Illinois Supreme Court Refuses to Rule on FOID Constitutionality for Second Time

Illinois FOID reformed, Under Supreme Court Scrutiny, iStock-884198022
Illinois Supreme Court Refuses to Rule on FOID Constitutionality for Second Time, iStock-884198022

U.S.A.-(– In a split 4 to 3 decision, the Illinois Supreme Court has refused to rule on the constitutionality of the Firearms Owner’s IDentification card (FOID) requirements in Illinois. This is the second time the Court has refused to rule on the same case. From the decision:

“Mandates of this court are not to be treated lightly but are to be obeyed.” Id. Where the cause is remanded by this court “with specific directions, the court below has no discretion, but must pursue the mandate” of this court. Chickering v. Failes, 29 Ill. 294, 302-03 (1862). Accordingly, the circuit court’s orders of April 26, 2021, and June 15, 2020, must be vacated. The cause is remanded to the circuit court to reenter the modified order that was originally entered on June 4, 2020, at the direction of this court. On remand, the circuit court shall not entertain any motion from any party, nor take any action other than entering the modified order. Because the circuit court’s orders must be vacated, we do not reach any other issue in this appeal.

The majority, writing the opinion, says the Circuit court did not do what it was told to do.

The dissent wrote this:

The last time this case was before the court, Justices Karmeier and Theis referred to this court’s remand as an “unexpected and pointless exercise” and a “meaningless and wasteful act.” People v. Brown, 2020 IL 124100, ¶¶ 39, 59 (Karmeier, J., dissenting, joined by Theis, J.) (Brown I). I cannot think of a better description for the remand that the court issues today.

In a move that appears to be unprecedented in Illinois jurisprudence, this court, while expressing no opinion on the merits of the case, forces the trial court to take a particular position on the merits and denies that court its inherent power to reconsider its own ruling. The trial court reconsidered that ruling because it found that it was both legally erroneous and that it “force[d] the defendant to take a position not of her own choosing, one that she will lose on appeal and one which will unnecessarily delay (perhaps by years) the ultimate disposition of this case.” In concluding that the trial court was not allowed to entertain defendant’s motion to reconsider, the majority both mischaracterizes what happened below and misreads and misapplies this court’s precedents. As I will demonstrate below, the trial court did absolutely nothing wrong, and there is nothing in this court’s precedents supporting the majority’s disposition. Indeed, our case law compels the opposite result. This court should consider the State’s appeal on the merits.

The dissent says the Circuit Court did exactly what it was told to do.

In 2020, the Illinois Supreme Court refused to hear the case, sending it back to the Circuit Court, and telling the court to do certain things. The majority says it did not do what it was told;

The Judges who agreed to send it back were Chief Justice Anne Burke, with Justices Kilbride, Garman, and Neville concurring.

Justice Karmeier and Justice Theis dissented.

Justice Michael J. Burke did not take part in the decision.

In the 2022 decision, the Justices opinions were shuffled about a bit.

Chief Justice Anne Burke wrote the decision and Justices Theis, Neville and Carter joined with her.

Justice Michael Burke dissented, joined by Justices Garman and Overstreet.

Justices Karmeier and Kilbride were no longer on the Court.

Justices Carter and Overstreet had joined the Court.

From the dissent, in 2020, with which Justice Theis concurred:

There is good reason to proceed to the merits here. Remand to the circuit court to enter a new order dismissing the case on statutory rather than constitutional grounds is a meaningless and wasteful act. As I have noted, no plausible claim can be made that the conduct with which defendant is charged falls outside the plain language of section 2(a)(1) of the FOID Card Act (430 ILCS 65/2(a)(1) (West 2018)). To order the circuit court to enter such an order would be tantamount to compelling it to make a legal determination that none of the parties requested, that the court itself never meant to make, and that would have no chance of being affirmed on appeal. And when the forced order is ultimately reversed by the appellate court, as the law would require, what will happen? The circuit court will simply enter another order declaring the statute invalid, putting the parties and the litigation in precisely the same position they are now. Nothing will have been gained. Time will have been lost. Judicial resources will have been wasted. Defendant will remain in legal limbo.

In 2022, Justice Theis and Justice Garman must have changed their minds and reversed their positions.

Justice Theis agreed with the Chief Justice to send the case back to the District Court in 2022, reversing what he agreed with in 2020. Justice Garman agreed with the dissent the Illinois Supreme Court should have heard the case, reversing his position from 2020.

Justice Michael Burke was heard on this iteration of the case and joined the dissent.

To an outsider, it looks as if the Court did not want to handle this hot potato. The dissent appears to make more sense than the opinion. Now the case is returned to the circuit court. It is not clear what will happen next.

The case may be appealed to the appeals court, but the lengthy opinion of the Supreme Court appears to say it may be appealed *and* that the Supreme Court decision, in this case, is final.

This correspondent believes challenges to the FOID law in Illinois will continue until either the state Supreme Court reaches a decision on the issue, or the United States Supreme Court reaches an opinion that would make a state supreme court opinion moot.

This correspondent expects prosecutors in Illinois will be reluctant to prosecute cases involving the FOID card, for fear the FOID card requirement will be challenged and found to be unconstitutional.

About Dean Weingarten:

Dean Weingarten has been a peace officer, a military officer, was on the University of Wisconsin Pistol Team for four years, and was first certified to teach firearms safety in 1973. He taught the Arizona concealed carry course for fifteen years until the goal of Constitutional Carry was attained. He has degrees in meteorology and mining engineering, and retired from the Department of Defense after a 30 year career in Army Research, Development, Testing, and Evaluation.

Dean Weingarten

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Dubi Loo

I see this as an orchestrated strategy of the highly politicized court “system” in Illinois to bankrupt Vivian Brown who is challenging the unconstitutional FOID card act. As I see it, Bruen would invalidate the FOID as it is simply a “Mother May I Card” asking the government may I please exercise my Right. Something Bruen expressly prohibits.


Not to mention the cost of a ccl is $150.00, which will probably go up by the time they have to be renewed. Although the F.O.I.D. card, and the ccl have the exact same numbers on them, there are two different fees they collect.