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Old August 13, 2013, 10:27 PM   #1
ThesNazud
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Teen suing over FOID Card denial seeks summary judgment.

http://madisonrecord.com/news/258118...mmary-judgment

An 18 year old woman has filed suit over being denied her FOID card, claiming that the required parental consent violates her 2A rights. Tempest Horsley has claimed that the response defense of the State, led by Madigan's office basically says that her right to abortion(if she was just a year younger 17, she wouldn't need parental consent) is more important than her 2A Rights to self defense. The firearm in question she wants to obtain is a double barrel shotgun, the same make that VP Biden has touted for self defense in the home. Now, I think this case could either further muddy the waters in the Illinois debate on both the FOID, and now the CCW fronts...

I'm wondering what all you have to think, and thought this would also be a case worth following...

Seth

Last edited by Al Norris; August 14, 2013 at 08:18 AM. Reason: corrected link
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Old August 13, 2013, 10:51 PM   #2
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I think it is always good to keep Illinois on its toes on the gun Issue. Likely this case goes no where but it is good to stay on the offense.
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Old August 13, 2013, 10:52 PM   #3
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There should be no FOID, then there would be no problem in the first place.

Young lady has a good point though. She is legally old enough to vote and make a valid contract, why is she not old enough to purchase a firearm.
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Old August 13, 2013, 11:12 PM   #4
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Old August 14, 2013, 12:11 AM   #5
62coltnavy
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Her argument is that a seventeen year old in Illinois has a constitutional right to seek and obtain and obtain an abortion without parental consent. Why should an 18 year old need parental consent to buy a firearm, a right not merely within the "penumbra" of the privacy right implied in the Bill of Rights, but instead in an express guarantee? It is a sound analogy.

Why should the law NOT be changed to 21? As she recognizes, 48 out of 50 states allow 18, 19, and 20 year olds to buy rifles and shotguns; should not Illinois law "bend" or be changed to reflect this common reality and the fact of the Constitutional right?

I think her biggest hurdle is that the NRA brought a case in Texas attacking that state's limitation of purchases of handguns to 21 years and older, and lost. I suspect that the trial court here will be guided by the rationale of that decision.
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Old August 14, 2013, 09:17 AM   #6
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This was listed as case #83 in the 2A cases thread. Now we have a thread and the case has been updated. The MSJ is doc #10.

What is different about this is that the plaintiffs is not seeking a pistol, but a shotgun, which by Federal law, she is entitled to purchase. Issuing an IL FOID would not permit the plaintiff to buy a handgun until she reached the age of 21, by act of Federal law alone.

The obvious conclusion is that the NRA case in TX is not dispositive to this case.
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Old August 14, 2013, 10:27 AM   #7
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I think the issue then remains her FOID and the Law is the Law. I stand with the law because bending the rules for one person can have more negative consequences than positive. "It rains on the just as well as the unjust".
Quote:
Originally Posted by St. Augustine
An unjust law is no law at all.
The entire point of a judicial challenge to a law is both to get an unjust law overturned so the legislature can create a just one in it's place if the law served a just purpose, AND to provide The People with one avenue to their First Amendment right to petition the government for a redress of their grievances.

An 18 year old that has aged out of the State system has no parents with the capacity to sign such permission. At that point if the State is their guardian, can the State provide such a permission slip? For that matter, can the State decline one, now that the Second Amendment has been incorporated against the States?

Are you suggesting a curfew from 1201 PM to 11:59 AM is unjust, but people should not challenge it in the courts, but instead work to change it in their 2 minutes of freedom every day?
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Old August 14, 2013, 12:46 PM   #8
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Old August 14, 2013, 03:46 PM   #9
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Some of us, OTOH, think the FOID law as a whole is something that should be tossed. To some of us, it goes beyond any reasonable interpretation of 2A, Heller, et al to allow government to give or deny permission for law abiding citizens to buy or possess firearms.
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Old August 14, 2013, 03:47 PM   #10
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Put another way, Wreck-n-Crew, why do you think FOID should be tweaked instead of tossed?
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Old August 14, 2013, 04:30 PM   #11
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Old August 14, 2013, 04:54 PM   #12
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You have not explained why you think a FOID law, in any form, is a good thing - therefore your argument for incremental change remains unsupported.

Why do you think FOID should be required, at all?

Most states I have lived in as an adult (FL, TX, ME, WA, GA, MO) have had no such animal. NC had a purchase permit requirement, which was irritating, but no FOID per se. HI had the most intrusive laws.

I did not notice any improvement with regard to crime in NC or HI, relative to the states that had no purchase permit or FOID requirement.

Why do you think such things are worthwhile?
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Old August 14, 2013, 05:12 PM   #13
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And what do you suggest IS the proper course of action when a minority is being oppressed by a majority through legislation?

I think we can all safely concede that people aged 18 to 20 are a minority in the grand scheme of the voting populace.

As such, I think we can all also concede that a FOID that proposes even further burdens on a minority target that minority.

A Voter registration requiring an ethnic minority obtain permission from some sort of authority would be struck down in a heartbeat and rightly so.

So let's return to my original question, how does a minority that didn't have the legal clout to block legislation targeting them for an extra burden to practice a right, because in addition to being a minority, this group is often politically apathetic, to go about changing a law that targets them on a generally accepted protected class basis i.e. age.
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Old August 14, 2013, 09:04 PM   #14
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"The obvious conclusion is that the NRA case in TX is not dispositive to this case."

I am not suggesting that the Tx case is controlling, only that its decision was predicated on a public policy/public safety rationale that the state had a legitimate objective in limiting access to arms by age. With the pseudo intermediate scrutiny usually applied in trial courts, I don't see that the odds favor a trial judge in Illinois granting her relief.
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Old August 14, 2013, 09:14 PM   #15
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62coltnavy, I would also note that the Judge (Stiehl), is the same judge that presided over the Sheppard case....
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Old August 14, 2013, 10:07 PM   #16
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Old August 14, 2013, 10:23 PM   #17
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I don't see a problem with letting a court strike a law on the basis of discriminatory practice. (Or the basis of improper legislative procedure, for example NY's law - SAFE Act? - that was passed without public hearings, required time for legislative review, etc)

I do see problems with courts creating or modifying laws, as that should be done via legislative action.

So we may just disagree on this one.
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Old August 15, 2013, 12:18 PM   #18
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There should be enough support from people to get it changed permanently and for everyone.
It doesn't discriminate against everyone. Few people get worked up over a law that doesn't make them in particular squeal. That was and is the driving force behind many of our discrimination laws. To stand up for those minorities who are unfairly targeted.

If all 50 states and DC passed a law, on November 7th, requiring all members of The Firing Line to get parental permission to vote, should we wait until enough people in all 50 states repeal it- no matter how many elections we may have to miss, or should we challenge the law as unconstitutional in the courts?

You're suggesting this woman should be deprived of her second amendment right to self defense, until such time as she can persuade a majority of people in a gun unfriendly area to essentially give her permission to buy one.

To slippery-slope it, that opens the door to requiring parental permission for 18-20 year olds to vote. To join the Armed Forces. Write a letter to the editor. Go to church. Hire a lawyer. Exercise or waive their Miranda rights. Permit or decline a warrantless search of their home. Testify in court.

This extends parental rights, but not necessarily responsibilities. It places the State in the position of allowing or denying rights to young people who have aged out of the system, and are no longer exactly wards of the State. And Constitutionally prevented from denying those rights in most cases- so now we have 14th amendment issues drug into this kettle of fish as well.
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Old August 15, 2013, 12:43 PM   #19
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Have it put on the ballot. Have it removed from law.
But that's the problem, you want to place it in the hands of the majority (or at least the majority that votes). Our Constitution, and specifically the Bill of Rights, is designed to protect us from the "tyranny of the majority." Even James Madison, a Federalist, recognized the problem and wrote Federalist Paper No. 10 to address the problem which he described:
Quote:
From this view of the subject it may be concluded that a pure democracy, by which I mean a society consisting of a small number of citizens, who assemble and administer the government in person, can admit of no cure for the mischiefs of faction. A common passion or interest will, in almost every case, be felt by a majority of the whole; a communication and concert result from the form of government itself; and there is nothing to check the inducements to sacrifice the weaker party or an obnoxious individual. Hence it is that such democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths.
Federalist No. 10, at http://billofrightsinstitute.org/fou...-papers-no-10/
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Old August 15, 2013, 01:19 PM   #20
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I guess the biggest thing I have seen is along the lines of what has been said. Now I don't agree with the whole FOID card thing, but if they are intent on keeping it, then I think changing the 'Under 21' parental permission to an 'Under 18' is the way to go. Dealers already check to see if someone is of age to buy a handgun, so it really alleviates problems. I know the dealer I worked for had a policy that if someone appeared under 30 to check their age before handling a handgun. Besides I would think that a good selling point to get the anti's to accept this change is that the pressure is further upon the dealers, not the state to make sure someone is not under 21 for handgun sales. Then again, one cannot predict the actions/responses of the antis...
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Old August 15, 2013, 02:04 PM   #21
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These are two separate issues and the statement about abortion has no bearing on law, so the abortion statement is irrelevant.

I think the issue then remains her FOID and the Law is the Law. I stand with the law because bending the rules for one person can have more negative consequences than positive. "It rains on the just as well as the unjust".

Do I think the Law should change? Yes but conditionally.

Also I think she went about things the wrong way. She should be fighting to have it changed and accepting why it's in place to begin with.
I don't understand this sentiment. I don't stand with the law in any routine or automated fashion. It has been the legal history of this country for 200 years that the job of a jury is to weigh the application of th elaw in the particular case. If a person shoots in self-defense in their home, in clear violation of the city ordinance against firing a gun in the city limits, are you suggesting they should be prosecuted for firing the weapon even though they could not be prosecuted for killing the intruder?

Just what conditions would you apply to eliminating Illinois FOID card?
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Old August 15, 2013, 02:06 PM   #22
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I don't think FOID is a good thing. I think having it changed tweaked or removed should be done the right way.

Have it put on the ballot. Have it removed from law.

I don't agree with the law, but her process.

There should be enough support from people to get it changed permanently and for everyone.
You believe, then, that the only way to get rid of an unconstitutional law is to lobby legislatures to change the law? You're arguing that the courts have no role in eliminating government abuses?
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Old August 15, 2013, 02:10 PM   #23
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I like the ignore feature. When an anti-in-2A-clothing shows up, I can turn them off.
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Old August 15, 2013, 02:20 PM   #24
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I don't see a problem with letting a court strike a law on the basis of discriminatory practice. (Or the basis of improper legislative procedure, for example NY's law - SAFE Act? - that was passed without public hearings, required time for legislative review, etc)

I do see problems with courts creating or modifying laws, as that should be done via legislative action.
This is not a case of asking the court to create or modify a law. The law is already written and, in the United States, it is the basis upon which all other laws must be based: The United States Constitution.

The courts have twisted the Constitution to allow for "reasonable restrictions" even though no such option is permitted by the Constitution so, for now, we can't get past that one. So, if the Illinois FOID is, at least until ruled otherwise, the law and accepted, in Illinois government at least, to be a reasonable restriction. So this girl is not fighting that entire battle. She's saying that the application of this reasonable restriction is unreasonable. She's simply saying that she's legally an adult and her parents don't have approval or veto rights on her behavior and that the age rule is not reasonable.

What she wants is the right protected by the Constitution to be available to her. That's not changing a law. That's eliminating a conflict between two laws in favor of the supreme US law.

Quote:
This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.
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Old August 15, 2013, 02:39 PM   #25
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Besides I would think that a good selling point to get the anti's to accept this change is that the pressure is further upon the dealers, not the state to make sure someone is not under 21 for handgun sales
I doubt that. They want the government doing the background check, not the dealer. For most anti's the government should have the guns, not the people, remember. They trust the government of the people, for the people, by the people, more than they trust the people remember. And that means they want the government in control, not the dealer.
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