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FOID card constitutionality could return to Illinois Supreme Court

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SPRINGFIELD — For the second time, a county judge in southern Illinois has ruled the state’s Firearm Owner Identification Card law unconstitutional, as applied to one state resident, Vivian Brown.

The ruling from Judge T. Scott Webb means the Illinois Supreme Court will, also for the second time, be in a position to decide whether to strike down the FOID card law as unconstitutional.

According to an Illinois Supreme Court rule, appeals in criminal cases “shall lie directly to the Supreme Court as a matter of right,” if the case involves a U.S. or Illinois statute being found “invalid.”

If the state decides to appeal this decision that found the FOID law unconstitutional, the appeal will be heard by Illinois Supreme Court — just as the high court did in 2018 when the FOID card law was found unconstitutional by a different judge in this case.

Under the state Firearm Owner Identification card law, prospective gun owners must pay a $10 filing fee and submit an application in order to be eligible for the FOID card, which is required for Illinoisans to obtain a firearm.

Lawmakers from both parties are backing legislation that seeks to modernize the way the Illinois State Police processes and issues Firearm Owners Identification cards and Concealed Carry Licenses.

This case out of the Second Judicial Circuit in White County, People v. Vivian Brown, involves a challenge to the constitutionality of the FOID law that arose after Brown was charged with possessing a rifle in her home without a FOID card in 2017.

At the time, Brown was eligible to obtain a FOID card but did not have one.

Brown argued the law violated the Second Amendment because it prohibited a person who could legally possess a weapon from keeping one in his or her home.

Retired Second Judicial Circuit Judge Mark Stanley dismissed Brown’s charge in October 2018, finding the FOID card law was unconstitutional as applied to her.

Stanley wrote that if the statute is constitutional, “then it becomes obvious the legislature did not intend the statute to apply in one’s own home due to the impossibility of compliance.”

The state appealed directly to the Illinois Supreme Court, bypassing the appellate court, which hears appeals from the circuit courts.

Generally, the Illinois Supreme Court has discretion in the appeals it accepts. But, according to Illinois Supreme Court Rule 603, it must accept appeals in cases where a state or federal law is found unconstitutional.

In April 2020, the high court’s majority avoided having to decide whether the FOID card law was unconstitutional based on a technicality.

The majority found the case was outside its purview because Stanley did not need to find the law unconstitutional in order to resolve Brown’s case. Since Stanley’s ruling stated the legislature did not intend to apply the law to individuals possessing guns at home, this finding represented an alternative, nonconstitutional basis for dismissing the case against Brown, the court’s majority held.

In that April 2020 decision, the Illinois Supreme Court’s majority vacated the court’s finding that the statute was unconstitutional, and sent the case back to the White County court.

The court ruling from Webb reached essentially the same conclusion as his retired predecessor, whose decision the Illinois Supreme Court vacated.

Apparently seeking to prevent the Illinois Supreme Court from skirting the constitutional question raised, Webb’s opinion also states explicitly that ruling the FOID card law unconstitutional “is necessary to this Court’s decision and it cannot rest its decision upon an alternative ground.”

Webb found “any fee associated with exercising the core fundamental Constitutional right of armed self-defense within the confines of one’s home violates the Second Amendment.”

“This Court cannot reasonably construe the FOID Card Act in a manner that would preserve its validity,” Webb wrote in his 17-page opinion issued on April 26.

David Sigale, a suburban attorney who represents Brown, said he believes the Supreme Court Rule 603 means the high court is required to accept the case on appeal, if the Illinois Attorney General’s Office appeals Webb’s ruling.

A spokesperson for the Illinois Attorney General’s Office did not respond to a request for comment.


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