Illinois FOID's constitutionality is challenged again in a case from 2017

RJA1988 / Pixabay

Going through the judiciary to secure your rights can be like a game of “Snakes and Ladders.” You climb up a bit, slide down, climb up again, and keep going until you get justice.


Illinois has a Firearms Owners Identification Card (FOID) which is an affront to our constitutionally guaranteed right to keep and bear arms. No other enumerated right requires an application, a fee, submitting a photograph, and a driver’s license or State Identification card. If this was done with any other right, or voting, the ACLU would have been jumping up and down screeching, “Racist!” until our eardrums ripped.

The history of the Illinois FOID is rooted in racism (archived links), as is most gun control. Mom-at-Arms’ website has a lot more information on the racist history of the Illinois FOID card.

It’s amazing that the FOID has stood undisturbed for so long. Thankfully, the time for it to get struck down may be close. Cam and Tom have written over the past few years about a couple of cases that have challenged the constitutionality of the Illinois FOID card. One of those cases, The People of the State of Illinois v. Vivian Claudine Brown, is approaching its third iteration through the Illinois court system.

The case started May 5, 2017, when Vivian Brown was arrested for having a single-shot bolt action .22 rifle in her home without a valid FOID card. The circumstance of her arrest was an accusation by her husband that she discharged the rifle at home; when police came, they found the rifle but no evidence that it had been fired. Brown was not a prohibited person; she just didn’t have the paperwork that Illinois requires.


Starting then, Brown’s case went through a maze-like process in the Illinois Courts. The Circuit Court (which is the lowest court) dismissed the charge against Brown saying it was “impossible to comply” with the law given the circumstances, and also that the Firearm Owners Identification Card Act was unconstitutional as applied to her.

The State appealed directly to the Illinois Supreme Court, bypassing the Appellate Court. The Illinois Supreme Court, in April 2020, sent the case back down to the circuit court telling it to “vacate that portion of its order finding the statute unconstitutional and enter a modified order excluding that finding.” That was Round One.

Vivian Brown again filed a motion again seeking a declaration that the Illinois FOID was unconstitutional, and about a year later, the circuit court again found the statute unconstitutional as applied. The State appealed again directly to the Illinois Supreme Court.

Another year passed by, and in June 2022, the Illinois Supreme Court again remanded the case back to the circuit court with instructions for strict compliance with its mandate to vacate its finding of unconstitutionality. The minority at the Illinois Supreme Court filed a blistering dissent, saying that the majority “painted itself into a corner” with its circular logic. That was Round 2.


Then began Round 3. The circuit court, obeying the Illinois Supreme Court, entered a “modified order” dismissing the charges against Vivian Brown “based solely on the statutory grounds it had stated” in its June 2020 order. The State appealed again, this time to the Appellate Court.

The Appellate Court made its decision a few days ago, and the bottom line for us non-lawyers is they said that the Circuit court’s order of dismissal was based on a finding that neither party sought and done only to comply with the Illinois Supreme Court’s mandate. 

Such a ruling to dismiss charges is “generally reviewed for an abuse of discretion, but where the issues present purely legal questions review is de novo.” What “de novo” means is that the Circuit Court gets to review the case again without relying on any prior findings.

The Illinois State Rifle Association (ISRA) posted a statement in conjunction with the Second Amendment Foundation (SAF):

Illinois 5th Circuit Court Reverses, Remands FOID Card Challenge Case

BELLEVUE, WA – The Illinois 5th Circuit Court of Appeals has finally reversed and remanded a lower court ruling in a case which could determine whether the Firearm Owner’s Identification (FOID) card requirement is constitutional.

The Second Amendment Foundation notes this will be the third go-round for the case in White County Circuit Court, but it could ultimately end up before the Illinois State Supreme Court, noted SAF founder and Executive Vice President Alan M. Gottlieb. The case was brought and funded by SAF and the Illinois State Rifle Association.

The five-page order was unanimous, […]

“We’re delighted the courts will finally have an opportunity to hear arguments in the actual case which challenge the constitutionality of the FOID card,” Gottlieb said. “Hopefully, this time around, we won’t see the case bogged down by more procedural issues which have allowed the court to avoid addressing the main issue at hand, which is whether the FOID card requirement actually passes constitutional muster.”


I am hoping that the problematic Illinois Supreme Court does the right thing this time around.

Join the conversation as a VIP Member