Supreme Court decision could tank Illinois ban on gun ownership for foster parents

Photo Courtesy of the National Shooting Sports Foundation

There are restrictions on our Second Amendment right. Many of those restrictions amount to straight up infringement. In order to infringe on something, the threshold is actually very low. Illinois is not known for being a state all that friendly to gun owners. They have and continue to obstruct the law-abiding from exercising their Constitutional right. A peculiar case from 2018 out of the Prairie State was appealed to the Seventh Circuit in early 2022. The case is Miller v. Smith and involves the Millers being prohibited from keeping and bearing arms at their property because they are licensed foster caregivers. Recently the Second Amendment Foundation (SAF), who’s suing on behalf of the Millers, filed their reply brief in the appeal. The SAF is suing alongside the Illinois State Rifle Association and Illinois Carry.

The law in Illinois is overreaching and bans the possession of firearms at multiple locations, including licensed daycare and foster care properties. Per the opinion from Illinois Central District Court of Springfield, the following regulation was cited:

DCFS has also promulgated the following rule regarding firearms in foster family homes

(o) Any and all firearms and ammunition shall be stored and locked up separately at all times and kept in places inaccessible to children. No firearms possessed in violation of a State or federal law or a local government ordinance shall be present in the home at any time. Loaded guns shall not be kept in a foster home unless required by law enforcement officers and in accordance with their law enforcement agency’s safety procedures.

Because of that regulation, the Millers had their rights stripped from them. The lower court found the regulation to be Constitutional using an intermediate scrutiny approach. In the reply brief, that level of scrutiny is addressed while looking through the lens of our post NYSRPA v. Bruen world.

The Second Amendment Foundation has filed a reply brief in its appeal of a lower court ruling upholding an Illinois ban on firearms for the purpose of immediate self-defense in the homes of law-abiding adults licensed to provide day or foster care.

SAF is joined in this action by the Illinois State Rifle Association, Illinois Carry and two private citizens, Darin E. and Jennifer J. Miller. They are represented by attorneys David G. Sigale of Wheaton, Ill., and David H. Thompson, Peter A. Patterson and John D. Ohlendorf of Cooper & Kirk, PLLC, Washington, D.C.

The appeal is filed in the U.S. Court of appeals for the Seventh Circuit. The case is known as Miller v. Smith.

“Our case dates back to before the U.S. Supreme Court handed down the Bruen decision in June of this year,” noted SAF founder and Executive Vice President Alan M. Gottlieb. “The Bruen ruling is fatal to the state’s position that rules allowing this gun ban are constitutional. The Bruen ruling did away with the ‘two-step’ approach to determining Second Amendment-based challenges.”

That two-step, or intermediate scrutiny being no longer applicable is parroted in the filing, “Modern firearm restrictions must be closely analogous to historical restrictions, and the inquiry into historical analogues does not give the State a regulatory blank check.” From the brief, we find that the State is going to have a hard time proving that considering:

…The great bulk of Illinois’s historical evidence comes from long after the ratification of the Second Amendment in 1791, from “regulations enacted throughout the nineteenth century and into the twentieth.”

Bruen also makes clear, the Supreme Court has always treated the ratification of the Bill of Rights as the key period for understanding the scope of the rights enumerated therein.

Gottlieb declared further, “This is yet another case of Illinois government trying to perpetuate restrictions on law-abiding gun owners contrary to Supreme Court rulings.” Specifically he mentions, “We have lost count of the number of cases we’ve had to file in Illinois, but we are in this for the long haul. It is just one more example of our mission to win firearms freedom one lawsuit at a time.”

This case has quite some interest, with the Firearms Policy Coalition having filed an amicus brief in support of the Millers back in the spring. At that time, Joseph Greenlee the FPCAF director of constitutional studies observed, “Forbidding people like the Millers to keep operable firearms in the home merely because they are foster parents or provide daycare is a clear violation of this fundamental right. We hope that the Seventh Circuit will reverse the wrongly decided lower court opinion.”

This reply brief filed by the Second Amendment Foundation is a big deal for this case. Considering the brief was the first filing post NYSRPA v. Bruen, there’s a whole new lens to view the case through, and a more specific threshold the State must meet in order to be in compliance with respecting Constitutional rights. It’s difficult to say what will happen, however, given similar cases in different jurisdictions, the cards are finally stacked in favor of the Millers.