Defending the Indefensible: Court Strikes Illinois FOID Card Law

Lawmakers in Illinois have a long track record of irrational gun bans and restrictions based on the idea that public safety is best served by disarming criminals and law-abiding citizens alike, even if that means putting innocent individuals at a heightened risk of injury and death.

In June 2010, in the landmark case of McDonald v. Chicago, the U.S. Supreme Court struck down as unconstitutional, handgun bans and several related municipal ordinances imposed by the City of Chicago and the Village of Oak Park, Illinois. Chicago’s laws prohibited the possession of any firearm “unless such person is the holder of a valid registration certificate for such firearm,” and then prohibited registration of most handguns, effectively banning handgun possession by almost all private residents. Oak Park was more direct, making it unlawful to possess any “firearm,” which it defined as a handgun.

One of the Orwellian arguments that these municipalities put forward to justify their gun laws was that the bans actually protected, not diminished, “the zone of ordered liberty” in which residents could more securely exercise their other freedoms. Handgun bans and other stringent regulations, they claimed, “are the most effective means to reduce fear, violence, injury, and death, thereby enhancing, not detracting from, a system of ordered liberty.”  

The reality, as the individual plaintiffs in the case attested and the Court recognized, was that the bans only served to make ordinary citizens more vulnerable to crime. Otis McDonald, the named plaintiff in the case, was an elderly man living in a high-crime neighborhood, who faced violent threats from drug dealers and whose home had already been broken into three times. Like the other individual plaintiffs, he owned a handgun but could not keep it at home, having to store it outside the city limits. Chicago’s own police department statistics, the Court noted, showed that Chicago’s “handgun murder rate has actually increased since the ban was enacted and that Chicago residents now face one of the highest murder rates in the country and rates of other violent crimes that exceed the average in comparable cities.”

Illinois lawmakers, though, appear unshakeable in the perverse belief that the need to stop criminals from unlawfully acquiring and abusing guns means that everyone, including law-abiding citizens, must be prevented from keeping and bearing such arms.

It wasn’t until 2013 that Illinois finally enacted a law establishing a system for concealed carry permits, the last of the 50 states to do so, and only after the U.S. Court of Appeals for the Seventh Circuit ruled that state laws generally prohibiting the carrying of guns in public violated the Second Amendment right to bear arms for self-defense outside the home. In striking down the laws, the court witheringly observed that there “is no suggestion that some unique characteristic of criminal activity in Illinois justifies the state’s taking a different approach from the other 49 states. If the Illinois approach were demonstrably superior, one would expect at least one or two other states to have emulated it.”

Yet another example of indefensible “public safety” legislation that disarms responsible citizens in the name of “less violence” while doing nothing to actually curb lawless gun violence, was found to be invalid this month.

An Illinois circuit court ruled that a 1967 Illinois law requiring a Firearm Owner’s Identification Card (FOID) as a condition of lawful possession of a firearm in one’s own home was unconstitutional, both facially and as applied. Generally, a person seeking to possess lawfully a firearm or ammunition in Illinois must first obtain an FOID card from the Illinois Department of State Police. To qualify, the applicant must establish they are a resident of Illinois; be aged at least 21 (if under 21 years of age, have the written consent of his or her parent or legal guardian to possess and acquire firearms and ammunition); provide a photograph and optionally, provide fingerprints; pass the state and federal background checks; and pay a $10 fee and any additional processing fees. The state police may take up to 30 days to approve an application.

State v. Vivian Claudine Brown, No. 17-CM-60 (Feb. 10, 2025), a case with a rather convoluted history, arose after Illinois resident Vivian Brown was charged with a violation of the state law for possessing, without a FOID card, a common .22 bolt-action rifle in her bedroom for self-defense. Brown did not have a criminal record and was otherwise eligible to obtain an FOID, but had never applied for one. She challenged the FOID requirement as an impermissible infringement on her right to keep and bear arms in her own home for self-defense.

In this case, too, the State raised several outlandish arguments: Brown fell outside of the class of law-abiding, responsible citizens to whom the Second Amendment applied, because she failed to obtain a FOID card in violation of the law. If accepted as true, the court said, this bootstrapping “reasoning would exclude every person who fails or refuses to comply with even the most draconian gun legislation from challenging its constitutionality because they would no longer be considered law-abiding citizens.” Another whopper was the argument that “the Bruen Court expressly endorsed Illinois’ licensing regime,” dismissed by Judge T. Scott Webb as another “misguided assertion” because it improperly conflated New York’s public handgun carry licensing law with the “fundamentally different” Illinois statute on the right to possess any firearm at all.

Applying the Bruen analysis, the court found that, “[f]rankly, there is no historical analogue to the Act.” Unlike early laws that allowed the “disarming” of individuals found to be dangerous, the starting point under the FOID law was, apparently, the standard Illinois reverse presumption. “Unfortunately, and to the utter dismay of this Court, the actual reality is that all citizens of the State of Illinois are presumed dangerous, and the burden is on the applicant to prove otherwise.”

The $10 fee for the FOID card may have been permissible in the context of possessing a firearm outside the home, but could not be justified in the context of exercising a core constitutional right within one’s home. Imposing a governmental administrative fee for voting by absentee ballot at home would be “unthinkable” and violate the right to vote; likewise, it was unconstitutional to levy any fee or license purchase condition on the right to possess a firearm within the sanctuary of one’s home.  

“Our nation has a long history of viewing safety and protection within the home [as] a central tenet of society,” the court stated, and “it is asinine to think that in this ‘land of the free and home of the brave,’ one must petition the government and pay a fee to be able to enjoy the fundamental Constitutional right to protect oneself inside one’s home.” 

Meanwhile, there are other signs of a welcome change in thinking in Illinois. The Cook County State Attorney’s Office is under new management, headed now by former appellate court justice Eileen O’Neill Burke. Prior to the decision in Brown, the first bill her office proposed was a measure to allow first-time offenders charged with a non-violent, low-level firearms violation to participate in a diversion program and, upon completion, have their charges dismissed. “This program is only for individuals charged with a Class 4 felony, the lowest class of felony charge for weapons, and does not include any automatic weapons.” Otherwise law-abiding individuals – those in the same position as Vivian Brown – would have a pathway to avoid having their gun rights lost or curtailed due to an initial low-level violation. 

One can only hope that this signals an end to the various legislative experiments premised on the idea that disarming law-abiding citizens preserves “ordered liberty” as being anything other than obviously unconstitutional and ineffective.