Legal Breakdown – Was the FOID Act Overturned in Illinois?

Understanding the Court Structure in Illinois

First, it is important to understand how the courts work in Illinois. There are three levels of courts – the circuit court (local courthouse in your county), the intermediate appellate courts (divided into 5 regional districts), and the Illinois Supreme Court (highest court in the state).

When a local circuit court judge rules on a legal matter that has the ability to impact citizens throughout the state, there are often legal challenges to his ruling. The People v. Vivian Brown case actually began long ago in 2017, when Ms. Brown was arrested and charged with a Class A misdemeanor for Possession of a Firearm without FOID Card. The following timeline then proceeds:

• June 19, 2020. Ms. Brown’s first attorney filed a motion to hold the applicable FOID statute unconstitutional.

• April 26, 2021. Judge Webb granted the motion, holding that the FOID Act was indeed unconstitutional.

• April 28, 2021. The Office of the Illinois Attorney General filed a Notice of Direct Appeal to the Illinois Supreme Court.

• August 29, 2022. Following a number of pleadings being filed, the court amended its original order to include better clarification of the ruling.

• August 7, 2023. The 5th District Appellate Court, located in Mt. Vernon, Illinois, found that the Supreme Court would not have jurisdiction to directly hear the appeal and that dismissal of Ms. Brown’s charges was inappropriate based on technical reasons.  

• November 6, 2023. Ms. Brown filed a renewed motion seeking to hold the statute unconstitutional.

• February 14, 2024. The Illinois Attorney General filed a response brief, laying out its theories for why the law should not be overturned.

• March 27, 2024. Again, Ms. Brown filed a reply brief, responding to the State’s arguments.

• February 10, 2025. Judge Webb again found the law unconstitutional.

• February 13, 2025. The State again filed a Direct Appeal to the State’s Supreme Court.

What are the Issues Being Argued?

Like in all complex civil litigation, there are always technical issues that must be resolved. In this particular case, the key issue is

In Ms. Brown’s newly filed Motion to Dismiss her criminal charges, filed on November 6, 2023, she argued that based on the U.S. Supreme Court’s holdings in New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111 (2022), no state may prohibit or limit a person’s right to keep and bear arms within the privacy of their own home. This was the thrust of the Bruen decision as well. Her motion specifically argued that

“The only way that a law burdening conduct falling within the Second Amendment’s scope can be upheld is if the government can demonstrate a “historical tradition” of regulation, rooted in the Founding, that burdened the right to bear arms in a similar way and for similar reasons.” See Motion, p. 1.

Ms. Brown further argued that the court should follow prior U.S. Supreme Court precedent derived from cases such as McDonald v. City of Chicago, 561 U.S. 742, 749 (2010). Which held that self-defense is a

“basic right recognized by many legal systems from ancient times to the present day, and in Heller, we held that individual self-defense is ‘the central component’ of the Second Amendment right . . . (stating that the ‘inherent right of self-defense of self, family, and property is most acute’ in the home. . .).” See Motion, p. 7.

Likewise, she argued that as the high Court held in District of Columbia v. Heller, 554 U.S. 570 (2008),

“We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding “interest-balancing” approach. The very enumeration of the right takes out of the hands of government–even the Third Branch of Government–the power to decide on a case-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all. Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad.” See Motion, p. 7.

Ultimately, Ms. Brown argued that depriving her of a fundamental liberty interest like the right to keep and bear arms in her home creates an unfair and unnecessary risk of danger to a citizen by depriving her of fundamental self-defense rights.

Why Can’t a Judge Rule on Unconstitutionality of a Statute?

Lawyers statewide are being asked whether this ruling has negated their need for a FOID Card. Sadly, the answer is still no. This is because at the current time, the matter is being considered by the State’s Supreme Court, which has the ultimate say in what is and is not constitutional. While a trial court judge like Judge Webb has authority to enter such a ruling, the other side – the Attorney General – has the right to appeal, and until the appeal is decided, the FOID Act remains the law of the land – whether right or wrong.

What Next?

Should the Supreme Court rule in favor of Ms. Brown, it would have to find the FOID Act violates the Second Amendment. If it does so, this could indeed be the end of the FOID Act as we know it. In that case, we highly suspect the General Assembly will simply re-write the statute to change a few minor technical provisions, thereby resurrecting the law.

If, however, the Court rules against Ms. Brown, she may attempt to appeal to the U.S. Supreme Court, which can elect to hear or not hear the matter. If they do not, then the Illinois Supreme Court’s ruling becomes final. If they do hear the case, there is a good chance the U.S. Supreme Court would overturn the law.

Aggressive Representation Available

If you are facing the loss of your FOID Card in Illinois, you need experienced and battle-tested legal representation, as the State of Illinois is working very hard to make guns illegal. From the FOID Act to recent amendments adding an administrative board to hear appeals, the General Assembly is waging war on the Second Amendment. At Crossroad Legal, we represent Illinois gun owners every day, helping them fight to preserve their birthright as Americans. We may be able to help you too. Call (833) FOID-LAW [364-3529] or find us online at www.FOIDLaw.com.