Guns Save Life Won’t Appeal Our Loss in the FOID Card Challenge Case…Here’s Why

In a 2-1 split decision the Illinois Fourth District Court of Appeals ruled against Guns Save Life  in our challenge to Illinois’ FOID card scheme. Yes, the FOID card mandate is clearly unconstitutional, and yes, there is no historical analogue for the FOID card in colonial times. However, the two judges ruling against us ignored all of that – as well as the Bruen precedent – to reach their respective “creative” opinions siding against us.

The NRA-ILA reported as much . . .

Under the Firearm Owners Identification Card Act (FOID Act), Illinois requires a license and imposes fees to acquire and possess firearms.

In an NRA-backed challenge, Guns Save Life, Inc. (GSL) filed a lawsuit in state court in 2019 arguing that the FOID Act violates the Second Amendment and the right to arms guarantee in the Illinois Constitution.

This week, the Appellate Court of Illinois upheld the FOID Act in a 2-1 decision. The court read the U.S. Supreme Court’s NYSRPA v. Bruen decision as approving of shall-issue carry licensing regimes and concluded that shall-issue possession licensing regimes must also be constitutional. The court further determined that historical laws disarming dangerous persons, such as surety laws, supported the FOID Act, since the FOID Act prevents dangerous persons from possessing arms.

Justice DeArmond dissented, recognizing that there is no historical tradition of first prohibiting firearms acquisition and possession, and then determining who is eligible—to the contrary, historical laws (including the surety laws) generally presumed eligibility. He also noted that licensing regimes have traditionally affected only one’s right to carry firearms publicly—not the right to possess a firearm in one’s home. Additionally, Justice DeArmond argued that the FOID Act does not prevent dangerous persons from possessing arms, because they are ineligible to possess arms regardless of the FOID Act. Therefore, Justice DeArmond would have held the FOID Act facially unconstitutional…

Maybe those two judges had a case of the munchies and made a joint run to a nearby dispensary to stock up on a couple of trays of special brownies and a few bags of gummy bears prior to writing their opinion.

More likely, those judges didn’t want their entire careers to be known for only one thing: striking down the crown jewel of racist gun control in Illinois. Obviously if they had ruled the FOID Act unconstitutional, it would have created a political earthquake in Illinois powerful enough to make parts of Chicago slide off into Lake Michigan.

My day job involves serving as Guns Save Life‘s Executive Director. At GSL, we pride ourselves on aggressive, grassroots gun rights advocacy. We hold monthly meetings in ten cities across the state, publish twenty-some thousand copies of our journal GunNews each month, have our famous Burma Shave-style highway road sign program (with slogans like ‘Dialed 911 – and I’m on hold – Sure wish I had – that gun I sold – GunsSaveLife.com) and much more.

For strategic reasons, however, GSL will not appeal the faulty decision from the Fourth. Yes, this is in contradiction to what the NRA-ILA’s release stated in its last line. Here’s why: We don’t expect the Illinois Supreme Court to rule our way. Not when the US Supreme Court flat out refuses to hold lower courts accountable for regularly ignoring the Second Amendment and the Bruen precedent.

If we lost in the Illinois Supreme Court and then petitioned for a writ of certiorari from the US Supreme Court, we’re not at all confident that SCOTUS would accept the case. In fact, given the recent posture of John Roberts and crew towards strong gun rights cases, our legal team believes an appeal in our case would be rejected outright.

SCOTUS refusing to take a challenge to a FOID Card scheme in Illinois would effectively mean that the US Supreme Court doesn’t have a problem with licensing people to exercise a fundamental constitutional right. You know what would happen after that: deep blue gun-hating pols in other states like California, Colorado, New York and similar jurisdictions would rush out to establish their own gun owner licensing schemes, knowing the courts would ultimately fail to strike them down.

So yes, aggressive advocacy including litigation has its place. Moreover, we owe a great debt of gratitude to the National Rifle Association’s Institute for Legislative Action for their behind-the-scenes help in his filing. We have the support of NRA-ILA in making this final decision not to pursue an appeal. They believe this is the right course of action.

Sometimes we need to think a few steps ahead. After all, we’re not playing checkers here.