A recent decision handed down in a White County court in the case of People v. Brown is heading to the Illiinois Supreme Court. The Illinois Attorney General’s office was apparently dissatisfied with Judge Mark Stanley’s significant ruling declaring the FOID (Firearm Owners Identification Card) Act (430 ILCS 65/4(a)(1) to be unconstitutional in this case. That decision came out of the court in February of 2018. Stanley reiterated and then supplemented his ruling in a second decision in October 2018 in response to the State’s motion to reconsider the ruling.
The case involved Vivian Brown of White County who kept a single shot bolt action .22 rifle in her home for personal protection. She was eligible for, but did not possess, a FOID card.
The Illinois statute establishes that “No person may acquire or possess any firearm…within this State without having in his or her possession a Firearm Owner Identification Card previously issued in his or her name by the Department of State Police under the provision of this Act.” Applicants are expected to furnish a photograph to the Department of State Police along with payment of a $10 fee.
Judge Stanley’s ruling from February 14, 2018 maintains that Article 1, Section 22 of the Constitution of the State of Illinois states, “Subject only to the police power, the right of the individual citizen to keep and bear Arms shall not be infringed.” The Second Amendment to the U.S. Constitution provides, in part…”the right of the people to keep and bear Arms, shall not be infringed.” And the 14th Amendment to the U.S. Constitution provides, in part..”No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”
District of Columbia v. Heller, 554 U.S. 570, 628 (2008) found that “the Inherent right of self-defense” has been central to the Second Amendment and the home is “where the need for defense of self, family, and property is most acute.”
In People v. Brown, “the facts show the defendant possessed a gun, in her house, for the purpose of self-defense without a FOID card. To require the defendant to fill out a form, provide a picture ID and pay a $10 fee to obtain a FOID card before she can exercise her constitutional right to self-defense with a firearm is a violation of the Second Amendment to the United State Constitution as applied to the States and a violation of Article 1, Section 22, of the Constitution of the State of Illinois, as applied to this case only.”
Judge Stanley further found that “430 ILCS 65/2(a)(1) cannot, in this case, reasonably be construed in a manner that would preserve its validity and this finding of unconstitutionality is necessary to the decision in this case.”
On October 16, 2018, in response to a Motion to Reconsider Order Finding Statute Unconstitutional, Stanley supplemented his ruling from February stating that “To comply with 430 ILCS 65(a)(1) a person must have a FOID card on their person when in either actual or constructive possession of a firearm or ammunition. Owning a FOID card is insufficient to comply with the statute. See People v. Eldens, 63 Ill. App. 3d 554 (Fifth Dist. 1978) and People v Cahill, 37 Ill. App.3d 361 (Second Dist. Second Div. 1976).
He went on to state, “A person is in constructive possession of a firearm or ammunition when: (1) The person has knowledge of the presence of a weapon or ammunition, and (2) that person is in immediate and exclusive control over the area where the firearm or ammunition is located. Due to the language of the statute and the Court’s interpretation of it, it is clear that compliance is impossible when one is in their own home. No person could have their FOID card on their person 24 hours each and every day when firearms or ammunition are in the house. In addition, every person in the home (family member, friend, spouse, etc.) who has knowledge of the firearms or ammunition and has immediate and exclusive control of the area where the firearms or ammunition is located, who does not have a FOID card, would be in violation of the statute.”
The ruling found the Illinois law to be wholly in violation of the Second Amendment to the U.S. Constitution, as reapplied to the States through the Fourteenth Amendment, and in violation of Article 1, Section 22 of the Constitution of the State of Illinois, and that the statute cannot reasonably be construed in a manner that preserves its validity.
Attorney Alan Downen of McLeansboro, represented Ms. Brown in the local case, but he has since retired and will not be representing her in the Supreme Court case. David Sigale of the 2nd Amendment Foundation will be representing Ms. Brown in her appeal to the IL Supreme Court.
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