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* This is a really good story by Jerry Nowicki at Capitol News Illinois…
In a 4-3 decision with a blistering dissent from the Republican minority, the Illinois Supreme Court declined to rule on a question of whether Illinois Firearm Owners Identification Act is unconstitutional.
It was the second time the case of the People v. Vivian Brown came before the court and the second time the court declined to rule on the constitutionality of the state statute requiring Illinoisans to receive a permit to legally own a gun.
The majority opinion released Thursday was written by Chief Justice Anne M. Burke and was procedural in nature. It contended that the White County Circuit Court failed to adhere to the Supreme Court’s previous 2020 ruling in the case, so it once again vacated the lower court’s ruling that the FOID Act was unconstitutional.
Burke was joined in the majority by Democrats Mary Jane Theis, P. Scott Neville Jr. and Robert Carter.
Justice Michael Burke – who is not related to the chief justice – wrote the dissent, making up 11 of the 21 pages in the Thursday order.
posted by Rich Miller
Tuesday, Jun 21, 22 @ 9:27 am
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“But it was an alternative ruling made by the same court without prompting from Brown’s legal team that allowed the state’s high court to decline to rule on the constitutional grounds.”
This is the most delicious part.
Comment by TheInvisibleMan Tuesday, Jun 21, 22 @ 9:39 am
Read the article the other day. Totally agree with both Rich and Jerry’s opinions.
The IL SC ducked because the lower court left a procedural opening, but this case and similar ones are not going away. Even though the IL SC doesn’t want to rule on the constitutionality, it will be back before the court after going through the whole appeals process.
The only thing that will save the IL SC from having to eventually rule on this is if one of the current cases at SCOTUS gets decided that a fee like the FOID has associated with it is the equivalent of a poll tax and unconstitutional. The IL SC could be hoping that happens before the case gets back to them on appeal.
Comment by RNUG Tuesday, Jun 21, 22 @ 9:43 am
this is why elections for Supreme Court are so important/frustrating. also as we see from US Supreme Court cases today elections have deep consequences.
Comment by Amalia Tuesday, Jun 21, 22 @ 9:52 am
It’s not ducking. It’s well established in Illinois law that a court must not reach the constitutionality of a statute if there is any other way to dispose of the case. This is a separation of powers issue. You don’t want courts to be willy nilly invalidating acts of the legislature. If the issue is so important a proper vehicle will come along.
Comment by Big Dipper Tuesday, Jun 21, 22 @ 9:54 am
== Even though the IL SC doesn’t want to rule on the constitutionality ==
I understand this is the portrayal being made of the ILSC, but the SC followed procedural requirements here. It might seem boring because they didn’t “skip ahead”, but that’s not the purpose of the court.
Going forward, the legal phrase “a compelling interest of the state” is all you will need to know.
It’s not like this is the first time the constitutionality of the FOID has come up. The FOID act has succeeded at every challenge - for over 40 years.
The mere fact that republicans continue to refer to the “unconstitutional FOID” isn’t going to magically make it unconstitutional - although that tactic is certainly imparting false information to a lot of people which is making public discourse on the topic next to impossible.
Comment by TheInvisibleMan Tuesday, Jun 21, 22 @ 10:00 am
-TheInvisibleMan- , I fully understand that any court will address the procedural issues first before looking at the actual legal question being raised. And I have no problem with the FOID per se; I’ve had one for almost 50 years. I was around when it was implemented as a compromise between the two sides.
Just like voting can be restricted by the legislature, so can firearm ownership under certain conditions. But like a lot of people, I do believe the fee itself is unconstitutional. Personally, I think the legislature should eliminate the fee to remove the issue.
Comment by RNUG Tuesday, Jun 21, 22 @ 10:12 am
==republicans continue to refer to the “unconstitutional FOID”==
It’s this uneducated view that no restrictions may be placed on constitutional rights. If that were the case, there wouldn’t be a whole body of First Amendment law.
Comment by Big Dipper Tuesday, Jun 21, 22 @ 10:13 am
Of there was ever a factual situation best suited to make a constitutional challenge, this case might have it. If you look through the procedural history you see that everyone invovled at the county level, from the States Attorney to the defense attorneys, to the judge, clearly wanted to use this case as a vehicle to challenge the law. However, what you also see is that all of those people also completely botched the procedure and arguments from the very beginning. It’s almost comical. So bad that I just had to double-check to see if Tom Devore was somehow involved.
Comment by fs Tuesday, Jun 21, 22 @ 10:22 am
“It’s this uneducated view that no restrictions may be placed on constitutional rights”
The essential constitutional (and logical) question is should Illinois FOID law prohibits an otherwise eligible Citizen who would qualify for a FOID from having and using a firearm in their home. The delay is typical, hopefully, if Shanes gets to the General the 4-3 partisan dive on the court will shrink.
Comment by Donnie Elgin Tuesday, Jun 21, 22 @ 10:28 am
“It’s almost comical.”
It very much is.
In their headstrong rush to dismantle the FOID, they inadvertently prevented it from happening.
In a larger sense, in my eyes this is the fatal flaw with the republican party of today - the inability to understand how short-term actions will impact long-term outcomes.
Not even Roe is an exception, as while the short-term goals appear to have been reached - the long term outcomes are going to be full of counterproductive outcomes from a republican point of view.
Comment by TheInvisibleMan Tuesday, Jun 21, 22 @ 10:32 am
“”The FOID act has succeeded at every challenge - for over 40 years.”"
Try and try again. They really wanted a ruling, any ruling, so they could move it on up the Supremes.
Comment by walker Tuesday, Jun 21, 22 @ 10:41 am
If the republican’ts are claiming the FOID is unconstitutional, I wonder how many of them have the card? If the FOID is unconstitutional, why do they comply with the law?
Comment by Huh? Tuesday, Jun 21, 22 @ 11:15 am
I can’t help but feel a bit sorry for ms. Brown. It appears that she hasn’t done anything we would typically view as criminal but is caught in this mess.
As for the FOID the questions to it’s constitutionality seems to come in 2 flavors cost and delay. I think the cost is a minimal factor, provided the fee is going to only administer the card system it seems a minimal infringement at it’s current rate. Delay however is a more legitimate question the State is a history of exceeding the statutory deadline doesn’t look good honestly. Though that can’t be an issue here as it appears she never tried to get one.
Ironically when I got divorced the court required me to give some certain firearms to my ex who did not have a FOID card. (I ended up asking her dad to pick them up from me.)
As for being upheld for 40yrs that’s true but the McDonald decision would appear to change the parameters in 2010.
Comment by Mason born Tuesday, Jun 21, 22 @ 11:31 am
The fee is de minimis so finding a plaintiff who truly can’t afford it is a challenge. And if they are that poor how would they afford ammo?
Comment by Big Dipper Tuesday, Jun 21, 22 @ 12:20 pm
The first four words of the 2nd Amendment invalidate the position that the FOID is unconstitutional. Speaking as an (ahem…) literalist or contextualist or whatever Scalia said he was.
So they messed up and now it continues.
Comment by JS Mill Tuesday, Jun 21, 22 @ 12:21 pm
==literalist or contextualist or whatever Scalia said he was==
He was whatever gave him the result he wanted.
Comment by Big Dipper Tuesday, Jun 21, 22 @ 12:23 pm
>>>>The first four words of the 2nd Amendment invalidate the position that the FOID is unconstitutional.
What is “A well regulated militia?”
Comment by We've never had one before Tuesday, Jun 21, 22 @ 12:30 pm
I find the argument about the fee being the issue to be not the best argument out there. Fees are charged to exercise other Constitutional rights. You sometimes have to pay a fee to assemble. That’s never been found unconstitutional.
Comment by Demoralized Tuesday, Jun 21, 22 @ 2:08 pm
== I find the argument about the fee being the issue to be not the best argument out there. Fees are charged to exercise other Constitutional rights. You sometimes have to pay a fee to assemble. That’s never been found unconstitutional.==
They have indeed been found unconstitutional when they are set so high that it has the effect of denying someone the ability to exercise their right, or when the revenue generated from the fee is treated as a general revenue tax and used for something wholly unrelated to the purpose or enforcement of license. It’s a pretty longstanding case law that you cannot charge whatever amount you want and use that money for whatever purpose you want. I doubt the current foid fees running afoul of that limitation, but many proposals over the years would’ve come close to that line if they would’ve passed.
Comment by fs Tuesday, Jun 21, 22 @ 2:29 pm
There is no question the IL Sup Ct should have answered the question, if for no reason the principal of judicial economy. The waste of resources here is tremendous and unnecessary. As to the 2nd Amendment, SCOTUS ruled in 2008 that the right to bear arms is an INDIVIDUAL right, not merely the collective right to be in the militia; see Heller v. Dist. of Columbia, 2008. But Illinois remains backwards on the rights of the law-abiding, while fostering felons and felonies.
Comment by thisjustinagain Tuesday, Jun 21, 22 @ 3:50 pm
==SCOTUS ruled…see Heller v. Dist. of Columbia, 2008.==
Just like Roe v. Wade, 410 U.S. 113 (1973)?
Comment by Jocko Tuesday, Jun 21, 22 @ 4:12 pm
“…is that all of those people also completely botched the procedure and arguments from the very beginning.” The prime mover behind this lawsuit is Valinda Rowe from White County. She is the de facto plaintiff locator for the “gun rights” movement in IL, having promoted Otis McDonald as the lead plaintiff for the Supreme Court case which forced the adoption of concealed carry. Brandon Phelps from Harrisburg was Rowe’s state rep at the time.
Like Otis McDonald, the plaintiff here was set up and used by the gun hicks, who can’t punch their way out of a paper bag. Meanwhile no public transit carry, but they don’t really care about “Chicago people.”
Comment by Elmer Keith Tuesday, Jun 21, 22 @ 4:22 pm
With the talk of fees and RNUG comparing it to a poll tax, keep in mind voter ID laws are still considered constitutional and in a lot of states that’s more expensive then the FOID fees. You can’t say FOID fees are like a poll tax when the closest thing we have to an actual poll tax in this country is still legal.
Comment by MyTwoCents Tuesday, Jun 21, 22 @ 5:31 pm