Primer on Illinois Gun Laws
A Deeper Dive
The Second Amendment to the U.S. Constitution states:
A well regulated Militia, being necessary to the security of a free State,
the right of the people to keep and bear Arms, shall not be infringed.
Ratified:
Dec. 15, 1791
Perhaps the most politically disputed 27 words in the English language, consisting of just 5 prepositions and beginning with a subordinate clause, the Second Amendment is truly the safety switch for democracy, placed there by the founders of this nation to ensure that no matter what, the people had a right to protect themselves and their loved ones.
One need not engage in semantics or argue about what the Founding Fathers wanted or didn't want. When it comes to living in a civilized society, there must be guardrails in place to protect against chaos. Therefore, over the past 2 centuries, the U.S. Supreme Court has clarified, limited, explained, and rationalized just about every angle of the debate, and left Americans with the our current system of gun laws.
In Illinois, there are specific categories of people who are considered "prohibited" from gun possession or ownership. There are quite a few so-called "grounds" for denial or revocation of a FOID Card, and most of them can be directly tied to a federally mandated prohibition. For instance, any of the following acts to bar you from having a firearm:
-
Felony convictions
-
Court Adjudication as Legally Disabled (Under Conservatorship/Guardianship)
-
Convicted of a crime of domestic violence (misdemeanor or felony)
-
Commitment to a mental health facility
-
Dishonorable Discharge from the U.S. Military
-
Under the age of 21 without consent of a parent
-
Adjudicated a Juvenile Delinquent (juvenile criminal record that would be a felony if commited by an adult)
-
Clear & Present Danger*
In Evans v. Cook County State's Attorney, Docket No. 125513 (2021), the Illinois Supreme Court was asked to resolve a possible conflict in the way Illinois treated felons seeking to restore their right to bear arms. The main problem was that under Sect. 65/10 of the FOID Act, one must meet a 4-factor test to have their rights restored in certain circumstances:
-
Must not have any "forcible felonies" within the last 20 years
-
The applicant would not be likely to act in a manner dangerous to public safety
-
Granting relief would not be contrary to public interest
-
It would not be otherwise contrary to federal law
While the list may seem reasonable, Evans raised the issue of whether a felon could ever have his rights restored. After all, if federal law prohibits felons from having a firearm, how can a state restore the rights of a felon? This seemingly circular problem raised by the appellate court was resolved by the Supreme Court, finding that "If a convicted felon can establish the requirements of section 10(c)(1)-(3), he may be granted relief in a way that is not contrary to federal law." In short, the Court found that even someone with a prior felony record could, given passage of time and improvements in their life circumstances, eventually be capable of proving their right to have a firearm again.
In Johnson v. Dept. of State Police, 2019 IL 124213 (2020), the Illinois Supreme Court finally, and for the first time, fully declared that the right to bear arms is a "civil right," on even footing with all other rights codified in the Bill of Rights, such as the right to vote, the right to speak or to worship as one chooses. The Court further found that even those with domestic battery convictions could potentially have their rights restored by meeting the applicable statutory conditions. It further made clear that so long as one can meet the State's statutory criterion for reinstatement in Sect. 10(c) of the FOID Act, then by doing so, the person would be brought within a 'safety valve' protection of the Federal Gun Control Act.
The Federal Gun Control Act of 1968 creates several exceptions to the definitions of prohibitions. So, for instance, a "conviction" for a misdemeanor crime of domestic violence or for a "crime punishable by more than one year of incarceration" are strict prohibitors under federal law.
For instance, under 18 U.S.C. 921(a)(20)(b), a felony conviction is a prohibitor for firearm possession. However, the statute also states the following, which is mirrored for crimes of domestic violence, as well:
What constitutes a conviction of such a crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held. Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.
Legal scholars in this field must pay close attention to the definitions contained in the 1968 federal legislation. Illinois has been requiring FOID Cards since a year before the federal scheme was even enacted. But federal law is clear that if a person has had their "rights restored," then their felony conviction does not prohibit them. And in Illinois, a hearing under Section 10(c) is just that procedure for having one's rights restored. Once you have proven factors 10(c)(1)-(3) of the FOID Act, and a judge determines that your rights are restored under Illinois law, then by operation of law, you are pulled within the exception to the general prohibitions of federal law, thereby satisfying factor 10(c)(4) ("that relief would not be contrary to federal law").
Gun laws have a racist past!
Did you know? Following the Civil War, southern states sought to regain some of the control they lost by creating tight rules about which Americans could have guns. These racist efforts persisted for decades, and in some parts of the country, the impacts can still be felt.
Illinois Gun Laws
BY law, each state is permitted to create reasonable regulations to restrict and control the possession, ownership and transfer of firearms, within a basic framework of protections afforded under the Constitution and the federal Gun Control Act of 1968.
But each state must also ensure that it does not grant more rights than federal law would allow or restrict rights in a way that would be at odds with the Constitution. Put another way, the 14th Amendment applies certain protections to the citizens of individual states, so that states cannot pass laws that would unduly restrict the person's basic liberties beyond what the Constitution can allow.
This struggle between federal and state law creates headaches when states attempt to over-restrict their citizens. The primary statute controlling gun ownership in Illinois is called the "FOID Act" or "Firearm Owners' Identification Card Act," 430 ILCS 65/1 et seq. The law begins with a simple but telling prefatory statement:
In order to promote and protect the health, safety and welfare of the public, it is necessary and in the public interest to provide a system of identifying persons who are not qualified to acquire or possess firearms ...
20th Century
Modern Courts & the 2nd Amendment
In the modern post-industrial age of America, there have been legions of court rulings that interpreted and, over time, fundamentally changed our understanding of 2nd Amendment protections, but a handful of important decisions have carefully attempted to define our rights to resolve major disputes. These decisions will continue to impact all Americans' lives for generations to come.
In District of Columbia v. Heller, 554 U.S. 570 (2008), the Supreme Court reviewed the history and traditions of the country, determining that D.C.'s ban on handguns was unconstitutional, because the Second Amendment provides an individual right to bear arms, not one tied solely to militia service.
McDonald v. City of Chicago, 561 U.S. 742 (2010) applied the Fourteenth Amendment to expand the holding from Heller, making it applicable to the states.
In New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1 (2022), the Supreme Court found that New York's ban on carrying firearms in public was unconstitutional, as it effectively would render the clause "keep and bear arms" irrelevant. After all, how can one keep and bear something they may not take outside of their home?
19th Century
Post Civil War Era
In the wake of America's Civil War, southern states were angrily seeking to reclaim some of the power they lost on the courthouse steps of Appomattox on April 9, 1865, when the Confederacy met its end. Early Supreme Court decisions limiting gun rights or placing restrictions on them generally can be linked to racist aims, such as leaving black Americans at the mercy of the Klan. One case, however, Presser v. Illinois, decided in 1886, gave us a positive holding, whereby the court ruled that guns are not solely for those in organized militias, but rather, firearms are an individual right. The "arc of history" as they say.