opining that “whether a person previously convicted of an offense constitutes a present danger with a weapon going forward, and whether that individual’s rights to keep and bear arms should be restored . . . , logically, should be the core question” instead of “quibbling over what rights irrelevant to that question have been restored, or, as some cases would have it, how many of those rights”
How later courts described this case
- opining that “whether a person previously convicted of an offense constitutes a present danger with a weapon going forward, and whether that individual’s rights to keep and bear arms should be restored . . . , logically, should be the core question” instead of “quibbling over what rights irrelevant to that question have been restored, or, as some cases would have it, how many of those rights”
- stating the same proposition
Written by the judges who cited it.
The opinion
2013 IL 113867
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 113867)
JERRY W. CORAM, Appellee, v. THE STATE OF ILLINOIS
(The Illinois Department of State Police, Appellant).
Opinion filed September 12, 2013.
JUSTICE KARMEIER delivered the judgment of the court, with
opinion.
Chief Justice Kilbride and Justice Thomas concurred in the
judgment and opinion.
Justice Burke specially concurred, with opinion, joined by Justice
Freeman.
Justice Theis dissented, with opinion, joined by Justice Garman.
OPINION
¶1 This appeal comes to us pursuant to Illinois Supreme Court Rule
302(a) (Ill. S. Ct. R. 302(a) (eff. Oct. 4, 2011)), the circuit court of
Adams County having held section 922(g)(9) of the federal Gun
Control Act of 1968, as amended (18 U.S.C. § 922(g)(9) (2006)),
unconstitutional as applied to Jerry W. Coram.
¶2 Before this court, the Illinois Department of State Police (the
Department), appellant herein, contends that the firearm ban of
section 922(g)(9) is “constitutional under the Second Amendment,”
both facially and as applied to Coram. The United States, as amicus
curiae, argues that “the circuit court erred in holding that the denial
of petitioner’s application for a firearm owner’s identification card
infringes on any constitutionally protected interests.” As we see it,
there is no viable argument as to whether the federal firearms ban was
properly imposed upon Coram and others like him. At oral argument
Coram’s attorney more or less conceded as much. Moreover, as will
appear hereafter, we see no need to address the contention that section
922(g)(9) is unconstitutional as applied to Coram; nor, we conclude,
was there a reason for the circuit court to do so.
¶3 We believe the applicable state and federal statutory schemes can
be interpreted in a manner consistent with congressional intent and in
such a way as to afford Coram his firearm rights under the Illinois
Constitution (Ill. Const. 1970, art. I, § 22) and the second amendment
to the United States Constitution (U.S. Const., amend. II). We thus
conclude the circuit court erred in holding section 922(g)(9)
unconstitutional as applied to Coram.
¶4 CORAM’S 1992 CONVICTION
¶5 On June 26, 1992, Jerry Coram was charged, in the circuit court
of Adams County, with the offense of domestic battery, pursuant to
section 12-3.2(a)(1) of the Criminal Code of 1961 (Ill. Rev. Stat.
1991, ch. 38, ¶ 12-3.2(a)(1)), the information stating that Coram had
“slapped [the victim] in the face with his hand.” A police report
indicated that Coram was intoxicated during an argument preceding
the incident, and the victim, Coram’s live-in girlfriend, had advised
Coram, just prior to the assault, that she had engaged in sexual
intercourse with other men. On July 10, 1992, Coram pled guilty to
the offense of domestic battery, as charged. He was sentenced to 12
months’ conditional discharge and was ordered to pay a $100 fine,
plus costs. No jail time was imposed as part of the sentence. There is
no indication that the charge to which Coram pled had been reduced
to induce the guilty plea. Nothing in the police report of the incident
suggests that a firearm was present when the offense was committed.
¶6 At the time of Coram’s conviction, the disqualifying provisions
of Illinois’ Firearm Owners Identification Card Act (FOID Card Act)
(Ill. Rev. Stat. 1991, ch. 38, ¶ 83-8(a) through (h)) would not have
affected Coram’s rights to keep and bear arms under either the Illinois
Constitution or the second amendment to the United States
-2-
Constitution. In 1992, no federal statute disqualified Coram from
possessing firearms as a result of his misdemeanor domestic battery
conviction.
¶7 CORAM’S 2009 FOID CARD APPLICATION
¶8 In 2009, Coram applied for a FOID card. In his application, he
truthfully answered that he had previously been convicted of domestic
battery. He subsequently received a letter from the Illinois State
Police denying his application based upon a 1996 amendment to the
federal Gun Control Act of 1968,1 which imposed a firearm disability
upon any person convicted of a “misdemeanor crime of domestic
violence.” Although not identified as a statutory basis for denial in the
letter, the action was obviously premised upon the authority granted
the Illinois State Police under section 8(n) of the FOID Card Act to
deny the applicant a card, in the first instance, where the person is
“prohibited from acquiring or possessing firearms or firearm
ammunition by any Illinois State statute or by federal law.” 430 ILCS
65/8(n) (West 2010).
¶9 Where, as here, “the denial” of a FOID card, and hence the right
to legally possess a gun under Illinois law, was “based upon [a prior
conviction of] *** domestic battery”—among other offenses the
statute also addresses forcible felonies—section 10(a) of the FOID
Card Act states that “the aggrieved party may petition the circuit court
in writing in the county of his or her residence for a hearing upon
such denial.” 430 ILCS 65/10(a) (West 2010). At that hearing, the
court is charged with determining whether “substantial justice has not
been done,” and if it has not, the court is authorized by statute to
direct the Department to issue the FOID card. 430 ILCS 65/10(b)
(West 2010). The court’s determination with respect to substantial
justice is governed by the criteria of subsection (c) of section 10.
Pertinent to the case before us, the statute provides that the court may
“grant *** relief” from “such prohibition” “if it is established by the
1
The Lautenberg Amendment, effective September 30, 1996,
criminalized possession of firearms by domestic violence offenders. Pub.
L. No. 104-208, 110 Stat. 3009 (1996).
-3-
applicant to the court’s *** satisfaction that *** the circumstances
regarding a criminal conviction, where applicable, the applicant’s
criminal history and his reputation are such that the applicant will not
be likely to act in a manner dangerous to public safety; and ***
granting relief would not be contrary to the public interest.” 430 ILCS
65/10(c)(2), (c)(3) (West 2010). An applicant must also establish that
he or she has not been convicted of a forcible felony within 20 years
of the application, “or at least 20 years have passed since the end of
any period of imprisonment imposed in relation to that conviction.”
430 ILCS 65/10(c)(1) (West 2010). By its plain language, subsection
(c) of section 10, at the time of Coram’s application and subsequent
proceedings in the circuit court, allowed the court, in a proper case,
to grant relief from prohibitory factors listed in section 8 and applied
by the Department in the denial of a FOID card—including the factor
listed in subsection (n).
¶ 10 PROCEEDINGS IN THE CIRCUIT COURT
¶ 11 On January 25, 2010, Coram filed a petition in the circuit court of
Adams County seeking judicial review of the denial of his FOID card
application. On May 10, 2010, Coram’s petition came before Judge
Mark Schuering for hearing. Pursuant to statutory requirements (430
ILCS 65/10(b) (West 2010)), the Adams County State’s Attorney was
given due notice and was afforded the opportunity to present evidence
and object to the relief requested in the petition. The State’s Attorney
did neither.
¶ 12 A psychological report was filed in support of Coram’s petition.
In the report, the examining psychologist indicated that Coram
exhibited no psychological malady and there appeared to be no reason
for mental health treatment. The report states: “A careful review of
[Coram’s] life showed that, with the exception of the events that
happened almost 20 years ago, he has lived an exemplary life. *** He
exudes a sense of significant social responsibility, is deeply religious,
and has positive relationships with others.” The report concludes:
“There is no reason why, from a psychological viewpoint,
[Coram] poses a danger to others, or should not be
reconsidered for an FOID [card]. He is a pleasant man; shows
no aberration in the last 19 years that would be considered to
-4-
be legally, morally, or ethically significant or problematic. His
behavior is positive, pro-social, and his demeanor is pleasant
and positive. His life space is solid, he has adequate supports,
appears to be a competent worker who has enjoyed a 15 year
tenure in the same place, and enjoys being a productive
member of society.”
The examining psychologist “strongly recommended” that Coram be
“reconsidered for an FOID [card],” noting, “[f]rom a mental health
standpoint, there is no indication that [Coram] would be dangerous
if given an FOID [card], and allowed to access any form of
weaponry.”
¶ 13 At the conclusion of the hearing, the court entered an order
directing the Illinois State Police to issue a FOID card to petitioner.
In the body of his order, Judge Schuering acknowledged Coram’s
1992 conviction, but concluded that “[s]ubstantial justice has not
been done in the denial of Petitioner’s application for a FOID Card by
the Department.” In support of that assessment, the court found that
“the circumstances regarding [Coram’s] conviction, Petitioner’s
criminal history and his reputation are such that he will not be likely
to act in a manner dangerous to public safety[,] [t]hat granting the
relief requested in the said petition would not be contrary to the
public interest.”
¶ 14 One month after entry of the order, the Department, through the
Illinois Attorney General, filed motions to intervene and vacate the
court’s order. The motion to intervene was allowed. In support of its
motion to vacate, the Department argued that federal law prohibited
Coram from possessing a firearm and ammunition because of his
1992 misdemeanor domestic battery conviction, and the Department
lacked the authority to issue a FOID card to anyone who was
prohibited by federal law from possessing firearms or ammunition.
¶ 15 Coram moved to dismiss the Department’s motion to vacate,
responding that the statute which served as the basis for prohibition
(18 U.S.C. § 922(g)(9) (2006)) was unconstitutional in that it violated
his second amendment rights, his right to equal protection, and his
substantive due process right to carry a gun.
¶ 16 Coram provided notice to the United States Attorney that he was
challenging section 922(g)(9) on constitutional grounds. The United
-5-
States did not intervene in the case, but did file a statement of interest.
The United States argued, inter alia, that section 922(g)(9) satisfies
the intermediate scrutiny standard applied to presumptively lawful
categorical bans on firearm possession by violent offenders. The
United States further contended that section 921(a)(33)(B)(ii) (18
U.S.C. § 921(a)(33)(B)(ii) (2006)) provided Coram a path to
restoration of his rights to keep and bear arms. That section states, in
pertinent part, that a “person shall not be considered to have been
convicted of [a misdemeanor crime of domestic violence] for
purposes of this chapter if the conviction has been expunged or set
aside, or is an offense for which the person has been pardoned or has
had civil rights restored (if the law of the applicable jurisdiction
provides for the loss of civil rights under such an offense).” 18 U.S.C.
§ 921(a)(33)(B)(ii) (2006).
¶ 17 On December 30, 2011, Judge Thomas Ortbal entered judgment
in this matter. The circuit court’s thoughtful opinion and order
identifies two issues presented: “A. Do the provisions of 18 U.S.C.
section 922(g)(9) prohibit this court’s judicial consideration and
granting of relief from the denial of [a] FOID card pursuant to 430
ILCS 65/10? B. If applicable, are the provisions of 18 U.S.C. section
922(g)(9) violative of Coram’s rights of equal protection and due
process?” In the end, the court answered both those questions in the
affirmative. Order at 2.
¶ 18 Relying upon the analysis of United States v. Skoien, 614 F.3d
638 (7th Cir. 2010), the court found that the statute survived a facial
challenge; however, the court observed that “Skoien, itself ***
reserved the question of whether 922(g)(9) could survive a Second
Amendment challenge by a ‘misdemeanant who has been law abiding
for an extended period.’ ” Order at 5-6 (quoting in part Skoien, 614
F.3d at 645). The court ultimately ruled that the statute was
unconstitutional as applied to Coram, insofar as the federal statutory
scheme provided no avenue for relief from the federal firearm
disability imposed by section 922(g)(9). Specifically, the basis for the
court’s ruling appears to be that section 921(a)(33)(B)(ii) cannot
provide Coram relief, which he deserves, and section 10 of the FOID
Card Act cannot provide the mechanism for doing so independently
insofar as “the appeal and review process of 430 ILCS 65/10 does not
provide for the restoration of a ‘civil right’ within the meaning of
-6-
section 921(a)(33)(B)(ii).” Order at 9. The court concluded:
“The court *** finds that to deny an eligible applicant
potential relief under the statutorily created scheme of 430
ILCS 65/10, adopted subsequent to the federal ban created by
922(g)(9) would be arbitrary and a denial of substantive due
process as applied to the Petitioner Coram.” Order at 9.
In reaching that conclusion, the court noted that a person who has had
his conviction expunged, or has been pardoned, or has had his civil
rights restored after a misdemeanor domestic battery conviction is
eligible to possess a firearm by operation of section 921(a)(33)(B)(ii).
However, the court observed that the Supreme Court, in Logan v.
United States, 552 U.S. 23 (2007), held that the “the ‘civil rights
restored’ language of [section] 921(a)(33)(B)(ii) does not cover a
person whose civil rights were never taken away.” Order at 5. Thus,
Coram—because he was never sentenced to incarceration—could not
take advantage of the restoration-of-rights clause insofar as Illinois
does not revoke any civil rights by reason of a conviction for which
no sentence of imprisonment is imposed. Moreover, even when a
person is sentenced to incarceration, Illinois revokes—and then
automatically restores upon release—only the right to vote. See Ill.
Const. 1970, art. III, § 2; 730 ILCS 5/5-5-5(c) (West 2010). Further,
Coram was not eligible for expungement under Illinois law (see 20
ILCS 2630/5.2 (West 2010)), and he did not attempt to seek a pardon.
The Department conceded that a defendant convicted in Illinois of
misdemeanor domestic battery, who actually served time in jail,
would not be subject to the ban in section 922(g)(9), by virtue of the
restoration provision in section 921(a)(33)(B)(ii), insofar as his right
to vote would have been restored upon release. The circuit court
determined, because section 921(a)(33)(B)(ii) could not provide
Coram relief or a remedy within the federal statutory scheme, “Coram
remains subject to the prohibitions of [section] 922(g)(9).” Order at
4-5.
¶ 19 Continuing with its constitutional inquiry, the circuit court
reasoned that an individual who is sentenced to incarceration upon
conviction of domestic battery is presumptively more dangerous,
inflicted greater harm, and/or has a poorer criminal history or
character than an individual who, like Coram, was not incarcerated
upon conviction. Order at 7. “Thus, [section] 922(g)(9) permits one
-7-
who is logically and presumably more of a danger to the victim and
the public to automatically regain their right to possess firearms
under the [section] 921(a)(33)(B)(ii) [provision for] ‘civil rights
restored.’ ” (Emphasis in original.) Order at 7. The court continued:
“To deny (other than through the governor’s pardon) the
right to a statutorily created judicial review appeal for
restoration of such right is arbitrary and not narrowly tailored
to its objective, as applied to the Plaintiff, a person who has
led a law abiding life for an extended period of time and who
based upon a judicial consideration of the offense, criminal
history and reputation and character is found to be unlikely to
act in a manner dangerous to public safety.” Order at 7.
¶ 20 The circuit court rejected the Department’s suggestion that
Coram’s argument invited an unworkable case-by-case standard,
noting that section 10 of the FOID Card Act (430 ILCS 65/10 (West
2010)) provides appropriate standards for review of a denial of a
FOID card and was enacted by the legislature presumably with full
knowledge of the content of 18 U.S.C. § 922(g)(9). Apparently
believing that the procedure for relief in section 10(c) of the FOID
Card Act was irreconcilable with the federal statutory scheme, the
court ruled section 922(g)(9)’s firearm ban unconstitutional as applied
to Coram, denied the Department’s motion to vacate, and confirmed
that Judge Schuering’s order, directing the issuance of a FOID card
to Coram, “remains in full force and effect.” Order at 9.
¶ 21 The Department filed notice of appeal on February 1, 2012. On
March 5, 2012, this court entered an order remanding the cause to the
circuit court with directions to supplement its opinion and order of
December 30, 2011, to specifically address each of the requirements
of Illinois Supreme Court Rule 18 (Ill. S. Ct. R. 18 (eff. Sept. 1,
2006)). In response to this court’s order, the circuit court entered its
Rule 18 findings, which included, inter alia, the following
determinations:
“As set forth in the Order of December 30, 2011, the court
finds that the provisions of 18 U.S.C., sec. 922(g)(9), which
are incorporated by reference in 430 ILCS 65/8(n) as grounds
for denial of a FOID card, are unconstitutional [under the
second amendment], as applied to the Plaintiff.
-8-
***
(3) The court finds that 18 U.S.C., sec. 922(g)(9) as
incorporated in 430 ILCS 65/8(n), cannot reasonably be
construed in a manner that would preserve its validity, as
applied to Plaintiff;
(4) The court finds that the finding of unconstitutionality,
as applied, is necessary to the decision rendered and that such
decision cannot rest upon alternative grounds[.]”
¶ 22 With those prerequisite findings, the circuit court’s judgment is
properly before us.
¶ 23 RELEVANT GUN CONTROL LEGISLATION AND
PERTINENT INTERPRETATIVE CASE LAW
¶ 24 We begin with the stated purpose for which the Gun Control Act
of 1968 was enacted. As acknowledged in the Historical and Statutory
Notes to section 921 of the United States Code Annotated (18
U.S.C.A. § 921, Historical and Statutory Notes (West 2000):
“Section 101 of Pub. L. 90-618 provided that: ‘The Congress
hereby declares that the purpose of this title [which amended
this chapter] is to provide support to Federal, State, and local
law enforcement officials in their fight against crime and
violence, and it is not the purpose of this title to place any
undue or unnecessary Federal restrictions or burdens on law-
abiding citizens with respect to the acquisition, possession, or
use of firearms appropriate to the purpose of hunting,
trapshooting, target shooting, personal protection, or any other
lawful activity, and that this title is not intended to discourage
or eliminate the private ownership or use of firearms by law-
abiding citizens for lawful purposes, or provide for the
imposition by Federal regulations of any procedures or
requirements other than those reasonably necessary to
implement and effectuate the provisions of this title.’ ”
¶ 25 From the beginning, it was unlawful for any person to take
possession of a firearm when that person had been convicted of “a
crime punishable by imprisonment for a term exceeding one year,” or
“ha[d] been adjudicated as a mental defective” or had “been
committed to any mental institution.” Gun Control Act of 1968, Pub.
-9-
L. No. 90-618, 82 Stat. 1213, 1220-21 (1968); 18 U.S.C. § 922(h)(1),
(h)(4) (1970). The first disabling provision did not apply to “any State
offense (other than one involving a firearm or explosive) classified by
the laws of the State as a misdemeanor and punishable by a term of
imprisonment of two years or less.” 82 Stat. at 1216; 18 U.S.C.
§ 922(h)(1) (1970). From the outset, Congress recognized the need to
provide relief from firearms disabilities in certain circumstances. 82
Stat. at 1225; 18 U.S.C. § 925(c) (1970). Section 925(c) of the Gun
Control Act, at that time, allowed a person who had been convicted
of “a crime punishable by imprisonment for a term exceeding one
year (other than a crime involving the use of a firearm or other
weapon ***)” to apply to the Secretary of the Treasury for relief from
the federally imposed firearm disability. 82 Stat. at 1225; 18 U.S.C.
§ 925(c) (1968). Section 925(c) authorized the Secretary to grant
relief if it was established to his satisfaction “that the circumstances
regarding the conviction, and the applicant’s record and reputation,
[were] such that the applicant [was] not likely to act in a manner
dangerous to public safety and that the granting of the relief would
not be contrary to the public interest.” No similar path to “relief”—or
restoration—was provided for those who had a history of mental
illness or disability.
¶ 26 That omission prompted a 1986 legal challenge. In United States
Department of the Treasury, Bureau of Alcohol, Tobacco & Firearms
v. Galioto, 477 U.S. 556 (1986), the Supreme Court was presented
with an equal protection challenge by a former mental patient
(Galioto) under federal firearm disability by reason of section
922(d)(4) of the federal statute (18 U.S.C § 922(d)(4) (1970)
(prohibiting persons who have been committed to mental institutions
from possessing firearms)). Galioto’s claim was based upon the
disparity of treatment accorded recovered mental patients under
section 925(c) of the statute (18 U.S.C § 925(c) (1970)), who, unlike
convicted felons, were excluded by omission from section 925(c)’s
remedial provisions and were thus under a perpetual firearms
disability. Galioto, 477 U.S. at 558.
¶ 27 The district court held that statutory scheme violated equal
protection principles, finding “ ‘no rational basis for thus singling out
mental patients for permanent disabled status, particularly as
compared to convicts.’ ” Galioto, 477 U.S. at 559 (quoting Galioto
-10-
v. Department of the Treasury, Bureau of Alcohol, Tobacco &
Firearms, 602 F. Supp. 682, 689 (D.N.J. 1985)). The district court
also concluded that the statutory scheme was unconstitutional because
it “ ‘in effect creates an irrebuttable presumption that one who has
been committed, no matter the circumstances, is forever mentally ill
and dangerous.’ ” Galioto, 477 U.S. at 559 (quoting Galioto, 602 F.
Supp. at 690).
¶ 28 While the case was pending before the United States Supreme
Court, Congress came to the conclusion, “as a matter of legislative
policy,” that the firearms statutes should be redrafted. Galioto, 477
U.S. at 559. Before a decision was rendered on the merits, the
President signed into law Public Law 99-308 (Firearm Owners’
Protection Act, Pub. L. No. 99-308, 100 Stat. 449 (1986)). Section
105 of that statute amended section 925(c) by striking the language
limiting utilization of the remedial provision to certain felons, and
including any person who is “prohibited from possessing, shipping,
transporting, or receiving firearms or ammunition.” (Internal
quotation marks omitted.) Galioto, 477 U.S. at 559. Congress made
the amendments “applicable to any action, petition, or appellate
proceeding pending on the date of the enactment of this Act.”
(Internal quotation marks omitted.) Galioto, 477 U.S. at 559.
¶ 29 In response, the Supreme Court vacated the district court’s
judgment and remanded for further proceedings, stating:
“This enactment significantly alters the posture of this
case. The new statutory scheme permits the Secretary to grant
relief in some circumstances to former involuntarily
committed mental patients such as appellee. The new
approach affords an administrative remedy to former mental
patients like that Congress provided for others prima facie
ineligible to purchase firearms. Thus, it can no longer be
contended that such persons have been ‘singled out.’ Also, no
‘irrebuttable presumption’ now exists since a hearing is
afforded to anyone subject to firearms disabilities.
Accordingly, the equal protection and ‘irrebuttable
presumption’ issues discussed by the District Court are now
moot.” Galioto, 477 U.S. at 559-60.
With the amendment of section 925(c), Congress clearly intended to
afford an avenue to relief, a “safety valve,” for any deserving
-11-
individual subject to the categorical firearm disabilities imposed by
section 922. See Logan v. United States, 552 U.S. 23, 28 n.1 (2007)
(“[The Firearms Owners’ Protection Act], 100 Stat. 449, included a
‘safety valve’ provision under which persons subject to federal
firearms disabilities, including persons whose civil rights have not
been restored, may apply to the Attorney General for relief from the
disabilities.”).
¶ 30 Implementation of section 925(c) apparently continued for several
years, safeguarding the rights of the reformed and recovered. Then,
in 1992, the budget axe fell, and Congress barred the Attorney
General/Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF)
from using appropriated funds “ ‘to investigate or act upon [relief]
applications,’ ” a bar that was thereafter annually renewed. Logan v.
United States, 552 U.S. 23, 28 n.1 (2007) (quoting United States v.
Bean, 537 U.S. 71, 74-75 (2002)). Though section 925(c) remained
on the books, its significance became, at best, aspirational, its
reimplementation prospective.
¶ 31 The focus of Supreme Court litigation with respect to firearms
disabilities seemingly shifted to argument over the parameters of
relief obtainable through the restoration-of-civil-rights clauses of the
federal statute. See 18 U.S.C. § 921(a)(20), (a)(33)(B)(ii) (2006). The
former provided:
“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.” 18 U.S.C. § 921(a)(20) (2006).
The latter contained similar language:
“A person shall not be considered to have been convicted
of [a misdemeanor crime of domestic violence] if the
conviction has been expunged or set aside, or is an offense for
which the person has been pardoned or has had civil rights
restored (if the law of the applicable jurisdiction provides for
-12-
the loss of civil rights under such an offense) unless the
pardon, expungement, or restoration of civil rights expressly
provides that the person may not ship, transport, possess, or
receive firearms.” 18 U.S.C. § 921(a)(33)(b)(ii) (2006).
In 1994, the Supreme Court rendered its opinion in Beecham v.
United States, 511 U.S. 368 (1994). The question in Beecham was
“which jurisdiction’s law is to be considered in determining whether
a felon ‘has had civil rights restored’ for a prior federal conviction.”
Beecham, 511 U.S. at 369. The Court answered that question in the
manner clearly mandated by section 921(a)(20)—a provision
modified by Congress in response to the Court’s prior opinion in
Dickerson v. New Banner Institute, Inc., 460 U.S. 103 (1983)
(holding that federal law alone determined whether a state conviction
counted, regardless of whether the state had expunged the
conviction). The Beecham Court held that the restoration-of-rights
exemption “refer[s] only to restorations of civil rights by the
convicting jurisdiction.” (Emphasis added.) Beecham, 511 U.S. at
372. The Court dismissed the suggestion that, because there is
apparently no federal procedure for restoring civil rights to a federal
felon, the restoration-of-rights provision must in that case refer to a
state procedure. Beecham, 511 U.S. at 372. The Court acknowledged,
“[h]owever one reads the statutory scheme *** people in some
jurisdictions would have options open to them that people in other
jurisdictions may lack” (Beecham, 511 U.S. at 373); nonetheless, the
Court considered that disparate treatment inconsequential in light of
clearly expressed congressional intent. The Court semantically
shrugged: “Under our reading of the statute, a person convicted in
federal court is no worse off than a person convicted in a court of a
State that does not restore civil rights.” Beecham, 511 U.S. at 373.
¶ 32 The Court did not actually decide whether a federal felon could
have his civil rights restored:
“We express no opinion on whether a federal felon cannot
have his civil rights restored under federal law. This is a
complicated question, one which involves the interpretation
of the federal law relating to federal civil rights, see U.S.
Const., Art. I, § 2, cl. 1 (right to vote for Representatives);
U.S. Const., Amdt. XVII (right to vote for Senators); 28
U.S.C. § 1865 (right to serve on a jury); consideration of the
-13-
possible relevance of 18 U.S.C. § 925(c) (1988 ed., Supp. IV),
which allows the Secretary of the Treasury to grant relief
from the disability imposed by § 922(g); and the
determination whether civil rights must be restored by an
affirmative act of a Government official, see United States v.
Ramos, 961 F.2d 1003, 1008 (CA1), cert. denied, 506 U.S.
934 (1992), or whether they may be restored automatically by
operation of law, see United States v. Hall, 20 F.3d 1066
(CA10 1994). We do not address these matters today.”
(Emphasis added.) Beecham, 511 U.S. at 373 n.*.
Thus, Beecham suggested that the restoration of gun rights might fall
under the rubric of “civil rights restored.”
¶ 33 Subsequently, in Caron v. United States, 524 U.S. 308 (1998), the
Court considered whether state convictions counted for purposes of
enhanced federal sentencing based on prior convictions. In that
context, the Court reaffirmed the principle that the law of the
convicting jurisdiction controls whether rights have been restored:
“Congress responded to our ruling in Dickerson by providing that the
law of the State of conviction, not federal law, determines the
restoration of civil rights as a rule.” Caron, 524 U.S. at 316. Although
the Court mentioned “[r]estoration of the right to vote, the right to
hold office, and the right to sit on a jury” (Caron, 524 U.S. at 316),
the Court never identified those as the requisite civil rights necessary
for exempting restoration that would bar a federal firearms
prosecution; nor did it explain why those rights—irrelevant to an
individual’s future dangerousness with a weapon and the sentencing
inquiry then before the Court—should be rights pertinent to that
issue.
¶ 34 The issue actually before the Court concerned the proper
interpretation of section 921(a)(20)’s “unless” clause. 18 U.S.C.
§ 921(a)(20) (2006). As previously noted, a conviction will not count
against a person if he or she has had “civil rights restored”—that is,
“unless such *** restoration of civil rights expressly provides that the
person may not ship, transport, possess, or receive firearms” (18
U.S.C. § 921(a)(20) (2006)), in which case the conviction counts for
purposes of federal liability. The Supreme Court described Caron’s
claim, and the underlying scenario, as follows:
“Petitioner claimed the court should not have counted his
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Massachusetts convictions because his civil rights had been
restored by operation of Massachusetts law. Massachusetts
law allowed petitioner to possess rifles or shotguns, as he had
the necessary firearm permit and his felony convictions were
more than five years old. [Citation.] The law forbade him to
possess handguns outside his home or business. [Citation.]”
Caron, 524 U.S. at 311.
The Caron Court determined, because Massachusetts law allowed
Caron to possess some firearms (rifles and shotguns), but not others
(handguns), the “unless” clause of section 921(a)(20) was operative,
and the partial state restoration of gun rights that did take place was
insufficient to exempt Caron’s state convictions as predicates for
purposes of enhanced federal sentencing. Caron, 524 U.S. at 311.
Implicit in the Court’s analysis is the recognition that state law can
operate to restore firearm rights, as part of a “restoration of civil
rights,” under section 921(a)(20)’s exempting provision, “unless such
*** restoration of civil rights expressly provides” otherwise. 18
U.S.C. § 921(a)(20) (2006). The Supreme Court effectively conceded
that Massachusetts could have done as much, it just did so
imperfectly.
¶ 35 Despite the attention paid the restoration-of-rights provisions, the
courts had not entirely given up on the utility of section 925(c) as a
principal means to relief from federal firearms disabilities. In Bean v.
United States, 89 F. Supp. 2d 828 (E.D. Tex. 2000), the district court
reasoned that congressional failure to fund the review of applications
by the ATF was not indicative of intent to suspend relief available
under section 925(c); rather, it evinced only the intent to suspend
ATF’s ability to investigate or act upon applications. Bean, 89 F.
Supp. 2d at 831-35. The court noted: “[T]he argument that Congress
intended to absolutely suspend relief to convicted persons ignores the
multitude of ways under 18 U.S.C. § 921(a)(20) that a state felon may
obtain restoration of his federal firearm rights by operation of state
law and without the involvement of any special ATF competency.”
Bean, 89 F. Supp. 2d at 834. The court observed that “the statute still
provides for judicial review” (emphasis in original) (Bean, 89 F.
Supp. 2d at 835) and ultimately determined that: (1) inaction by the
ATF constituted a de facto denial of an application such that a United
States district court could consider a petition for judicial review of the
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denial (Bean, 89 F. Supp. 2d at 836-37); and (2) Bean would not be
“likely to act in a manner dangerous to public safety” and the
“granting of relief would not be contrary to the public interest” (Bean,
89 F. Supp. 2d at 838-39 (quoting the standards for relief set forth in
section 925(c)).
¶ 36 The Fifth Circuit Court of Appeals affirmed. Bean v. Bureau of
Alcohol, Tobacco & Firearms, 253 F.3d 234 (5th Cir. 2001). In
principal part, the court of appeals’ opinion is an extensive refutation
of the argument that Congress intended to repeal the provisions for
relief from firearm disability provided by section 925(c) through
Congress’s repeated failure to fund the activities necessary to carry
out section 925(c)’s function. As noted by the Court of Appeals:
“Although it obviously has the power, Congress has not enacted
legislation eliminating or amending § 925(c).” Bean, 253 F.3d at 238.
The court distinguished this situation from other cases in which
reduced or withdrawn appropriations were found to have resulted in
implied repeal, noting “[i]n the case at bar, Congress is not merely
promising money then changing its mind and not making it available.
Nor is it directly suspending a statutory provision. In enacting
§ 925(c) Congress granted certain persons administrative and judicial
rights.” Bean, 253 F.3d at 239. The court found “that action clearly
distinguishable from the facts in the cited precedential cases and
inimical to our constitutional system of justice.” Bean, 253 F.3d at
239. The court concluded: “Section 925(c) was enacted for apparently
valid reasons, and citizens like Bean are entitled to the rights therein
created and authorized unless and until Congress determines to
change same. We must now conclude that merely refusing to allow
the agency responsible for facilitating those rights to use appropriated
funds to do its job under the statute is not the requisite direct and
definite suspension or repeal of the subject rights.” Bean, 253 F.3d at
239.
¶ 37 Addressing the merits only briefly, the court of appeals
determined that the district court did not err in granting Bean the
relief requested: “We do not believe that any reasonable observer is
persuaded that his offense creates a likelihood he represents a threat
to the public’s well-being, and it is beyond peradventure to believe
that Congress, or those seeking to rescind § 925(c), intended for
someone like Bean to lose his livelihood [as a licensed firearms
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dealer] on the basis of the facts such as are before us. Neither equity
nor the law require such an injustice.” Bean, 253 F.3d at 240.
¶ 38 The Supreme Court held otherwise. United States v. Bean, 537
U.S. 71 (2002). Contrary to the principle that remedial statutes
should, if possible, be liberally construed to effectuate their purpose
(see generally Peyton v. Rowe, 391 U.S. 54, 65 (1968)), the Court
rejected the district court’s holding that inaction by the ATF
constituted a de facto denial of an application such that a United
States district court could consider a petition for judicial review of the
“denial.” Bean, 537 U.S. at 75-76. Aside from that strict semantic
insistence, the Court supported its decision with three principal
justifications: (1) ATF was designated the “primary decisionmaker”;
(2) the standards and procedures the district court employed were not
those that would have been used by ATF; and (3) the district court
lacked the investigatory capabilities of ATF. Bean, 537 U.S. at 75-76.
Though the Court acknowledged that ATF’s “investigatory
capabilities” were purely theoretical—Congress having cut off
funding in successive years for that very function (see Bean, 537 U.S.
at 74-75)—the Court nonetheless concluded “that the absence of an
actual denial of respondent’s petition by ATF precludes judicial
review under § 925(c).” Bean, 537 U.S. at 78. The decision in Bean
effectively meant that applicants for relief—those who attempted to
gain restoration of their rights to keep and bear arms via the very
statute that Congress enacted for that purpose—had no direct federal
remedy. Bean did not address the constitutional repercussions of
congressional action (or inaction) with respect to section 925(c)
funding. One might have thought section 925(c) was a dead letter.
¶ 39 Congress, however, evinced a clear intent to the contrary with the
passage of the NICS Improvement Amendments Act of 2007, Pub. L.
No. 110-180, 122 Stat. 2559 (2008) (“An Act To improve the
National Instant Criminal Background Check System, and for other
purposes”). Among the findings cited as prompting passage of the
Act was the finding that the shootings at Virginia Polytechnic
Institute and State University—where “a student with a history of
mental illness *** shot to death 32 students and faculty members,
wounded 17 more, and then took his own life”—might have been
avoided with “[i]mproved coordination between State and Federal
authorities,” ensuring “that the shooter’s disqualifying mental health
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information was available to NICS.” Id. at 2560.
¶ 40 Surprisingly, in this Act, Congress specifically addressed relief
from the firearm disabilities set forth in subsections (d)(4) and (g)(4)
(applying to those who have been adjudicated mentally defective or
have been institutionalized in mental facilities), directing any federal
department or agency that makes determinations pertinent to those
sections to, “not later than 120 days after the date of enactment of
[the] Act,” establish “a program that permits such a person to apply
for relief from the disabilities imposed by such subsections.” Id. at
2563. Further, Congress provided that each application “shall be
processed not later than 365 days after the receipt of the application.”
Id. Significantly, it is provided: “If a Federal department or agency
fails to resolve an application for relief within 365 days for any
reason, including a lack of appropriated funds, the department or
agency shall be deemed for all purposes to have denied such request
for relief without cause,” thus enabling de novo judicial review,
utilizing “the standards prescribed in section 925(c).” (Emphases
added.) Id.
¶ 41 In addition to directions to federal departments and agencies,
Congress authorized some federal funds to be used by states to
“implement[ ] a relief from disabilities program in accordance with
section 105.” Id. at 2568. The program described in that section:
“(1) permits a person who, pursuant to State law, has been
adjudicated as described in subsection (g)(4) of section 922 of
title 18, United States Code, or has been committed to a
mental institution, to apply to the State for relief from the
disabilities imposed by subsections (d)(4) and (g)(4) of such
section by reason of the adjudication or commitment;
(2) provides that a State court, board, commission, or
other lawful authority shall grant the relief, pursuant to State
law and in accordance with the principles of due process, if
the circumstances regarding the disabilities referred to in
paragraph (1), and the person’s record and reputation, are
such that the person will not be likely to act in a manner
dangerous to public safety and that the granting of the relief
would not be contrary to the public interest; and
(3) permits a person whose application for the relief is
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denied to file a petition with the State court of appropriate
jurisdiction for a de novo judicial review of the denial.” Id. at
2569-70.
“If, under a State relief from disabilities program *** an application
for relief referred to in subsection (a)(1) of this section is granted with
respect to an adjudication or a commitment to a mental institution
*** the adjudication or commitment, as the case may be, is deemed
not to have occurred for purposes of subsections (d)(4) and (g)(4) of
section 922 of title 18, United States Code.” Id. at 2570.
¶ 42 Illinois accepted the investigatory and procedural responsibilities
for processing those applications for relief, with respect to Illinois
citizens (see 430 ILCS 65/10(f) (West 2010); Pub. Act 96-1368, § 5
(eff. July 28, 2010)), referring the matter, as in all applications
enabling firearm possession, in the first instance, to the investigatory
and administrative authority of the Department of State Police, and
thereafter, if necessary, to the circuit court for judicial review. The
standard for relief to be granted by the Department, and if need be the
circuit court, is, as seen in both federal statutes (18 U.S.C. § 925(c)
(2006)) and regulations (27 C.F.R. § 478.144 (2009)), and throughout
Illinois’ FOID Card Act, whether “the person will not be likely to act
in a manner dangerous to public safety and granting relief would not
be contrary to the public interest.” 430 ILCS 65/10(f) (West 2010).
That inquiry necessarily focuses upon the mental and emotional well-
being of the applicant.
¶ 43 Around the time of the NICS Improvement Amendments Act of
2007, the Supreme Court issued another decision bearing upon the
interpretation and implementation of the restoration-of-civil-rights
provisions in the federal gun control statute (18 U.S.C. § 921(a)(20),
(a)(33)(B)(ii) (2006)). In Logan v. United States, 552 U.S. 23 (2007),
the Court considered whether prior misdemeanor battery convictions
counted for purposes of enhanced sentencing under the provisions of
the Armed Career Criminal Act of 1984 (ACCA) (18 U.S.C.
§ 924(e)(1) (2006)). Logan, 552 U.S. at 26. The state convictions
would, of course, not count if defendant, inter alia, had his “civil
rights restored” with respect thereto. 18 U.S.C. § 921(a)(20) (2006).
Logan, however, had not lost any civil rights as a result of his
misdemeanor conviction. In its analysis, the Court first accepted the
proposition that the “civil rights relevant” under section 921(a)(20)
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were “the rights to vote, hold office, and serve on a jury.” Logan, 552
U.S. at 28 (citing, without meaningful discussion, Caron v. United
States, 524 U.S. 308, 316 (1998)). However, the rights involved
ultimately did not matter for purposes of the Court’s disposition,
because the Court concluded that a person who never had his civil
rights taken away could not come within the exemptive provisions of
the federal statute. Logan, 552 U.S. at 37.
¶ 44 En route to that conclusion, the Court cited and quoted, in support
of its holding, section 921(a)(33)(B)(ii), a definitional provision
corresponding to section 921(a)(20). Section 921(a)(33)(B)(ii), as
previously noted, provides an exemption from the federal firearm
disability for a person convicted of a misdemeanor crime of domestic
violence if, inter alia, that person “has had civil rights restored (if the
law of the applicable jurisdiction provides for the loss of civil rights
under such an offense).” Logan, 552 U.S. at 36 (adding emphasis to
the statutory language). The Court cited the foregoing language of
section 921(a)(33)(B)(ii) as an indicator that Congress intended to
deny the restoration-of-civil-rights exemptions to offenders who
retained their civil rights, and that Congress did not “labor[ ] under
the misapprehension that all offenders—misdemeanants as well as
felons—forfeit civil rights, at least temporarily.” Logan, 552 U.S. at
35.
¶ 45 In its “plain-meaning approach to the language Congress
enacted”—reminiscent of the strict construction of “denial” applied
in Bean—the Court rejected Logan’s reliance upon “the harsh results
a literal reading [of the statute] could yield,” i.e., “[u]nless retention
of rights is treated as legally equivalent to restoration of rights, less
serious offenders, who have committed the same crime, will be
subject to ACCA’s enhanced penalties, while more serious offenders
in the same State, who have civil rights restored, may escape
heightened punishment.” Logan, 552 U.S. at 32. Without really
answering that charge on an intrastate level, the Court initially held
that “automatic restoration of rights qualifies for § 921(a)(20)’s
exemption” (Logan, 552 U.S. at 32 (citing Caron, 524 U.S. at 313)),
thus seemingly approving a mechanism for relief from federal
firearms disabilities, without any individualized assessment of the
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person’s present character, condition, or dangerousness.2 The Logan
Court then dismissed Logan’s assertion that such a result “rises to the
level of the absurd,” noting: (1) that Logan’s argument overlooked
section 921(a)(20)’s “unless” clause, under which an offender gains
no exemption from ACCA’s application through restoration of civil
rights if the dispensation expressly provides that the offender may not
possess firearms; and (2) that Logan’s position “could produce
anomalous results” in an interstate context. Logan, 552 U.S. at 32-33.
The Court appears to chide Congress for amending section
921(a)(20), in response to the Court’s decision in Dickerson, taking
the determination of what defines a state conviction out of the
purview of federal law and making it a matter of state law. Logan,
552 U.S. at 33-35. Logan contains no meaningful response to the
assertion that a person sentenced to incarceration—and thus in a
position, in certain jurisdictions, to have some civil rights
restored—is presumptively more dangerous, inflicted greater harm,
and/or has a poorer criminal history or character than a similarly
situated individual who was not incarcerated upon conviction.
¶ 46 Against this backdrop of what some might see as failed and
inadequate federal procedures for the remediation—in appropriate
cases—of federally imposed firearm disabilities, we cannot ignore
what appears to be an ascendancy of second amendment rights in
federal jurisprudence. At the core of resurgent second amendment
jurisprudence are the Supreme Court’s landmark decisions in District
of Columbia v. Heller, 554 U.S. 570 (2008), and McDonald v. City of
Chicago, 561 U.S. ___, 130 S. Ct. 3020 (2010). More than one court
has acknowledged that the ground opened by Heller and McDonald
is a “vast ‘terra incognita’ ” that “has troubled courts since Heller was
decided.” (Internal quotation marks omitted.) Osterweil v. Bartlett,
706 F.3d 139, 144 (2d Cir. 2013) (quoting Kachalsky v. County of
Westchester, 701 F.3d 81, 89 (2d Cir. 2012), quoting United States v.
Masciandaro, 638 F.3d 458, 475 (4th Cir. 2011) (Wilkinson, J.)).
This much we know.
2
In Skoien, the Seventh Circuit Court of Appeals in fact held that
section 921(a)(20)’s sister statute, section 921(a)(33)(B)(ii), “provides that
*** restoration of civil rights means that a conviction no longer disqualifies
a person from possessing firearms.” Skoien, 614 F.3d at 644.
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¶ 47 In Heller, the Supreme Court noted for the first time that the
second amendment “codified a pre-existing” individual right to keep
and bear arms. (Emphasis in original.) Heller, 554 U.S. at 592. The
Court announced that the second amendment “elevates above all
other interests the right of law-abiding, responsible citizens to use
arms in defense of hearth and home.” Heller, 554 U.S. at 635. The
Court held that the second amendment “guarantee[s] the individual
right to possess and carry weapons in case of confrontation,” and
struck down District of Columbia laws banning handgun possession
in the home and requiring that citizens keep their firearms in an
inoperable condition. Heller, 554 U.S. at 592.
¶ 48 However, in so holding, the Court made clear that the right
guaranteed by the second amendment “is not unlimited.” Heller, 554
U.S. at 626. The Court recognized that, even in days of yore,
“commentators and courts routinely explained that the right was not
a right to keep and carry any weapon whatsoever in any manner
whatsoever and for whatever purpose.” Heller, 554 U.S. at 626. The
Court cautioned that nothing in its opinion “should be taken to cast
doubt on longstanding prohibitions on the possession of firearms by
felons and the mentally ill, or laws forbidding the carrying of firearms
in sensitive places such as schools and government buildings, or laws
imposing conditions and qualifications on the commercial sale of arms.”
Heller, 554 U.S. at 626-27. The Court noted that list was not intended
to be exhaustive of presumptively lawful regulatory measures. Heller,
554 U.S. at 627 n.26.
¶ 49 In McDonald, the Court held that the second amendment is
applicable to the states and their subdivisions through the fourteenth
amendment (McDonald, 561 U.S. at ___, 130 S. Ct. at 3046) noting,
en route to that holding, “[I]t is clear that the Framers and ratifiers of
the Fourteenth Amendment counted the right to keep and bear arms
among those fundamental rights necessary to our system of ordered
liberty.” McDonald, 561 U.S. at ___, 130 S. Ct. at 3042. The plurality
opinion reaffirmed and underscored the Court’s statements in Heller
regarding permissible, long-standing regulatory measures prohibiting
the possession of weapons by felons and the mentally ill. McDonald,
561 U.S. at ___, 130 S. Ct. at 3047.
¶ 50 Meanwhile, closer to home, the Seventh Circuit Court of Appeals
began mapping the contours of “terra incognita.” For present
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purposes, that court’s first pronouncement of interest came in United
States v. Miller, 588 F.3d 418 (7th Cir. 2009), when it suggested that
the failure to fund the firearm relief provisions of section 925(c)
might have real consequences, noting that “appropriations riders have
hampered restorations under § 925(c),” and insisting that “the
Attorney General must implement that statute when funds are
available.” United States v. Miller, 588 F.3d at 420.
¶ 51 Then came the Seventh Circuit’s decision in Moore v. Madigan,
702 F.3d 933, 936 (7th Cir. 2012), which announced that a ban on
carrying loaded weapons in public “as broad as Illinois’s can’t be
upheld merely on the ground that it’s not irrational.” Moore, 702 F.3d
at 939. In the court’s analysis, considerations of public safety had to
yield to second amendment rights. According to Moore:
“[T]he Supreme Court made clear in Heller that it wasn’t
going to make the right to bear arms depend on casualty
counts. 554 U.S. at 636, 128 S. Ct. 2783. If the mere
possibility that allowing guns to be carried in public would
increase the crime or death rates sufficed to justify a ban,
Heller would have been decided the other way, for that
possibility was as great in the District of Columbia as it is in
Illinois.” Moore, 702 F.3d at 939.
¶ 52 In addition, Moore suggests that, when we speak of the second
amendment, we are in fact talking about “rights,” as opposed to a
single “right.” According to Moore, “The right to ‘bear’ as distinct
from the right to ‘keep’ arms is unlikely to refer to the home. To
speak of ‘bearing’ arms within one’s home would at all times have
been an awkward usage. A right to bear arms thus implies a right to
carry a loaded gun outside the home.” Moore, 702 F.3d at 936.
¶ 53 Close on the heels of Moore came a decision out of the Court of
Appeals for the District of Columbia echoing the concern expressed
by the Seventh Circuit Court of Appeals in Miller. In Schrader v.
Holder, 704 F.3d 980 (D.C. Cir. 2013), a 64-year-old veteran
(Schrader), who had been convicted of common law misdemeanor
assault and battery some 40 years ago, and who was thus barred “by
virtue of 18 U.S.C. § 922(g)(1) *** from ever possessing a firearm,”
contended that “section 922(g)(1) is inapplicable to common-law
misdemeanants as a class and, alternatively, that application of the
statute to this class of individuals violates the Second Amendment.”
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Schrader, 704 F.3d at 982. The court of appeals rejected the
contention that section 922(g)(1) was unconstitutional as applied to
the class of common law misdemeanants.
¶ 54 However, the court noted that Schrader and the Second
Amendment Foundation, at several points in their briefs, appeared to
go beyond that contention and “claim that the statute is invalid as
applied to Schrader specifically.” Schrader, 704 F.3d at 991. Citing
allegations of Schrader’s exemplary record over the last 40 years, the
court observed: “To the extent that these allegations are true, we
would hesitate to find Schrader outside the class of ‘law-abiding,
responsible citizens’ whose possession of firearms is, under Heller,
protected by the Second Amendment.” Schrader, 704 F.3d at 991
(quoting Heller, 554 U.S. at 635). However, the court found it
unnecessary to “wade into these waters” because plaintiffs had not
argued in the district court that section 922(g)(1) was unconstitutional
as applied to Schrader. Schrader, 704 F.3d at 991. The court
determined that the wisest course was to leave the resolution of “these
difficult constitutional questions” to a case where the issues were
properly raised and briefed. Schrader, 704 F.3d at 991. The court
concluded:
“Leaving these questions for their proper day has an added
benefit: it gives Congress time to consider lifting the
prohibition on the use of appropriated funds for the
implementation of section 925(c), which *** permits
individuals to obtain relief from section 922(g)(1) by
demonstrating that they no longer pose a risk to public safety.
Without the relief authorized by section 925(c), the federal
firearms ban will remain vulnerable to a properly raised as-
applied constitutional challenge brought by an individual
who, despite a prior conviction, has become a ‘law-abiding,
responsible citizen[ ]’ entitled to ‘use arms in defense of
hearth and home.’ ” Schrader, 704 F.3d at 992 (quoting in
part Heller, 554 U.S. at 635).
¶ 55 ANALYSIS
¶ 56 The circuit court of Adams County has found Coram to be the
person described in Schrader—an individual who, despite a prior
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misdemeanor conviction, has become a “ ‘law-abiding, responsible
citizen[ ]’ entitled to ‘use arms in defense of hearth and home.’ ”
Schrader, 704 F.3d at 992 (quoting in part from Heller, 554 U.S. at
635). However, as explained hereafter, the constitutional question is
one we need not reach. We must consider nonconstitutional issues
first and consider constitutional issues only if necessary to the
resolution of this case. People v. Melchor, 226 Ill. 2d 24, 34-35
(2007). As we construe the interrelated federal and state statutory
schemes, Coram has a remedy, and Illinois a procedure, which
entitles him to relief/exemption from the disabling effect of section
922(g)(9).
¶ 57 As this court has often stated, statutes should be interpreted so as
to promote their essential purposes and to avoid, if possible,
constructions that would raise doubts as to their validity. Wade v. City
of North Chicago Police Pension Board, 226 Ill. 2d 485, 510 (2007).
In the construction of our statutes, this court presumes that the
legislature did not intend to create absurd, inconvenient, or unjust
results. People v. Gutman, 2011 IL 110338, ¶ 12. Statutes are
presumed constitutional, and courts have a duty to construe legislative
enactments so as to uphold their validity if there is any reasonable
way to do so. Wade, 226 Ill. 2d at 510. A similar canon of
construction prevails in the federal courts. The Supreme Court has
emphasized that federal courts will, “where possible,” and consistent
with the “legislative will” of Congress, construe federal statutes so as
to avoid serious doubts of their constitutionality. Stern v. Marshall,
564 U.S. ___, ___, 131 S. Ct. 2594, 2605 (2011).
¶ 58 Both the Illinois Constitution and the United States Constitution
safeguard the respective state and federal rights to keep and bear
arms. Article I, section 22, of the Illinois Constitution provides:
“Subject only to the police power, the right of the individual citizen
to keep and bear arms shall not be infringed.” (Emphasis added.) Ill.
Const. 1970, art. I, § 22. The second amendment of the United States
Constitution provides: “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.” (Emphasis added.) U.S. Const., amend.
II. The language of the Illinois Constitution suggests that the right, or
“rights,” of Illinois citizens to keep and bear arms are not generic or
categorical, that Illinois secures to its citizens, via the Illinois
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Constitution and implementing laws, individualized consideration of
a person’s rights to keep and bear arms. That policy is reflected in the
provisions of Illinois’ FOID Card Act (see 430 ILCS 65/5, 8, 10
(West 2010)), which mandates individual assessment of a person’s
application and circumstances by the Department of State Police in
the first instance, and individualized judicial consideration of the
basis for denial of a FOID card—without which firearm possession
is illegal under state law—and judicial relief from that denial in
appropriate circumstances.
¶ 59 We reiterate the standards that apply before an Illinois court can
grant relief to a person denied a FOID card on the basis of
disqualifying factors listed in section 8 of the FOID Card
Act—including the factor listed in subsection (n) (possession violates
state or federal law), which in this instance brings the federal
prohibition of section 922(g)(9) to bear. Subsections (2) and (3) of
section (c) of the 2010 version of the FOID Card Act allow a court to
grant relief from the denial of a FOID card, by directing its issuance,
if “the circumstances regarding a criminal conviction, where
applicable, the applicant’s criminal history and his reputation are such
that the applicant will not be likely to act in a manner dangerous to
public safety” and “granting relief would not be contrary to the
public interest.” (Emphases added.) 430 ILCS 65/10(c)(2), (c)(3)
(West 2010). This general provision for relief, applicable to anyone
who is denied a FOID card in the first instance, mirrors subsection (f)
of section 10, which specifically provides that “[a]ny person who is
prohibited from possessing a firearm under 18 U.S.C. 922(d)(4) and
922(g)(4) of the federal Gun Control Act of 1968”—prohibiting
firearms possession by a person who has been adjudged mentally
defective or who has been committed to a mental institution—“may
apply to the Department of State Police requesting relief from such
prohibition and the Director shall grant such relief if it is established
to the Director’s satisfaction that the person will not be likely to act
in a manner dangerous to public safety and granting relief would not
be contrary to the public interest.” (Emphasis added.) 430 ILCS
65/10(f) (West 2010).
¶ 60 The standards in those state provisions reflect the standard the
United States Attorney General is charged to employ—without funds
to do so—in considering whether to grant relief from federal firearms
-26-
disabilities under section 925(c), which provides that the Attorney
General may grant relief if it is established to his satisfaction that “the
circumstances regarding the disability, and the applicant’s record and
reputation, are such that the applicant will not be likely to act in a
manner dangerous to public safety and that the granting of the relief
would not be contrary to the public interest.” (Emphasis added.) 18
U.S.C. § 925(c) (2006); cf. 430 ILCS 65/10(c)(2), (c)(3) (West 2010).
That standard is reiterated verbatim in the Code of Federal
Regulations (27 C.F.R. § 478.144) to be applied by the Director of the
Bureau of Alcohol, Tobacco, Firearms and Explosives. Suffice it to
say, the standards for relief, state and federal, are consistent.
¶ 61 It seems the next question should be: Did, and does, Congress
intend for there to be state and federal means to relief from federally
imposed firearms disabilities? We have no doubt that was and is
Congress’s intent. Congress obviously did not believe it reasonable
or necessary to impose a perpetual firearm disability on anyone in the
listed categories in section 922(g).
¶ 62 The provisions of section 921(a)(20) (applicable to felons) and
section 921(a)(33)(B)(ii) (applicable to domestic violence
misdemeanants) have long evinced congressional intent to provide
exemption or relief from section 922(g) disabilities, or de facto
restoration of firearms rights—whatever one chooses to call it.
Irrespective of how those sections have been interpreted in the
retrospective context of enhanced federal sentencing, or would be in
this context, where Coram, prospectively, seeks to regain the very
rights at issue (the rights to keep and bear arms), those statutes
nonetheless make clear congressional intent to provide a means for
state law or action to neutralize the prohibitions of section 922(g),
where those prohibitions are based upon prior state convictions.
¶ 63 In addition to those provisions, Congress’s enactment of section
925(c)—which it has for decades failed to repeal or
repudiate—directly addresses the very concern that underpins the
imposition of categorical disabilities: the inference that possession of
firearms by persons in those categories presents a danger to others.
Section 925(c), at once, implicitly recognizes that circumstances may
change over time, that rehabilitation (in the case of disqualifying
convictions) and recovery (in the case of mental illness) are possible,
and that a lifetime ban on firearm possession—in effect the perpetual
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deprivation, without remedy, of an important constitutional right—is
not warranted in every case.
¶ 64 That Congress does not intend to abandon the principle of
entitlement to individual relief in appropriate circumstances can be
seen in its passage of the NICS Improvement Amendments Act of
2007. In a climate in which one might suspect Congress would
choose to limit the opportunities for persons previously suffering
from mental illness to regain their gun rights—the aftermath of the
shootings at Virginia Polytechnic Institute—Congress insisted that
those who had recovered from mental illness, and posed no danger,
should have their firearm rights restored, directing federal
departments and agencies to implement relief from disabilities
programs for those individuals. The standard to be employed is one
by now familiar: “the person will not be likely to act in a manner
dangerous to public safety and that the granting of the relief would
not be contrary to the public interest.” Significantly, five years after
the Supreme Court’s decision in Bean, Congress included in the
amendment language that would—at least insofar as section 925(c)
could be used as a vehicle to provide relief to those previously
suffering from mental illness—address and overrule the Supreme
Court’s holding in Bean. Congress specifically provided: “If a Federal
department or agency fails to resolve an application for relief within
365 days for any reason, including a lack of appropriated funds, the
department or agency shall be deemed for all purposes to have denied
such request for relief without cause.” (Emphases added.) 122 Stat.
at 2563. This clearly indicates, to us, that Congress wanted the relief
process to go forward, to judicial review, irrespective of whether it
had provided funding to the agency charged with investigatory
responsibilities in the first instance. Finally, the fact that Congress
chose to turn over some responsibilities for relief programs to the
states indicates to us that Congress at once saw a way to overcome
federal funding constraints, and believed the states were fully capable
of implementing programs for relief from federally imposed firearms
disabilities—and in a way more direct and meaningful than those the
states already controlled via interpretations of section 921(a)(20) and
(a)(33)(B)(ii). In short, Congress clearly intends for there to be
meaningful avenues to relief from federally imposed firearms
disabilities, and it intends for the states to take an active role in those
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relief efforts.
¶ 65 The Supreme Court has acknowledged congressional intent to
provide direct, meaningful, individualized consideration where relief
is sought from federal firearm disabilities. In Logan, the Court noted
that “[the Firearm Owner’s Protection Act], 100 Stat. 449, included
a ‘safety valve’ provision under which persons subject to federal
firearms disabilities, including persons whose civil rights had not
been restored, may apply to the Attorney General for relief from the
disabilities.” Logan, 552 U.S. at 28 n.1 (citing 18 U.S.C. § 925(c)
(Supp. V 2006)). Moreover, as interpreted by the Supreme Court, the
federal exemption statutes provide an alternative avenue to indirect
relief for persons who are seeking restoration of firearm rights,
insofar as those statutes specify that a prior state conviction is not “a
conviction”—in this situation a disabling conviction for purposes of
section 922(g)—if, with respect thereto, the convicting jurisdiction
has restored unrelated “civil rights” lost as a result of the conviction.
¶ 66 As the Court acknowledged in Logan, section 921(a)(20)—a
corollary statute to section 921(a)(33)(B)(ii)—“does not define the
term ‘civil rights.’ ” Logan, 552 U.S. at 28. While the Court, in
Logan, stated that “courts have held,” and the petitioner therein
“agree[d],” that the “civil rights relevant” to that section are “the
rights to vote, hold office, and serve on a jury” (Logan, 552 U.S. at
28 (citing, inter alia, Caron v. United States, 524 U.S. 308, 316
(1998)), as previously noted, we see no analysis in Caron dictating
that result. In Beecham, the Supreme Court itself suggested that
restoration of firearm rights could be “a consideration of *** possible
relevance” in that context. Beecham, 511 U.S. at 373 n.*; see also
United States v. Sonczalla, 561 F.3d 842, 844 (8th Cir. 2009) (“We
have noted that for a person to have his civil rights restored by a state
for the purposes of section 921(a)(20), the relevant state must actually
have restored the felon’s right to possess firearms.” (internal
quotation marks omitted)). Obviously, the Logan Court’s narrow
interpretation of requisite rights that must be restored for exemption
was rendered in the context of determining, for purposes of enhanced
federal sentencing, what constitutes a predicate conviction; the Court
was not considering whether a person previously convicted of an
offense constitutes a present danger with a weapon going forward,
and whether that individual’s rights to keep and bear arms should be
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restored. Some might well suggest in this context that, logically,
should be the core question, and quibbling over what rights irrelevant
to that question have been restored, or, as some cases would have it,
how many of those rights, misses the point and is a construction
inconsistent with the objectives of Congress.
¶ 67 Whatever one may think of the wisdom of applying Logan’s
automatic restoration-of-rights procedure in this context, we submit
that congressional intent to place within the authority of the states the
power to indirectly remove federal firearm disabilities via pardons,
expungements, and restorations of civil rights, pursuant to section
921(a)(20) and (a)(33)(B)(ii), suggests that Congress intends, or at
least countenances, the states taking an active role in directly
restoring second amendment rights to those under federal firearms
disabilities, or providing relief from those disabilities pursuant to the
standards of section 925(c), which amounts to the same thing. As
previously mentioned, the fact that Congress has begun turning over
responsibility for some firearm disability relief programs to the states
also supports that view.
¶ 68 Indeed, it has long been recognized in Supreme Court
jurisprudence that a state may, in certain circumstances, provide the
means to enforce a remedy where Congress has clearly sanctioned or
recognized a right or remedy, but Congress has not provided the
means. As the Supreme Court has stated: “ ‘If an act of Congress
gives a penalty [meaning civil and remedial] to a party aggrieved,
without specifying a remedy for its enforcement, there is no reason
why it should not be enforced, if not provided otherwise by some act
of Congress, by a proper action in a state court. The fact that a state
court derives its existence and functions from the state laws is no
reason why it should not afford relief.’ ” Mondou v. New York, New
Haven, & Hartford R.R. Co., 223 U.S. 1, 57-58 (1912) (quoting
Claflin v. Houseman, 93 U.S. 130, 137 (1876)). That proposition
would seem to apply here, where Congress has recognized the
remedy, but has not supplied the necessary money for its
implementation. Upon state courts, equally with the courts of the
Union, rests the obligation to guard and enforce every right secured
by the Constitution and laws of the United States whenever those
rights are involved in any suit or proceedings before them. Robb v.
Connolly, 111 U.S. 624, 637 (1884). In Ortega Co. v. Triay, 260 U.S.
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103, 109 (1922), the Supreme Court quoted approvingly this
proposition from an earlier Florida Supreme Court decision (State ex
rel. R.R. Commissioners v. Atlantic Coast Line Co., 54 So. 394 (Fla.
1911)), a principle that applies here: “Authority that is indispensable
or useful to the valid purposes of a remedial law may be inferred or
implied from authority expressly given.”
¶ 69 If, as it clearly does (see NICS Improvement Amendments Act of
2007, Pub. L. No. 110-180, 122 Stat. 2559 (2008)), Congress deems
a state’s investigatory and administrative apparatus capable of
determining whether a person defined as a “mental defective” is safe
to possess a firearm, how and why should it be different for persons
who decades ago committed an isolated act which resulted in a
conviction of misdemeanor domestic violence? Congress has
determined that the standard applicable to persons applying for relief
from disabilities imposed pursuant to subsections (d)(4) and (g)(4) of
section 922 and subsections (d)(9) and (g)(9) of that section is the
same: whether the applicant “will not be likely to act in a manner
dangerous to public safety and that the granting of the relief would
not be contrary to the public interest.” 18 U.S.C. § 925(c) (2006); cf.
430 ILCS 65/10(c)(2), (c)(3), (f) (West 2010). Given the broad
powers Congress has given the states to restore rights and grant relief
from federally imposed firearms disabilities, we believe the power to
grant relief, or restore rights, to those who have lost them as a result
of state misdemeanor convictions is necessarily implied.
¶ 70 We find no obstacles of preemption here. As the Supreme Court
observed in Haywood v. Drown, 556 U.S. 729, 734-35 (2009),
quoting Claflin v. Houseman, 93 U.S. 130, 136-37 (1876), the
“Federal and state law ‘together form one system of jurisprudence,
which constitutes the law of the land for the State; and the courts of
the two jurisdictions are not foreign to each other, nor to be treated by
each other as such, but as courts of the same country, having
jurisdiction partly different and partly concurrent.’ ” Haywood, 556
U.S. at 734-35. “So strong is the presumption of concurrency that it
is defeated only in two narrowly defined circumstances,” the first of
which is “when Congress expressly ousts state courts of jurisdiction.”
Haywood, 556 U.S. at 735.
¶ 71 The supremacy clause of the United States Constitution provides
that “[t]his Constitution, and the Laws of the United States *** shall
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be the supreme Law of the Land; and the Judges in every State shall
be bound thereby, any Thing in the Constitution or Laws of any State
to the Contrary notwithstanding.” U.S. Const., art. VI, cl. 2. “ ‘State
law is preempted under the supremacy clause in three circumstances:
(1) when the express language of a federal statute indicates an intent
to preempt state law; (2) when the scope of a federal regulation is so
pervasive that it implies an intent to occupy a field exclusively; and
(3) when state law actually conflicts with federal law.’ ” Poindexter
v. State of Illinois, 229 Ill. 2d 194, 210 (2008) (quoting Village of
Mundelein v. Wisconsin Central R.R., 227 Ill. 2d 281, 288 (2008)).
This court has recognized: “The key inquiry in all preemption cases
is the objective or purpose of Congress in enacting the particular
statute. The doctrine requires courts to examine the Federal statute in
question to determine whether Congress intended it to supplant State
laws on the same subject.” Kellerman v. MCI Telecommunications
Corp., 112 Ill. 2d 428, 438 (1986). None of the listed circumstances
support a presumption of preemption. In fact, the deference to state
law, to determine whether rights have been restored for purposes of
the disabling statutes’ application, suggests the contrary, as does
congressional action in beginning to turn over programs for relief
therefrom to the states, presumably for lack of federal funding.
Illinois’ statutory scheme provides a framework for individualized
review—and where appropriate relief—that essentially mirrors
section 925(c). See 430 ILCS 65/10(c), (f) (West 2010).
¶ 72 Apart from the individualized assessment mandated by section
925(c), the Supreme Court has construed section 921(a)(20) and
(a)(33)(B)(ii) in such a way as to give the states the authority to
automatically restore, through operation of state law, unrelated civil
rights of those whose state convictions—both felonies and
misdemeanors—have resulted in federally imposed firearms
disabilities, thus exempting those individuals from the disabling
effect of the federal statute without an individual assessment of their
future dangerousness going forward. With respect to that restoration-
of-rights process, it has been held that those who never lost civil
rights do not have an avenue to automatic restoration of their rights
to possess firearms—only those who have lost rights due, in many
cases, to incarceration. See Logan, 552 U.S. at 37 (“Having no
warrant to stray from § 921(a)(20)’s text, we hold that the words
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‘civil rights restored’ do not cover the case of an offender who lost no
civil rights.”).
¶ 73 Though we acknowledge the binding precedent of cases like
Logan, and abide by the principle of automatic restoration of firearm
rights upon the restoration of unrelated rights, reasonable minds
might rightfully find cause for concern with a statutory scheme for
restoration or relief that does not afford individualized consideration
of a person’s mental and emotional state—both critical to an
assessment of dangerousness—insofar as it could place the public at
risk. While some might find that state of affairs consistent with the
recent decisional ascendency, in our panoply of constitutional rights,
of the rights to keep and bear arms, in that milieu, the lack of any
effective federal alternative providing for direct relief, pursuant to
individualized assessment, for those who, despite prior convictions,
have been rehabilitated and wish to reestablish their firearm rights
seems oddly incongruent. In any event, we have no quarrel with the
proposition that one who has become a law-abiding citizen should not
be precluded from exercising those rights. Other courts appear to take
the same view. See Schrader, 704 F.3d at 992. Congress agrees. See
18 U.S.C. § 925(c) (2006). Indeed, the scrutiny given to those who try
to regain their firearms rights would seem to ensure that they pose
less of a danger to the public than many who have not yet come to the
attention of law enforcement and mental health professionals.
Unfortunately, as recent events sadly demonstrate, it is too often the
case that those individuals, as yet unidentified or unreported, that
inflict the greatest harm on their fellow citizens.
¶ 74 The individual scrutiny given Coram’s circumstances, by Judge
Schuering, pursuant to the standards for review set forth in Illinois’
FOID Card Act (430 ILCS 65/10(c) (West 2010)), has resulted in an
assessment that Coram “will not be likely to act in a manner
dangerous to public safety” and “granting relief would not be contrary
to the public interest.” That is the same standard of review Congress
has given the states the authority to employ in considering restoration
of firearms rights for those who have previously suffered from
disabling mental illness. That is the same standard Congress has
established for use in federal programs for relief from federal firearms
disabilities. Application of that standard, via section 10(c) of Illinois’
FOID Card Act, removes the federal firearm disability and entitles
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Coram to a FOID card. Thus construed, there is no need to address
the constitutionality of section 922(g)(9).
¶ 75 We note, in passing, the recent amendment of section 10 of the
FOID Card Act via Public Act 97-1150, § 545, effective January 25,
2013, providing that a circuit court may not order issuance of a FOID
card if the petitioner is otherwise prohibited from possessing or using
a firearm under federal law, and that relief can be granted under
subsection (c) only if “granting relief would not be contrary to federal
law.” Pub. Act 97-1150, § 545 (eff. Jan. 25, 2013) (amending 430
ILCS 65/10(b), (c)(4)). Obviously, the current version of the statute
was not in effect when proceedings under section 10(c) were
conducted with respect to Coram. However, given our construction
of the statute, and our interpretation of its effect, it would not matter
if the amendments had been in effect. Relief granted pursuant to
statutory review removes the federal firearm disability.
¶ 76 For the reasons stated, we affirm that part of the circuit court’s
judgment that upheld the original order of Judge Schuering, directing
the issuance of a FOID card to Coram. We vacate that portion of the
judgment that held section 922(g)(9) of the federal Act (18 U.S.C.
§ 922(g)(9) (2006)) unconstitutional.
¶ 77 Affirmed in part.
¶ 78 Vacated in part.
¶ 79 JUSTICE BURKE, specially concurring:
¶ 80 After the Illinois Department of State Police (the Department)
denied petitioner Jerry W. Coram’s application for a Firearm Owner’s
Identification (FOID) Card, he petitioned the circuit court of Adams
County for relief pursuant to section 10 of the FOID Card Act (430
ILCS 65/10 (West 2010)). The circuit court ultimately concluded that
Coram was statutorily barred from obtaining relief. However, the
court also held that the statutory bar violated Coram’s second
amendment rights. Because the circuit court held a statute
unconstitutional, the Department appealed directly to this court. Ill.
S. Ct. R. 302(a) (eff. Oct. 4, 2011).
¶ 81 Like Justice Karmeier, I believe that before addressing the
constitutional issue raised by the Department’s appeal, it is necessary
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to first determine whether the circuit court was correct in its
interpretation of the FOID Card Act and in its conclusion that Coram
cannot obtain relief under the statute. Also like Justice Karmeier, I
believe the circuit court erred when it concluded that statutory relief
is unavailable. However, my reasons for reaching that result differ
from Justice Karmeier’s. I therefore specially concur.
¶ 82 I
¶ 83 In 1992, Coram pled guilty to a charge of domestic battery, a class
A misdemeanor (Ill. Rev. Stat. 1991, ch. 38, ¶ 12-3.2(a)(1), (b)). The
factual basis of the plea established that Coram slapped his live-in
girlfriend in the face with his hand during an argument. Coram was
sentenced to 12 months’ conditional discharge and ordered to pay a
$100 fine.
¶ 84 Some 17 years later, in 2009, Coram applied to the Department
for a FOID card, a requirement for lawfully possessing a firearm in
the state of Illinois. See 430 ILCS 65/2(a)(1) (West 2010). The
Department denied Coram’s application pursuant to the authority
granted it under section 8(n) of the FOID Card Act (430 ILCS 65/8(n)
(West 2010)). That provision states that the Department may deny an
application for a FOID card if the Department finds that the applicant
is a “person who is prohibited from acquiring or possessing firearms
or firearm ammunition by any Illinois State statute or by federal law.”
¶ 85 When a state statute incorporates federal law, as section 8(n) does,
the general rule is that the incorporation is limited to federal statutes
or regulations in existence at the time the state statute was adopted.
See 34 Ill. L. and Prac. § 12, at 25 (2001). The incorporation cannot
include future amendments to the federal law because such an
incorporation would constitute an unlawful delegation of state
legislative power to the federal government. See, e.g., State v.
Williams, 583 P.2d 251, 254 (Ariz. 1978); 1950 Ill. Att’y Gen. Op.
No. 258.3 Further, the effect of incorporating federal law into section
3
Article IX, section 3(b), of the Illinois Constitution of 1970 (Ill. Const.
1970, art. IX, § 3(b)), permits the General Assembly to adopt by reference
future provisions of the income tax laws of the United States. This section
was included because of concerns that, without it, state legislation that
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8(n) is “ ‘the same as though the statute or the provisions adopted had
been incorporated bodily into the adopting statute.’ ” People v. Lewis,
5 Ill. 2d 117, 122 (1955) (quoting People ex rel. Cant v. Crossley,
261 Ill. 78, 85 (1913)).
¶ 86 Section 8(n) was added to the FOID Card Act in 1997. See Pub.
Act 90-130 (eff. Jan. 1, 1998).4 At that time, there existed a provision
of federal law, section 922(g)(9) of Title 18 of the United States Code
(18 U.S.C. § 922(g)(9) (Supp. II 1996)), which became incorporated
into section 8(n) and which subsequently informed the Department’s
decision to deny Coram’s application for a FOID card.
¶ 87 Section 922(g)(9) of Title 18 states that it is unlawful for any
person “who has been convicted in any court of a misdemeanor crime
of domestic violence, to ship or transport in interstate or foreign
commerce, or possess in or affecting commerce, any firearm or
ammunition; or to receive any firearm or ammunition which has been
shipped or transported in interstate or foreign commerce.”
“[M]isdemeanor crime of domestic violence” is defined to include an
offense, committed by a person in a domestic relationship with the
victim, that “is a misdemeanor” and that “has, as an element, the use
or attempted use of physical force, or the threatened use of a deadly
weapon.” 18 U.S.C. § 921(a)(33)(A)(i), (ii) (Supp. II 1996).
¶ 88 After reviewing Coram’s application, the Department concluded
that Coram’s conviction of domestic battery fit within the federal
definition of misdemeanor domestic violence. The Department also
determined that certain exceptions found in federal law which would
negate the conviction for misdemeanor domestic violence were
inapplicable. These exceptions, set forth in section 921(a)(33)(B)(ii)
of Title 18 (18 U.S.C. § 921(a)(33)(B)(ii) (Supp. II 1996)), provide
that a person shall not be considered to have been convicted of
adopted tax laws that had not yet been enacted by Congress “would
probably constitute an unlawful delegation of authority by the state to the
federal government.” 7 Record of Proceedings, Sixth Illinois Constitutional
Convention 2210.
4
The language currently found in subsection (n) was originally added
as subsection (l). Subsection (l) was changed to subsection (n) by Pub. Act
90-655 (eff. July 30, 1998).
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misdemeanor domestic violence if the conviction has been expunged
or set aside, if the person has been pardoned, or if the person’s “civil
rights” have been “restored.” Because these exceptions were
inapplicable, the Department concluded that if Coram were permitted
to possess a firearm in or affecting interstate commerce (which
presumably would be most firearms), he would violate federal law.
Based on this determination, the Department denied Coram’s
application.5
¶ 89 Following the denial of his application, Coram filed a petition in
the circuit court of Adams County pursuant to section 10 of the FOID
Card Act (430 ILCS 65/10 (West 2010)), contesting the Department’s
decision. Section 10 states that whenever an application for a FOID
card is denied by the Department based on section 8 of the FOID
Card Act, the decision may be appealed, either to the Director of the
Department of State Police, or to the circuit court in the county in
which the petitioner resides. Pursuant to section 10(a), when the
Department has denied an application for a FOID card based on
“domestic battery,” or other listed offenses, “the aggrieved party may
petition the circuit court in writing in the county of his or her
residence for a hearing upon such denial.” 430 ILCS 65/10(a) (West
2010). If, following the hearing, the court concludes that “substantial
justice has not been done,” the court “shall issue an order directing
the Department of State Police to issue a Card.” 430 ILCS 65/10(b)
(West 2010). In addition, subsection (c) of section 10 provides that in
appeals directed to both the Director of the Department and the circuit
court, relief may be granted if it is established that (1) the applicant
has not been convicted of a forcible felony within 20 years of the
application, “or at least 20 years have passed since the end of any
period of imprisonment imposed in relation to that conviction,” (2)
“the circumstances regarding a criminal conviction, where applicable,
the applicant’s criminal history and his reputation are such that the
5
As of January 1, 2013, the determination as to whether a person who
has been convicted of a state offense would be guilty of violating section
922(g)(9) if he were to possess a firearm in or affecting interstate
commerce will take place primarily in the circuit court, where the State
must prove beyond a reasonable doubt that the prohibitions of section
922(g)(9) apply. See 725 ILCS 5/112A-11.1, 112A-11.2 (West 2012).
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applicant will not be likely to act in a manner dangerous to public
safety,” and (3) “granting relief would not be contrary to the public
interest.” 430 ILCS 65/10(c)(1), (c)(2), (c)(3) (West 2010).
¶ 90 Along with his petition, Coram filed a report prepared by a
psychologist who had examined Coram for purposes of determining
his fitness to possess a firearm. The psychologist concluded that
Coram posed no danger to others and “strongly recommended” that
Coram be issued a FOID card.
¶ 91 As required by section 10(b) (430 ILCS 65/10(b) (West 2010)),
the State’s Attorney of Adams County was notified of Coram’s
petition and given the opportunity to object. The State’s Attorney
declined to do so. Following a hearing, Judge Mark Schuering
concluded that Coram had established all the conditions necessary for
obtaining relief set forth in section 10 of the FOID Card Act. Judge
Schuering therefore entered an order directing the Department to
issue Coram a FOID card.
¶ 92 The Department subsequently moved to intervene. That motion
was granted. The Department also moved to vacate Judge Schuering’s
order, arguing that the circuit court could not, despite its findings
under section 10, order the Department to issue a FOID card. A
second judge, Judge Thomas Ortbal, heard the Department’s motion
to vacate. After considering arguments, Judge Ortbal agreed with the
Department that Coram could not obtain statutory relief from the
denial of his application for a FOID card and that Judge Schuering
had erred in granting relief to Coram pursuant to section 10 of the
FOID Card Act. However, Judge Ortbal went on to hold that the
application of the statutory bar to Coram violated his second
amendment rights. Judge Ortbal therefore denied the Department’s
motion to vacate. This appeal followed.
¶ 93 II
¶ 94 At the outset it is necessary to clarify what statutory provision is
at issue in this appeal. In its brief, the Department states that the issue
in this case is the constitutionality, both facially and as applied, of
section 922(g)(9). This is incorrect. Section 922(g)(9) is a federal
criminal statute. Coram has not been convicted or charged with
violating section 922(g)(9) by the federal government and, indeed, as
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far as the record shows, does not possess a firearm. Coram’s petition
was filed in the circuit court in order to determine whether he may be
permitted to possess a firearm as a matter of state law. It is the state
regulatory scheme under the FOID Card Act which is at issue, not
federal criminal law.
¶ 95 To be sure, one or more provisions of the FOID Card Act may
incorporate the language of section 922(g)(9), but “[t]he two statutes
exist as separate, distinct, legislative enactments, each having its
appointed sphere of action” (Van Pelt v. Hilliard, 78 So. 693, 698
(Fla. 1918)). See also, e.g., F. Scott Boyd, Looking Glass Law:
Legislation by Reference in the States, 68 La. L. Rev. 1201, 1221-22
(2008) (noting that when one statute incorporates by reference
another, it is the former statute that is the controlling authority);
Horace Emerson Read, Is Referential Legislation Worth While?, 25
Minn. L. Rev. 261, 269 (1941). If any statutory provision imposes a
bar to Coram’s obtaining a FOID card and, thereby, raises
constitutional concerns, it is necessarily a provision of the FOID Card
Act.
¶ 96 In his order denying the Department’s motion to vacate, Judge
Ortbal concluded that there was a statutory bar to Coram’s obtaining
relief, but he did not specify which provision of the FOID Card Act
imposed the bar. Subsequently, in his findings entered pursuant to
Supreme Court Rule 18 (Ill. S. Ct. R. 18 (eff. Sept. 1, 2006)), Judge
Ortbal stated “that the provisions of 18 U.S.C., sec. 922(g)(9), which
are incorporated by reference in 430 ILCS 65/8(n) as grounds for
denial of a FOID card, are unconstitutional, as applied to [Coram].”
From this, it would appear that Judge Ortbal concluded that section
8(n), through its incorporation of the language of section 922(g)(9),
imposed a permanent bar on Coram’s obtaining a FOID card, and
further, that this statutory bar was unconstitutional. But this cannot be
correct. As both parties acknowledge, all denials of FOID card
applications based on section 8 are subject to review under section
10. Coram himself employed this procedure. In short, section 8(n)
does not, under the plain language of the statute, impose a permanent
bar on Coram’s ability to obtain a FOID card.
¶ 97 In its filings in the circuit court, the Department pointed to
another provision of the FOID Card Act, one which went unaddressed
by the circuit court, as the basis for concluding that Coram could not
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be granted a FOID card. This provision, section 13 of the FOID Card
Act, states that “[n]othing in this Act shall make lawful the
acquisition or possession of firearms or firearm ammunition which is
otherwise prohibited by law.” 430 ILCS 65/13 (West 2010).
According to the Department, the phrase “otherwise prohibited by
law” in section 13 refers to federal law and, therefore, incorporates by
reference section 922(g)(9) of Title 18. Further, in the Department’s
view, Coram would be in violation of that federal law were he to
possess a firearm. The Department maintained that the hearing
procedure under section 10 “should not be allowed under Section 13
to override [the] FOID Card Act’s incorporation of the federal ban.”
Thus, because the FOID Card Act under section 13 “could not make
lawful” what was prohibited by federal law, the Department
contended that the circuit court could not enter an order directing it
to provide Coram with a FOID card. This assertion is also incorrect.
¶ 98 Section 13 was adopted by the General Assembly in 1967. See
1967 Ill. Laws 2600 (eff. July 1, 1968). Section 922(g)(9) was
enacted by Congress in 1996. See Pub. L. No. 104-208, 110 Stat.
3009 (1996). Because the federal provision did not exist at the time
section 13 was adopted, that provision could not, as a matter of law,
have been incorporated into the state statute. See, e.g., 1950 Ill. Att’y
Gen. Op. No. 258, at 183 (an incorporation of a future amendment to
federal law into an Illinois statute “would involve a surrender,
abandonment, or delegation of legislative power”).
¶ 99 Moreover, the interpretation of section 13 offered by the
Department makes little sense. The Department agrees that the
language of section 922(g)(9) is incorporated into section 8(n), and
agrees that section 10 addresses denials of FOID card applications
based on section 8(n). Thus, the Department reads the FOID Card Act
as stating that (1) an application for a FOID card may be denied by
the Department if the Department concludes that the applicant has
committed misdemeanor domestic violence; (2) the applicant is
entitled to then proceed under section 10 and, if the applicant
establishes that substantial justice has not been done, the court “shall”
enter an order directing the Department to issue the card; (3)
however, the court may not enter such an order if the applicant has
committed misdemeanor domestic violence. This is a nonsensical
result. To avoid rendering the circuit court’s findings and order
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entered pursuant to section 10 a complete nullity, the phrase
“otherwise prohibited by law” in section 13 must refer to some law
other than that which is incorporated into the FOID Card Act in
section 8(n) and specifically addressed in section 10. The Department
has pointed to no law which prohibits the General Assembly from
providing, as a matter of state law, that an applicant may be awarded
a FOID card after a hearing under section 10 has determined that the
applicant is a safe, responsible person. Accordingly, section 13 does
not bar the circuit court from ordering the Department to grant Coram
a FOID card.
¶ 100 Based on the foregoing, it is clear there is no statutory bar, either
in section 8(n) or section 13 of the FOID Card Act, which prohibited
Judge Schuering from granting relief to Coram pursuant to the
standards set forth in section 10.
¶ 101 Further support for this reading of the statute comes from recent
amendments made to the FOID Card Act. Effective January of 2013,
section 10(b) of the FOID Card Act states that the circuit court “shall
not” issue an order directing the Department to provide an applicant
with a FOID card if the applicant “is otherwise prohibited from
obtaining, possessing, or using a firearm under federal law.” 430
ILCS 65/10(b) (West 2012) (as amended by Pub. Act 97-1150, § 545
(eff. Jan. 25, 2013)). In addition, section 10(c) now states that, before
ordering the issuance of a FOID card, the applicant must establish
that “granting relief would not be contrary to federal law.” 430 ILCS
65/10(c)(4) (West 2012) (as amended by Pub. Act 97-1150, § 545
(eff. Jan. 25, 2013)). An amendatory change in the language of a
statute creates a presumption that it was intended to change the law
as it previously existed. K. Miller Construction Co. v. McGinnis, 238
Ill. 2d 284, 299 (2010) Here, nothing rebuts that presumption. The
amendments make clear that a circuit court no longer has the
authority to make findings or grant relief under section 10 if the court
concludes that the applicant would be in violation of federal law if he
or she were to possess a firearm. However, at the time Coram applied
for his FOID card, nothing in the FOID Card Act prevented the circuit
court from granting relief under section 10.
¶ 102 In the circuit court, the Department raised an additional objection
to granting Coram relief. The Department contended that issuing a
FOID card to Coram would be to “implicitly condone criminal
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conduct” and that such a result could not have been intended by the
General Assembly. Thus, in the Department’s view, despite the plain
language of section 10, Coram should not be granted a FOID card.
This argument is unpersuasive.
¶ 103 The only thing that can be established with finality under a state
regulatory scheme such as the FOID Card Act is whether or not an
applicant is compliant with state law. A determination by an Illinois
state court as to whether an applicant for a FOID card would be in
compliance with federal law if he were to possess a firearm has no
binding effect on federal authorities. In addition, the purpose of the
state prohibitions on firearm possession, like the federal prohibitions,
is “to keep firearms away from potentially dangerous persons.” Lewis
v. United States, 445 U.S. 55, 67 (1980). Given these facts, it is not
unreasonable to conclude that the General Assembly intended for a
judicial finding that an applicant is a safe and responsible citizen
under section 10 to stand as a final determination that the applicant
is eligible, as a matter of state law, to possess a firearm. It would then
be incumbent upon the applicant to seek a declaration from the
federal government regarding his rights under federal law. See, e.g.,
Shrader v. Holder, 704 F.3d 980, 992 (D.C. Cir. 2013) (noting that
the federal firearms ban “remain[s] vulnerable” to an as-applied,
second amendment challenge brought by a misdemeanant who has
become a “ ‘law-abiding, responsible citizen[ ]’ ” (quoting District of
Columbia v. Heller, 554 U.S. 570, 635 (2008)). Such a state
regulatory scheme is not “condoning criminal activity.” It is simply
recognizing the limits of state authority, and recognizing that a
binding determination as to whether a person is in compliance with
federal law can only be made by the federal government.
¶ 104 In addition, a state regulatory scheme which permits an applicant
to obtain individualized judicial review, as Coram obtained under
section 10, avoids the constitutional objections that arise when a
permanent ban on firearm possession is imposed on misdemeanants,
and that are implicated under the current federal law (see, e.g.,
Schrader, 704 F.3d at 991-92).6 Of course, with its recent
6
Had Coram’s application for a FOID card been filed under the new
amendments to the FOID Card Act we would be squarely presented with
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amendments to the FOID Card Act the General Assembly has altered
this statutory scheme. The point, however, is simply that the plain
language of the FOID Card Act in effect at the time Coram applied
for his card—the language of section 10 which allowed Coram to
obtain individualized relief—does not lead to impossible or absurd
results and, therefore, we are not free to ignore it.
¶ 105 Although this result answers the question of whether Coram has
established the right to possess a firearm as a matter of state law, it
remains an open question as to whether Coram is prohibited from
possessing a firearm as a matter of federal law. However, that is a
matter to be resolved between Coram and the federal authorities.
¶ 106 Because Coram was properly granted relief under section 10 of
the FOID Card Act from the Department’s denial of his application
for a FOID card, there was no need for Judge Ortbal to address
Coram’s constitutional arguments. I therefore join with Justice
Karmeier’s opinion in vacating that portion of the circuit court’s
judgment which held the FOID Card Act unconstitutional as applied
to Coram.
¶ 107 I also join Justice Karmeier in affirming the judgment of the
circuit court denying the Department’s motion to vacate. However, I
cannot join in Justice Karmeier’s reasoning in reaching this result.
Justice Karmeier focuses his analysis on whether Coram is prohibited
from possessing a firearm as a matter of federal law. Justice Karmeier
ultimately concludes that a state court may grant relief from the
federal firearm prohibitions imposed under section 922(g)(9) by
employing the standards set forth in section 10(c) of the FOID Card
Act. Although no provision of federal law states this, Justice
Karmeier determines, for various reasons, that such authority is
“necessarily implied.” Supra ¶ 69. Because Coram satisfied the
standards under section 10(c), Justice Karmeier finds that Coram’s
federal disability was removed, as was any statutory bar under the
these constitutional objections, i.e., whether the state may burden the
second amendment rights of a misdemeanant who poses no safety risk by
requiring him to obtain a pardon before he may lawfully possess a firearm,
and whether the state may permanently bar such a person from possessing
firearms. I express no opinion on these issues.
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FOID Card Act. Whatever the merits of this analysis, it rests on the
initial premise that it is necessary to address whether Coram would
be prohibited by federal law from possessing firearms. I disagree with
this premise. As explained above, denials of FOID card applications
based on section 8(n) are reviewable under section 10, and section 13
does not incorporate the language of section 922(g)(9). There is no
need, therefore, for this court to determine whether Coram can
overcome any federal prohibition on possessing firearms. For this
reason, I do not join in Justice Karmeier’s reasoning.
¶ 108 For the foregoing reasons, I specially concur.
¶ 109 JUSTICE FREEMAN joins in this special concurrence.
¶ 110 JUSTICE THEIS, dissenting:
¶ 111 This case involves whether petitioner Jerry W. Coram is entitled
to a Firearm Owner’s Identification (FOID) card pursuant to the
Firearm Owners Identification Card Act (FOID Act) (430 ILCS
65/0.01 et seq. (West 2010)) where federal law prohibits his
possession of a firearm. Based on the plain language and express
legislative intent of the statute, I would hold that Coram’s
disqualification from acquiring or possessing a weapon under federal
law continues to make him ineligible for a FOID card in Illinois and
would reject the circuit court’s finding that the federal prohibition is
unconstitutional. Accordingly, I would reverse the denial of the
Department’s motion to vacate the order directing the issuance of a
FOID card to Coram.
¶ 112 In 2009, Coram applied for and was denied a FOID card under
section 8(n) of the FOID Act, which authorizes the Department to
deny an application where the person is prohibited from possessing
firearms by any Illinois state statute or by federal law. 430 ILCS
65/8(n) (West 2010). It is conceded that Coram was prohibited from
possessing firearms under the federal Gun Control Act of 1968, as
amended, due to his prior conviction in 1992 for misdemeanor
domestic battery as a result of an incident involving domestic
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violence.7 18 U.S.C. § 922(g)(9) (2006).
¶ 113 Thereafter, Coram filed a petition in the circuit court contesting
the denial of his application as provided for under section 10 of the
FOID Act (430 ILCS 65/10(a) (West 2010)). At the time of his
petition, section 10(c) of the Act provided, in relevant part, that the
court may grant the petitioner’s request for relief if the petitioner
establishes that: (1) he has not been convicted of a forcible felony
within 20 years of the application for a FOID card; (2) the
circumstances regarding his criminal conviction, his criminal history
and his reputation are such that he would not be likely to act in a
manner dangerous to public safety; and (3) granting the relief would
not be contrary to the public interest. 430 ILCS 65/10(c) (West 2010).
¶ 114 Following a hearing, in which the State’s Attorney did not object,
the circuit court concluded that Coram had satisfied the conditions of
section 10 and entered an order directing the Department to issue
Coram a FOID card. Subsequently, the Department moved to vacate
the order, arguing essentially that nothing in the Act could overcome
Coram’s disqualification under section 922(g)(9) of the federal Gun
Control Act, which precluded him from possessing a firearm under
federal law, and that granting his requested relief would be against
public policy.
¶ 115 Coram did not dispute the determination that his conviction for
misdemeanor domestic battery fell within the prohibitions under
section 922(g)(9) of the federal Gun Control Act dealing with
misdemeanor crimes of domestic violence. Nor did he raise any
7
According to the record, Coram’s conviction was based on the
following conduct. In June 1992, Coram was living with his girlfriend. She
arrived home one night to find Coram highly intoxicated and seeking to
engage her in a fight. Not wanting to argue with him, and knowing that she
had to get up early to go to work the next day, she attempted to go to bed.
After shutting the bedroom door on one another repeatedly, Coram accused
the girlfriend of having sex with “black persons.” When she said, “yeah,”
Coram slapped her on the left eye while she was lying on the bed. He
slapped her two or three times with an open hand. According to the
girlfriend, she had been hit on another occasion, but did not file any report.
Coram pled guilty and was sentenced to 12 months of conditional
discharge.
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argument at any time in the proceedings disputing the Department’s
construction of the FOID Act. Instead, he maintained that section
922(g)(9) was not a bar to his being issued a FOID card because
section 922(g)(9) was unconstitutional as applied to him and
ultimately a violation of the second amendment. Thus, the arguments
presented by the parties were entirely focused on the constitutionality
of section 922(g)(9). The circuit court ultimately agreed with Coram’s
constitutional claim and denied the Department’s motion to vacate on
that basis. This appeal followed. On appeal, the Department
challenged the circuit court’s finding that section 922(g)(9) violated
the second amendment as applied to Coram.
¶ 116 The FOID Act is part of a broader statutory framework involving
public safety laws. The General Assembly has specifically determined
that “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 *** within the State of Illinois.” 430 ILCS 65/1
(West 2010). Thus, the express legislative purpose of the Act is to
identify those individuals that are not qualified to possess firearms in
order to protect the public interest.
¶ 117 To that end, the Department shall issue a FOID card only to those
applicants found qualified under section 8 of the Act. 430 ILCS 65/5
(West 2010). Under section 8, the General Assembly has specifically
included felons and those convicted of domestic battery among those
persons deemed unqualified to acquire or possess firearms and,
therefore, represent grounds for the Department to deny a FOID card.
430 ILCS 65/8 (West 2010). Specifically, section 8(n), which the
Department relied on here, incorporates the provisions of the federal
Gun Control Act, and disqualifies those who are prohibited from
acquiring or possessing firearms due to their conviction for
misdemeanor domestic violence from obtaining a FOID card. 430
ILCS 65/8(n) (West 2010); 18 U.S.C. § 922(g)(9) (2006). Although
the FOID Act has been amended numerous times, since the Act’s
original enactment in 1967, section 13 has consistently provided that,
“[n]othing in this Act shall make lawful the acquisition or possession
of firearms or firearm ammunition which is otherwise prohibited by
law.” 430 ILCS 65/13 (West 2010).
¶ 118 Although not provided for under federal law, the lead opinion
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finds that Congress implicitly gave the states the authority to establish
a framework to remove a federal disability and finds that our own
state legislature drafted the FOID Act in such a way to remove the
disability here through a section 10 hearing. Whether or not Congress
has impliedly granted such authority, I reject the proposition that our
own state legislature has taken on this task in this context. A section
10 hearing cannot make it lawful for Coram to acquire or possess a
firearm that he concedes he is prohibited from possessing under
federal law. Rather, section 13 makes clear that nothing in the FOID
Act relieves Coram of the disability imposed under the federal Gun
Control Act, as amended.
¶ 119 Additionally, I strongly disagree with the proposition raised in the
special concurrence that any disqualification from possessing a
firearm under federal law has no bearing on Coram’s right to a FOID
card or that the disqualification is a matter strictly between Coram
and the federal government. Rather, based on the plain language of
the FOID Act, granting a person who is disqualified from possessing
a firearm with a FOID card would be against the public interest,
would nullify federal law, and would be directly contrary to the
expressly stated legislative intent to deny cards to those who are
identified as unqualified to possess a firearm. Indeed, the parties and
the circuit court all apparently recognized that under a proper
construction, Coram cannot obtain relief under section 10 if he is
disqualified under section 922(g)(9). He must first remove the federal
disability.
¶ 120 According to the construction asserted by the special concurrence,
the General Assembly intended for an applicant to be issued a FOID
card if the state court determines that he poses no risk to public
safety, despite his being barred from possessing a firearm or
purchasing a firearm by any licensed federal firearms dealer. See 430
ILCS 65/3.1 (West 2010). Then, after being issued a FOID card, it
would be incumbent on the applicant to seek relief from the federal
government to attempt to remove the federal disability. Supra ¶ 103
(Burke, J., specially concurring, joined by Freeman, J.). Thus, the
special concurrence recognizes that issuing Coram a FOID card is
meaningless because he remains ineligible to possess a firearm, and
suggests that the only way to resolve this empty solution is to mount
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a successful constitutional challenge in federal court.8
¶ 121 Rather, the General Assembly intended for an applicant to first
remove the federal disability before being eligible for a FOID card.
The federal statutes provide a means to do that. The disability is
removed “if the conviction has been expunged or set aside, or is an
offense for which the person has been pardoned or has had civil rights
restored.” 18 U.S.C. § 921(a)(33)(B)(ii) (2006). If an applicant
satisfies 921(a)(33)(B)(ii), he would then be eligible for a FOID card.
A card holder and the public should be secure in the knowledge that
a valid FOID card means that the card holder is not disqualified from
possessing a firearm and should be able to rely on that fact. The
special concurrence undermines that confidence.
¶ 122 Contrary to the construction asserted by the special concurrence,
our state firearms licensing system does not work independently and
distinctly from the federal system. Instead, it works in concert with it.
The statutory construction offered by the special concurrence to grant
Coram a FOID card would essentially condone a state scheme that
allows an individual to be issued a FOID card, knowing that by
possessing a firearm he is guilty of a federal offense and subject to up
to 10 years’ imprisonment. See 18 U.S.C. § 924(a)(2) (1994). Issuing
a FOID card to a person who is barred from possessing a firearm
would render the carefully crafted identification system meaningless,
would undermine the value of a FOID card, and would lead to an
absurd result that violates the stated purpose of the Act and threatens
the public interest.
¶ 123 Moreover, recent legislative amendments to the FOID Act make
abundantly clear the legislative intent to incorporate by reference the
federal prohibitions under section 922(g)(9) and to mirror the
congressional concern for identifying those domestic violence
misdemeanants unqualified to possess a firearm. Section 10(b) now
expressly clarifies that the court “shall not” issue a FOID card “if the
petitioner is otherwise prohibited from obtaining, possessing, or using
a firearm under federal law.” 430 ILCS 65/10(b) (West 2012) (as
8
Indeed, Coram raised a constitutional challenge in the trial court and
before this court and neither the lead nor the concurring opinion engages
his arguments.
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amended by Pub. Act 97-1150, § 545 (eff. Jan. 25, 2013)).
Additionally, the General Assembly added a fourth requirement to the
relief provisions under section 10(c), requiring the petitioner to show
that “granting relief would not be contrary to federal law.” 430 ILCS
65/10(c)(4) (West 2012) (as amended by Pub. Act 97-1150, § 545
(eff. Jan. 25, 2013)).9
¶ 124 Thus, contrary to the lead opinion, it is evident that the General
Assembly has not exercised any implied authority to remove the
federal disability but, rather, has clarified its intent to make the Act
consistent with the prohibitions on firearm possession established
under federal law, including section 922(g)(9) relating to domestic
violence crimes. At the very least, my colleagues must concede that
under the amended statute, the relief procedures under section 10
cannot remove a federal firearms disability. Instead, a federal firearms
disability is one of the additional grounds that the court is required to
consider before it can provide any relief to future applicants and
would preclude the relief requested. Thus, whatever effect the lead
opinion and special concurrence have on Coram’s application, they
would have no bearing on future applicants who are disqualified from
possessing firearms under section 922(g)(9).
¶ 125 Turning then to the issue as framed by Coram and the
Department, and as analyzed by the circuit court, the question we
have been asked to address is whether the federal firearms disability
under section 922(g)(9) violates Coram’s second amendment rights
because it acts as a perpetual ban on his right to bear arms.
Essentially, the crux of his claim is that, despite being a domestic
violence misdemeanant who has demonstrated a long-term
postconviction history without violence, he is essentially “always and
forever” banned from obtaining a license to possess a firearm under
the FOID Act because he has no viable remedy available to him to
remove the federal disability imposed by his 20-year-old conviction.
¶ 126 The circuit court found that enforcement of section 922(g)(9) as
applied to Coram in perpetuity in his particular case violated his right
9
The FOID Act was subsequently amended again by Public Act 97-
1167, § 5 (eff. June 1, 2013), and Public Act 98-63, § 150 (eff. July 9,
2013). Neither amendment makes changes to the above-quoted language.
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to keep and bear arms as guaranteed by the second amendment
because he could not avail himself of the statutory procedure for
restoration of those rights under section 10 of the FOID Act (430
ILCS 65/10 (West 2010)). In rendering its determination, the circuit
court found that section 922(g)(9) could not be reasonably construed
in a manner that would preserve its validity, as applied to Coram, that
the finding of unconstitutionality, as applied, was necessary to the
decision rendered, and that such decision could not rest upon
alternative grounds.
¶ 127 I disagree with the circuit court that at this juncture it can be
conclusively determined that section 922(g)(9) denies Coram any
rights in perpetuity or that the statute cannot be construed to preserve
its validity as applied to Coram. I also disagree with the circuit court
that a finding of unconstitutionality as applied to him is necessary. As
the lead opinion points out, “[w]e must consider nonconstitutional
issues first and consider constitutional issues only if necessary to the
resolution of this case.” Supra ¶ 56 (citing People v. Melchor, 226 Ill.
2d 24, 34-35 (2007)).
¶ 128 Under section 922(g)(9), a person convicted of a misdemeanor
crime of domestic violence is prohibited from possessing a firearm.
18 U.S.C. § 922(g)(9) (2006). This particular prohibition was enacted
by Congress based on evidence that “ ‘[f]irearms and domestic strife
are a potentially deadly combination nationwide,’ ” and to close a
“dangerous loophole” in that “ ‘[e]xisting felon-in-possession laws
*** were not keeping firearms out of the hands of domestic
abusers,’ ” because “domestic abusers often commit acts that would
be charged as felonies if the victim were a stranger, but that are
charged as misdemeanors because the victim is a relative.” United
States v. Skoien, 614 F.3d 638, 642-43 (7th Cir. 2010) (quoting
United States v. Hayes, 555 U.S. 415, 426-27 (2008), quoting 142
Cong. Rec. 22986 (1996)). Additionally, “the recidivism rate is high,
implying that there are substantial benefits in keeping the most deadly
weapons out of the hands of domestic abusers.” Id. at 644. By
statutory definition, domestic violence misdemeanants are violent
criminals. See 18 U.S.C. § 921(a)(33)(A) (2006); Skoien, 614 F.3d at
642.
¶ 129 Since Heller, the categorical disqualification from possessing a
firearm by domestic violence misdemeanants has been upheld by
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numerous courts of appeals, including the Seventh Circuit. See
United States v. Staten, 666 F.3d 154, 168 (4th Cir. 2011) (second
amendment challenge survived intermediate scrutiny); United States
v. Booker, 644 F.3d 12, 26 (1st Cir. 2011) (holding that section
922(g)(9) did not violate the second amendment, as it was
substantially related to an important governmental interest in
preventing domestic gun violence); Skoien, 614 F.3d at 642 (stating
that, “[N]o one doubts that the goal of § 922(g)(9), preventing armed
mayhem, is an important governmental objective. Both logic and data
establish a substantial relation between § 922(g)(9) and this
objective.”); United States v. White, 593 F.3d 1199, 1206 (11th Cir.
2010) (upholding the constitutionality of section 922(g)(9) as a
presumptively lawful “ ‘longstanding prohibition[ ] on the possession
of firearms’ ” (quoting Heller, 554 U.S. at 626)).
¶ 130 I agree with the lead opinion that Coram essentially concedes the
statute’s facial validity. He also acknowledges that section
921(a)(33)(B)(ii) of the Act provides an exception to the application
of section 922(g)(9) “if the conviction has been expunged or set aside,
or is an offense for which the person has been pardoned or has had
civil rights restored.” 18 U.S.C. § 921(a)(33)(B)(ii) (2006). This
determination is governed by the law of the convicting jurisdiction.
Thus, depending upon state law, an individual convicted of
misdemeanor domestic violence potentially has three avenues of
relief from the federal ban. Id.
¶ 131 Nevertheless, Coram argues that as applied to him, he cannot
realistically benefit from this provision because (1) in Illinois an
offender does not lose civil rights, as that term has been construed, for
a misdemeanor offense and, therefore, he cannot have his rights
restored; (2) Illinois does not provide for expungement of his offense;
and (3) the likelihood of a pardon is remote. Thus, based on the
argument presented, before we engage in an analysis of whether
Coram even falls within the class of persons protected by the scope
of the second amendment and, if so, whether there is an adequate fit
between the statute’s means and its objective as applied to him, we
must first ascertain whether indeed the statute acts as a perpetual ban.
¶ 132 As we recently reiterated, although not binding authority, the
Seventh Circuit’s decisions may serve as persuasive authority and
provide guidance where reasonable and logical. State Bank of Cherry
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v. CGB Enterprises, Inc., 2013 IL 113836, ¶ 53. The Seventh Circuit
has rejected the claim that domestic violence misdemeanants are
subject to a permanent ban where a remedy is potentially available to
them. Specifically, in Skoien, the defendant raised a similar argument,
contending that, as a practical matter, the routes to restoration were
unavailable to domestic battery misdemeanants in Wisconsin where
misdemeanants’ rights are not lost and, therefore, cannot be restored.
Despite this fact, the court noted that Wisconsin does provide
misdemeanants an opportunity to seek a pardon or expungement. The
court held, “[t]his means that § 922(g)(9) in its normal application
does not create a perpetual and unjustified disqualification for a
person who no longer is apt to attack other members of the
household.” Skoien, 614 F.3d at 645; see also United States v.
Jennings, 323 F.3d 263, 275 (4th Cir. 2003); United States v. Barnes,
295 F.3d 1354, 1368 (D.C. Cir. 2002); United States v. Smith, 171
F.3d 617, 626 (8th Cir. 1999) (although unable to avail themselves of
the civil rights restored avenue, where the statute contained other
means for misdemeanants to regain the right to possess firearms, it
did not violate equal protection).
¶ 133 In Illinois, the constitution gives the Governor the unfettered
authority to “grant *** pardons, after conviction, for all offenses on
such terms as he thinks proper.” Ill. Const. 1970, art. V, § 12. The
pardon power is extremely broad. See 730 ILCS 5/3-3-13 (West
2010); People ex rel. Madigan v. Snyder, 208 Ill. 2d 457, 473 (2004).
Although a matter of grace, the statutory procedures provide a
petitioner with an avenue in which the executive can consider a wide
range of factors, including Coram’s relevant history and specific
reasons why a pardon should be granted, in his case to remove a
specific statutory disability. 730 ILCS 5/3-3-13 (West 2010). His
petition will be reviewed by the Prisoner Review Board, at which he
may request a public hearing and be represented by counsel. Id. If an
individual is granted a pardon, the Governor may authorize
expungement, allowing the petitioner to seek expungement of his
conviction through a court order. 20 ILCS 2630/5.2(e) (West 2010).
¶ 134 Where Coram has not availed himself of a potential state remedy
available to him under the statute, we need not and should not
determine whether the statute is an unconstitutional perpetual ban
which violates his second amendment rights. A remedy does not
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become unavailable merely because it is discretionary or resort to it
may fail. It is not futile without ever being tried. Thus, where it is yet
unknown whether Coram can satisfy section 921(a)(33)(B)(ii), the
question of “[w]hether a misdemeanant who has been law abiding for
an extended period must be allowed to carry guns again, even if he
cannot satisfy § 921(a)(33)(B)(ii), is a question not presented today.”
Skoien, 614 F.3d at 645.
¶ 135 Moreover, it is elementary that “constitutional principles should
be addressed only as a last resort, when a case cannot be resolved any
other way.” In re Haley D., 2011 IL 110886, ¶ 54. Although Coram
maintains that we should decide this issue in the interest of efficiency
and judicial economy, these interests do not justify reaching a
constitutional issue unnecessarily. People v. Hampton, 225 Ill. 2d
238, 244-45 (2007). “Unnecessarily addressing a constitutional issue
is improper because it may result in compromising the stability of the
legal system in the event that the statute is declared unconstitutional
when the particular case does not require that action.” Id. at 245.
Accordingly, for all of these reasons, I would hold that the trial court
erred in finding section 922(g)(9) unconstitutional as applied to
Coram.
¶ 136 Where Coram’s constitutional claim fails and nothing in the FOID
Act relieves him of the disqualification imposed under the federal
law, granting Coram a FOID card would be contrary to the public
interest and contrary to the express legislative intent of the FOID Act.
Therefore, I would reverse the judgment of the circuit court and
remand with instructions to grant the Department’s motion to vacate
the order requiring it to issue a FOID card to Coram.
¶ 137 JUSTICE GARMAN joins in this dissent.
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