which makes it difficult, if not impossible, for some residents to obtain the training required to receive a FOID card and/or carry permit. That's a barrier created by the anti-gun politicians in the Chicagoland area, and if the goal is to make it easier to comply with the law then legislators should reverse course and fund one or more public ranges inside the city of Chicago so folks can easily get the training the state requires. 

I doubt that's gonna happen, and frankly, SB 1899 and HB 3496 may face challenges of their own. I'd like to think that the Republican minority will get on board with this bill, but it will probably take the support of almost every GOP member of the legislature to get the legislation to the governor's desk given the outright hostility towards the right to keep and bear arms displayed by so many Democrats in Springfield. 

Burke's idea isn't perfect, and there are much better ways to accomplish her goals, but anything that would keep people from going to prison for simply possessing a gun without the proper paperwork would be a step in the right direction, and it'd be great if SB 1899 and HB 3496 are able to get some traction this session.