Following the Bruen decision, a lot of gun control laws started getting challenged. After all, the Court said you needed to find a historical analog to a gun control measure if you want that measure to stand.
Illinois, like a number of states, requires a permit to purchase a firearm.
To my knowledge, there’s no historic analog to such a thing, which means the FOID card requirement should die a horrible, fiery death.
Unfortunately, a circuit court judge disagreed.
Now, the plaintiffs are taking things up a notch.
After an Illinois circuit court judge sided with the state that the Firearm Owners Identification card is constitutional, the plaintiff plans to appeal.
The FOID card was enacted in the 1960s and has gone through various reforms since. The ID issued by Illinois State Police for a $10 fee is required for Illinoisans to buy or possess firearms and ammunition. Illinois is one of four states that require a state-issued permit to buy or own a firearm and ammunition.
The judge noted that Illinois State Police Director Brendan Kelly in his defense of the FOID card used Fordham University history professor Saul Cornell’s analysis of historic firearm regulation.
“There is ample historical evidence supporting the constitutionality of the FOID Act, and GSL’s facial challenge fails as the historical record demonstrates that laws ‘relevantly similar’ to the FOID Act have been part of American legal history from the Founding Era to present day,” the judge wrote.
Among the historical analogs the judge said are sufficient are disarmament laws from the founding era “preventing dangerous or ‘unvirtuous’ people from being armed,” including “oath of loyalty” pledges and those “who refused to pay taxes.”
The judge even points to a 1777 law in the state of Pennsylvania that prohibited people, including Protestant Christian Quakers, from owning firearms unless they swore an oath to the government and paid a fee.
I’m not sure I agree with this interpretation one bit.
The analog presented here looks more like a requirement for violent felons to be disarmed than to treat everyone as potentially dangerous, which is essentially what the Illinois requirement does.
Further, I’m not sure we should look at a religious discrimination case from 1777 as a good analog for anything, which is exactly what the Pennsylvania law was–and an ironic case of discrimination since the state was founded by Quakers.
Even then, though, it applied to a select group of people and not the totality of society–it should also be noted that 1777 was before the Second Amendment was ratified, which might well shoot holes in that argument entirely.
Luckily, this isn’t the end. The plaintiffs in this case aren’t taking this as the final ruling, which they shouldn’t.
One of the problems with the text and history standard laid out in Bruen, one which the circuit court exploited in the Illinois case, is just which historical analogs are valid and which aren’t. Justice Clarence Thomas was pretty clear, but these are lawyers we’re talking about here.
So this should be interesting going forward.