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posted on 7/17/22

In 2020, a caller reported that they heard a gunshot coming from inside a home. They called police who executed a search of the premises and found a rifle in the possession of an Illinois woman. The rifle was not fired. There was no evidence of a gun being fired from within the residence. As it turned out, the defendant’s estranged husband had filed a false report to engineer the confiscation of the weapon. The defendant denied firing the rifle and the residents of the apartment complex denied hearing a gunshot.

The woman was subsequently charged with owning a gun without a FOID card. As her defense, she claimed Illinois’ FOID rules were unconstitutional under the Second Amendment. The trial court dismissed the case against her, but the people appealed the decision.

The defendant contended that she was in possession of a .22 caliber single-shot Remington rifle that she kept in her home for self-defense, she was over 21, had no criminal history, and no adjudication related to mental illness. Hence, she argued, that she did not require a FOID card to possess a rifle in her own home. In other words, had she applied for a FOID card, she would have been eligible. She argued that the FOID Act was unconstitutional as it applied to her specific set of circumstances.

The circuit court agreed with the plaintiff finding the FOID Act unconstitutional as it applied to the defendant. Here, the relevant facts are: The defendant possessed the weapon in her own home and she would have qualified for the FOID card upon completion of the application.

The Appeal

The State petitioned the court to reconsider the matter stating that the FOID regulation requiring individuals to have gun permits (even within their own homes) is a reasonable and legal regulation to place on Illinois residents. Furthermore, the state asked the court to provide a factual basis on which the law was deemed unconstitutional. The defense was also asked to provide arguments concerning the implementation of FOID rules and how they can be made to align with constitutional protections.

In this case, the law makes it mandatory for anyone with a gun in their possession to also have a FOID card on their person. This is relevant because possession is 9/10ths of the law. Constructive possession of a weapon means that you are aware there is a weapon in an area under your control. Even if you did not purchase the weapon, you can have constructive possession of the weapon in your home. In other words, the state wants to require individuals to carry around FOID cards while they are taking a shower. The defense raised the point that this requirement was unenforceable and frankly ridiculous. In other words, you can be charged with constructively possessing a weapon even if you are in constructive possession of a FOID card. Another issue here is that it would be impossible for an individual to cohabitate with a FOID card owner who had guns in their home unless they too had a FOID card.

The circuit court ruled that these considerations rendered the FOID statute unconstitutional (so long as the gun was in your home).

At this point, the rules regarding gun ownership within your own home are unclear. The FOID Act, which requires all those who have a weapon in their constructive possession to possess a FOID card on their person at all times is confusing, unenforceable, and nonsensical.

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