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Old April 29, 2021, 02:24 AM   #1
steve4102
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IL, Foid Cards Ruled Unconstitutional

People v. Brown, 2020 IL 124100

https://courts.illinois.gov/Opinions...020/124100.pdf

In the decision it says this,

On February 14, 2018, the court entered a written order granting defendant’s motion and finding section 2(a)(1) unconstitutional “as applied to the defendant,” under both the Illinois and United States Constitutions. Stating that the facts of the case were “undisputed,” the circuit court held that requiring defendant to “fill out a form, provide a picture ID and pay a $10 fee to obtain a FOID card before she can exercise her constitutional right to self-defense with a firearm” in her home violated the second amendment to the United States Constitution as applied to the states through the fourteenth amendment (U.S. Const., amends. II, XIV), as well as article I, section 22, of the Illinois Constitution of 1970 (Ill. Const. 1970, art. I, § 22). The court further stated that its finding of unconstitutionality had been entered in conformity with Illinois Supreme Court Rule 18 (eff.


“As applied to the defendant”, mean what exactly?
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Old April 29, 2021, 06:51 AM   #2
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The linked decisions dates from April, 2020. It also sends the case back to the Circuit Court for entry of a ruling excluding the finding of unconstitutionality.

Quote:
CONCLUSION
The circuit court’s ruling that section 2(a)(1) of the FOID Card Act is unconstitutional as applied was not necessary to the resolution of this case. Therefore, we remand this cause to the circuit court. We direct that the order entered by the circuit court on February 14, 2018, be vacated. We further direct that the October 16, 2018, judgment order dismissing defendant’s information be vacated and then modified to exclude the ruling that section 2(a)(1) is unconstitutional. The modified order is thereupon to be reentered.

Vacated and remanded with directions.
What does "as applied" mean? There are two types of constitutional challenges: (a) facial challenges; and (b) as-applied challenges. A facial challenge is a claim that a law is unconstitutional on its face. That is, a claim that the law is unconstitutional in all times and all places, without regard to the particular circumstances. For example, if Congress were to pass a law flat outlawing possession of a firearm in the USA, we could mount a facial challenge.

An as-applied challenge is a claim that the law is unconstitutional as it was applied with respect to the particular plaintiff (or defendant in a criminal case), but allows for the possibility that it may be constitutional under other circumstances. For example, Arkansas has a statute that says a misdemeanor case may be tried against a defendant in absentia. (Let's not argue about the propriety of that statute, please. All I'm saying is that we have it.) Let's say that John Doe is in the military and gets arrested for Domestic Battery, 3rd Degree (a misdemeanor). Before his case gets to trial, he gets deployed. While he's gone, the prosecutor proceeds against him in absentia and convicts him of DB3. No more 2A for him, right? He could challenge 18 USC 922, and claim that it is unconstitutional to strip him of his 2A right, where he was convicted of the misdemeanor crime of domestic violence in his absence. So it's a claim that 18 USC 922 is unconstitutional as applied to him

Does that help?
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Old April 29, 2021, 06:53 AM   #3
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Basically the judge threw out the FOID card as unconstitutional and a violation of the 2nd Amendment. The state can now appeal to the Illinois Supreme Court.

https://thelibertyloft.com/major-sec...court-be-next/
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Old April 29, 2021, 06:56 AM   #4
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Thanks, mack59. From your post, I was able to pull a link to the more recent ruling: https://www.saf.org/wp-content/uploa...titutional.pdf
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Old April 29, 2021, 12:59 PM   #5
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So, am I getting this right??

Judge in original case ruled the FOID unconstitutional, it then went to a higher court who ordered the original ruling removed (vacated?) modified to remove the language about the FOID being unconstitutional, then had the ruling reissued.. ??
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Old April 29, 2021, 02:18 PM   #6
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I'm confused.

(I know ... nothing new about that.)
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Old April 29, 2021, 04:41 PM   #7
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Quote:
Originally Posted by 44AMP
So, am I getting this right??

Judge in original case ruled the FOID unconstitutional, it then went to a higher court who ordered the original ruling removed (vacated?) modified to remove the language about the FOID being unconstitutional, then had the ruling reissued.. ??
Forgive me for just scanning the documents, but looks to be essentially correct. Illinois has a rule governing lower courts that they can't find a statute unconstitutional if the case can be resolved on other grounds, a codification of a generally accepted and sound rule. So the state Sup Ct rejected review of the appeal on the basis that the lower court hadn't followed the rule because it could have read the FOID law in a way that would have saved it (despite the lower court's decision saying that it couldn't do that), directing the lower court to do it all over again but without it's finding of unconstitutionality as to the defendant.

In response, it looks as if the circuit court took pains explaining exactly how the FOID law prohibits people who aren't under any legal disability from possessing arms in their homes, and that the law isn't salvageable by any non-creative reading of its text. The state argued that the FOID law doesn't prohibit everyone from possessing a firearm so long as they comply with the FOID requirements. The lower court found that no more persuasive than it should have.

If anyone has followed this or takes the time to really read the docs, I urge them to correct any errors in my summary.
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Old April 29, 2021, 05:30 PM   #8
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Quote:
Originally Posted by zukiphile
If anyone has followed this or takes the time to really read the docs, I urge them to correct any errors in my summary.
I'm not a lawyer but I read about halfway through the decision, then I fast-forwarded to the conclusion. I think you summed it up pretty accurately.
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Old April 29, 2021, 08:46 PM   #9
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So, for an IL resident, is a FOID card required or not?
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Old April 29, 2021, 09:15 PM   #10
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^required. This is in IL state court, they aren’t going to find the FOID card unconstitutional.
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Old April 30, 2021, 12:10 AM   #11
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Quote:
Originally Posted by pwc
So, for an IL resident, is a FOID card required or not?
Quote:
Originally Posted by 5whiskey
^required. This is in IL state court, they aren’t going to find the FOID card unconstitutional.
Did you read the decision? This court DID just find it unconstitutional -- for this specific person, under the specific circumstances described in this case. Not a sweeping disqualification, but a start.

From the conclusion:

Quote:
After analyzing all of the evidence in this matter, this Court finds that FOID Card Act is NOT substantially related to an important government interest as applied to the Defendant in this case. In addition, the Court finds that 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. Specifically, the Court finds 430 ILCS 65/2(a)(1) and 430 ILCS 65/5 unconstitutional as applied to the Defendant in the case sub judice under the Second Amendment to the United States' Constitution.
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Old April 30, 2021, 04:29 PM   #12
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ok, so a higher court says they have to rewrite the decision leaving out stuff about "unsonstitutional", so does that alter the verdict??
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Old April 30, 2021, 07:52 PM   #13
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Quote:
Originally Posted by 44AMP
ok, so a higher court says they have to rewrite the decision leaving out stuff about "unconstitutional", so does that alter the verdict??
If this were a conversation, I might summarize it as:

Lower Court - 2A1 of the FOID Act is unconstitutional as written and applied to the defendant, and there is no way I can interpret it in a way that saves it.

Supreme Court - You were not supposed to find a law unconstitutional if you could have ruled without getting to that issue, but since you broke that rule we now don't have jurisdiction to hear the appeal, but we are directing you to do over the part about 2A1 being unconstitutional.

Lower Court - Good catch, Sirs. 2A1 and 65/5 are both unconstitutional.
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Old April 30, 2021, 07:59 PM   #14
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Quote:
Originally Posted by zukiphile
Quote:
Originally Posted by 44AMP
ok, so a higher court says they have to rewrite the decision leaving out stuff about "unconstitutional", so does that alter the verdict??
If this were a conversation, I might summarize it as:

Lower Court - 2A1 of the FOID Act is unconstitutional as written and applied to the defendant, and there is no way I can interpret it in a way that saves it.

Supreme Court - You were not supposed to find a law unconstitutional if you could have ruled without getting to that issue, but since you broke that rule we now don't have jurisdiction to hear the appeal, but we are directing you to do over the part about 2A1 being unconstitutional.

Lower Court - Good catch, Sirs. 2A1 and 65/5 are both unconstitutional.
You missed a step, there, Mr. AMP. Yes, the high court sent it back with the admonition that the courts aren't supposed to find a law unconstitutional if it can be saved. So the lower court rewrote his opinion and spelled out why that law cannot be saved, and then reiterated that he found it to be unconstitutional.
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Old April 30, 2021, 08:02 PM   #15
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Quote:
Originally Posted by 44 AMP View Post
ok, so a higher court says they have to rewrite the decision leaving out stuff about "unsonstitutional", so does that alter the verdict??
If a court can't rule on the legality of a law, what is it supposed to do?
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Old April 30, 2021, 09:04 PM   #16
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Quote:
If a court can't rule on the legality of a law, what is it supposed to do?
If a court can resolve a case without finding a statute unconstitutional, it's supposed to resolve it on the non-constitutional basis.

A terrible example follows.

Let's say your state has a law against printing and distributing copies of the Constitution. If a PO pulls you over and tickets you for violating that law because you dated his sister, and he testifies that you didn't actually have any copies you were transporting, but you are the kind of fellow who could use a lesson in how to treat women, then the court doesn't need to get to the unconstitutional quality of of your state's odd law. The court can dismiss the state's case on the basis that there was no evidence to support it, so it doesn't need to take an unnecessary side trip into examination of the legislature's work.

The rule is supposed to keep judges deciding disputes between parties rather than looking for legislation they don't like.
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Old May 3, 2021, 08:10 PM   #17
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Quote:
Did you read the decision? This court DID just find it unconstitutional -- for this specific person, under the specific circumstances described in this case. Not a sweeping disqualification, but a start.
I sure did read the decision. I read where one circuit court ruled the FOID card unconstitutional. Upon states appeal to the Supreme Court of IL, the Court had a lot to say, basically losing its mind that a circuit court dare challenge the constitutionality of a statute. Among those things were this...

Quote:
We further direct that the October 16, 2018, judgment order dismissing defendant’s information be vacated and then modified to exclude the ruling that section 2(a)(1) is unconstitutional.
Did you read that part? The circuit court was ordered to modify their ruling and exclude the portion where the FOID card is unconstitutional. I maintain that the state courts of IL will not rule FOID as unconstitutional. Well, the state courts that matter anyway. The IL SC isn’t having that. I’m afraid FOID is with Illinoisans unless SCOTUS decides to intervene. I don’t even see that happening, but it’s more likely than IL courts overturning it.
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Old May 3, 2021, 08:58 PM   #18
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Quote:
Originally Posted by 5whiskey
Did you read that part? The circuit court was ordered to modify their ruling and exclude the portion where the FOID card is unconstitutional. I maintain that the state courts of IL will not rule FOID as unconstitutional. Well, the state courts that matter anyway. The IL SC isn’t having that. I’m afraid FOID is with Illinoisans unless SCOTUS decides to intervene. I don’t even see that happening, but it’s more likely than IL courts overturning it.
As of right now, a state court has ruled that the FOID card is unconstitutional. That's where the matter sits at this time.

Will the ruling be appealed (again)? Almost certainly. If/when that happens, the Illinois Supreme Court will have to review the lower court's decision on its merits and decide whether or not his ruling makes sense. Until that happens, the woman who is the central party to the case does not need an FOID to keep an operational firearm in her home.

On the other hand, the ruling is narrow enough that the government may decide not to appeal, because there's still a possibility that they might lose. The consequences of that might outweigh the effect of letting this woman have her gun.

Remember when the guy was arrested for trying to fly with a gun out of Newark Airport? His name was Greg Revell. He was arrested but, ultimately, charges were dropped and he never went to trial. Why not? The prosecutor has never said why (to my knowledge) but more than likely he declined to prosecute because when he looked at the cards he was holding it didn't look like a great hand. So, rather than try the case and lose, he folded.
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Old May 3, 2021, 09:29 PM   #19
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Quote:
As of right now, a state court has ruled that the FOID card is unconstitutional. That's where the matter sits at this time.
That is false. It is true that a state circuit court ruled it unconstitutional, that is not false. That is NOT where the matter stands right now. The Supreme Court of IL has vacated that lower court ruling, ordered that the finding of unconstitutionality by the circuit court be excluded from the opinion, and has been remanded back to the circuit to dismiss the case on other technical grounds. Read the entire ruling. It’s a bunch of technicalities on how courts shouldn’t rule statutes unconstitutional if there are other technical means of vacating charges. Translation: the Supreme Court of IL did not want to rule their FOID law unconstitutional if they could find another scapegoat technicality. Even on an “as applied” basis in this case.

And as of the writing of the IL Supreme Court ruling in that link, the lady still technically isn’t off the hook. It’s very clear that she will be off the hook if she appeals based on other technical grounds outlined by the IL Supreme Court. I have not looked for an update on that case, but I would expect the attorney general to strongly favor dismissing it at this point of IL Supreme Court outlines how the law should be challenged. The more I read it, the more I believe this is absolute absurdity. The Supreme Court of IL is so beholden to protect the “constitutionality” of FOID that they order lower courts to exclude “unconstitutional” language (even as applied, which would not kill the FOID statute as a whole) from their ruling and instead apply another technical aspect of why this lady’s charge should be vacated.

EDIT: AB I’m sorry I hadn’t read the other links, you are correct and I am wrong but I leave my original post. However, I fail to see how the circuit court’s ruling in this case really means anything. The state Supreme Court already ordered the circuit court to exclude unconstitutionality from its ruling. The most recent link is just the circuit court most recent ruling that refuses to be held to the remand from the state Supreme Court. Good on the judge for sticking to his guns, however you and I both know who will eventually win that pee pee contest.
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Old May 4, 2021, 07:24 AM   #20
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Quote:
Originally Posted by 5Whiskey
The state Supreme Court already ordered the circuit court to exclude unconstitutionality from its ruling. The most recent link is just the circuit court most recent ruling that refuses to be held to the remand from the state Supreme Court. Good on the judge for sticking to his guns, however you and I both know who will eventually win that pee pee contest.
That depends how badly the majority of that supreme court wants to press the matter. If it were intent on upholding the FOID, it could have accepted the appeal. The dissent's position was that the state sup ct had jurisdiction.

I also don't see a prohibition from the state sup ct against making any constitutional rulings.

Quote:
We further direct that the October 16, 2018, judgment order dismissing defendant’s information be vacated and then modified to exclude the ruling that section 2(a)(1) is unconstitutional.
Telling the lower court to conform its ruling to an appellate decision is an affirmative, substantive direction ("You will docket an entry that 2+2=5"). The state sup ct didn't exactly do that, though it seems to aim for a similar effect. It instructs the lower court negatively, "to exclude that [prior] ruling", but it doesn't tell it to only do that.

I read the flow of the lower court's second decision as I checked the math and 2+2 is still 4, therefore I find that 2+2+2+2=8, and here is how you do the math on that.

Does the IL Sup Ct have a majority who refuse to give the letter of the law a fair reading because they hold a contrary view? That happens, but the power of embarrassment should make it rare, or at least not the predestined result.
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Old May 4, 2021, 05:43 PM   #21
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Zukiphile-thanks for taking the time and effort to explain this. If I don't understand after all you explained I'd say the fault is on me.
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Old May 4, 2021, 06:16 PM   #22
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Quote:
Originally Posted by DaleA
If I don't understand after all you explained I'd say the fault is on me.
The confusion expressed in this thread is understandable.

This was easier for me to breeze through because I can see the procedural excuses and ignore them. If you don't have that wheel in your head, it's easy to be sidetracked.

The lower court's description of a correct 2d Am. analysis and application to the facts reads as well written and transparent to me. (Though I admit that a sliding scale intermediate scrutiny gives me heartburn.) I'd urge people to read for that and not trip over the rest.
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