January 28, 2022

By Jacob Huebert

If you live in Illinois, the government forces you to wait as long as 122 days to exercise your Right to Bear Arms. But this week, a federal judge in Chicago ruled that the Goldwater Institute’s Second Amendment challenge to the state’s firearm permitting scheme may proceed.

Illinois requires its residents to obtain a state license—called a Firearm Owners Identification (FOID) card—before they may possess any kind of firearm. State law says the Illinois State Police must grant or deny a FOID card application within 30 days, but for years officials have ignored that deadline and taken much longer. As of late 2020, the average wait time to receive a FOID card was 122 days.

The Goldwater Institute filed a lawsuit on behalf of individuals who had been waiting longer than 30 days to receive their FOID cards, as well as two organizations whose members are affected, the Illinois State Rifle Association (ISRA) and the Second Amendment Foundation (SAF). The plaintiffs argue that these delays don’t just violate state law; they also violate the Second Amendment and the Fourteenth Amendment right to due process of law.

The state moved to dismiss the lawsuit, but on Wednesday, U.S. District Court Judge Mary M. Rowland ruled that the plaintiffs’ Second Amendment challenge may proceed.

First, Rowland ruled that the ISRA and SAF have standing to be plaintiffs in the case on their members’ behalf. That’s important, because, after this lawsuit was filed, the state eventually issued FOID cards to the individual plaintiffs, which made their claims moot. If the organizations couldn’t challenge the state’s delays on their members’ behalf, perhaps no one could; the state could always make any individual’s claim go away by just giving him or her a FOID card before a court could issue a decision.

Second, Rowland concluded that the plaintiffs stated a valid Second Amendment claim. That means the state will now have to justify its infringements of Illinoisans’ rights.

It won’t be able to do so, because it has no excuse for completely, indefinitely depriving Illinoisians of their Second Amendment rights unless and until bureaucrats get around to issuing their FOID cards. The state argues the delays are necessary to keep guns out of the hands of criminals and other potentially dangerous people, but there’s no reason why the state couldn’t complete any background checks in 30 days, as state law requires—if it were willing to devote the necessary resources to the task. Instead, the state has commonly swept away money intended for the FOID program and used it for other things.

Besides, 48 states manage to protect the public’s safety without requiring residents to obtain a permit just to possess a firearm. If Illinois can’t process its applications within 30 days, then the court should strike down the scheme entirely, and the state should find a different way to protect the public that doesn’t infringe on constitutional rights, as those other states have.

Finally, Rowland dismissed the plaintiffs’ Fourteenth Amendment due process challenge, concluding that a violation of the state’s 30-day rule couldn’t give rise to a federal due process claim. The plaintiffs respectfully disagree: in general, where a state or local law requires someone to obtain a permit to exercise a constitutional right, due process requires that it issue that permit within a specific, reasonable time period. Otherwise, it could use a licensing law to totally, indefinitely deny people their rights—just as Illinois has.

The FOID scheme is just one of many ways governments in Illinois have persistently tried to prevent citizens from exercising their right to keep and bear arms. The Supreme Court famously ended Chicago’s handgun ban in the landmark McDonald v. City of Chicago decision in 2010. Chicago tried to evade that ruling by promptly passing an ordinance that required individuals to receive training at a firing range before they could own a handgun—and also banned all firing ranges in the city. The U.S. Court of Appeals struck that down in 2011, and in 2012, it struck down a state law that banned Illinoisians from carrying a loaded firearm anywhere. A federal court struck down Chicago’s ban on virtually all gun sales in 2014. And last year the Illinois Supreme Court struck down Cook County taxes that singled out guns and ammunition.

A decision finally ending the FOID delays—if not the entire FOID regime—should be next.

Jacob Huebert is a Senior Attorney at the Goldwater Institute.

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