Illinois Court Ignores Bruen, Upholds FOID Requirement

The Bruen decision laid down what seems like a really straightforward test for gun control laws. In order for them to be considered constitutional, such a law has to have an analog either from the time of the Second Amendment’s ratification or that of the 14th Amendment. The Rahimi decision said the analog didn’t need to be a perfect one-to-one parallel, but there did need to be an analog.

When it comes to permit-to-purchase requirements, though, I haven’t found any such parallel from either period.

Unfortunately, it seems an Illinois court isn’t all that worried about that little tidbit.

A three-judge panel of the Illinois 4^th District Appellate Court ruled on April 29 that the Illinois Firearms Owner Identification card scheme, required to purchase or possess a gun in the state, is constitutional.

In the case Guns Save Life v. Kelly, two of the three judges on the court somehow managed to miss the point that there is no historical precedent for being required to have a special permission card to purchase a firearm, a requirement set down by the 2022 Bruen decision.

In the ruling on the case, Judge Thomas Harris seemed to indicate that some laws back during the founding bore a faint resemblance to the FOID requirement, so all is well with Illinois’ restrictive scheme.

“In short, if we follow the guidance of Rahimi that ‘[t]he law must comport with the principles underlying the Second Amendment’ but that ‘it need not be a dead ringer or a historical twin’, 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 ruling concluded. “The FOID Act is an implementation of that principle.”

I can’t agree with that.

If anything, the case might be made that signing the Form 4473 after answering questions about whether one is prohibited or not would meet that criterion, but the FOID is a different matter entirely. It’s far more invasive, for one thing, and it’s redundant with regard to screening purposes. It’s little more than a poll tax that allows the state to collect revenue under the guise of keeping guns out of the hands of criminals.

But the one judge who disagreed had a lot more to say on the subject.

In a lengthy dissent, Judge Craig DeArmond meticulously analyzed the majority’s case, highlighting its insufficient consideration of the Bruen standards.

“My colleagues fail to recognize the unique nature of a constitutional challenge under the Second Amendment,” DeArmond wrote. “In doing so, they ignore the historical framework within which the Second Amendment was enacted and the clear direction we have been given by the United States Supreme Court when considering a Second Amendment challenge. The special concurrence denies awareness of ‘any Supreme Court precedent characterizing a challenge under the Second Amendment as unique in nature.’ The inability of the special concurrence to recognize how the landscape surrounding constitutional challenges has dramatically changed post-Bruen, even after reading the four foundational cases I discuss below, is not a limitation on the unique nature of Second Amendment challenges.”

DeArmond also notes that the presumption is supposed to be that everyone has a right to keep and bear arms unless proven otherwise, rather than Illinois’s stance that people have to prove they’re eligible.

A federal court has already ruled that the FOID requirement is unconstitutional, but this is a state court that doesn’t seem to really care all that much, apparently.

The FOID requirement is absolute nonsense, and as we see from Chicago, it’s not remotely useful in preventing bad people from getting guns. All it does is throw up a barrier for those who want one for lawful purposes. While the $10 fee isn’t particularly onerous on its face, we have to remember that it’s just one more cost of buying a gun.

Plus, it has to be maintained the entire time you own a gun. It’s not just a permit-to-purchase, it’s a permit to own, which is even more of an issue from a Second Amendment standpoint.

Honestly, it disgusts me that this happened, but unfortunately, Rahimi opened the door on this, just like I knew it would.