Even though the state law effectively bars people from owning guns without first obtaining permission from the state to do so, a divided state appeals court has ruled Illinois' gun owner licensing law doesn't violate the right to keep and bear arms protected by the Second Amendment.
A dissenting justice on the court, however, said the ruling essentially "stands the Second Amendment on its head," by requiring people to first prove they are allowed to own a gun before the state allows them to exercise a supposed fundamental constitutional right.
On April 29, a three-justice panel of the Illinois Fourth District Appellate Court in Springfield ruled 2-1 to reject a challenge to Illinois' unique Firearms Owner Identification (FOID) law.
Illinois Fourth District Appellate Justice Craig DeArmond
| Illinoiscourts.gov
Enacted in 1968, the FOID law stands as an outlier among U.S. state gun owner licensing regimes. The law forbids anyone from carrying a firearm in Illinois unless they first obtain a FOID card issued by the Illinois State Police.
To obtain FOID cards, people must submit an application, and show they meet certain requirements. These include being at least 21 years old and a legal resident of Illinois. They must also not be a convicted felon, be free of any civil restraining orders, and not be subject to any restrictions due to mental illness. Applicants must pay a $10 fee, among other requirements.
In 2019, Second Amendment rights advocacy group Guns Save Life filed suit in Sangamon County Circuit Court in Springfield, challenging the FOID law as an unconstitutional gun control law.
They particularly argued the law essentially sets up an effective ban on gun ownership in Illinois without state permission, which they said amounts to a violation of the Second Amendment, particularly as interpreted under more recent U.S. Supreme Court rulings appearing to restrict the ability of states and other governments to impose restrictions on gun ownership and use.
They pointed to the Supreme Court's ruling in the case known as New York State Rifle and Pistol Association v Bruen. When taken together with the prior landmark Second Amendment decision in District of Columbia v Heller, the Bruen ruling created tests for states and courts to use when evaluating if such restrictions are constitutional. Those tests require courts and lawmakers to evaluate if the weapons being banned are both dangerous and unusual, and if the restrictions are in keeping with U.S. history and tradition dating back to the ratification of the Second Amendment in 1791 and the Fourteenth Amendment in 1868.
Guns Save Life (GSL) argued Illinois' FOID law is unconstitutional under Bruen, because the state's regime is novel and has no basis under U.S. history or tradition beyond the modern period in which states and local governments have sought to sharply curtail the right to keep and bear arms in the name of public safety.
In Sangamon County court, however, Associate Judge Jennifer Ascher sided with the state, declaring the FOID law didn't violate the Second Amendment because she agreed with the state that there was "ample historical evidence supporting the constitutionality of the FOID Act."
GSL then appealed to the Fourth District court.
However, two of the three justices on the Fourth District panel agreed the FOID licensing requirements don't run afoul of the Second Amendment.
The majority opinion was authored by Justice Thomas M. Harris. Justice Peter C. Cavanagh concurred with Harris, but also added a special concurring opinion offering additional reasons to find the FOID law constitutional.
Justice Craig H. DeArmond dissented.
All three of the justices have campaigned or identified as Republicans.
In the majority opinion, Harris said Illinois' FOID regime stands up under the Second Amendment because it is a so-called "shall issue" licensing rule. He said this distinguishes it from other licensing regimes disallowed under Bruen, notably including a New York licensing rule which granted state officials "broad discretion" to decide if someone actually could prove they needed a gun for self defense.
Harris said the Bruen decision explicitly did not outlaw all state gun ownership restrictions or licensing rules. He and Cavanagh said that position is reinforced by the Supreme Court's more recent decision in the case known as U.S. v Rahimi, in which the court said governments can temporarily disarm people deemed a threat to the physical safety of others without violating the Second Amendment.
Similarly, the majority said, the state uses FOID to attempt to prevent certain felons, those with mental illness and others who may be deemed threats to public safety from owning and using guns.
Illinois' FOID law "requires that licenses shall be issued anytime an applicant satisfies specified objective criteria and does not grant licensing officials discretion to deny a license based upon a perceived lack of need or suitability," Harris wrote in the majority opinion.
"In the same way that the shall-issue public carry licensing regimes identified in Bruen did 'not necessarily prevent ‘law-abiding, responsible citizens’ from exercising their Second Amendment right to public carry,' the FOID Act similarly does not prevent law-abiding, responsible citizens from exercising their second amendment right to acquire and possess firearms.
"A brief delay in one’s ability to exercise a right does not constitute a denial of that right."
In the special concurring opinion, Cavanagh went further. He asserted the state's rules requiring gun owners to obtain FOID cards aren't any more a restriction on Second Amendment rights than voter registration is on the right to vote or obtaining a passport is on the right of Americans to "exit" the country.
The Constitution's Bill of Rights does not establish the right to vote or the "right to exit."
He further likened a FOID card to the need to obtain a permit before holding certain kinds of public gatherings or parades, which he said is otherwise guaranteed as free speech under the First Amendment.
Because the state's FOID law is a "shall-issue" licensing regime, Cavanagh said, it merely represents a similar affirmation by the state - essentially, a "badge" - that the person holding a FOID card is exercising their right to keep and bear arms.
"If ... it is not an 'abridg[ement of] the freedom of speech' to allow a parade or procession only if the organizer has a permit, then, at the level of textual analysis, it cannot be an 'infringe[ment]' of the right to keep and bear arms to allow the possession of firearms and firearm ammunition only if the possessor has a shall-issue FOID card," Cavanagh wrote. "If the requirement of a FOID card were a breach but the requirement of a parade permit were no breach, the second amendment (sic) would be an outlier in the Bill of Rights."
Cavanagh further compared FOID cards to so-called "loyalty oaths" required of people in certain states during the Colonial Period in U.S. history. People refusing such oaths could be disarmed by the state, Cavanagh noted.
While FOID is not a doppelganger for such loyalty oaths, Cavanagh said the Rahimi decision showed it only needs to be "close enough."
"... We can glean a relevant principle from the loyalty oath statutes: the government may screen its citizens for entitlement to possess arms by having them sign a statement that they do not fit into a category of individuals whose possession of firearms would threaten the safety of the community. The FOID Act is an implementation of that principle," Cavanagh wrote.
In dissent, however, DeArmond said the majority opinions fail to address the gravity of the constitutional question at the heart of the challenge.
DeArmond noted the right to keep and bear arms was not created by the Second Amendment. Rather, the Amendment merely codified a preexisting right, long established under English Common Law.
DeArmond said the Second Amendment should be read to guarantee people the right to own and use guns for self-defense and in defense of liberty, unless the state can prove they should not.
In their ruling, DeArmond said, the majority instead agrees with the state that it can screen gun owners first. Those who would not submit to the screening can then not legally own guns and face the risk of criminal prosecution for doing so, which he said violates a right guaranteed by the Constitution.
"The founders understood almost everyone had the right to keep and bear arms, unless and until there was some basis for removal. The FOID Act presumes no one has the right to keep and bear arms, unless and until the right holder proves otherwise,"
DeArmond wrote in his dissent.
"This is the definition of unconstitutional."
In a blog post on the GSL website, GSL Executive Director John Boch pilloried the ruling, mocking it as "stunningly brave."
in the post, Boch called the FOID Act "the crown jewel of racist gun control in Illinois," and asserted it was instituted in the 1960s to prevent black Illinoisans from legally owning and using guns.
"The 2-1 decision upholding the FOID Act gave us not one, but two creative legal interpretations on how to side-step 'shall not be infringed' along with the U.S. Supreme Court’s Bruen decision and its 'text, history and tradition' standard by which gun control laws are to be evaluated by inferior courts," Boch wrote.
"Yep. Just as the courts and government units frequently tried to side-step or ignore the landmark US Supreme Court ruling in Brown v. Board of Education which ended racial segregation in public schools, many courts have gone out of their way to ignore or outright flout the Bruen precedent they are bound by law to follow."
GSL was represented in the action by attorneys Andrew A. Lothson and Benjamin D. Lothson, of Swanson Martin & Bell, of Chicago.