Guns Save Life, Inc. v. Kelly

2025 IL App (4th) 230662

• Court: Appellate Court of Illinois
• Decided: April 29, 2025
• Docket: 4-23-0662
• Status: Published

Opinion

2025 IL App (4th) 230662 FILED April 29, 2025 NO. 4-23-0662 Carla Bender 4th District Appellate IN THE APPELLATE COURT Court, IL

OF ILLINOIS

FOURTH DISTRICT

GUNS SAVE LIFE, INC., ) Appeal from the Plaintiff-Appellant, ) Circuit Court of v. ) Sangamon County BRENDAN KELLY, in His Official Capacity as Acting ) No. 19CH180 Director of the Illinois State Police, ) Defendant-Appellee. ) Honorable ) Jennifer M. Ascher, ) Judge Presiding. ______________________________________________________________________________

PRESIDING JUSTICE HARRIS delivered the judgment of the court, with opinion. Justice Cavanagh concurred in the judgment and opinion. Justice Cavanagh also specially concurred, with opinion. Justice DeArmond dissented, with opinion.

OPINION

¶1 The Firearm Owners Identification Card Act (FOID Act) (430 ILCS 65/0.01 et seq.

(West 2022)) establishes a licensing system for the acquisition and possession of firearms in

Illinois. Plaintiff, Guns Save Life, Inc. (GSL), brought an action challenging the constitutionality

of the FOID Act under the second amendment to the United States Constitution (U.S. Const.,

amend. II). Ultimately, GSL and defendant, Brendan Kelly, in his official capacity as acting

director of the Illinois State Police, filed cross-motions for summary judgment. In July 2023, the

trial court granted defendant’s motion, denied GSL’s motion, and entered a final judgment in

defendant’s favor. GSL appeals, arguing (1) the FOID Act violates the second amendment by

requiring a license to own a firearm and (2) the fees imposed by the FOID Act are unconstitutional under the second amendment. We affirm.

¶2 I. BACKGROUND

¶3 The purpose of the FOID Act is “to promote and protect the health, safety and

welfare of the public” by establishing a system through which persons who are prohibited from

acquiring and possessing firearms, firearm ammunition, stun guns, and Tasers can be identified by

law enforcement. 430 ILCS 65/1 (West 2022). The FOID Act provides that, with certain specified

exceptions, no person may acquire or possess any firearm, stun gun, Taser, or firearm ammunition

within the State without possessing a FOID card issued by the Illinois State Police. Id. § 2(a).

¶4 Specific objective criteria must be satisfied for the issuance of a FOID card,

including criteria related to an applicant’s age, criminal history, drug dependency, mental-health

history and status, intellectual functioning, and citizenship and residency status. Id. §§ 4, 8. “The

Illinois State Police shall either approve or deny all applications within 30 days from the date they

are received,” and “every applicant found qualified *** shall be entitled to a [FOID card] upon

the payment of a $10 fee and applicable processing fees.” (Emphases added.) Id. § 5. Qualified

applicants are those who satisfy the FOID Act’s specified criteria. See Id. §§ 4, 8. For example,

the Illinois State Police may deny a FOID card application where an applicant is under 21, is not

in the military, and lacks consent of a parent or guardian (id. § 8(b-5)); has been convicted of a

felony (id. § 8(c)) or other specified offense involving violence or domestic abuse (id. § 8(k), (l));

is addicted to narcotics (id. § 8(d)); has been adjudicated as a person with a mental disability (id.

§ 8(r)), involuntarily admitted to a mental health facility (id. § 8(t)), or a patient of a mental health

facility within the past five years (id. § 8(e)); or has an intellectual disability (id. § 8(g)). The FOID

Act also contains procedures for challenging the denial of a FOID card application. Id. § 10.

¶5 On May 15, 2019, GSL filed the underlying action for declaratory and injunctive

-2- relief, describing itself as “an independent not-for-profit organization dedicated to defending the

Second Amendment rights of Illinois residents.” In addition to defendant Kelly, GSL also named

Illinois Attorney General Kwame Raoul as a defendant in the action. GSL’s four-count complaint

challenged the FOID Act under both the federal and state constitutions. It argued the FOID Act’s

licensing requirement unconstitutionally burdened the right to keep and bear arms and that its fee

provisions constituted an impermissible tax on the free exercise of a constitutional right, in

violation of the second and fourteenth amendments to the United States Constitution (U.S. Const.,

amends. II, XIV) (count I). Raising the same claims, it alleged a violation of Illinois’s version of

the second amendment in article I, section 22, of the Illinois Constitution (Ill. Const. 1970, art. I,

§ 22) (count II). GSL further raised equal protection claims under both constitutions (U.S. Const.,

amend. XIV; Ill. Const. 1970, art. I, § 2) (counts III and IV).

¶6 The same day GSL filed its original complaint, it also filed a motion for a temporary

restraining order and a preliminary injunction, seeking to restrain enforcement of the FOID Act.

On May 24, 2019, the trial court denied GSL’s motion, and GSL filed an interlocutory appeal. In

December 2019, this court affirmed the trial court’s judgment. Guns Save Life, Inc. v. Raoul, 2019

IL App (4th) 190334.

¶7 Following the interlocutory appeals process, the trial court granted a motion by

defendant Raoul to be dismissed as a party from the case. In November 2020, GSL filed a two-

count first amended complaint, asserting the FOID Act is facially unconstitutional under the

United States and Illinois Constitutions because it (1) requires a license to own a firearm and

(2) imposes an unconstitutional tax on the right to keep and bear arms. Additionally, GSL

abandoned its prior equal protection claims and added as defendants McLean County State’s

Attorney Don Knapp and McLean County Sheriff Jon Sandage. Ultimately, both Knapp and

-3- Sandage were also dismissed as parties from the litigation, and the matter proceeded against only

defendant Kelly (hereinafter the State).

¶8 The parties filed cross-motions for summary judgment with the trial court. GSL

argued, in part, that the FOID Act could not pass constitutional muster under the text and history

framework for evaluating second amendment claims identified by the United States Supreme

Court in New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022). According to GSL,

under Bruen, the plain text of the second amendment covered the conduct regulated by the FOID

Act, but, fatal to the FOID Act’s constitutionality, the State could not demonstrate that the FOID

Act “is consistent with this Nation’s historical tradition of firearm regulation.” Id. at 17.

¶9 The State argued the FOID Act constituted a fee-based, shall-issue licensing

regime, which the Bruen Court “made clear” was constitutionally permissible. Alternatively, it

asserted that the FOID Act is constitutional because it “is consistent with the relevant history and

tradition of firearm regulations.” In support of its motion, the State presented reports from

Professor Saul Cornell, who the State indicated was an expert on the history and tradition of

firearm regulation. The State asserted that relevant historical analogues for the FOID Act included

disarmament laws “that preemptively disarmed dangerous or ‘unvirtuous’ people,” as well as

historical militia laws and surety statutes.

¶ 10 In June 2023, the trial court conducted a hearing on the parties’ motions. In July

2023, it entered a written order, granting the State’s motion for summary judgment, denying GSL’s

motion, and entering final judgment in favor of the State. Specifically, the court found the State

presented “ample historical evidence supporting the constitutionality of the FOID Act.”

¶ 11 This appeal followed.

¶ 12 II. ANALYSIS

-4- ¶ 13 On appeal, GSL argues the trial court erred by denying its motion for summary

judgment, granting the State’s cross-motion for summary judgment, and entering a judgment in

the State’s favor. As it did below, GSL contends the FOID Act is facially unconstitutional under

the United States Constitution because it requires a license to own a firearm and imposes fees to

obtain a license. GSL asserts that, under Bruen, the State has failed to present relevant historical

analogues to support the constitutionality of the FOID Act and its fee provisions. (On appeal, GSL

does not challenge the FOID Act under the Illinois Constitution.)

¶ 14 A. Standard of Review

¶ 15 Summary judgment is appropriate “if the pleadings, depositions, and admissions on

file, together with the affidavits, if any, show that there is no genuine issue as to any material fact

and that the moving party is entitled to a judgment as a matter of law.” 735 ILCS 5/2-1005(c)

(West 2022). “When *** the parties file cross-motions for summary judgment, they implicitly

agree that there are no genuine issues of material fact and that the dispute involves only questions

of law, such that the court may decide the issues based on the record.” Kuhn v. Owners Insurance

Co., 2024 IL 129895, ¶ 14. The trial court’s ruling on a motion for summary judgment is reviewed

de novo. Id.

¶ 16 The constitutionality of a statute also presents a question of law and is subject to

de novo review. People v. Villareal, 2023 IL 127318, ¶ 14. If reasonably possible, a reviewing

court must “construe the statute in a way that preserves its constitutionality.” People v. Bochenek,

2021 IL 125889, ¶ 10. Further, a facial constitutional challenge “is the most difficult challenge to

mount successfully, because it requires [the challenging party] to establish that no set of

circumstances exists under which the [FOID] Act would be valid.” (Internal quotation marks

omitted.) United States v. Rahimi, 602 U.S. 680, 693 (2024). In the context of a second amendment

-5- challenge, “[t]hat means that to prevail, the Government need only demonstrate that [the

challenged firearm regulation] is constitutional in some of its applications.” Id.

¶ 17 B. The Second Amendment

¶ 18 The second amendment to the United States Constitution provides that “[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.” U.S. Const., amend. II. The second amendment codifies a

preexisting right, guaranteeing “the individual right to possess and carry weapons in case of

confrontation” (District of Columbia v. Heller, 554 U.S. 570, 592 (2008)), and it is applicable to

the states through the due process clause of the fourteenth amendment (McDonald v. City of

Chicago, 561 U.S. 742, 791 (2010)).

¶ 19 In Bruen, the United States Supreme Court set forth what it deemed to be the proper

analytical framework for determining the constitutionality of firearm regulations under the second

amendment. Bruen, 597 U.S. at 17. The Court held as follows:

“[W]hen the Second Amendment’s plain text covers an individual’s conduct, the

Constitution presumptively protects that conduct. To justify its regulation, the

government may not simply posit that the regulation promotes an important

interest. Rather, the government must demonstrate that the regulation is consistent

with this Nation’s historical tradition of firearm regulation. Only if a firearm

regulation is consistent with this Nation’s historical tradition may a court conclude

that the individual’s conduct falls outside the Second Amendment’s ‘unqualified

command.’ ” Id.

¶ 20 For the government to satisfy the second step of Bruen’s text and history

framework, it must show that the modern regulation being challenged is “ ‘relevantly similar’ ” to

-6- historical firearm regulations. Id. at 28-29. The considerations in making that determination

include both “how and why the regulations burden a law-abiding citizen’s right to armed self-

defense.” Id. at 29. In other words, the central considerations are “whether modern and historical

regulations impose a comparable burden on the right of armed self-defense and whether that

burden is comparably justified.” Id. Ultimately, however, the government need only “identify a

well-established and representative historical analogue, not a historical twin.” (Emphases in

original.) Id. at 30. “So even if a modern-day regulation is not a dead ringer for historical

precursors, it still may be analogous enough to pass constitutional muster.” Id.

¶ 21 The Supreme Court further explained that, under the text and history analysis, “not

all history is created equal.” Id. at 34. It stated, “ ‘Constitutional rights are enshrined with the scope

they were understood to have when the people adopted them,’ ” noting the second and fourteenth

amendments were adopted in 1791 and 1868, respectively. (Emphasis omitted.) Id. (quoting

Heller, 554 U.S. at 634-35). The Court suggested that historical evidence from the founding era

was more probative than historical evidence that long predated or postdated that era. Id. at 34-37.

It noted that, “where a governmental practice has been open, widespread, and unchallenged since

the early days of the Republic, the practice should guide *** interpretation of an ambiguous

constitutional provision.” (Internal quotation marks omitted.) Id. at 36.

¶ 22 More recently, in Rahimi, the Supreme Court provided additional guidance as to

the second step of Bruen’s text and history framework. There, the Court emphasized its precedents

did not require “a law trapped in amber” and that “the Second Amendment permits more than just

those regulations identical to ones that could be found in 1791.” Id. at 691-92. It stated, “[T]he

appropriate analysis involves considering whether the challenged regulation is consistent with the

principles that underpin our regulatory tradition.” Id. at 692. “A court must ascertain whether the

-7- new law is ‘relevantly similar’ to laws that our tradition is understood to permit, ‘apply[ing]

faithfully the balance struck by the founding generation to modern circumstances.’ ” Id. (quoting

Bruen, 597 U.S. at 29 n.7). “Why and how the regulation burdens the right are central to this

inquiry.” Id. The Court emphasized that “[t]he [challenged] law must comport with the principles

underlying the Second Amendment, but it need not be a ‘dead ringer’ or a ‘historical twin.’ ” Id.

(quoting Bruen, 597 U.S. at 30).

¶ 23 C. The FOID Act’s Licensing Requirement

¶ 24 As noted, GSL argues the FOID Act’s licensing requirement is unconstitutional. It

contends “the State cannot require its citizens to obtain a license to exercise a fundamental

constitutional right” and no founding-era historical analogues exist “that required law-abiding

citizens to obtain a license to possess a firearm.” GSL characterizes its argument as a challenge to

“the State’s ability *** to prohibit everyone from possessing a firearm until they pay for a license,

wait for that license to be issued, carry that license whenever and wherever they possess a firearm,

and renew the license every 10 years.” (Emphasis in original.) Ultimately, it contends that under

Bruen the plain text of the second amendment covers the individual conduct at issue—firearm

possession—and the State has failed to meet its burden of demonstrating that the FOID Act is

consistent with the nation’s tradition of firearm regulation.

¶ 25 In response, the State does not dispute that the second amendment covers the

individual conduct at issue. Rather, it first argues that a historical analysis is unnecessary in the

present case because the FOID Act is a constitutional shall-issue licensing regime under Bruen.

Alternatively, it contends the FOID Act is constitutional because it is consistent with the nation’s

history and tradition of firearm regulation. The State points to “three categories of historical

evidence”: (1) founding-era disarmament laws, including laws aimed at disarming dangerous or

-8- untrustworthy individuals and laws requiring individuals to take loyalty oaths; (2) founding-era

militia laws that “establish the historical tradition of States regulating and taxing firearm

ownership”; and (3) nineteenth-century laws regulating firearm ownership, including surety laws.

¶ 26 In Bruen, 597 U.S. at 12, the Supreme Court considered a second amendment

challenge to a New York concealed-carry licensing statute under which applicants had to “prove

that ‘proper cause exists’ ” for the issuance of a license. The “proper cause” requirement had been

interpreted by courts as requiring a showing of “a special need for self-protection distinguishable

from that of the general community.” (Internal quotation marks omitted.) Id. The Supreme Court

characterized the New York statute as a “ ‘may issue’ licensing law[ ], under which authorities

have discretion to deny concealed-carry licenses even when the applicant satisfies the statutory

criteria, usually because the applicant has not demonstrated cause or suitability for the relevant

license.” Id. at 14-15.

¶ 27 Applying its text and history framework, the Supreme Court held the New York

statute was unconstitutional. Id. at 39. Initially, the Court found the plain text of the second

amendment protected the conduct at issue in the case—the carrying of handguns publicly for self-

defense. Id. at 32-33. Turning to the question of historical evidence justifying the New York statute

and its proper cause requirement, the Court found the historical record did “not demonstrate a

tradition of broadly prohibiting the public carry of commonly used firearms for self-defense. Nor

is there any such historical tradition limiting public carry only to those law-abiding citizens who

demonstrate a special need for self-defense.” Id. at 38.

¶ 28 Notably, the Supreme Court distinguished “ ‘shall issue’ ” licensing regimes,

“where authorities must issue concealed-carry licenses whenever applicants satisfy certain

threshold requirements, without granting licensing officials discretion to deny licenses based on a

-9- perceived lack of need or suitability.” Id. at 13. In footnote nine of its decision, the Court provided

further guidance regarding shall-issue regimes, explaining as follows:

“To be clear, nothing in our analysis should be interpreted to suggest the

unconstitutionality of *** ‘shall-issue’ licensing regimes, under which ‘a general

desire for self-defense is sufficient to obtain a [permit].’ [Citation.] Because these

licensing regimes do not require applicants to show an atypical need for armed

self-defense, they do not necessarily prevent ‘law-abiding, responsible citizens’

from exercising their Second Amendment right to public carry. [Citation.] Rather,

it appears that these shall-issue regimes, which often require applicants to undergo

a background check or pass a firearms safety course, are designed to ensure only

that those bearing arms in the jurisdiction are, in fact, ‘law-abiding, responsible

citizens.’ [Citation.] And they likewise appear to contain only ‘narrow, objective,

and definite standards’ guiding licensing officials, [citation], rather than requiring

the ‘appraisal of facts, the exercise of judgment, and the formation of an opinion,’

[citation]—features that typify proper-cause standards like New York’s. That said,

because any permitting scheme can be put toward abusive ends, we do not rule out

constitutional challenges to shall-issue regimes where, for example, lengthy wait

times in processing license applications or exorbitant fees deny ordinary citizens

their right to public carry.” (Emphasis added.) Id. at 38 n.9.

¶ 29 In a concurring opinion, Justice Kavanaugh further emphasized that the New York

law at issue was an “outlier ‘may-issue’ licensing regime.” Id. at 79 (Kavanaugh, J., concurring,

joined by Roberts, C.J.). He underscored that the Court’s holding did “not prohibit States from

imposing licensing requirements for carrying a handgun for self-defense” and that it did not affect

- 10 - existing shall-issue licensing regimes. Id. Justice Kavanaugh explained as follows:

“The Court’s decision addresses only the unusual discretionary licensing

regimes, known as ‘may-issue’ regimes, that are employed by [six] States including

New York. As the Court explains, New York’s outlier may-issue regime is

constitutionally problematic because it grants open-ended discretion to licensing

officials and authorizes licenses only for those applicants who can show some

special need apart from self-defense. Those features of New York’s regime—the

unchanneled discretion for licensing officials and the special-need requirement—

in effect deny the right to carry handguns for self-defense to many ‘ordinary, law-

abiding citizens.’ [Citations.] ***

By contrast, 43 States employ objective shall-issue licensing regimes.

Those shall-issue regimes may require a license applicant to undergo

fingerprinting, a background check, a mental health records check, and training in

firearms handling and in laws regarding the use of force, among other possible

requirements. [Citation.] Unlike New York’s may-issue regime, those shall-issue

regimes do not grant open-ended discretion to licensing officials and do not require

a showing of some special need apart from self-defense. As petitioners

acknowledge, shall-issue licensing regimes are constitutionally permissible, subject

of course to an as-applied challenge if a shall-issue licensing regime does not

operate in that manner in practice.” Id. at 79-80.

¶ 30 As GSL acknowledged at oral argument in this case, the FOID Act constitutes a

shall-issue licensing law. A FOID card must be issued upon the satisfaction of objective criteria,

including criteria related to an applicant’s age, criminal history, and mental health. Significantly,

- 11 - unlike the may-issue New York statute in Bruen, the FOID Act does not grant licensing officials

open-ended or unchanneled discretion to deny a firearm license to law-abiding, responsible

citizens.

¶ 31 Despite its acknowledgment, GSL disputes the State’s contention that Bruen’s

footnote nine, standing alone, establishes that the FOID Act is constitutional. GSL is correct on

this point. Footnote nine explains the limits of the Supreme Court’s holding in Bruen. It also

explicitly references only concealed-carry licensing regimes. The FOID Act is a licensing law that

broadly regulates the acquisition and possession of firearms, not a narrower regulation of the public

carry of firearms. Accordingly, the State cannot rely on footnote nine to obviate the need for

Bruen’s text and history analysis in the context of a constitutional challenge to the FOID Act.

¶ 32 Nevertheless, while footnote nine is not necessarily dispositive of the issue on

appeal, it does provide important guidance for evaluating the parties’ claims regarding the

constitutionality of shall-issue licensing regimes like the FOID Act. Here, GSL argues the State

cannot require its citizens to obtain a license to exercise a fundamental right and that the FOID Act

amounts to an unconstitutional “prior restraint” on the exercise of the right to firearm possession.

GSL essentially challenges the FOID Act as an impermissible preemptive restriction that requires

an individual to first show he or she is not unqualified to possess a firearm before exercising that

right. The dissent’s arguments suggest the same view. However, all permitting or licensing

regimes share such characteristics, and as a result, GSL’s and the dissent’s argument cannot be

reconciled with Bruen’s clear suggestion that some licensing regimes are constitutional. See

Maryland Shall Issue, Inc. v. Moore, 116 F. 4th 211, 235 (4th Cir. 2024) (Rushing, J., concurring,

joined by Gregory and Quattlebaum, JJ.) (stating arguments that the second amendment prohibits

any advance permission regulatory scheme “is inconsistent with the Supreme Court’s reasoning in

- 12 - Footnote Nine” and finding shall-issue licensing regimes can be consistent with our nation’s

historical tradition of regulating firearm possession). Further, although Bruen involved a firearm

licensing regulation, the Supreme Court did not find the challenged statute unconstitutional on that

basis. Rather, it relied on a specific aspect of the law that granted discretion to licensing officials

regarding whether to issue a license and which, because of that broad discretion, effectively denied

some law-abiding citizens their right to public carry for self-defense.

¶ 33 Additionally, to the extent GSL and the dissent characterize the FOID Act as

preventing individuals from exercising their second amendment right by broadly prohibiting

firearm possession prior to the issuance of a license, their contentions are, again, contradicted by

Bruen. It is true that Bruen explicitly referenced only public carry, shall-issue licensing regimes.

However, the FOID Act has the same relevant features of those types of shall-issue licensing laws.

It requires that licenses shall be issued anytime an applicant satisfies specified objective criteria

and does not grant licensing officials discretion to deny a license based upon a perceived lack of

need or suitability. In the same way that the shall-issue public carry licensing regimes identified

in Bruen did “not necessarily prevent ‘law-abiding, responsible citizens’ from exercising their

Second Amendment right to public carry,” the FOID Act similarly does not prevent law-abiding,

responsible citizens from exercising their second amendment right to acquire and possess firearms.

Bruen, 597 U.S. at 38 n.9. A brief delay in one’s ability to exercise a right does not constitute a

denial of that right.

¶ 34 Turning to Bruen’s required historical analysis, we note the purpose of the FOID

Act is “to promote and protect the health, safety and welfare of the public” by establishing a system

through which persons who are prohibited from acquiring and possessing firearms and firearm

ammunition can be identified by law enforcement. 430 ILCS 65/1 (West 2022). The objective

- 13 - criteria used to deny applications for a FOID card are clearly aimed at preventing the possession

of firearms by those whose firearm use is likely to pose a danger to the public, i.e., felons, those

who otherwise commit crimes of violence, and the mentally ill. Id. § 8.

¶ 35 Historical firearm laws that restricted the possession of firearms by dangerous

individuals while at the same time allowing firearm possession by law-abiding, responsible

citizens are relevantly similar to the FOID Act. In this regard, the State specifically points to

founding-era laws that disarmed dangerous or untrustworthy individuals.

¶ 36 On appeal, GSL “does not challenge the State’s ability to prohibit felons and the

mentally ill from possessing firearms,” nor would such a challenge be successful. “[T]he Second

Amendment is not unlimited.” Heller, 554 U.S. at 626. “From Blackstone through the 19th-century

cases, 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.” Id. Further, the

historical record shows “legislatures traditionally possessed discretion to disqualify categories of

people from possessing firearms to address a danger of misuse by those who deviated from legal

norms.” United States v. Jackson, 110 F.4th 1120, 1127 (8th Cir. 2024); United States v. Hunt, 123

F.4th 697, 706 (4th Cir. 2024) (“To begin, the historical record contains ample support for the

categorical disarmament of people who have demonstrated disrespect for legal norms of society.”

(Internal quotation marks omitted.)); Atkinson v. Garland, 70 F.4th 1018, 1035 (7th Cir. 2023)

(Wood, J., dissenting) (stating historical evidence “reveals that, since the founding, governments

have been understood to have the power to single out categories of persons who will face total

disarmament based on the danger they pose to the political community if armed”).

¶ 37 Additionally, in Heller, 554 U.S. at 626-27, 627 n.26, the Supreme Court explicitly

stated that “longstanding prohibitions on the possession of firearms by felons and the mentally ill”

- 14 - were presumptively lawful. In McDonald, 561 U.S. at 786, the Court repeated such “assurances.”

And in Rahimi, to uphold the statute under consideration, the Court relied, in part, on “going armed

laws,” which “prohibited riding or going armed, with dangerous or unusual weapons, [to] terrify[ ]

the good people of the land” and provided for the forfeiture of weapons. (Internal quotation marks

omitted.) Rahimi, 602 U.S. at 697. There, the Court stated the historical regulations it relied upon

“confirm what common sense suggests: When an individual poses a clear threat of physical

violence to another, the threatening individual may be disarmed.” Id. at 698.

¶ 38 As noted, the FOID Act also includes restrictions for those under the age of 21. 430

ILCS 65/4, 8 (West 2022). Relying on an analysis of historical evidence, our own supreme court

in People v. Aguilar, 2013 IL 112116, ¶ 27, held that “laws banning the juvenile possession of

firearms have been commonplace for almost 150 years and both reflect and comport with a

longstanding practice of prohibiting certain classes of individuals from possessing firearms—those

whose possession poses a particular danger to the public.” (Internal quotation marks omitted.) In

In re Jordan G., 2015 IL 116834, ¶ 25, the court held the term “minor” was historically understood

to apply to individuals under the age of 21 and stated that its finding in Aguilar, “that age[-]based

restrictions on the right to keep and bear arms are historically rooted, applies equally to those

persons under 21 years of age.” Although Aguilar and Jordan G. predate Bruen’s explicit text and

history framework, the supreme court’s reasoning, which was based on historical evidence,

remains relevant. See People v. Doehring, 2024 IL App (1st) 230384, ¶ 31 (finding the supreme

court’s historical tradition analysis in Aguilar and Jordan G. was equally relevant to the post-

Bruen text and history framework); see also People v. Thompson, 2024 IL App (1st) 221031, ¶ 36

(“The requirement of parental consent for a FOID card for 18- to 20-year-olds is consistent with

our historic tradition of parental control over their minor children.”).

- 15 - ¶ 39 The State in this case further relies on surety laws as a relevantly similar historical

analogue to the FOID Act. Surety laws were preventative in nature. Rahimi, 602 U.S. at 695

(describing surety laws as “[a] form of preventive justice” that was “derived from the ancient

practice of frankpledges,” under which men “mutually pledge[d] for each other’s good behaviour”

(internal quotation marks omitted)). They provided a mechanism for identifying individuals who

posed a threat to public safety and required them to post a bond before carrying a firearm. Id. at

696-97. Surety laws relating to firearms presumed the existence of second amendment rights and

targeted those individuals likely to misuse firearms. Id. at 700. The FOID Act has similar aims and

operates in a similar fashion. Like surety laws, the FOID Act has preventative features. It also

honors an individual’s second amendment right to acquire and possess firearms, while attempting

to keep them out of the hands of dangerous individuals who might misuse them. It provides a

mechanism for identifying unqualified individuals and restricts the acquisition and possession of

firearms by dangerous or unfit individuals through objective criteria.

¶ 40 GSL and the dissent rely on Bruen’s discussion of surety laws in arguing they do

not present a relevantly similar analogue to the FOID Act. However, Bruen’s rejection of surety

laws as a proper historical analogue for the New York statute before it was based on the Supreme

Court’s finding that the New York law “presume[d] that individuals have no public carry right

without a showing of heightened need,” while “the surety statutes presumed that individuals had a

right to public carry.” (Emphases omitted.) Bruen, 597 U.S. at 56. Unlike the New York law in

Bruen, the FOID Act does not require a showing of heightened need. As discussed, it is a shall-

issue licensing statute that is distinguishable from the New York may-issue licensing law in Bruen.

Critically, the FOID Act presumes that individuals have a right to the acquisition and possession

of firearms through its shall-issue requirements. Further, while Bruen dismissed surety laws as a

- 16 - relevantly similar historical analogue, surety laws were one of the “two distinct legal regimes”

relied upon in Rahimi to uphold the challenged statute in that case. Rahimi, 602 U.S. at 694-95.

¶ 41 Although the historical regulations referred to above are not identical to modern

licensing laws like the FOID Act, they do not have to be for the FOID Act to pass constitutional

muster. See id. at 698 (stating that although the challenged statute was “by no means identical to

*** founding era regimes,” it did “not need to be”). Contrary to GSL’s assertions on appeal, the

State was not required to point to a founding-era firearm licensing scheme to justify the FOID Act.

Here, the FOID Act seeks to identify those individuals unqualified to possess firearms, i.e., felons,

the mentally ill, and minors, while recognizing the rights of law-abiding, responsible individuals

to firearm possession. Such features are “consistent with the principles that underpin our regulatory

tradition” (id. at 692), and GSL’s facial constitutional challenge to the FOID Act’s licensing

requirement lacks merit.

¶ 42 D. The Constitutionality of the FOID Act’s Fees

¶ 43 On appeal, GSL alternatively argues that the FOID Act’s $10 fee is independently

unconstitutional. Again, Bruen provides guidance on this issue, suggesting shall-issue licensing

regimes are subject to constitutional challenges if they have “exorbitant fees” that deny ordinary

citizens their second amendment rights. Bruen, 597 U.S. at 38 n.9. Here, the FOID Act requires

the payment of a $10 fee to obtain a FOID card (430 ILCS 65/5 (West 2022)), and FOID cards

remain valid for at least 10 years (id. § 7). As the trial court found below, “[a]n application fee that

amounts to $1 a year *** is not exorbitant under any definition of the word.” The FOID Act’s fee

provision is constitutional under Bruen, and again, GSL’s constitutional challenge lacks merit.

¶ 44 III. CONCLUSION

¶ 45 For the reasons stated, we affirm the trial court’s judgment.

- 17 - ¶ 46 Affirmed.

¶ 47 JUSTICE CAVANAGH, specially concurring:

¶ 48 For three reasons, I agree that the circuit court’s judgment should be affirmed. First,

plaintiff admits in its brief, or at least explicitly declines to contest, that felons and the mentally

ill—two categories of persons regulated by the FOID Act—are outside the protection of the second

amendment. Plaintiff thereby undercuts its claim that the FOID Act is facially unconstitutional,

which is to say, violative of the second amendment in all circumstances. Second, because the FOID

Act requires the Illinois State Police to issue a FOID card to all applicants who are protected by

the second amendment, the FOID Act does not implicate the part of the second amendment’s text

that forbids an “infringe[ment]” of the right to keep and bear arms. U.S. Const., amend. II. Third,

if the FOID Act does implicate the text of the second amendment, colonial loyalty oath statutes

are a relevant historical analogue. I will further discuss those three reasons one at a time.

¶ 49 I. PLAINTIFF’S CONCESSION REGARDING FELONS

AND THE MENTALLY ILL

¶ 50 Plaintiff makes a facial challenge to the FOID Act. A facial challenge to a statute

is the “most difficult challenge” because the challenger must affirmatively “establish” a negative:

“that no set of circumstances exists under which the [statute] would be valid.” (Internal quotation

marks omitted.) Rahimi, 602 U.S. at 693. According to plaintiff, such circumstances do exist. As

plaintiff makes clear in its initial brief, “[p]laintiff does not challenge the State’s ability to prohibit

felons and the mentally ill from possessing firearms in the State.” In fact, plaintiff admits outright

that “prohibitions on felons and the mentally ill possessing firearms” do “not burden the right of

individuals plainly entitled to exercise Second Amendment rights.”

¶ 51 The implication of that admission is that although, as plaintiff rightly observes, the

- 18 - text of the second amendment covers the conduct of acquiring and possessing firearms and firearm

ammunition, denying firearms and firearm ammunition to felons and the mentally ill, as the FOID

Act does, “is consistent with the Nation’s historical tradition of firearm regulation.” Bruen, 597

U.S. at 24. Disputing that interpretation of the historical tradition would be inconsistent with

plaintiff’s concession—which plaintiff may not contradict. See Ill. S. Ct. R. 341(h)(7) (eff. Oct. 1,

2020) (“Points not argued are forfeited and shall not be raised in the reply brief, in oral argument,

or on petition for rehearing.”).

¶ 52 Judging by plaintiff’s brief, then, there are circumstances in which, consistently

with the second amendment as interpreted by Bruen, the State may forbid the possession of a

firearm by someone who lacks a FOID card, namely, circumstances in which the would-be

possessor of a firearm is a felon or is mentally ill. If, as plaintiff concedes, felons and the mentally

ill can be constitutionally restricted from possessing firearms—or, at least, if plaintiff explicitly

declines to dispute that proposition—plaintiff’s facial challenge to the FOID Act fails on the face

of plaintiff’s brief. Contrary to plaintiff’s theory of facial unconstitutionality, there are

circumstances in which—as plaintiff admits—the government may constitutionally prohibit those

who lack a FOID card from possessing a firearm: circumstances in which the would-be possessor

of a firearm is a felon or is mentally ill.

¶ 53 To try to alleviate this discrepancy, plaintiff and the dissent invoke People v. Burns,

2015 IL 117387. A careful reading of Burns reveals, however, that the case is distinguishable. In

Burns, the defendant claimed that the statutory section defining aggravated unlawful use of a

weapon, section 24-1.6(a)(1) and (a)(3)(A) of the Criminal Code of 1961 (Code) (720 ILCS 5/24-

1.6(a)(1), (a)(3)(A) (West 2008)), was facially unconstitutional under the second amendment.

Burns, 2015 IL 117387, ¶ 19. Under that statute, a person committed aggravated unlawful use of

- 19 - a weapon by “knowingly”

“(1) Carr[ying] on or about his or her person or in any vehicle or concealed

on or about his or her person ***[,] or

(2) Carr[ying] or possess[ing] on or about his or her person, upon any public

street, alley, or other public lands within the corporate limits of a city, village or

incorporated town ***; and

(3) One of the following factors is present:

(A) the firearm possessed was uncased, loaded and immediately

accessible at the time of the offense; ***

***

(C) the person possessing the firearm has not been issued a currently

valid [FOID] Card[.]” 720 ILCS 5/24-1.6(a) (West 2008).

In the concluding subsection of section 24-1.6, the punishment for this offense was ratcheted up if

the offender had a previous felony conviction:

“(d) Sentence. Aggravated unlawful use of a weapon is a Class 4 felony; a

second or subsequent offense is a Class 2 felony for which the person shall be

sentenced to a term of imprisonment of not less than 3 years and not more than 7

years. Aggravated unlawful use of a weapon by a person who has been previously

convicted of a felony in this State or another jurisdiction is a Class 2 felony for

which the person shall be sentenced to a term of imprisonment of not less than 3

years and not more than 7 years.” Id. § 24-1.6(d).

¶ 54 The State argued in Burns that the statutory definition of aggravated unlawful use

of a weapon was “not facially unconstitutional,” given that the statute “[could] be applied to felons

- 20 - without violating the second amendment.” (Emphasis in original.) Burns, 2015 IL 117387, ¶ 26.

In making that argument, the State “relie[d] on the long-accepted principle that a statute [was]

facially unconstitutional only if no set of circumstances exist[ed] under which the [statute] would

be valid.” (Internal quotation marks omitted.) Id. Such circumstances existed, according to the

State: possession of a firearm by someone who had a felony record. See id.

¶ 55 The supreme court concluded that this argument by the State was “misplaced.” Id.

A facial challenge, the supreme court explained, had to “establish that a law [was] unconstitutional

in all of its applications,” and according to the supreme court, the only “applications” that counted

for that purpose were those in which the statute “actually authorize[d] or prohibit[ed] conduct.”

(Internal quotation marks omitted.) Id. ¶ 27. The “constitutional inquiry” was supposed to “focus”

on “the group for whom the law [was] a restriction, not the group for whom the law [was]

irrelevant.” (Internal quotation marks omitted.) Id. The statutory section that the defendant in

Burns challenged, section 24-1.6(a)(1) and (a)(3)(A) of the Code, did not “prohibit[ ] felons from

possessing guns”—“that [was] not what the legislature proscribe[d]” in that section. Id. ¶ 29. That

the possessor of the firearm “ha[d] a prior felony conviction” was not “an element of the offense.”

Id. A prior felony conviction was merely a sentencing enhancement in subsection (d), not an

element of the offense in subsections (a)(1) and (a)(3)(A). Id. ¶ 24. The supreme court continued,

“An unconstitutional statute does not ‘become constitutional’ simply because it is applied to a

particular category of persons who could have been regulated, had the legislature seen fit to do

so.” Id. The supreme court was concerned that by holding that section 24-1.6(a) and (a)(3)(A)

applied only to felons, despite the broader terms in that section, the supreme court would have

“rewrit[ten]” that section, “substitut[ing] the judicial for the legislative department of the

government.” (Internal quotation marks omitted.) Id. ¶ 30. The supreme court said in Burns that it

- 21 - was unwilling to thereby violate the separation of powers. See id.

¶ 56 I can envision a superficially appealing argument based on Burns, as an attempt to

shore up plaintiff’s facial challenge to the FOID Act. The argument might focus on section 2 of

the FOID Act (430 ILCS 65/2 (West 2022)) and might proceed as follows. Section 2, subject to

listed exceptions, prohibits anyone from possessing a firearm in Illinois without having in his or

her possession a FOID card. Id. This section of the FOID Act, section 2, contains no mention of

felons or persons with a mental illness. See id. To be sure, in section 14, possessing a firearm

without a FOID card is elevated to a Class 3 felony if “the person is not otherwise eligible under

[the FOID] Act” (id. § 14(c)(3)): for example, if the person is ineligible because of a felony

conviction (see id. § 8(c)) or because of mental illness (id. § 8(e), (f)). Even so, having a felony

conviction or being mentally ill is not an element of section 2 (see id. § 2) but is, instead, a

sentencing enhancement (see id. § 14(c)(3))—just as, in Burns, “[a]ggravated unlawful use of a

weapon by a person who ha[d] been previously convicted of a felony” (720 ILCS 5/24-1.6(d)

(West 2008)) was a sentencing enhancement instead of an element of the offense (see Burns, 2015

IL 117387, ¶ 24). To violate section 2 of the FOID Act, the possessor of a firearm need not have

a felony conviction or a mental illness. Rather, subsection (a)(1) of section 2 (430 ILCS 65/2(a)(1)

(West 2022)) proscribes anyone’s possession, in Illinois, of a firearm without a FOID card, subject

to the exceptions in subsection (b) (id. § 2(b)). By holding that subsection (a)(1) constitutionally

applied only to felons and the mentally ill, we would effectively rewrite that subsection and violate

the separation of powers—or so it might be argued in the manner of Burns.

¶ 57 That argument would be unconvincing, however, because section 2 of the FOID

Act is not as freestanding as section 24.1-6 of the Code (720 ILCS 5/24-1.6 (West 2008)). Section

24-1.6 (the statute at issue in Burns) was simply one item in a long list of offenses collected in the

- 22 - Code. Section 2, by contrast, is an integral part of an act—section 2 is inextricably woven into the

FOID Act. The statute in question here, the FOID Act, is not simply the definition of an offense,

composed of elements. Plaintiff’s constitutional challenge is not to section 2 specifically, but to

the FOID Act as a whole. Because of that important difference, the point the supreme court made

in Burns—i.e., being a felon is not an element of the offense—is not easily transplantable to this

case. The present case is significantly different from Burns, in which the defendant challenged

only a single statutory section that defined an offense. The more capacious subject of plaintiff’s

facial challenge, the FOID Act, includes provisions that make much of the language in Burns inapt.

¶ 58 Consider, for example, section 8 (430 ILCS 65/8 (West 2022)). That section forbids

the Illinois State Police to deny an application for a FOID card unless the applicant has certain

disqualifications, including (to name a couple of these disqualifications) a felony conviction or a

mental illness:

“The Illinois State Police has authority to deny an application for or to revoke and

seize a [FOID] Card previously issued under this Act only if the Illinois State Police

finds that the applicant or the person to whom such card was issued is or was at the

time of issuance:

(c) A person convicted of a felony under the laws of this or any other

jurisdiction;

(e) A person who has been a patient of a mental health facility within

the past 5 years or a person who has been a patient in a mental health facility

more than 5 years ago who has not received the certification required under

- 23 - subsection (u) of this Section [(id. § 8(u))]. ***

(f) A person whose mental condition is of such a nature that it poses

a clear and present danger to the applicant, any other person or persons, or

the community[.]” Id. § 8(c), (e), (f).

¶ 59 Therefore, by considering the application of the FOID Act to felons and the

mentally ill, a court would “consider[ ] *** applications of the statute in which it actually

authorizes or prohibits conduct.” (Emphases added and internal quotation marks omitted.) Burns,

2015 IL 117387, ¶ 27. Subsections (c), (e), and (f) of section 8 of the FOID Act authorize the

Illinois State Police to deny a FOID card to—specifically—felons and the mentally ill. 430 ILCS

65/8(c), (e), (f) (West 2022). Those subsections empower the Illinois State Police to restrict people

with a felony record or a disqualifying mental illness from obtaining a FOID card. It could not be

reasonably asserted, then, that the FOID Act “is irrelevant” to felons and the mentally ill because

these are not “group[s] for whom the law is a restriction.” (Internal quotation marks omitted.)

Burns, 2015 IL 117387, ¶ 27. Manifestly, the FOID Act is a restriction aimed squarely at felons

and the mentally ill: they are singled out in section 8 as groups the Illinois State Police may regard

as ineligible for a FOID card. The legislature did not wait until section 12 of the FOID Act to

mention felons and the mentally ill as an afterthought, as it were, in a sentencing enhancement.

Rather, felons and the mentally ill are “particular categor[ies] of persons” that the legislature

“[saw] fit to” “regulate[ ]” earlier in the FOID Act, in section 8. Id. ¶ 29. The legislature regulated

them by regulating the Illinois State Police.

¶ 60 If regulation through the Illinois State Police is not enough, section 10(c) of the

FOID Act (430 ILCS 65/10(c) (West 2022)) regulates felons and the mentally ill more directly.

That section provides as follows:

- 24 - “(c) Any person prohibited from possessing a firearm under Sections 24-1.1

or 24-3.1 of the Criminal Code of 2012[(720 ILCS 5/24-1.1, 24-3.1 (West 2022))]

or acquiring a [FOID] Card under Section 8 of this Act [(430 ILCS 65/8 (West

2022))] may apply to the [FOID] Card Review Board or petition the circuit court

in the county where the petitioner resides, whichever is applicable in accordance

with subsection (a) of this Section, requesting relief from such prohibition and the

Board or court may grant such relief if it is established by the applicant to the court’s

or the Board’s satisfaction that:

(0.05) when in the circuit court, the State’s Attorney has been served

with a written copy of the petition at least 30 days before any such hearing

in the circuit court and at the hearing the State’s Attorney was afforded an

opportunity to present evidence and object to the petition;

(1) the applicant has not been convicted of a forcible felony under

the laws of this State or any other jurisdiction within 20 years of the

applicant’s application for a [FOID] Card, 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 applicant will not be likely to act in a manner dangerous to public safety;

(3) granting relief would not be contrary to the public interest; and

(4) granting relief would not be contrary to federal law.” Id.

¶ 61 The two sections of the Criminal Code of 2012 (Criminal Code) that section 10(c)

- 25 - references are those defining the offenses of unlawful possession of weapons by a felon (720 ILCS

5/24-1.1 (West 2022)) and unlawful possession of firearms by someone who, within the past five

years, has been a patient in a mental institution (id. § 3.1(a)(4)). The remaining statutory provision

that section 10(c) references is section 8 of the FOID Act (430 ILCS 65/8 (West 2022)), the section

authorizing the Illinois State Police to deny a FOID card to felons (see id. § 8(c)) and to someone

who has been a patient in a mental health facility (id. § 8(e)) or who has a dangerous mental

condition (id. § 8(f)). Would-be possessors of firearms who are under those statutory prohibitions

may petition the FOID Card Review Board or the circuit court for “relief from such prohibition.”

Id. § 10(c). Thus, Burns is inapposite for the following reason. The FOID Act specifically regulates

the conduct of felons and the mentally ill, not only by allowing the Illinois State Police to prohibit

them, in particular, from acquiring a FOID card and, hence, from acquiring firearms and firearm

ammunition (see id. § 8(c), (e), (f)), but also by requiring them to petition the FOID Card Review

Board or the circuit court for a removal of the prohibition (see id. § 10(c)).

¶ 62 So, there would be no occasion for “rewrit[ing]” the FOID Act to insert regulatory

provisions directed specifically at felons and the mentally ill. (Internal quotation marks omitted.)

Burns, 2015 IL 117387, ¶ 30. In the FOID Act, the legislature has already done that writing—

abundantly. See 430 ILCS 65/4(a)(2)(ii), (xv), (xvi), 8(c), (e), (f), 10(c) (West 2022). Misapplying

Burns to the present case would ignore that legislative writing.

¶ 63 Plaintiff and the dissent point out that the ban on the possession of firearms by

felons and the mentally ill is already written into other statutes. See 18 U.S.C. § 922(g)(1), (4)

(2018); 720 ILCS 5/24-1.1(a), 24-3.1(a)(4) (West 2022). Therefore, plaintiff reasons, à la Burns,

that “the FOID Act is effectively only a ‘restriction’ for the ordinary, law-abiding populace of

Illinois and is ‘irrelevant’ for those who already cannot possess firearms under federal or state

- 26 - law.” The dissent echoes that reasoning.

¶ 64 It is untrue, though, that sections 24-1.1(a) and 24-3.1(a)(4) of the Criminal Code

make the FOID Act irrelevant and not a restriction to felons and the mentally ill. Instead, those

sections and the FOID Act are dovetailed together and work in tandem. It is precisely because a

gun-toting felon lacks a FOID card that he or she is criminally liable for unlawful possession of

weapons by a felon. As the statute defining that offense provides, “This Section shall not apply if

the person has been granted relief by the Director of the Illinois State Police under Section 10 of

the [FOID] Act.” 720 ILCS 5/24-1.1(a) (West 2022). If a felon or a mentally ill person has a FOID

card, he or she cannot be found guilty of unlawful possession of weapons by a felon (see id. § 24-

1.1) or unlawful possession of firearms (see id. § 24-3.1), for his or her possession of the firearm

is lawful. See 430 ILCS 65/10(c) (West 2022).

¶ 65 So, contrary to the position taken by plaintiff and the dissent, the other statutes

regulating felons and the mentally ill do not make the FOID Act an irrelevant nonrestriction to

felons and the mentally ill. But does the second amendment do so? The dissent seems to think so

on the authority of City of Los Angeles v. Patel, 576 U.S. 409 (2015). Could Patel reasonably serve

as authority for the view that the second amendment makes the FOID Act an irrelevant

nonrestriction to felons and the mentally ill? Patel cannot be pressed into such service.

¶ 66 In Patel, on which our supreme court relied in Burns (see Burns, 2015 IL 117387,

¶ 27), a group of motel operators and a lodging association challenged the facial constitutionality

of a single provision of the Los Angeles Municipal Code, a section providing that “hotel guest

records ‘shall be made available to any officer of the Los Angeles Police Department for

inspection.’ ” Patel, 576 U.S. at 413 (quoting Los Angeles Municipal Code § 41.49(3)(a)

(amended Mar. 8, 2008)). The challengers maintained that such warrantless inspections were

- 27 - unreasonable searches within the meaning of the fourth amendment (U.S. Const., amend. IV) and

that the provision in question, section 41.49(3)(a), was therefore invalid on its face. See Patel, 576

U.S. at 413. The city, on the other hand, argued that this facial challenge had to fail “because such

searches [would] never be unconstitutional in all applications.” Id. at 417. Specifically, the city

“point[ed] to situations where police [were] responding to an emergency, where the subject of the

search consent[ed] to the intrusion, and where police [were] acting under a court-ordered warrant.”

Id. at 417-18.

¶ 67 The Supreme Court was unconvinced by the city’s argument in Patel because, in

the three circumstances the city listed, section 41.49(3)(a) would not even be applied. See id. at

418. The Supreme Court explained, “If exigency or a warrant justifies an officer’s search, the

subject of the search must permit it to proceed irrespective of whether it is authorized by statute.

Statutes authorizing warrantless searches also do no work where the subject of a search has

consented.” Id. at 418-19. In other words, fourth amendment case law already held that the police

could perform a search, such as a search of hotel guest records, if (1) exigent circumstances created

a compelling need for the police to perform the search before there was time to obtain a warrant,

(2) the owner consented to a search, or (3) the police had a search warrant. Whenever (1), (2), or

(3) applied to a hotel’s guest records, police officers did not need section 41.49(3)(a) to tell them

they could search the records. The fourth amendment, as interpreted by case law, already said so.

In any of those three circumstances, section 41.49(3)(a) would be superfluous and would do no

work.

¶ 68 Patel would be on point only if the FOID Act were analogous to section 41.49(3)(a)

of the Los Angeles Municipal Code. To be analogous to section 41.49(3)(a), the FOID Act would

have to be made up of a single proposition: the government may prohibit felons and the mentally

- 28 - ill from possessing guns—the way that section 41.49(3)(a) was made up of a single proposition:

the police may search hotel guest records. Los Angeles Municipal Code § 41.49(3)(a) (amended

Mar. 8, 2008). If the FOID Act were made up of that single proposition and nothing more, I could

see an argument for the applicability of Patel because, as the dissent observes, case law holds that

“the second amendment does not encompass felons.” People v. Burns, 2024 IL App (4th) 230428,

¶ 20. A plausible argument could be made that, in that hypothetical, abbreviated version (which is

quite different from its actual version), the FOID Act would do no work but would merely

duplicate second amendment case law.

¶ 69 But the FOID Act goes further than recognizing (implicitly) that felons and the

mentally ill lack a second amendment right. The FOID Act takes action on the basis of that

recognition by providing that felons and the mentally ill who lack a FOID card may not acquire or

possess firearms or firearm ammunition. See 430 ILCS 65/2(a)(1), (2) (West 2022). (I am using

“mentally ill” as shorthand to include those who, though not necessarily mentally ill at the present,

have a history of inpatient psychological treatment as described in section 8.) Although the second

amendment has been interpreted as not forbidding the government to prohibit felons and the

mentally ill from possessing guns (see Burns, 2024 IL App (4th) 230428, ¶ 20), I am unaware that

the second amendment has ever been interpreted as requiring the government to impose such a

prohibition. Legislation would be necessary to create such a prohibition—and that legislation is

the FOID Act, in conjunction with sections 24-1.1(a) and 24-3.1(a)(4) of the Criminal Code.

¶ 70 Also, the FOID Act creates an administrative and legal apparatus for enforcing the

prohibition. As the legislative declaration in the FOID Act puts it:

“It is hereby declared as a matter of legislative determination that in order to

promote and protect the health, safety and welfare of the public, it is necessary and

- 29 - in the public interest to provide a system of identifying persons who are not

qualified to acquire or possess firearms, firearm ammunition, stun guns, and tasers

within the State of Illinois by the establishment of a system of [FOID] Cards,

thereby establishing a practical and workable system by which law enforcement

authorities will be afforded an opportunity to identify those persons who are

prohibited by Section 24-3.1 of the Criminal Code *** [(720 ILCS 5/24-3.1 (West

2022))], from acquiring or possessing firearms and firearm ammunition and who

are prohibited by this Act from acquiring stun guns and tasers.” 430 ILCS 65/1

(West 2022).

This “practical and workable system” of identifying unqualified persons, such as felons and the

mentally ill, is not in the second amendment or in case law interpreting the second amendment.

FOID cards and the FOID Card Review Board are not in the second amendment. Because the

FOID Act performs work by regulating gun possession by felons and the mentally ill, the FOID

Act cannot reasonably be characterized as a superfluous repetition of second amendment case law

(the way that section 41.49(3)(a), in Patel, was a superfluous repetition of fourth amendment case

law in the circumstances the city cited). Therefore, Patel is distinguishable.

¶ 71 Another case cited in Burns, 2015 IL 117387, ¶ 27, was Planned Parenthood of

Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), the relevance of which to the present

case is even harder to make out. In Planned Parenthood, a Pennsylvania statute required a woman

seeking an abortion to sign a statement that she had notified her husband of her intention to get an

abortion. Id. at 844. The plaintiffs challenged the statute as facially unconstitutional under the due

process clause of the fourteenth amendment (U.S. Const., amend. XIV) as interpreted by Roe v.

Wade, 410 U.S. 113 (1973). Planned Parenthood, 505 U.S. at 845. The defenders of the statute

- 30 - argued that because most married women who intended to get an abortion notified their husbands

anyway, “of their own volition,” the statute was not facially unconstitutional. Id. at 894. The

Supreme Court held that a facial challenge to a statute could not be defeated by identifying people

to whom the statute was irrelevant and not a restriction in that those people would voluntarily do

what the statute required anyway. Id. The Supreme Court noted, for example, that if a statute

required newspapers to print a candidate’s reply to an editorial that criticized the candidate, the

fact that most newspapers already had a policy of printing such a reply would not save the statute

from facial unconstitutionality. Id. If a statute were facially constitutional simply because some

people did not mind doing what the statute required, no statute could ever be held to be facially

unconstitutional, for there would always be someone, somewhere, who did not mind.

¶ 72 The rationale in Planned Parenthood has nothing to do with the present case. I have

never heard the State argue in this case, “Plaintiff’s facial challenge to the FOID Act should fail

because some people do not mind applying for a FOID card and would apply for one even if they

did not have to.” That argument is not before us. “A judicial opinion is a response to the issues

before the court *** [and] must be read in the light of the issues that were before the court for

determination.” Nix v. Smith, 32 Ill. 2d 465, 470 (1965). By saying, in Planned Parenthood, that

“[l]egislation is measured for consistency with the Constitution by its impact on those whose

conduct it affects” and that “[t]he proper focus of constitutional inquiry is the group for whom the

law is a restriction, not the group for whom the law is irrelevant,” the Supreme Court responded

to a particular issue: whether people who obeyed a statute “of their own volition” saved the statute

from facial invalidity. Planned Parenthood, 505 U.S. at 894. Applying that language outside the

context of the issue it addressed would be a distortion of its meaning. When the language of a case

is lifted out of its context, the case can be made to say almost anything.

- 31 - ¶ 73 In sum, plaintiff concedes that felons and the mentally ill—two groups specifically

regulated in the FOID Act—have no second amendment right. Given that concession, there are

circumstances in which the application of the FOID Act would be “consistent with the Nation’s

historical tradition of firearm regulation.” Bruen, 597 U.S. at 24. The FOID Act is “constitutional

in some of its applications”: when it is applied to felons and the mentally ill. Rahimi, 602 U.S. at

693. Therefore, plaintiff cannot maintain, with self-consistency, that the FOID Act is facially

unconstitutional under the second amendment, or invalid “in all of its applications.” (Internal

quotation marks omitted.) Burns, 2015 IL 117387, ¶ 27.

¶ 74 II. THE LACK OF AN INFRINGEMENT

¶ 75 In Bruen, the Supreme Court held that “when the Second Amendment’s plain text

cover[ed] an individual’s conduct, the Constitution presumptively protect[ed] that conduct.”

Bruen, 597 U.S. at 17. Plaintiff’s conduct is the acquisition and possession of firearms and firearm

ammunition. It is a truism that the phrase in the second amendment “the right of the people to keep

and bear Arms” covers the conduct of acquiring and possessing firearms and firearm ammunition.

U.S. Const., amend. II.

¶ 76 It cannot be true, though, that just because plaintiff’s conduct is covered by that

phrase, we necessarily should proceed to the second step of Bruen, the step at which the

government must “demonstrate that the regulation is consistent with this Nation’s historical

tradition of firearm regulation.” Bruen, 597 U.S. at 17. If the mere fact that the modern regulation

takes arms as its subject matter were enough to necessitate a historical justification pursuant to the

second step of Bruen, even a regulation that is innocuous to the right to keep and bear arms—such

as a regulation requiring a citizen to report to the government his or her purchase of an antiaircraft

weapon or a regulation providing that citizens may have unlimited quantities of firearms—would

- 32 - require, absurdly, a historical justification to avoid offending the second amendment.

¶ 77 The cause of the absurdity would be the disregard of the element of

“infringe[ment],” which is just as much a part of the text of the second amendment as “the right of

the people to keep and bear Arms.” U.S. Const., amend. II. The Supreme Court explained in Bruen,

“The test that we set forth in Heller and apply today requires courts to assess whether modern

firearms regulations are consistent with the Second Amendment’s text and historical

understanding.” Bruen, 597 U.S. at 26. The initial, textual assessment of the second amendment

must include the textual term “infringe[ment],” not merely the subject matter of “Arms.” U.S.

Const., amend. II. That the plain text of the second amendment covers an individual’s conduct of

acquiring and possessing arms is irrelevant unless the regulation somehow thwarts that conduct.

To necessitate a search for historical analogues, the regulation must “target[ ] conduct at the core

of the Second Amendment.” (Emphasis added.) Rahimi, 602 U.S. at 751 (Thomas, J., dissenting).

The need to address the question of infringement, at the first step of Bruen, is implied in Bruen’s

holding that, at the second step, the government must establish that the “modern and historical

regulations impose a comparable burden on the right of armed self-defense” and that the “burden

is comparably justified.” Bruen, 597 U.S. at 29. That holding logically presupposes that, at the first

step, a burden on the right of armed self-defense, an apparent “infringe[ment],” was found. U.S.

Const., amend. II.

¶ 78 By speaking, in this context, of a burden, I do not mean to resurrect the ends-means

test, whereby (to quote the dissent) “courts compared the strength of the government regulation’s

justification against the severity of the burden it placed on the second amendment right of self-

defense.” Infra ¶ 152. Rather, I merely observe that, in an assessment of whether a firearm

regulation is inconsistent with the text of the second amendment, the textual term “infringe[ment]”

- 33 - carries the connotation of a breach, a right-destroying burden. Even the dissent admits that “[a]

regulation’s constitutionality does not become an issue until a[ ] *** constitutional right is found

to be restricted.” Infra ¶ 139. It seems to me that “restricted” is just another way of saying

“burdened.”

¶ 79 Comparing the challenged gun regulation to the text of the second amendment, we

begin by determining whether the regulation could be plausibly regarded as “infring[ing]” the right

of armed self-defense. U.S. Const., amend. II. This comparison of the regulation to the text of the

second amendment is only a start, just as the comparison of a regulation to the text of the first

amendment (U.S. Const., amend. I) is only a start. In Bruen, the Supreme Court drew a parallel

between the process of interpreting the second amendment and the process of interpreting the first

amendment. See Bruen, 597 U.S. at 24-25. The absolute language of both amendments could be

qualified by historical evidence. As Justice Kavanaugh remarked in his concurring opinion in

Rahimi, “A recurring and difficult issue for judges *** is how to interpret vague constitutional

text. That issue often arises (as here) in the context of determining exceptions to textually

guaranteed individual rights.” Rahimi, 602 U.S. at 717 (Kavanaugh, J., concurring).

¶ 80 For example, a regulation criminalizing a true threat of violence against an

individual could be plausibly characterized, from a purely textual point of view, as “abridging the

freedom of speech.” U.S. Const., amend. I. Nevertheless, “ ‘[t]rue threats’ of violence is [a]

historically unprotected category of communication.” Counterman v. Colorado, 600 U.S. 66, 74

(2023). At the second step of the analysis, so to speak—in the historical inquiry—the ban on true

threats of violence would find its justification. Similarly, from a purely textual point of view, a ban

on going armed with unusually dangerous weapons to the terror of the public could be plausibly

characterized as an “infringe[ment]” of the right to “keep and bear Arms.” U.S. Const., amend. II.

- 34 - However, “going armed, with dangerous or unusual weapons, [to] terrify[ ] the good people of the

land” is historically unprotected conduct. (Internal quotation marks omitted.) Rahimi, 602 U.S. at

697. As I understand, then, by analogy to the way we interpret the first amendment, the first

question (at the first step of Bruen) is whether the gun regulation could be plausibly regarded as

meeting the textual description of an “infringe[ment]” of the “right of the people to keep and bear

Arms” (U.S. Const., amend. II)—never mind, for the time being, the search for a historical

analogue (the second step of Bruen).

¶ 81 Plaintiff argues that the FOID Act infringes on the right to keep and bear arms by

forbidding a person from exercising that right unless the person has a FOID card. See 430 ILCS

65/2(a)(1), (2) (West 2022). That argument is problematic because unless the applicant for a FOID

card has a disqualification listed in section 8—for example, the applicant is a felon (see id. § 8(c))

or has a dangerous mental condition or history of mental illness (see id. § 8(e), (f))—the Illinois

State Police lack the authority to deny the application for a FOID card (see id. § 8). Plaintiff

characterizes a FOID card as a license to possess firearms, as if the legislature regarded the second

amendment as a matter of grace. A FOID card, however, is different from a driver’s license, which

“is issued in recognition of” “[t]he privilege to drive.” People v. Sass, 144 Ill. App. 3d 163, 170

(1986). A FOID card is an identification card issued in recognition of the preexisting second

amendment right, not the privilege, to keep and bear arms.

¶ 82 For an illustration of this distinction, suppose that A, an authority figure, tells B,

“You may do X only if I issue you a badge. But you have an absolute right to a badge, and I have

no choice but to give you a badge if you ask for one.” A goes on to explain to B, “The only purpose

of these badges is to enable us all to visibly distinguish between those who are entitled to do X and

those who are not entitled to do X. Because you are entitled to do X, a badge is yours for the

- 35 - asking.” B argues that, by forbidding him to do X unless he has a badge, A infringes his right to do

X. That argument is weak, I maintain, because, for B, receiving a badge is a right. The badge is an

admission by A, a visible certificate, that B is the sort of person who has a right to do X.

¶ 83 To plaintiff, this requirement of a “badge” (in the form of a FOID card) is

constitutionally unacceptable. Making the exercise of a constitutional right conditional on

receiving a document from the government seems to be, in plaintiff’s view, an ipso facto violation

of the right. This view resembles that of someone who complains that the revolving door of a

public building infringes on his right to entry because he must grab the bar and push his way in.

Plaintiff and the dissent seem to take the position that, unless the exercise of a constitutional right

is frictionless and free of any documentary requirement, as in a state of nature, the right is

infringed. The hidden premise of plaintiff’s argument is that a constitutional right cannot be the

subject of a permit or other documentary requirement. One need not look far to begin doubting

that premise.

¶ 84 Take voter registration cards, for example. A voter registration card is the

government’s written acknowledgment of the person’s preexisting “fundamental constitutional”

“right to vote.” Tully v. Edgar, 171 Ill. 2d 297, 306 (1996). Exercising that right without a voter

registration card is impossible. And yet, no serious person would characterize voter registration

cards as unconstitutional attempts to prevent voting.

¶ 85 Likewise, no one within the protection of the second amendment can seriously

claim that the FOID Act stands between him and his constitutional right to defend himself with

guns any more than someone could seriously claim that the requirements of signing an application

for a passport, supporting the application with proof of identity, and incurring the processing fee

of $165 stand in the way of his constitutional “right of exit.” Kent v. Dulles, 357 U.S. 116, 129

- 36 - (1958).

¶ 86 Another example of a constitutional activity that can be made conditional on the

issuance of a governmental document is a parade or procession on a public street or in a park,

which commonly requires a permit. “A fundamental principle of the First Amendment is that all

persons have access to places where they can speak and listen,” and a street or park is “a

quintessential forum for the exercise of First Amendment rights.” Packingham v. North Carolina,

582 U.S. 98, 104 (2017). Even so, a city may establish a permitting system “to control the use of

its public streets for parades or processions.” Cox v. New Hampshire, 312 U.S. 569, 576 (1941).

¶ 87 If, at the level of textual analysis, without any reference to colonial history, it is not

an “abridg[ement of] the freedom of speech” (U.S. Const., amend. I) to allow a parade or

procession only if the organizer has a permit, then, at the level of textual analysis, it cannot be an

“infringe[ment]” of the right to keep and bear arms (U.S. Const., amend. II) to allow the possession

of firearms and firearm ammunition only if the possessor has a shall-issue FOID card. If the

requirement of a FOID card were a breach but the requirement of a parade permit were no breach,

the second amendment would be an outlier in the Bill of Rights.

¶ 88 The dissent deplores, without any citation of authority, that I “fail to recognize the

unique nature of a constitutional challenge under the second amendment.” Infra ¶ 110. This lack

of recognition on my part is owing to my lack of awareness of any Supreme Court precedent

characterizing a challenge under the second amendment as unique in nature. In fact, the Supreme

Court has emphasized that the second amendment is not unique. In Bruen, the Supreme Court took

pains to dispel any impression that the second amendment was “subject to an entirely different

body of rules than the other Bill of Rights guarantees.” (Internal quotation marks omitted.) Bruen,

597 U.S. at 70. The right to keep and bear arms is a civil liberty like any other civil liberty, and as

- 37 - the Supreme Court observed in Cox, “[c]ivil liberties, as guaranteed by the Constitution, imply the

existence of an organized society maintaining public order without which liberty itself would be

lost in the excesses of unrestrained abuses.” Cox, 312 U.S. at 574. This public order principle

applies not only to the civil liberty of holding parades and processions but also to the civil liberty

of acquiring and possessing firearms and firearm ammunition. Regardless of whether the

discussion is about free speech, as in Cox, or about gun rights, as in the present case, ours is a

“system of ordered liberty.” (Internal quotation marks omitted.) Rahimi, 602 U.S. at 690. Liberty

without order is license.

¶ 89 The Illinois General Assembly could legitimately decide that, instead of repairing

public order after the damage has already been inflicted by the abuse of firearms, it would be

preferable to maintain public order—and thereby prevent the loss of civil liberties to disorder—by

endeavoring to keep firearms out of the hands of untrustworthy persons who lack a second

amendment right. The legislature explains this purpose in section 1 of the FOID Act (430 ILCS

65/1 (West 2022)), which I quoted earlier. The “persons who are not qualified to acquire or possess

firearms,” to which section 1 refers (id.), are the persons described in section 8 of the FOID Act

(id. § 8) as well as in section 24-3.1 of the Criminal Code (720 ILCS 5/24-3.1 (West 2022)). They

include felons (see id. § 8(c)) and people who have been patients in a mental institution within the

past five years (see id. § 8(e); 720 ILCS 5/24-3.1(a)(4) (West 2022)). I assume that the disqualified

groups in section 8 are unprotected by the second amendment, since plaintiff does not contend

otherwise. The purpose of the FOID Act, the legislature explains in section 1, is to “establish[ ] a

practical and workable system” for “identify[ing]” these disqualified persons. 430 ILCS 65/1

¶ 90 There is no tradeoff between that legislative purpose and the second amendment.

- 38 - There is no occasion for ends-means balancing. We do not have to choose between the second

amendment and the FOID Act. We may have, in full force, both the FOID Act and the right of

armed self-defense, for every Illinois applicant who is protected by the second amendment is

absolutely entitled, by the terms of the FOID Act, to a FOID card.

¶ 91 A FOID card identifies its holder as someone protected by the second amendment,

just as a voter registration card identifies its holder as someone entitled to vote. By the same token,

someone’s lack of a FOID card, if the person sought to acquire a gun or carried a gun outside the

home, would signify a possible disqualification and lack of a second amendment right—for

otherwise, presumably, the person would have obtained the FOID card to which he or she

automatically was entitled. Thus, instead of purporting to create a right to acquire and possess

firearms, a FOID card functions as a signifier of a preexisting right to do so: a right preexisting

under section 8 of the FOID Act in that the Illinois State Police have no choice but to grant the

application for a FOID card if the applicant has none of the disqualifications in that section, and

also a right preexisting under the second amendment.

¶ 92 Another way of looking at the FOID Act is that it is a regulation of the manner of

possessing firearms instead of a ban on the possession of firearms. See Bruen, 597 U.S. at 59 (“The

historical evidence from antebellum America does demonstrate that the manner of public carry

was subject to reasonable regulation.” (Emphasis added.)). To prove that the FOID Act is a ban on

the possession of firearms, plaintiff and the dissent single out a section of the FOID Act, section

2(a)(1), which provides, “No person may acquire or possess any firearm, stun gun, or taser within

this State without having in his or her possession a [FOID] Card previously issued in his or her

name by the Illinois State Police under the provisions of this Act.” 430 ILCS 65/2(a)(1) (West

2022). They say, in effect, “Voilà: an absolute ban.” The dissent describes the FOID Act as “[a]

- 39 - total ban of all firearms” and argues that our nation lacks a “relevant history of a complete ban on

firearm possession in every form precedent to governmental approval.” Infra ¶¶ 166, 192. But

permission is not permission if it must be granted. In focusing on the prohibitory terms of section

2, the dissent and plaintiff overlook the offsetting significance of section 8 (430 ILCS 65/8 (West

2022)), which makes the issuance of a FOID card mandatory if the applicant is protected by the

second amendment. If we read the FOID Act as a whole, section 2 is not as damning as plaintiff

and the dissent make it appear in isolation. “[W]hen legislation and the Constitution brush up

against each other, [a court’s] task is to seek harmony, not to manufacture conflict.” (Internal

quotation marks omitted.) Rahimi, 602 U.S. at 701. If we interpret the FOID Act holistically and

with the intent of upholding its constitutionality if reasonably possible, the FOID Act provides,

essentially, “When acquiring or possessing a firearm, also possess a FOID card—which, if you

have a second amendment right, is yours for the asking.” Regarded in that light, the FOID Act

could be more fairly characterized as an undemanding regulation of the manner of acquiring and

possessing firearms instead of a breach of the right to acquire and possess them.

¶ 93 How does one obtain a FOID card? It is easy. All a qualified person must do is get

his or her picture taken, fill out the application, staple the picture to the application, and send the

application to the Illinois State Police, along with a fee of $10 (perhaps to cover the cost of making

the FOID card, which seems analogous to a permit fee in the first amendment context (see Cox,

312 U.S. at 576-77). The FOID card will arrive in the mail. Applying for a permit for a parade or

procession probably takes more time and effort. Characterizing the trivial effort needed to apply

for a FOID card as an unconstitutional burden on the right to keep and bear arms is an exaggeration.

The text of the second amendment, with its element of infringement, is not implicated.

¶ 94 III. A PRINCIPLE TO BE GLEANED FROM LOYALTY

- 40 - OATH STATUTES

¶ 95 Because the Illinois State Police must issue FOID cards to Illinois applicants who

are protected by the second amendment, I maintain that the FOID Act does not meet the textual

description of an “infringe[ment]” of the right to keep and bear arms. U.S. Const., amend. II. Given

the Supreme Court’s comparison of the second amendment to the first amendment (see Bruen, 597

U.S. at 25), it cannot be right that, while a parade permit is constitutional, a FOID card is

unconstitutional. If, however, the FOID Act can plausibly be regarded as meeting the textual

description of an “infringe[ment]” of “the right of the people to keep and bear Arms” (U.S. Const.,

amend. II), and if it is necessary, therefore, to go beyond the first part of Bruen’s test and to search

our nation’s historical tradition for a burden at least as heavy as the feather that the FOID Act lays

upon the right of armed self-defense, the disarmament of recusants in colonial America will

suffice.

¶ 96 During the Revolutionary War, every man in North Carolina, Rhode Island,

Pennsylvania, and Virginia had to take a loyalty oath on pain of being disarmed. See 24 State

Records of North Carolina 88 (1777) (Walter Clark ed., 1905); 7 Records of the Colony of Rhode

Island and Providence Plantations in New England 567 (1776) (John Russell Bartlett ed., 1862); 9

The Statutes at Large of Pennsylvania From 1682 to 1801 111-13 (1777) (James T. Mitchell &

Henry Flanders eds., 1903); 9 The Statutes at Large; Being a Collection of All the Laws of Virginia

282 (William Waller Hening ed., 1821). In 1776, when Pennsylvania enacted this loyalty oath

statute, article XIII of Pennsylvania’s constitution provided that “the people have a right to bear

arms for the defence of themselves and the state.” Penn. Const. 1776, art. XIII. Evidently, then,

Pennsylvania saw no inconsistency between its loyalty oath statute and its constitutional guarantee.

¶ 97 Signing a FOID application bears some resemblance to signing a loyalty oath. In

- 41 - both cases, the subscribers make representations about themselves (the colonist in the loyalty oath

and the modern Illinoisan in the FOID application) to reassure the government that, armed, they

will pose no threat to “the security of a free State.” U.S. Const., amend. II. But for the FOID Act,

Illinoisans protected by the second amendment and Illinoisans unprotected by the second

amendment would be analogous to colonial revolutionaries and loyalists in that, to quote the

Pennsylvania statute of 1777, “both those sorts of persons [would] remain at this time mixed and

in some measure undistinguished from each other.” Mitchell & Flanders, supra, at 111. Like the

loyalty oath statutes, the FOID Act creates a system of identification, a means of distinguishing

those who have a constitutional right to keep and bear arms from those who lack that right.

¶ 98 The dissent suggests “it would be dubious to rely on historical laws that would be

found unconstitutional today, such as those prohibiting individuals from possessing firearms based

*** on political persuasion.” Infra ¶ 181. The question, though, is not whether the historical

analogue would be found constitutional today. Instead, the question is how did colonial Americans

understand the preexisting right to bear arms that was codified in the second amendment? See

Heller, 554 U.S. at 592. In other words, judging by the historical analogue, what were the contours

of that preexisting right as colonial Americans conceived of it? Evidently, colonial Americans

would have disagreed that the right to keep and bear arms was so absolute and unassailable that a

person retained that right despite his refusal to assure the government he was not the type of person

who might use the arms to imperil the freedom and security of his fellow Americans.

¶ 99 Granted, the first amendment (U.S. Const., amend. I), which is made applicable to

the states through the fourteenth amendment (U.S. Const., amend. XIV), might not allow the state

to disarm a person merely for “advocating violent means to effect political and economic change.”

(Internal quotation marks omitted.) Communist Party of Indiana v. Whitcomb, 414 U.S. 441, 448

- 42 - (1974). I do not understand plaintiff, however, as making a first amendment challenge to the FOID

Act. Although there is undoubtedly a first amendment interest in maintaining that Great Britain

was in the right in the American Revolution, there is no first amendment interest in being a felon

or in being mentally ill. The first amendment aside, the FOID Act and the loyalty oath statutes

share a “principle[ ]”: arms may be prohibited to persons who refuse to represent to the government

that they are not among the classes of persons who would pose a physical threat to the security of

a free state. Rahimi, 602 U.S. at 692.

¶ 100 It might be objected that individuals who are apt to use firearms irresponsibly or

illegally are hardly comparable, in their dangerousness, to Great Britain in the eighteenth century.

Because of the awesome power of modern firearms, however, the internal threat that such firearms

pose in the hands of the unqualified should not be discounted. Civil liberties can be destroyed not

only by forces external to the state but also, as the Supreme Court noted in Cox, by anarchy internal

to the state (Cox, 312 U.S. at 574), especially anarchy empowered by modern weaponry. States

can fail from within. Haiti is a cautionary example. Groups of individuals who ought not to have

guns can become laws unto themselves, undermining the rule of law on which civil liberties

depend. Politically inspired violence, violence driven by resentment toward the legal status quo,

and violence for personal material gain or power can all blur together, even in the same individual.

Marauding gunmen, if they are numerous enough, might not be so different, in their destabilizing

effect, from a menacing foreign power. Coming from within or from without, they are similar in

that they violate the peace and dignity of a sovereign state. That being said, I grant that the

justification for the FOID Act is “by no means identical to” the justification for the loyalty oath

statutes—“but it does not need to be.” Rahimi, 602 U.S. at 698. It is close enough.

¶ 101 After Rahimi, the justification for the historical regulation need not be identical to

- 43 - the justification for the modern regulation. In Rahimi, the majority used affray laws, for example,

as a historical analogue to a federal statute that “prohibit[ed] an individual subject to a domestic

violence restraining order from possessing a firearm if that order include[d] a finding that he [or

she] ‘represent[ed] a credible threat to the physical safety of [an] intimate partner,’ or a child of

the partner or individual.” Id. at 684-85 (quoting 18 U.S.C. § 922(g)(8) (2018)). Justice Thomas,

the author of Bruen, protested that “affray laws had a dissimilar burden and justification.”

(Emphasis in original.) Id. at 767 (Thomas, J., dissenting). In contrast to the blanket prohibition of

the modern regulation, “affray laws prohibited only carrying certain weapons (‘dangerous and

unusual’) in a particular manner (‘terrifying the good people of the land’ without a need for self-

defense) and in particular places (in public).” Id. at 770. Also, affray laws “captured only conduct

affecting the broader public” (id. at 769) and “expressly carve[d] out the very conduct” that the

modern regulation “was designed to prevent (interpersonal violence in the home)” (id. at 771).

Even so, affray laws were one of the historical analogues from which the majority gleaned the

principle that, “[w]hen an individual poses a clear threat of physical violence to another, the

threatening individual may be disarmed.” Id. at 698 (majority opinion). As the majority put it in

Rahimi, “the appropriate analysis involves considering whether the challenged regulation is

consistent with the principles that underpin our regulatory tradition.” Id. at 692.

¶ 102 Searching the historical record for supporting principles, in the manner of Rahimi,

is a significantly different methodology—a looser, more flexible methodology—than asking, as in

Bruen, whether the justification and burden of the historical analogue closely match the

justification and burden of the modern regulation. The difference between Rahimi and Bruen is the

difference between a hatchet and an X-Acto knife. In Rahimi, the majority of the Supreme Court

was more tolerant of divergence or approximation than in Bruen. Nonetheless, in the present case,

- 44 - the dissent assumes that, after Rahimi, it is Bruen as usual. The dissent argues, in the manner of

Bruen, that “different mechanisms” in the historical disarmament laws and in the FOID Act

“impose different burdens.” Infra ¶ 184.

¶ 103 That argument did not get the plaintiff very far in Rahimi. One of the historical

analogues on which the Supreme Court relied in that case, surety laws, imposed a different burden

than the modern regulation. Rahimi, 602 U.S. at 764 (Thomas, J., dissenting). Surety laws “merely

provide[d] financial incentives for responsible arms carrying,” without forbidding the acquisition

and possession of firearms (internal quotation marks omitted) (id. at 766), whereas the modern

regulation “impose[d] a burden equivalent to a complete ban on carrying and possessing firearms”

(emphasis in original) (id. at 768). Even so, in the view of the majority of the Supreme Court in

Rahimi, surety laws were a valid historical analogue. See id. at 698 (majority opinion).

¶ 104 When characterizing Rahimi as a “reinforce[ment]” of Bruen, the dissent misses

the significant departure from Bruen that Rahimi (to Justice Thomas’s chagrin) represented. In the

manner of Bruen, the dissent argues that the “how” of the FOID Act is different from that of the

historical disarmament laws. Citing section 4(a)(2) of the FOID Act (430 ILCS 65/4(a)(2) (West

2022)), the dissent argues that “the FOID Act treats everyone as presumptively unqualified to

possess a firearm until they ‘[s]ubmit evidence’ that they are safe and responsible.” (Emphasis in

original.) Infra ¶ 184. Section 4, however, contains no mention of any such presumption, which,

instead, is the dissent’s gloss on section 4. One could just as readily argue that section 8 (430 ILCS

65/8 (West 2022)) treats everyone as conclusively qualified to whom the listed grounds for denial

or revocation are inapplicable.

¶ 105 In short, if we follow the guidance of Rahimi that “[t]he law must comport with the

principles underlying the Second Amendment” but that “it need not be a dead ringer or a historical

- 45 - twin” (internal quotation marks omitted) (Rahimi, 602 U.S. at 692), we can glean a relevant

principle from the loyalty oath statutes: the government may screen its citizens for entitlement to

possess arms by having them sign a statement that they do not fit into a category of individuals

whose possession of firearms would threaten the safety of the community. The FOID Act is an

implementation of that principle.

¶ 106 JUSTICE DeARMOND, dissenting:

¶ 107 I respectfully dissent from the majority. This appeal considers whether the FOID

Act violates the second amendment by infringing on the people’s right to keep and bear arms. The

circuit court below determined it did not, finding the FOID Act constitutional because it was

consistent with our nation’s historical tradition of regulating firearms. I disagree and would

reverse.

¶ 108 My colleagues in the majority cannot agree on how to go about it, but they elect to

find the FOID Act constitutional. The majority author concludes the FOID Act is “consistent with

the principles that underpin our regulatory tradition,” while also noting footnote nine of Bruen

cannot “obviate the need for Bruen’s text and history analysis in the context of a constitutional

challenge to the FOID Act.” (Internal quotation marks omitted.) Supra ¶¶ 31, 41. Meanwhile, the

special concurrence concludes the FOID Act does not violate the text of the second amendment

by finding it “does not implicate the part of the second amendment’s text that forbids an

‘infringe[ment]’ of the right to keep and bear arms”—a position most notable by its absence from

any textual analysis demanded by Bruen—and “if the FOID Act does implicate the text of the

second amendment, colonial loyalty oath statutes are a relevant historical analogue.” Supra ¶ 48.

On the contrary, there is no historical tradition or reasonably relevant principle within our tradition

of firearm regulation similar to the FOID Act, and we cannot avoid the Bruen test.

- 46 - ¶ 109 The special concurrence does its best to avoid addressing the FOID Act’s

constitutionality under the second amendment entirely. However, this case presents the most direct

second amendment challenge to the FOID Act we have seen. Other cases have addressed the FOID

Act’s application to the possession of a firearm in the home or as an adjunct to a felony weapons

offense aggravated by the failure to possess a FOID card or similar situations where the FOID Act

violation is only ancillary to the issue. This is a direct challenge to the FOID Act from people who

have had to obtain FOID cards, pay the fees, and renew their cards in order to exercise their second

amendment rights.

¶ 110 My colleagues fail to recognize the unique nature of a constitutional challenge

under the second amendment. In doing so, they ignore the historical framework within which the

second amendment was enacted and the clear direction we have been given by the United States

Supreme Court when considering a second amendment challenge. The special concurrence denies

awareness of “any Supreme Court precedent characterizing a challenge under the second

amendment as unique in nature.” Supra ¶ 88. The inability of the special concurrence to recognize

how the landscape surrounding constitutional challenges has dramatically changed post-Bruen,

even after reading the four foundational cases I discuss below, is not a limitation on the unique

nature of second amendment challenges.

¶ 111 My colleagues begin by discussing the purposes, provisions, and perceived benefits

of the FOID Act—a starting point in conflict with the directives we have been given for framing

an analysis of the government’s efforts to restrict the right to keep and bear arms and which fails

to recognize the historical primacy given that right. The special concurrence then takes a slightly

different approach, attempting to avoid Bruen by starting with the nature of a facial challenge—

an approach that, I will explain below, is inconsistent with the Bruen test. Failing to understand

- 47 - the inapplicability of historically restricted persons (felons and the mentally ill) from our

constitutional inquiry at all, the special concurrence attempts to craft some sort of “concession” by

GSL that the FOID Act is constitutional—a concession never made or even argued.

¶ 112 Our analysis must begin by considering the basic right of protection and how it has

been preserved since our nation’s founding.

¶ 113 I. THE SECOND AMENDMENT

¶ 114 The second amendment 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.” U.S.

Const., amend. II. Of all the rights enshrined in our Bill of Rights, the second amendment occupies

a unique position because it protects the other rights essential for life and liberty. William

Blackstone, whose works “ ‘constituted the preeminent authority on English law for the founding

generation’ ” (Heller, 554 U.S. at 593-94 (quoting Alden v. Maine, 527 U.S. 706, 715 (1999))),

described the right to bear arms as fundamental to a free society. He observed:

“ ‘This may be considered as the true palladium of liberty. … The right to self

defence is the first law of nature: in most governments it has been the study of rulers

to confine the right within the narrowest limits possible. Wherever standing armies

are kept up, and the right of the people to keep and bear arms is, under any colour

or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink

of destruction.’ ” Heller, 554 U.S. at 606 (quoting 1 William Blackstone,

Commentaries *300).

Although the right to keep and bear arms predates our nation’s founding, the law delimiting its

contours is of more recent genesis. Unlike other rights enumerated in the Bill of Rights, the second

amendment has received little attention until this century. See Rahimi, 602 U.S. at 736

- 48 - (Kavanaugh, J., concurring) (“Second Amendment jurisprudence is still in the relatively early

innings, unlike the First, Fourth, and Sixth Amendments, for example.”). The second amendment

occupies a unique status in the Bill of Rights, and the right it codifies significantly impacts the

nature of our analysis. The majority opinion’s historical analysis is akin to walking into a movie

theater halfway through the film—you might get the general idea by the time it is over, but you

cannot fully appreciate the finale without the context created by the earlier scenes.

¶ 115 In Heller, the Supreme Court held the preexisting right to self-defense, which the

second amendment says is “not to be infringed,” would be incompatible with any legislation

effectively operating as a total ban on the free and reasonable exercise of second amendment rights,

regardless of the legislation’s good intentions: “[T]he enshrinement of constitutional rights

necessarily takes certain policy choices off the table. These include the absolute prohibition of

handguns held and used for self-defense in the home.” Heller, 554 U.S. at 636. The FOID Act does

just that. Justice Gorsuch’s concurrence in Rahimi explained why such a prohibition is

unconstitutional: “[T]he Second Amendment ‘codified a pre-existing right’ belonging to the

American people, one that carries the same ‘scope’ today that it was ‘understood to have when the

people adopted’ it.” (Emphasis in original.) Rahimi, 602 U.S. at 709 (Gorsuch, J., concurring)

(quoting Heller, 554 U.S. at 592, 634-35). He noted, at the time of the second amendment’s

ratification, the people “understood an arms-bearing citizenry posed some risks” but they also

believed “the right protected by the Second Amendment was itself vital to the preservation of life

and liberty.” Rahimi, 602 U.S. at 709.

¶ 116 II. SECOND AMENDMENT JURISPRUDENCE

¶ 117 Less than 20 years ago, in Heller, the Supreme Court initiated a sea change in

second amendment jurisprudence. For the first time, the Court recognized the second amendment

- 49 - protected an individual’s right to keep and bear arms and to use those arms for traditionally lawful

purposes, such as self-defense within the home. Heller, 554 U.S. at 628. This represented a major

shift from the previously defined right to keep and bear arms only in the service of an organized

militia. See Heller, 554 U.S. at 620-26. The Heller Court recognized the second amendment did

not create a new right but simply codified a right long predating our Constitution. Heller, 554 U.S.

at 672-73 (“ ‘This is not a right granted by the Constitution. Neither is it in any manner dependent

on that instrument for its existence.’ ” (quoting United States v. Cruikshank, 92 U.S. 542, 553

(1876))). The Court explained, “The very text of the Second Amendment implicitly recognizes the

pre-existence of the right and declares only that it shall not be infringed.” (Internal quotation marks

omitted.) Heller, 554 U.S. at 592.

¶ 118 Examining historical precedent, the Heller majority observed the right to keep and

bear arms in an individual capacity, the predecessor to our second amendment, was part of the

English Bill of Rights. “It was clearly an individual right, having nothing whatever to do with

service in the militia.” Heller, 554 U.S. at 593. Heller explained, “[T]he Second Amendment was

not intended to lay down a novel principl[e] but rather codified a right inherited from our English

ancestors.” (Internal quotation marks omitted.) Heller, 554 U.S. at 599. Indeed, Heller observed

that, by the time of our country’s founding, the right to have arms was “one of the fundamental

rights of Englishmen” and was “understood to be an individual right protecting against both public

and private violence.” Heller, 554 U.S. at 594 (citing 1 William Blackstone, Commentaries *136,

*139-40). The Court concluded, “There seems to us no doubt, on the basis of both text and history,

that the Second Amendment conferred an individual right to keep and bear arms.” Heller, 554 U.S.

at 595.

¶ 119 Nevertheless, the Heller Court acknowledged, just as with other constitutional

- 50 - rights, second amendment rights were not unlimited. The Court made it clear that

“nothing in our 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.

Importantly, these excluded categories are irrelevant to our analysis. See Burns, 2015 IL 117387,

¶ 27 (“The [l]egislation is measured for consistency with the Constitution by its impact on those

whose conduct it affects …. The proper focus of the constitutional inquiry is the group for whom

the law is a restriction, not the group for whom the law is irrelevant.” (Internal quotation marks

omitted.)). In finding the District of Columbia’s total ban on handgun possession in the home

unconstitutional, the Heller Court emphasized legislation creating, effectively, a total ban on the

free and reasonable exercise of second amendment rights was “off the table,” regardless of the

good intentions motivating such legislation. Heller, 554 U.S. at 636.

¶ 120 McDonald inched second amendment jurisprudence a bit further, clarifying a line

of cases defining the degree to which the fourteenth amendment extended the various Bill of Rights

protections to the states. After a historical analysis, McDonald found “it 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 778. The

Supreme Court concluded “the Due Process Clause of the Fourteenth Amendment incorporates

the Second Amendment right recognized in Heller,” meaning it “applies equally to the Federal

Government and the States.” McDonald, 561 U.S. at 791. With that, the Court left the application

and interpretation of the second amendment to the states and lower courts.

- 51 - ¶ 121 Twelve years passed before the Supreme Court again meaningfully addressed

second amendment jurisprudence, when it considered the constitutionality of New York’s public

carry licensing regime in Bruen. Its decision in Bruen addressed both the test applied to second

amendment challenges and the scope of the second amendment’s protections. See Bruen, 597 U.S.

at 18-38. First, the Bruen Court corrected the two-step test developed by the lower courts after

Heller and McDonald, which combined history and tradition with means-end scrutiny to evaluate

second amendment challenges. See Bruen, 597 U.S. at 18-19. Bruen found this two-step approach

by the appellate courts was “one step too many” (Bruen, 597 U.S. at 19) because it included the

application of a “judge-empowering interest-balancing inquiry,” which Heller and McDonald

expressly rejected. (Internal quotation marks omitted.) Bruen, 597 U.S. at 22. The Court explained,

“Heller’s methodology centered on constitutional text and history” and “did not invoke any means-

end test such as strict or intermediate scrutiny.” Bruen, 597 U.S. at 22. Rejecting any form of

interest balancing, Bruen asserted, “The Second Amendment ‘is the very product of an interest

balancing by the people’ and it ‘surely elevates above all other interests the right of law-abiding,

responsible citizens to use arms’ for self-defense.” (Emphasis in original.) Bruen, 597 U.S. at 26

(quoting Heller, 554 U.S. at 635). Lest courts fail to understand, Bruen repeated the approach for

evaluating second amendment challenges going forward:

“We reiterate that the standard for applying the Second Amendment is as follows:

When the Second Amendment’s plain text covers an individual’s conduct, the

Constitution presumptively protects that conduct. The government must then justify

its regulation by demonstrating that it is consistent with the Nation’s historical

tradition of firearm regulation. Only then may a court conclude that the individual’s

conduct falls outside the Second Amendment’s unqualified command.” (Internal

- 52 - quotation marks omitted.) Bruen, 597 U.S. at 24.

The Court then provided two metrics to be used to determine whether the challenged regulation

was consistent with the nation’s historical tradition of firearm regulation—“how and why the

regulations burden a law-abiding citizen’s right to armed self-defense,” because “individual self-

defense is the central component of the Second Amendment right.” (Emphasis in original and

internal quotation marks omitted.) Bruen, 597 U.S. at 29.

¶ 122 Having clarified the metrics by which second amendment challenges are to be

measured, Bruen turned to the second amendment’s scope. It found New York’s public carry

licensing regime, which required an applicant to demonstrate a special need for self-defense,

violated the second amendment because it infringed on the right to bear arms. Bruen, 597 U.S. at

71. The Court reached this conclusion by first conducting a textual analysis of the language of the

second amendment and finding “[t]he Second Amendment’s plain text thus presumptively

guarantees petitioners *** a right to ‘bear’ arms in public for self-defense.” Bruen, 597 U.S. at 33.

As a result, Bruen said the burden was on the respondents “to show that New York’s proper-cause

requirement is consistent with this Nation’s historical tradition of firearm regulation.” Bruen, 597

U.S. at 34.

¶ 123 The Bruen Court cautioned lower courts conducting historical analyses that, “when

it comes to interpreting the Constitution, not all history is created equal. ‘Constitutional rights are

enshrined with the scope they were understood to have when the people adopted them.’ ”

(Emphasis in original.) Bruen, 597 U.S. at 34 (quoting Heller, 554 U.S. at 634-35). Historical

evidence significantly predating the second amendment’s adoption, with no evidence it was either

the basis for the amendment or relied upon to formulate its language, is probably not persuasive.

See Bruen, 597 U.S. at 34-35. The Bruen Court considered this to be equally true for postenactment

- 53 - history, noting, “[B]ecause post-Civil War discussions of the right to keep and bear arms ‘took

place 75 years after the ratification of the Second Amendment, they do not provide as much insight

into its original meaning as earlier sources.’ ” Bruen, 597 U.S. at 36 (quoting Heller, 554 U.S. at

614). Instead, the Court said, any reliance by Heller on this later history “was ‘treated as mere

confirmation of what the Court thought had already been established.’ ” Bruen, 597 U.S. at 37

(quoting Gamble v. United States, 587 U.S. 678, 702 (2019)).

¶ 124 Despite historical evidence of “well-defined restrictions” on the public carry of

firearms, including “the intent for which one could carry arms, the manner of carry, or the

exceptional circumstances under which one could not carry arms,” the Bruen Court ultimately

found there was no historical evidence demonstrating a tradition of broadly prohibiting the public

carry of firearms for self-defense or of limiting public carry only to law-abiding citizens who could

demonstrate “a special need for self-defense.” (Emphasis added.) Bruen, 597 U.S. at 38. Analyzing

historical evidence at or around the time of the founders’ adoption of the second amendment, the

Court found that, “in the century leading up to the Second Amendment and in the first decade after

its adoption, there is no historical basis for concluding that the pre-existing right enshrined in the

Second Amendment permitted broad prohibitions on all forms of public carry.” Bruen, 597 U.S.

at 50. After expanding its analysis to consider pre-Civil-War-era legislation, the Court concluded,

“The historical evidence from antebellum America does demonstrate that the manner of public

carry was subject to reasonable regulation.” (Emphasis in original.) Bruen, 597 U.S. at 59. As a

result, the Supreme Court held the “proper cause” requirement of New York’s statute was

unconstitutional because “American governments simply have not broadly prohibited the public

carry of commonly used firearms for personal defense,” nor have they “required law-abiding,

responsible citizens to demonstrate a special need” to do so. (Internal quotation marks omitted.)

- 54 - Bruen, 597 U.S. at 70.

¶ 125 Most recently, in Rahimi, the Supreme Court reaffirmed Bruen’s holding and

standard, once again making it clear the “text, history, and tradition” test of Heller and McDonald

is the only test to be applied to second amendment challenges. See Rahimi, 602 U.S. at 714

(Gorsuch, J., concurring). By way of explanation, Justice Kavanaugh’s concurrence elaborated,

“[T]he historical approach examines the laws, practices, and understandings from before and after

ratification that may help the interpreter discern the meaning of the constitutional text and the

principles embodied in that text.” Rahimi, 602 U.S. at 717 (Kavanaugh, J., concurring).

¶ 126 The Rahimi Court considered a very narrow facial challenge to a federal statute,

section 922(g) of the United States Code (18 U.S.C. § 922(g) (2018)), which prohibited the

possession of a firearm by anyone subject to a domestic violence restraining order. See Rahimi,

602 U.S. at 688-89, 693. Under section 922(g), upon a finding the person “represents a credible

threat to the physical safety of [an] intimate partner,” he or she can be restricted from possessing

a firearm during the period in which the order is in effect. (Internal quotation marks omitted.)

Rahimi, 602 U.S. at 688.

¶ 127 The Court began its analysis by reiterating, “We have held that the right to keep

and bear arms is among the ‘fundamental rights necessary to our system of ordered liberty.’ ”

Rahimi, 602 U.S. at 690 (quoting McDonald, 561 U.S. at 778). “Derived from English practice

and codified in the Second Amendment, the right secures for Americans a means of self-defense.”

Rahimi, 602 U.S. at 690. While emphasizing the second amendment’s direct historical connection

to the personal right of self-defense and its extension to the states through the fourteenth

amendment, the Rahimi Court noted, “As a leading and early proponent of emancipation observed,

‘Disarm a community and you rob them of the means of defending life. Take away their weapons

- 55 - of defense and you take away the inalienable right of defending liberty.’ ” Rahimi, 602 U.S. at 690

(quoting Cong. Globe, 40th Cong., 2d Sess. 1967 (1868)).

¶ 128 To determine the parameters of the right to keep and bear arms for self-defense,

Rahimi reinforced Heller’s “constitutional text and history” approach with Bruen’s directive to

examine our “historical tradition of firearm regulation.” (Internal quotation marks omitted.)

Rahimi, 602 U.S. at 691. Only in this way can we determine whether the challenged regulation fits

within our tradition of firearm regulation. “[I]f a challenged regulation fits within that tradition, it

is lawful under the Second Amendment.” Rahimi, 602 U.S. at 691. “[W]hen the Government

regulates arms-bearing conduct, as when the Government regulates other constitutional rights, it

bears the burden to justify its regulation.” (Internal quotation marks omitted.) Rahimi, 602 U.S. at

691.

¶ 129 Rahimi tells us to ask whether the challenged regulation is “consistent with the

principles that underpin our regulatory tradition.” Rahimi, 602 U.S. at 692. We must discern

whether the challenged regulation is “relevantly similar” to regulations traditionally imposed on

the right to keep and bear arms, focusing on “why” (the purpose) and “how” (the function) the

regulation burdens second amendment rights. Rahimi, 602 U.S. at 692. The Court provided a

caveat particularly relevant here: “Even when a law regulates arms-bearing for a permissible

reason, though, it may not be compatible with the right if it does so to an extent beyond what was

done at the founding.” (Emphasis added.) Rahimi, 602 U.S. at 692. “The law must comport with

the principles underlying the Second Amendment” but is not required to be a “historical twin.”

(Internal quotation marks omitted.) Rahimi, 602 U.S. at 692. As Justice Barrett put it in her

concurrence, “A regulation is constitutional only if the government affirmatively proves that it is

‘consistent with the Second Amendment’s text and historical understanding.’ ” Rahimi, 602 U.S.

- 56 - at 737 (Barrett, J., concurring) (quoting Bruen, 597 U.S. at 26).

¶ 130 In analyzing our historical tradition of firearm regulation, the Rahimi Court grouped

the relevant historical analogues into two categories. One was surety laws, a form of preventative

justice that “authorized magistrates to require individuals suspected of future misbehavior to post

a bond.” Rahimi, 602 U.S. at 695 (majority opinion). Under the surety laws, if suspected

individuals “failed to post a bond, [they] would be jailed,” but if they “did post a bond and then

broke the peace, the bond would be forfeit.” Rahimi, 602 U.S. at 695. The second category

consisted of “going armed” laws, designed to punish those who menaced others with firearms.

Rahimi, 602 U.S. at 697. These laws prohibited “riding or going armed, with dangerous or unusual

weapons, [to] terrify[ ] the good people of the land.” (Internal quotation marks omitted.) Rahimi,

602 U.S. at 697. This conduct was considered disruptive of the “public order” and purportedly led

to violence, and violators were punished by having to forfeit their arms and possible imprisonment.

Rahimi, 602 U.S. at 697.

¶ 131 After conducting its text, history, and tradition analysis, the Rahimi Court found

that “our Nation’s tradition of firearm regulation distinguishes citizens who have been found to

pose a credible threat to the physical safety of others from those who have not.” Rahimi, 602 U.S.

at 700. The Court held, “Our tradition of firearm regulation”—as found in surety and “going

armed” laws—“allows the Government to disarm individuals who present a credible threat to the

physical safety of others.” Rahimi, 602 U.S. at 700. As a result, the Court concluded section

922(g)(8) was facially constitutional and could be applied to the defendant. Rahimi, 602 U.S. at

700. The existence of a credible threat, coupled with the impartial determination of a designated

tribunal, adequately protected the preexisting right of armed self-defense for otherwise law-

abiding citizens. Parenthetically and of particular relevance here, the Supreme Court noted

- 57 - approvingly that the restrictions imposed by section 922(g)(8) were temporary and did not broadly

restrict arms use by the public generally, unlike the restriction struck down by Bruen. Rahimi, 602

U.S. at 698-99. Conversely, the FOID Act is a regulation that broadly restricts arms use by the

public generally.

¶ 132 The more scrutiny the United States Supreme Court has given to second

amendment rights, the more evident it has become there is a clear, long-standing history protecting

the basic, nearly unfettered right of law-abiding citizens to acquire and possess firearms. A

distinction has always existed between the mere possession of firearms and the more historically

regulated public carry of firearms. It is equally evident from the studies of historical tradition found

in Heller, McDonald, Bruen, and Rahimi, there is no historical tradition of prohibiting all persons

from acquiring or possessing firearms first, and then determining whether they fall within the class

of persons otherwise entitled to or excluded from exercising that preexisting right codified by the

founders in the second amendment. In every instance where a historical analogue is used to justify

modern firearm regulation, other than those already historically restricted, it was the preexisting

right to possess firearms that was subsequently affected by conduct, status, or circumstances. This

is in contrast with the FOID Act, first passed in 1968 and constituting an outlier in our 50 states.

It provides: “No person may acquire or possess any firearm, stun gun, or taser within this State

without having in his or her possession a [FOID] Card previously issued in his or her name by the

Illinois State Police under the provisions of this Act.” (Emphasis added.) 430 ILCS 65/2(a)(1)

¶ 133 III. THIS CASE

¶ 134 GSL maintains the second amendment’s plain text covers its members’ conduct of

acquiring and possessing firearms and ammunition. Accordingly, it contends “the [FOID] card

- 58 - requirement has no grounding in the history and tradition of firearms regulations in this Nation”

and so “the FOID Act violates the Second Amendment by requiring a license to own a firearm.”

The State counters by arguing “the FOID Act is a constitutional shall-issue regime” that has been

approved by the United States Supreme Court. Alternatively, the State argues “the FOID Act’s

requirement that potential firearms owners must first ‘submit evidence’ that they do not fall within

a prohibited class and are issued a FOID card before they can obtain a firearm [(see 430 ILCS

65/2(a)(1), 4(a)(2) (West 2022))] is constitutional because it is consistent with this Nation’s history

and tradition of regulating firearms.”

¶ 135 In doing so, the State points to three categories of laws as being “relevantly similar”

analogues to the FOID Act. Specifically, the State directs our attention to (1) disarmament laws,

such as those disarming anyone who refused to swear an oath of allegiance, and surety laws, like

those discussed above; (2) colonial militia-training laws; and (3) various nineteenth-century laws

addressing the registration and taxation requirements of certain firearms. The State contends that,

collectively, these laws share a comparable burden to Illinois’s FOID card requirement because

they establish the founding generation understood that dangerous or untrustworthy people could

be disarmed and that states could regulate firearm ownership through certification, registration,

and taxation. Further, the State argues these laws, like the FOID Act, share a comparable

justification in that they were enacted to promote public safety and keep the peace.

¶ 136 A. Standard of Review

¶ 137 My colleagues emphasized GSL, by bringing a facial constitutional challenge,

subjects its argument to the “most exacting standard” in constitutional law. (Internal quotation

marks omitted.) Burns, 2015 IL 117387, ¶ 27. A facial challenge “is the most difficult challenge

to mount successfully, because it requires a [petitioner] to establish that no set of circumstances

- 59 - exists under which the [law] would be valid.” (Internal quotation marks omitted.) Rahimi, 602 U.S.

at 693. To defeat GSL’s claim, “the Government need only demonstrate that [the FOID Act] is

constitutional in some of its applications.” (Emphasis added.) Rahimi, 602 U.S. at 693. But as

stated above, the State bears the burden of demonstrating the constitutionality of a governmental

regulation affecting conduct covered by the second amendment. Rahimi, 602 U.S. at 691.

¶ 138 How and where the process of evaluating a facial challenge comes into play is what

both the State and my colleagues get wrong. Even within the context of the facial challenge raised

in Rahimi, the Court still applied the Bruen test first in order to determine whether the government

had demonstrated a constitutional application of the statute in question. “As we explained in Bruen,

the appropriate analysis involves considering whether the challenged regulation is consistent with

the principles that underpin our regulatory tradition.” Rahimi, 602 U.S. at 692. They made it clear

the burden was on the government. With the advent of the Bruen test, as reinforced by Rahimi, we

know there is a required procedure to follow when analyzing any challenge in the second

amendment context. Accordingly, we cannot use the facial challenge standard to skirt a Bruen

analysis. When a constitutional challenge, either facial or as applied, is brought under the second

amendment and the plaintiff establishes the restricted conduct is covered by the second

amendment, the burden falls on the State to show the restriction “ ‘is consistent with the Nation’s

historical tradition of firearm regulation.’ ” Rahimi, 602 U.S. at 689 (quoting Bruen, 597 U.S. at

24). If covered by the second amendment’s text, the conduct is presumed to be constitutionally

protected, and it becomes the government’s burden to prove otherwise. This is because, “when the

Government regulates arms-bearing conduct, as when the Government regulates other

constitutional rights, it bears the burden to ‘justify its regulation.’ ” Rahimi, 602 U.S. at 691

(quoting Bruen, 597 U.S. at 24). If the conduct does not fall within the amendment’s plain text, no

- 60 - constitutional question exists, and a historical tradition analysis is not necessary. If the conduct is

textually protected but subject to a “relevantly similar” historical regulation, the regulation is

constitutional because there is an identifiable relevantly similar tradition permitting the regulation,

as was the situation in Rahimi. See Rahimi, 602 U.S. at 700. Even within the context of a facial

challenge, both Bruen and Rahimi found the government bore the burden to show historical

analogues or “principles that underpin our regulatory tradition” were consistent with modern gun

laws. Rahimi, 602 U.S. at 692; see Bruen, 597 U.S. at 24-31. If the government succeeds, the

constitutional challenge ends there. See, e.g., Rahimi, 602 U.S. at 693-702. If it fails, “the question

becomes whether that law, in at least some of its applications, is consistent with historic firearm

regulations.” Rahimi, 602 U.S. at 708 (Gorsuch, J., concurring). Regardless, the State has the

burden. Rahimi, 602 U.S. at 691 (majority opinion). This part of the facial challenge comes into

play if the State can point to any constitutional application of the Act. See Rahimi, 602 U.S. at 692

(majority opinion), 708-09 (Gorsuch, J., concurring).

¶ 139 Starting our analysis with the facial challenge question puts the cart before the

horse. A regulation’s constitutionality does not become an issue until an identified (read, textually

covered) constitutional right is found to be restricted. There is no constitutional question (i.e.,

facial challenge) until we reach the second step of the Bruen analysis.

¶ 140 B. Application of a Facial Challenge to Felons,

the Mentally Ill, and Minors

¶ 141 When “assessing whether a statute meets [the exacting standards of a facial

challenge], the Court has considered only applications of the statute in which it actually authorizes

or prohibits conduct.” (Internal quotation marks omitted.) Burns, 2015 IL 117387, ¶ 27. “The

proper focus of the constitutional inquiry is the group for whom the law is a restriction, not the

- 61 - group for whom the law is irrelevant.” (Internal quotation marks omitted.) Burns, 2015 IL 117387,

¶ 27. Consequently, judging GSL’s facial challenge requires an examination of second amendment

precedent to measure the right’s breadth in both substance and application.

¶ 142 This is not a principle exclusive to second amendment challenges as referenced in

Burns and, contrary to the best efforts of the special concurrence, is not sui generis. It is true

regardless of the nature of the constitutional challenge. In Planned Parenthood, 505 U.S. at 894,

overruled by Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 (2022), the Supreme

Court applied the same standard, finding, “Legislation is measured for consistency with the

Constitution by its impact on those whose conduct it affects. *** The proper focus of constitutional

inquiry is the group for whom the law is a restriction, not the group for whom the law is irrelevant.”

While Dobbs overturned Planned Parenthood’s holding on the constitutionality of abortion rights,

it said nothing contrary to Planned Parenthood’s framework for addressing a constitutional inquiry

writ large. See Dobbs, 597 U.S. at 235-92. The principle remains, and it transcends highly

politicized issues like abortion and guns. In Patel, while discussing facial constitutional challenges

in the context of warrantless searches, the Supreme Court again quoted the same Planned

Parenthood language, noting, “[W]hen addressing a facial challenge to a statute authorizing

warrantless searches, the proper focus of the constitutional inquiry is searches that the law actually

authorizes, not those for which it is irrelevant.” Patel, 576 U.S. at 418. “Accordingly, the

constitutional ‘applications’ that petitioner claims prevent facial relief here are irrelevant to our

analysis because they do not involve actual applications of the statute.” Patel, 576 U.S. at 419.

While it is true the facts and statutes considered by these cases are easily distinguished, the

overarching legal principle governing the proper focus of a constitutional inquiry remains the

same. Using the logic of the special concurrence, every Supreme Court decision is fact-specific,

- 62 - and the principles espoused therein are not applicable in any other setting. So much for

stare decisis.

¶ 143 As Heller told us, felons and the mentally ill have historically been prevented from

possessing a firearm. See Heller, 554 U.S. at 626 (“[N]othing in our opinion should be taken to

cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally

ill.”). This prohibition remains under both federal law and other state criminal statutes. See, e.g.,

18 U.S.C. § 922(g) (2024); 720 ILCS 5/24-1.1, 24-3.1 (West 2022). Rather than serve as evidence

of the FOID Act’s constitutionality, this long-standing prohibition shows felons and the mentally

ill are unaffected by the FOID Act and are therefore not part of the “constitutional inquiry.” See

Patel, 576 U.S. at 418; Burns, 2015 IL 117387, ¶ 27. We have said and held as much recently. It

has become a mantra of sorts in this district and others—“the second amendment does not

encompass felons,” therefore “the Bruen decision does not apply to felons.” (Internal quotation

marks omitted.) Burns, 2024 IL App (4th) 230428, ¶ 20 (citing People v. Boyce, 2023 IL App (4th)

221113-U, ¶¶ 15-16); see People v. Gardner, 2024 IL App (4th) 230443, ¶ 68 (relying on Burns

and Boyce’s rationale to find Bruen does not apply to felons because they fall outside of the second

amendment’s protections); People v. Dillard, 2024 IL App (4th) 231090-U, ¶ 27 (same); People

v. Mallery, 2024 IL App (4th) 231397-U, ¶¶ 21-26 (same); People v. Pruitte, 2024 IL App (4th)

240013-U, ¶¶ 34-36 (same); People v. Johnson, 2024 IL App (4th) 231251-U, ¶ 51 (same); People

v. Stokich, 2024 IL App (4th) 240192-U, ¶¶ 39-45 (same); People v. Gilbert, 2024 IL App (4th)

231164-U, ¶ 33 (same); People v. Box, 2024 IL App (4th) 230649-U, ¶ 81 (same); People v.

Langston, 2023 IL App (4th) 230162-U, ¶ 19 (same); see also People v. Kelley, 2024 IL App (1st)

230569, ¶ 22 (rejecting a felon’s facial challenge because “Bruen is clear that second amendment

rights apply to law-abiding citizens for self-defense”); People v. Baker, 2023 IL App (1st) 220328,

- 63 - ¶ 37 (same); People v. Mobley, 2023 IL App (1st) 221264, ¶ 28 (same). This court and others have

made it clear that, for purposes of a second amendment challenge to the FOID Act, felons are not

protected because they are not affected. Therefore, felons cannot serve as examples of the FOID

Act’s constitutional application if what prevents them from acquiring and possessing firearms is

their preexisting status unrelated to the FOID Act. They are already prohibited by state and federal

law. Any reliance on previously excluded classes of persons to justify a “historical tradition”

supporting the FOID Act fails because the law is irrelevant to their inability to exercise second

amendment rights. They are prohibited by a long-standing tradition, which formed the basis for

the criminal statutes prohibiting them from possession. The FOID Act is not the cause of their

restriction. My colleagues mistakenly rely on these categories to find the FOID Act constitutional.

¶ 144 The same is equally true for minors, as they too have been historically prevented

from possessing firearms. The majority proves this point by citing Aguilar, 2013 IL 112116, ¶ 27,

which declares, “[L]aws banning the juvenile possession of firearms have been commonplace for

almost 150 years and both reflect and comport with a longstanding practice of prohibiting certain

classes of individuals from possessing firearms—those whose possession poses a particular danger

to the public.” (Internal quotation marks omitted.) Minors are not part of our constitutional inquiry

any more than felons and the mentally ill because our inquiry is limited to “the group for whom

the law is a restriction.” (Internal quotation marks omitted.) Burns, 2015 IL 117387, ¶ 27. The

FOID Act is not a restriction on minors because they have been historically prohibited from

possessing firearms and they are unaffected by the FOID Act. For them, the law is irrelevant. See

Burns, 2015 IL 117387, ¶ 27.

¶ 145 C. Application of the Bruen Test in This Case

¶ 146 1. The Second Amendment Covers GSL’s Proposed Conduct

- 64 - ¶ 147 Bruen requires us to consider first whether the second amendment covers GSL’s

members’ proposed conduct—acquiring and possessing firearms and firearm ammunition. Per

Heller’s analysis and holding, the right to acquire and possess firearms undoubtedly does fall under

the second amendment’s purview. See Heller, 554 U.S. at 595 (“There seems to us no doubt, on

the basis of both text and history, that the Second Amendment conferred an individual right to

keep and bear arms.”). Acquiring and possessing firearms is inherent to keeping them. See Heller,

554 U.S. at 583 (“ ‘Keep arms’ was simply a common way of referring to possessing arms, for

militiamen and everyone else.” (Emphasis in original.)). We next ask whether the challenged

governmental regulation restricts the exercise of the constitutionally protected right; if it does, the

regulation is presumed to be unconstitutional. See Bruen, 597 U.S. at 24. The FOID Act employs

broad terms, providing, “No person may acquire or possess any firearm, stun gun, or taser within

this State without having in his or her possession a [FOID] Card previously issued in his or her

name by the Illinois State Police under the provisions of this Act.” (Emphases added.) 430 ILCS

65/2(a)(1) (West 2022). The FOID Act’s restrictions apply to any person in this state. See Burns,

2015 IL 117387, ¶ 27 (finding a constitutional analysis focuses on the people for whom the

challenged law acts as a restriction). Accordingly, under Bruen, the government must justify the

FOID Act by demonstrating its total prohibition on firearm acquisition and possession proves

consistent with this nation’s historical tradition of firearm regulation. See Bruen, 597 U.S. at 17,

26-29.

¶ 148 2. The Special Concurrence’s Approach Departs From Bruen

¶ 149 The special concurrence attempts to circumvent the textual analysis by confusing

the purposes of the prefatory and operative clauses of the second amendment as explained in

Heller, 554 U.S. at 578-92. In a stunning example of turning constitutional interpretation on its

- 65 - head, the special concurrence finds at the outset, before any analysis whatsoever, that only

infringed rights to keep and bear arms are relevant to a second amendment challenge and, since

the FOID Act does not textually “infringe” on a person’s right to acquire or possess firearms, it is

therefore constitutional. The special concurrence first finds the FOID Act is not an infringement,

then concludes, because it is not, the conduct is not contained within the text of the second

amendment. Supra ¶ 93. This interpretation of the constitutional inquiry conducted for second

amendment challenges is not found anywhere, and the special concurrence does not direct us to

any case supporting its claim that “infringement” is part of the textual analysis of covered conduct.

The special concurrence finds the language of the second amendment “the right of the people to

keep and bear Arms” “a [mere] truism” and says “[i]t cannot be true, though, that just because

plaintiff’s conduct is covered by that phrase, we necessarily should proceed to the second step of

Bruen.” Supra ¶¶ 75-76. Unfortunately, that is exactly what Bruen said.

¶ 150 There is no weighing of the burden or infringement at the textual analysis stage.

The question is simple: Is the conduct, not the conduct and effect of the challenged regulation,

covered by the text of the second amendment? The special concurrence creates a false argument:

“The initial, textual assessment of the second amendment must include the textual term

‘infringe[ment],’ not merely the subject matter of ‘Arms.’ ” Supra ¶ 77. Such an argument

conflates the protections offered in the operative phrase “shall not be infringed” and the conduct

to be protected, “the right of the people to keep and bear arms.” “Arms” is not just the subject

matter, as the special concurrence describes it. It is the fundamental, preexisting right codified in

our second amendment that the government is prohibited from infringing upon. Bruen and Rahimi

tell us we must find a historical analogue or identifiable relevantly similar tradition forming a basis

for the claimed infringement before it can be found constitutional. The special concurrence

- 66 - presupposes there is a weighing of the burden placed on protected conduct at the first stage of the

Bruen analysis. There is none. “[W]hen the Second Amendment’s plain text covers an individual’s

conduct, the Constitution presumptively protects that conduct.” Bruen, 597 U.S. at 17. The only

weighing occurs at the second step, during a reviewing court’s search for a relevantly similar

historical analogue. See Bruen, 597 U.S. at 17 (“To justify its regulation, the government may not

simply posit that the regulation promotes an important interest,” otherwise known as a “means-

ends” analysis. “Rather, the government must demonstrate that the regulation is consistent with

this Nation’s historical tradition of firearm regulation.” (Emphasis added.)). Under Bruen, once

the conduct is found to be protected, the government must point to a historically similar tradition

or principle permitting the challenged restriction. Bruen, 597 U.S. at 17; Rahimi, 602 U.S. at 692.

In fact, Rahimi cautioned, “Even when a law regulates arms-bearing for a permissible reason ***

it may not be compatible with the [second amendment] if it does so to an extent beyond what was

done at the founding.” Rahimi, 602 U.S. at 692.

¶ 151 There is no more to the Bruen test. It does not include a consideration of how other

constitutional rights may be exercised, limited, or restricted. It does not compare the second

amendment to other constitutional rights to discern its contours. It does not entail a parsing of the

FOID Act to find compatible dictionary definitions. It does not compare the FOID Act to other

modern regulations. It does not urge us to weigh the effect and efficacy of the FOID Act’s

requirements. And it most definitely does not allow for the application of any sort of “means-ends”

analysis. See Bruen, 597 U.S. at 17.

¶ 152 To justify its claim that we need not proceed past Bruen’s first step, the special

concurrence effectively says the second part of the Bruen test, the historical analysis, presupposes

that, in the first part of the test, in the textual analysis, we found a “burden on the right of armed

- 67 - self-defense.” Bruen, 597 U.S. at 29; supra ¶ 77. Under the reasoning of the special concurrence,

if the FOID Act does not burden the right of armed self-defense, there is no occasion for finding a

“ ‘comparable burden’ ” in the historical record, and by the way, I have concluded it does not, so

we are done. Supra ¶ 77. This reasoning conflates language from the Bruen test’s second step with

the “how” and “why” metrics used to determine whether the challenged regulation is consistent

with the nation’s historical tradition of firearm regulation. See Bruen, 597 U.S. at 29 (“[W]hether

modern and historical regulations impose a comparable burden on the right of armed self-defense

and whether that burden is comparably justified are central considerations when engaging in an

analogical inquiry.” (Internal quotation marks omitted.)). We conduct an “analogical inquiry”

when “the government identif[ies] a well-established and representative historical analogue” to

compare to the modern-day regulation being challenged. (Emphasis omitted.) Bruen, 597 U.S. at

30. Whether “a historical regulation is a proper analogue for a distinctly modern firearm

regulation,” and therefore a comparable burden, is part of the second step of the Bruen test, not the

first. Bruen, 597 U.S. at 28-29. The special concurrence’s application of “burden” is a carryover

from the now rejected application of intermediate scrutiny to second amendment cases, where

courts compared the strength of the government regulation’s justification against the severity of

the burden it placed on the second amendment right of self-defense. See People v. Chairez, 2018

IL 121417, ¶ 35. This is the “judge-empowering interest balancing inquiry” Heller and McDonald

abandoned. (Internal quotation marks omitted.) Bruen, 597 U.S. at 22. The special concurrence

mistakenly adds interest balancing to the first step of Bruen to avoid the second step’s historical

analysis. The special concurrence’s claim this case can be decided at the first step must fail.

¶ 153 However, the State argues it need not defend the FOID Act because Bruen already

determined it passed constitutional muster. The special concurrence ignores this issue entirely,

- 68 - choosing instead to focus on its conclusion the FOID Act does not “infringe” on the right to keep

and bear arms, so our analysis is done. They are both wrong.

¶ 154 3. Shall-Issue Regime

¶ 155 To avoid the history and tradition analysis, the State claims a justification for the

FOID Act and the public carry statutes intended to keep guns out of dangerous hands referenced

in Bruen’s footnote nine. A stark difference exists between the two. Concealed or public carry

regulations only come into play when a law-abiding gun owner, who enjoys the right to acquire

and possess firearms, elects to seek approval to carry a firearm publicly. By doing so, he

voluntarily subjects himself to additional historically recognized regulation beyond mere

ownership. Conversely, the FOID Act, without a showing or claim of dangerousness, history of

restriction, or any other condition precluding gun ownership, prevents anyone from acquiring or

possessing a firearm in their own home—the most basic right of self-defense. See Heller, 554 U.S.

at 628-29; McDonald, 561 U.S. at 767-68. Concealed or public carry regulations do not work to

prevent ownership of firearms. The FOID Act does. Such a restriction has no historical tradition

and has been an outlier since its inception.

¶ 156 The State maintains “[t]he FOID Act is a constitutional, shall-issue licensing

regime under Bruen,” arguing it “shares the same goal as the shall-issue licensing regimes

discussed in Bruen—ensuring that those exercising their Second Amendment rights within the

jurisdiction ‘are, in fact, law abiding, responsible citizens.’ ” (quoting Bruen, 597 U.S. at 38 n.9).

The State builds this argument almost entirely upon footnote nine in Bruen.

¶ 157 As noted previously, in considering the proper-cause requirement in New York’s

public carry law, the Bruen Court determined our nation did not have “a tradition of broadly

prohibiting the public carry of commonly used firearms for self-defense,” “[n]or is there any such

- 69 - historical tradition limiting public carry only to those law-abiding citizens who demonstrate a

special need for self-defense.” Bruen, 597 U.S. at 38. The Court then inserted footnote nine, which

reads:

“To be clear, nothing in our analysis should be interpreted to suggest the

unconstitutionality of the 43 States’ ‘shall issue’ licensing regimes, under which ‘a

general desire for self-defense is sufficient to obtain a [permit].’ Drake v. Filko,

724 F.3d 426, 442 (CA3 2013) (Hardiman, J., dissenting). Because these licensing

regimes do not require applicants to show an atypical need for armed self-defense,

they do not necessarily prevent ‘law-abiding, responsible citizens’ from exercising

their Second Amendment right to public carry. [Heller, 554 U.S. at 635.] Rather, it

appears that these shall-issue regimes, which often require applicants to undergo a

background check or pass a firearms safety course, are designed to ensure only that

those bearing arms in the jurisdiction are, in fact, ‘law-abiding, responsible

citizens.’ Ibid. And they likewise appear to contain only ‘narrow, objective, and

definite standards’ guiding licensing officials, Shuttlesworth v. Birmingham, 394

U.S. 147, 151 (1969), rather than requiring the ‘appraisal of facts, the exercise of

judgment, and the formation of an opinion,’ Cantwell v. Connecticut, 310 U.S. 296,

305 (1940)—features that typify proper-cause standards like New York’s. That

said, because any permitting scheme can be put toward abusive ends, we do not

rule out constitutional challenges to shall-issue regimes where, for example,

lengthy wait times in processing license applications or exorbitant fees deny

ordinary citizens their right to public carry.” (Emphases added.) Bruen, 597 U.S.

at 38 n.9.

- 70 - Based on this, the State seems to believe Bruen blessed all shall-issue licensing regimes. However,

footnote nine’s language does not support this position.

¶ 158 The 43 shall-issue regimes mentioned in footnote nine are first listed in footnote

one. See Bruen, 597 U.S. at 13 n.1. Footnote one provides contextual citations for the Court’s

discussion of the nation’s various public carry licensing schemes. The Court contrasted New

York’s “may issue” law, where applicants had to show a special need for public carry, with laws

that had no such requirement, observing, “But the vast majority of States—43 by our count—are

‘shall issue’ jurisdictions, where authorities must issue concealed-carry licenses whenever

applicants satisfy certain threshold requirements, without granting licensing officials discretion to

deny licenses based on a perceived lack of need or suitability.” (Emphasis added.) Bruen, 597 U.S.

at 13. Footnote one immediately follows this sentence, and all 43 statutes cited therein are public

carry laws. Footnote one’s list includes section 10 of Illinois’s Firearm Concealed Carry Act (430

ILCS 66/10 (West 2022)). If footnote nine deemed any laws presumptively constitutional, it would

be these 43 laws only. The FOID Act is not cited in footnote one, or anywhere else in Bruen, so

we cannot presume the United States Supreme Court has already ruled on its constitutionality.

¶ 159 The majority says GSL acknowledged the FOID Act was a “shall issue” licensing

regime, but that does not determine the Act’s constitutionality. As the circuit court below

recognized in its final order, Bruen did not apply to every “shall issue” licensing regime where the

state must issue a permit, license, or identification card to any applicant that meets certain objective

criteria. Instead, it acknowledged the FOID Act was a “shall issue” regime in the broader sense of

the term. Bruen used the term as a descriptor, not as a legal definition for all such regimes

regulating the personal possession or public carry of firearms. Bruen explicitly stated it decided

only the narrow issue of whether “the Second Amendment protects the right of law-abiding people

- 71 - to carry a gun outside the home for self-defense.” (Emphasis added.) Bruen, 597 U.S. at 76 (Alito,

J., concurring).

¶ 160 The State tries to equate the FOID Act with the Firearm Concealed Carry Act

because the two laws contain some of the same requirements, like background checks. See 430

ILCS 65/3 (West 2022); 430 ILCS 66/85 (West 2022). But the two laws also have very different

requirements, like whether or not an applicant must complete a gun safety course by a certified

instructor and whether they must do so every time the $150 permit is renewed at five-year intervals.

See 430 ILCS 65/4, 5 (West 2022); 430 ILCS 66/60(b), 75(b) (West 2022). These additional

requirements for concealed-carry permits exist because of the differences between possessing a

weapon at home or in public—differences already noted by the courts. See Berron v. Illinois

Concealed Carry Licensing Review Board, 825 F.3d 843, 847 (7th Cir. 2016) (“[T]he different

degrees of danger posed by possessing a weapon at home (the basic license) and carrying a loaded

weapon in public (the concealed-carry license) justify different systems.”).

¶ 161 At oral argument, the State likened the two laws based on their shared justification

of keeping guns out of dangerous hands, arguing that if a person poses a danger in public, then the

person also poses a danger in private. Therefore, the State reasoned, Bruen’s approval of Illinois’s

concealed carry law necessarily extended to the FOID Act. For three reasons, I cannot agree. First,

the Berron court already found public carry and private possession in one’s home pose “different

degrees of danger” to society. Berron, 825 F.3d at 847. Second, Bruen expressly addressed a

specific subset of firearm regulation, namely public carry laws that have “traditionally been subject

to well-defined restrictions governing the intent for which one could carry arms, the manner of

carry, or the exceptional circumstances under which one could not carry arms.” Bruen, 597 U.S.

at 38. None of the public carry regulations listed in Bruen relate to the simple possession of

- 72 - firearms, which, historically, has not been restricted absent a claim or showing of dangerousness

on the part of the gun owner. This is because historical tradition permitted the regulation of public

carry while presuming the unregulated individual right to possess firearms in the home. Third, the

second step of the Bruen test does not involve a comparison of modern firearm regulations—a

mistake made by both of my colleagues here.

¶ 162 Not only did the Supreme Court reference just 43 public carry statutes, but the

language used by the Bruen Court in footnote nine also limits its reach. Footnote nine twice

references the second amendment “right to public carry.” Bruen, 597 U.S. at 38 n.9. It once uses

the phrase “bearing arms,” which obviously connotes carrying weapons. Bruen, 597 U.S. at 38

n.9. Based on the language used and the statutes cited, it is clear footnote nine contemplated shall-

issue licensing regimes for public carry, not all shall-issue laws.

¶ 163 The concurring opinions emphasized Bruen’s narrow holding. Justice Alito wrote:

“[T]oday’s decision therefore holds that a State may not enforce a law, like New York’s Sullivan

Law, that effectively prevents its law-abiding residents from carrying a gun for this purpose. That

is all we decide.” (Emphasis added.) Bruen, 597 U.S. at 71-72 (Alito, J., concurring). He went on

to detail what Bruen did not decide, like who may possess firearms, who may buy firearms, what

type of firearms people may possess, age limits for purchasing or possessing a firearm, or what

regulations can be imposed on keeping or bearing arms. Bruen, 597 U.S. at 72-73. Justice Alito

deemed it necessary to make Bruen’s limiting holding even more abundantly clear, saying, “I

reiterate: All that we decide in this case is that the Second Amendment protects the right of law-

abiding people to carry a gun outside the home for self-defense and that the Sullivan Law, which

makes that virtually impossible for most New Yorkers, is unconstitutional.” (Emphases added.)

Bruen, 597 U.S. at 76.

- 73 - ¶ 164 Justice Kavanaugh’s concurrence, which Chief Justice Roberts joined, noted Bruen

“does not prohibit States from imposing licensing requirements for carrying a handgun for self-

defense.” (Emphasis added.) Bruen, 597 U.S. at 79 (Kavanaugh, J., concurring, joined by Roberts,

C.J.). Kavanaugh made explicit what footnote nine implied, saying, “[T]he 43 States that employ

objective shall-issue licensing regimes for carrying handguns for self-defense may continue to do

so.” (Emphasis added.) Bruen, 597 U.S. at 80. Like the majority and Justice Alito, Justice

Kavanaugh was careful to couch both the issue and his concurrence as relating only to public carry.

¶ 165 It is a non sequitur to presume the Bruen Court, which relied solely on text and

history to discern the contours of the second amendment right to public carry, approved a noncarry

licensing scheme neither considered nor referenced in the opinion, especially considering the

FOID Act is one of the only laws of its kind. The State attempts to counter such a conclusion by

arguing “there is no constitutionally relevant difference between a shall-issue license regime for

public carry and the FOID Act. Because the FOID Act functions the same way as shall-issue

licensing regimes permitted by Bruen, it is constitutional for the same reasons.” No, it does not

function in the same way. The FOID Act precludes all firearm acquisition or possession, while the

“shall issue” regimes to which the Bruen Court referred involve the historically regulated right to

public carry. The State bases its argument on the premise that “Bruen held that the Second

Amendment does not make a distinction between the public and home,” citing Bruen, 597 U.S. at

32-33 (majority opinion). I disagree with the State’s logic for two reasons. First, Bruen did not

hold there is no distinction between having a firearm in public versus the home. Although the

Court observed “[n]othing in the Second Amendment’s text draws a home/public distinction with

respect to the right to keep and bear arms” (Bruen, 597 U.S. at 32), the observation came in a

specific context. The Court made this statement when finding the second amendment’s plain text

- 74 - covered the petitioners’ desired conduct, namely the public carry of firearms. See Bruen, 597 U.S.

at 31-33. By referencing the “keep and bear” language, the Court simply observed the second

amendment’s text sets wide contours—it protects conduct at home and in public. See Bruen, 597

U.S. at 31-33. The Court mentioned the second amendment’s lack of distinction between the home

and public in the context of the broad conduct protected by its text, rather than during its historical

analysis.

¶ 166 Second, the State cannot broadly regulate a right simply because the second

amendment broadly codifies it. The State cannot do so with other constitutional rights. On the

contrary, when means-ends scrutiny applies, legislation regulating constitutional rights must be

narrowly tailored due to the fundamental nature of those rights. While the State can impose

restrictions on carrying a firearm in public, it does not logically follow that similar restrictions can

equally apply to possessing a firearm in one’s home because the second amendment codified the

right to keep and bear arms. Such a viewpoint emphasizes text over history. As I will discuss

further, our nation has a history and tradition of regulating the public carry of firearms but no

relevant history of a complete ban on firearm possession in every form precedent to governmental

approval. Once conduct is covered by the second amendment, the textual analysis ends, and we

turn to history and tradition.

¶ 167 I suggest Bruen’s footnote nine did not sanction all shall-issue licensing regimes as

constitutional. This conclusion is borne out by the United States Supreme Court’s other second

amendment jurisprudence, where it faithfully conducted a text and history analysis and arrived at

limited holdings, clearly delineating what it was and was not deciding. See Heller, 554 U.S. at

627-28, 632, 635 (deciding only the District of Columbia’s law banning handgun possession in the

home, not addressing licensure requirements and not casting doubt on long-standing prohibitions

- 75 - on felons and the mentally ill, possessing guns in sensitive places, and commercial sale);

McDonald, 561 U.S. at 790 (deciding only the incorporation question); Rahimi, 602 U.S. at 700

(deciding only that the second amendment permits a person to be temporarily disarmed if that

person has been found by a court to pose a credible threat to the safety of another). Recall, second

amendment jurisprudence is still emerging from its beginning stages since Heller’s dramatic shift.

See Rahimi, 602 U.S. at 736 (Kavanaugh, J., concurring). It makes little sense to interpret Bruen’s

footnote nine broadly when the Court has issued narrow holdings when provided the opportunity

to expound on the second amendment this century. Accordingly, we should not stretch footnote

nine, which solely addresses public carry laws, to cover the question presented to us today. In his

Rahimi concurrence, Justice Gorsuch reminded the bench and bar, “As this Court has long

recognized, what we say in our opinions must ‘be taken in connection with the case in which those

expressions are used,’ [citation], and may not be ‘stretch[ed]…beyond their context.’ ” Rahimi,

602 U.S. at 713-14 (Gorsuch, J., concurring). To do so here would be to give specific, clearly

defined language a completely different and expanded meaning.

¶ 168 Clearly, then, footnote nine is limited to public carry laws. The Bruen Court did not

sanction the FOID Act when it approvingly cited the Firearm Concealed Carry Act (430 ILCS

66/10 (West 2022)). And there is no historical analysis in footnote nine—it contains limiting

language intended to prevent a barrage of cases challenging shall-issue public carry laws based on

a proper cause may-issue case.

¶ 169 I also note the State relies on the Fourth Circuit’s decision in Maryland Shall Issue,

Inc., 116 F.4th 211, to support its argument the FOID Act is presumptively lawful under Bruen’s

footnote nine. But that court bypassed the Bruen analysis, something the Seventh Circuit stated we

cannot do. See Atkinson, 70 F.4th at 1022 (“Nothing allows us to sidestep Bruen in the way the

- 76 - government invites.”). Likewise, the majority agrees the FOID Act’s “shall issue” regime differs

from the “shall issue” regimes addressed in Bruen and relies on Maryland Shall Issue, Inc., to

justify “advance permission regulatory schemes.” But again, the Maryland Shall Issue, Inc., court

dealt with a limited restriction, i.e., a handgun qualification license preceding the purchase of a

handgun, not a complete prohibition to the purchase of any firearm or ammunition. See Maryland

Shall Issue, Inc., 116 F.4th at 216-17. Moreover, “[w]e must undertake the text-and-history inquiry

the [Supreme Court] so plainly announced and expounded upon at great length.” Atkinson, 70 F.4th

at 1022. In determining Bruen’s analysis is indispensable to deciding a second amendment

challenge, the Seventh Circuit, like the Supreme Court, observed there is much left unsettled in

second amendment jurisprudence. See Atkinson, 70 F.4th at 1022-23 (noting Bruen left unresolved

the “complicated issue” of whether the second amendment’s plain text covers felons). Though not

bound by Seventh Circuit precedent, “we may afford a Seventh Circuit decision more persuasive

value than we would the decisions of other federal courts, provided it is reasonable and logical.”

State Bank of Cherry v. CGB Enterprises, Inc., 2013 IL 113836, ¶ 53. Because I find the Seventh

Circuit’s Atkinson decision reasonable and logical and a proper extension of the restrained

approach the United States Supreme Court has taken thus far, I find its decision more persuasive

in Illinois law compared to a Fourth Circuit opinion. We should heed the Atkinson court’s guidance

and properly apply Bruen.

¶ 170 Finally, the majority further misapplies Bruen by comparing the language of other

“shall issue” statutes with the FOID Act as justification. Such a comparison misses the point, as

we must compare the challenged statute with historical analogues evincing a tradition of firearm

regulation or find it consistent with the principles that underpin our regulatory tradition. We cannot

compare two modern day regulations for historical compatibility under the second amendment.

- 77 - For all these reasons, I do not agree with the majority’s view that footnote nine offers “important

guidance for evaluating the parties’ claims” here. Supra ¶ 32.

¶ 171 All told, the State’s argument that Bruen approved all shall-issue regimes, including

the FOID Act, is unpersuasive and contrary to the foundational premise upon which the Bruen test

rests. When evaluating restrictions on the preexisting right codified by the second amendment, we

must recognize “the inherent right of self-defense has been central to the Second Amendment

right.” Heller, 554 U.S. at 628. As the Supreme Court said in Heller, “We start therefore with a

strong presumption that the Second Amendment right is exercised individually and belongs to all

Americans.” Heller, 554 U.S. at 581. “The very text of the Second Amendment implicitly

recognizes the pre-existence of the right and declares only that it ‘shall not be infringed.’ ” Heller,

554 U.S. at 592. As such, the right is presumptively protected, and the State’s obligation is not to

show the similarity between the broadness of the right and the broadness of the regulation but to

show the challenged regulation is consistent with the principles underpinning our regulatory

tradition and does not act to infringe on the second amendment. See Rahimi, 602 U.S. at 692. We

must remember it was the broad scope of the challenged restrictions in Heller and Bruen that the

Supreme Court found damning when compared to the all-inclusive right all citizens have to armed

self-defense.

¶ 172 4. The FOID Act Is Inconsistent With America’s

Historical Tradition of Firearm Regulation

¶ 173 The State points to three categories of laws as being “relevantly similar” analogues

to the FOID Act. Specifically, the State directs our attention to (1) disarmament laws, such as those

disarming anyone who refused to swear an oath of allegiance, and surety laws, like those discussed

above; (2) colonial militia-training laws; and (3) various nineteenth-century laws addressing the

- 78 - registration and taxation requirements of certain firearms. The State contends that, collectively,

these laws share a comparable burden to Illinois’s FOID card requirement because they establish

the founding generation understood dangerous or untrustworthy people could be disarmed and the

states could regulate firearm ownership through certification, registration, and taxation. Further,

the State argues these laws, like the FOID Act, share a comparable justification, in that they were

enacted to promote public safety and keep the peace.

¶ 174 Having found the FOID Act implicates the second amendment’s plain text, the State

must now carry its burden to “justify [the FOID Act] by demonstrating that it is consistent with

the Nation’s historical tradition of firearm regulation.” Bruen, 597 U.S. at 24. As discussed, “the

appropriate analysis involves considering whether the challenged regulation is consistent with the

principles that underpin our regulatory tradition.” Rahimi, 602 U.S. at 692. Even though the law

“must comport with the principles underlying the Second Amendment, *** it need not be a dead

ringer or a historical twin.” (Internal quotation marks omitted.) Rahimi, 602 U.S. at 692. “A court

must ascertain whether the new law is ‘relevantly similar’ to laws that our tradition is understood

to permit, ‘apply[ing] faithfully the balance struck by the founding generation to modern

circumstances.’ ” Rahimi, 602 U.S. at 692 (quoting Bruen, 597 U.S. at 29 n.7). This is necessary

because of the scope of the preexisting right codified by the second amendment. As Justice

Gorsuch observed in his Rahimi concurrence, “When the people ratified the Second Amendment,

they surely understood an arms-bearing citizenry posed some risks. But just as surely, they

believed that the right protected by the Second Amendment was itself vital to the preservation of

life and liberty.” Rahimi, 602 U.S. 709 (Gorsuch, J., concurring). “Why and how the regulation

burdens the right are central to this inquiry.” Rahimi, 602 U.S. at 692 (majority opinion).

“For example, if laws at the founding regulated firearm use to address particular

- 79 - problems, that will be a strong indicator that contemporary laws imposing similar

restrictions for similar reasons fall within a permissible category of regulations.

Even when a law regulates arms-bearing for a permissible reason, though, it may

not be compatible with the right if it does so to an extent beyond what was done at

the founding.” Rahimi, 602 U.S. at 692.

On the other hand, “when a challenged regulation addresses a general societal problem that has

persisted since the 18th century, the lack of a distinctly similar historical regulation addressing that

problem is relevant evidence that the challenged regulation is inconsistent with the Second

Amendment.” Bruen, 597 U.S. at 26. In this case, the State claims the FOID Act addresses a

general societal problem in that it promotes public safety and keeps the peace by controlling the

acquisition and possession of firearms. I challenge my colleagues to point to one historical

analogue similar to the FOID Act in its total prohibition against the acquisition and simple

possession of firearms, with no claim of known or suspected dangerousness or status in a group

otherwise prohibited from possessing firearms.

¶ 175 Here, the State attempts to justify the FOID Act by arguing it is relevantly similar

to (1) disarmament laws, such as those that disarmed individuals who refused to swear oaths of

allegiance, and surety laws; (2) colonial militia-training laws; and (3) various nineteenth-century

laws related to the registration and taxation requirements of certain firearms. I address each of the

State’s proffered analogues in turn.

¶ 176 a. Loyalty-Oath and Surety Laws

¶ 177 In support of their arguments, the State and the special concurrence contend the

FOID Act shares a comparable burden (“how”) and justification (“why”) (see Bruen, 597 U.S. at

29-30) to historical disarmament laws that confiscated firearms from those considered “dangerous

- 80 - or unvirtuous,” specifically those unwilling to swear oaths of allegiance. The State makes the same

argument with regard to surety laws that required certain individuals to post a bond to carry

firearms in public. For instance, during the Seven Years’ War, from 1756 to 1763, Maryland,

Pennsylvania, and Virginia enacted measures disarming Catholics out of fear that Catholics owed

fealty to a foreign higher power. Joseph G.S. Greenlee, The Historical Justification for Prohibiting

Dangerous Persons From Possessing Arms, 20 Wyo. L. Rev. 249, 258-59, 263 (2020). In 1776,

with the American Revolution imminent, Massachusetts enacted a law “to cause all persons to be

disarmed within their respective colonies who are notoriously disaffected to the cause of America.”

(Internal quotation marks omitted.) Greenlee, supra, at 264. Pennsylvania enacted a similar

measure one year later, disarming entire groups of people, particularly Quakers, whose status

purportedly suggested they could not be trusted to abide by the law. Jim Wedeking, Quaker State:

Pennsylvania’s Guide to Reducing the Friction for Religious Outsiders Under the Establishment

Clause, 2 N.Y.U. J.L. & Liberty 28, 51 (2006). That same year, Virginia followed suit and

disarmed “all free born male inhabitants *** above the age of sixteen years” who refused to swear

“ ‘allegiance and fidelity’ ” to the government. Hening, supra, at 281.

¶ 178 Fast forward to the mid-nineteenth century, when surety laws were adopted across

several jurisdictions to address the public carrying of weapons by individuals considered likely to

breach the peace. Bruen, 597 U.S. at 55. Massachusetts pioneered this approach, implementing a

law in 1836 that required individuals carrying weapons without a reasonable cause for self-defense

to post a bond if others had a valid fear of harm from them. Bruen, 597 U.S. at 55-56. This model

spread to other states, but those laws did not amount to outright prohibitions on public carry and

said nothing about the right to acquire or possess firearms at all. Rather, they assumed individuals

had the right to carry publicly and only imposed conditions on those believed to pose a specific

- 81 - risk to public order. See Bruen, 597 U.S. at 55. But “[b]efore the accused could be compelled to

post a bond,” a person with “reasonable cause to fear that the accused would do him harm or breach

the peace” had to make a complaint to the judicial authority, who would hear evidence and allow

the accused an opportunity to respond. (Internal quotation marks omitted.) Rahimi, 602 U.S. at

696-97. These surety statutes were applied narrowly and allowed individuals to carry firearms

publicly without penalty, so long as they posted bond when reasonably accused of intending harm.

Bruen, 597 U.S. at 56-57. If the party from whom surety was demanded refused to post a bond, he

or she would be forbidden from carrying a weapon in public absent special need. See Bruen, 597

U.S. at 56-57; Rahimi, 602 U.S. at 697 (“Bonds could not be required for more than six months at

a time, and an individual could obtain an exception if he needed his arms for self-defense or some

other legitimate reason.”).

¶ 179 According to the State and the special concurrence, historical disarmament laws are

well established and representative historical analogues to the FOID Act. First, they contend the

FOID Act imposes a comparable burden to loyalty-oath laws by prohibiting the possession of

firearms only if an individual is deemed dangerous or is otherwise disqualified. See 430 ILCS 65/8

(West 2022). They both argue the justification for the FOID Act mirrors that of these laws because

it was enacted “to promote and protect the health, safety and welfare of the public,” (430 ILCS

65/1 (West 2022)), just as loyalty-oath laws were enacted to promote public safety.

¶ 180 As for the surety laws, the State contends the FOID Act similarly burdens a person’s

second amendment right to keep and bear arms because it seeks to advance public safety by

disarming individuals who pose a credible threat based on objective criteria. In the State’s view,

the FOID Act, like historical surety statutes, presumes individuals will be issued a FOID card

unless they fall into a specific category, such as those who demonstrate a likelihood to breach the

- 82 - peace. However, Justice Gorsuch’s concurrence in Rahimi warns us that, when making these

historical comparisons, “a court may not extrapolate from the Constitution’s text and history the

values behind [that right], and then ... enforce its guarantees only to the extent they serve (in the

courts’ views) those underlying values.” (Internal quotation marks omitted.) Rahimi, 602 U.S. at

710 (Gorsuch, J., concurring). He explained, “Courts must proceed with care in making

comparisons to historic firearm regulations, or else they risk gaming away an individual right the

people expressly preserved for themselves in the Constitution’s text.” Rahimi, 602 U.S. at 711

(Gorsuch, J., concurring). I do not find regulations requiring evidence of a credible threat or a

refusal to swear an oath of loyalty before divesture of their preexisting right to keep and bear arms

to be “relevantly similar” to the FOID Act’s requirement that all citizens are required to prove the

absence of any prohibiting factors or circumstances before exercising that right. Bruen observed

there was little historical evidence authorities enforced surety laws, asserting, “The only recorded

case that we know of involved a justice of the peace declining to require a surety, even when the

complainant alleged that the arms-bearer did threaten to beat, wou[n]d, mai[m], and kill him.”

(Emphasis in original and internal quotation marks omitted.) Bruen, 597 U.S. at 58. Bruen also

noted a scholarly search of nineteenth-century newspapers revealed the only other examples

“involv[ed] black defendants who may have been targeted for selective or pretextual enforcement.”

Bruen, 597 U.S. at 58. Bruen found such an analogue “surely too slender a reed on which to hang

a historical tradition of restricting the right to public carry.” Bruen, 597 U.S. at 58. The same would

be true for the FOID Act’s preemptory prohibition against the basic right to keep firearms.

¶ 181 Regarding colonial loyalty-oath laws, I question whether laws disarming “disloyal”

groups of people can be considered as defensible analogues to the FOID Act. After Rahimi, it

would be dubious to rely on historical laws that would be found unconstitutional today, such as

- 83 - those prohibiting individuals from possessing firearms based on race, religion, or political

persuasion. See Rahimi, 602 U.S. at 694; Heller, 554 U.S. at 594-95, 600-03. As the Court said,

“By the time of the founding, *** state constitutions and the Second Amendment had largely

eliminated governmental authority to disarm political opponents on this side of the Atlantic.”

Rahimi, 602 U.S. at 694. Justice Kavanaugh’s concurrence reinforced that conclusion, saying,

“The Framers drafted and approved many provisions of the Constitution precisely to depart from

rather than adhere to certain pre-ratification laws, practices, or understandings.” Rahimi, 602 U.S.

at 720 (Kavanaugh, J., concurring). But beyond the modern-day unconstitutionality of such

restrictions, loyalty-oath laws cannot serve as appropriate analogues to the FOID Act because their

purpose for disarming “disloyal” groups was ostensibly to preserve the political and social order

during wartime. See Greenlee, supra, at 261 (“While public safety was a concern, most

disarmament efforts were meant to prevent armed rebellions.”). Their targeted use also suggests

these measures had a negligible impact on the right to keep and carry weapons in general. See

Greenlee, supra, at 265 (“[A]s was the case with all disarmaments during the colonial period, the

justification was always that those being disarmed were dangerous.”). Without more evidence

these wartime measures were meant to align with the constitution’s usual application during

peacetime, they carry little weight. See Bruen, 597 U.S. at 63 n.26. Given their narrow application,

the fact that colonial governments targeted and disarmed certain groups of people they distrusted

offers little support for modern, comprehensive restrictions like the FOID Act, which imposes

sweeping limitations on possessing firearms. See 430 ILCS 65/2 (West 2022).

¶ 182 Second, the FOID Act fundamentally differs from the disarmament laws upon

which the State relies because it restricts a far broader group from possessing firearms compared

to the smaller, specific groups of suspicious, dangerous, or untrustworthy individuals historically

- 84 - subject to long-term disarmament. Most notably, the FOID Act does not identify categories of

disqualified people before imposing restrictions. Instead, it forbids everyone in Illinois from

possessing a firearm until they “[s]ubmit evidence” that they do not fall within an unacceptable

class and are issued a FOID card. See 430 ILCS 65/2(a)(1), 4(a)(2) (West 2022). This is no small

difference. The common denominator found in each of the State’s analogues within this tradition

is that they addressed circumstances under which a law-abiding citizen could be disarmed or

divested of their preexisting right to be armed in the first place. But the FOID Act, by preemptively

depriving all citizens of firearms to keep those firearms out of dangerous or otherwise unsuitable

hands, operates in a meaningfully different way that extends far beyond historical disarmament

regulations like colonial loyalty-oath laws and surety statutes. See Rahimi, 602 U.S. at 692. More

importantly, this functional difference is precisely what the United States Supreme Court criticized

as unconstitutionally broad in potential analogues within this exact tradition. I would note, in this

instance, the majority does not actually tell us which disarmament laws identified by the State are

relevantly similar to FOID.

¶ 183 In Bruen, the Supreme Court determined New York’s licensing regime was not

analogous to historical surety laws because the two sets of laws worked in meaningfully different

ways. “While New York presumes that individuals have no public carry right without a showing

of heightened need, the surety statutes presumed that individuals had a right to public carry that

could be burdened only if another could make out a specific showing of reasonable cause to fear

an injury, or breach of the peace.” (Emphases in original and internal quotation marks omitted.)

Bruen, 597 U.S. at 56. Next, Rahimi examined how surety and “going armed” laws operated at our

nation’s founding, along with reviewing their purpose to discern a tradition of temporarily

disarming those found by a court to present “a clear threat of physical violence to another.” Rahimi,

- 85 - 602 U.S. at 698. Ultimately, the Supreme Court determined the challenged section of the United

States Code was relevantly similar to these laws because they all presumed “that the Second

Amendment right may only be burdened once a defendant has been found to pose a credible threat

to the physical safety of others.” Rahimi, 602 U.S. at 700. The majority does not tell us how the

surety laws referenced by the State are relevantly similar to the FOID Act, other than to say they

both have preventative aims. See supra ¶ 39.

¶ 184 The point is that different mechanisms often impose different burdens. The

Supreme Court in both Bruen and Rahimi found it determinative that disarmament laws were

aimed at those who were already deemed dangerous and used this as the basis for comparing

present-day restrictions. In this case, the historical disarmament laws the State cites as allegedly

supporting a tradition of prohibiting dangerous or untrustworthy people from possessing firearms

all function the same way—by targeting certain groups of supposedly dangerous or untrustworthy

people and penalizing them for failing to surrender their firearms or prove they were not

unqualified to possess weapons. But this is markedly different from how the FOID Act works.

Instead, the FOID Act treats everyone as presumptively unqualified to possess a firearm until they

“[s]ubmit evidence” that they are safe and responsible. See 430 ILCS 65/4(a)(2) (West 2022).

Historical disarmament laws imposed no such restraint. See Rahimi, 602 U.S. at 692. Thus, I

cannot say the FOID Act is relevantly similar to historical disarmament laws, such as colonial

loyalty-oath and nineteenth-century surety laws, as they do not share comparable burdens.

Remember—“how and why the regulations burden a law-abiding citizen’s right to armed self-

defense” is significant because “individual self-defense is the central component of the Second

Amendment right.” (Emphasis in original and internal quotation marks omitted.) Bruen, 597 U.S.

at 28-29; Rahimi, 602 U.S. at 692.

- 86 - ¶ 185 b. Militia Laws

¶ 186 Next, the State argues the FOID Act is justified by a historical tradition of laws

requiring training for members of the militia, citing several colonial militiatraining laws as support.

But this argument is unavailing because militia-training laws placed no restrictions on acquiring

or owning firearms. While many of them generally required members of the militia to provide their

own weapons and show up for routine training, colonial militia-training laws never conditioned

keeping or bearing arms on participation in militia training. For instance, a Massachusetts law

enacted in 1757 required “that every person from the age of sixteen to sixty, not exempted by law,

shall appear with arms and ammunition according to law, and attend his duty each of the aforesaid

days.” 1757 Mass. Acts 51. In 1778, New Jersey enacted a law requiring militia members to

“assemble, properly armed and accoutered, twice in the Year, at such Times and Place or Places

as the Field-Officers, or a Majority of them, shall direct for the Purpose of Training and Exercise.”

1778 N.J. Laws 42. The law imposed monetary sanctions based on the absentee’s rank “in case of

absence” and sanctioned any militia member who failed to acquire the proper arms and

ammunition. See 1778 N.J. Laws 45. Connecticut also enacted a law in 1799 penalizing militia

members who “neglect[ed] to appear at the Time and Place appointed for regimental or battalion

exercise” and fined militia members “for deficiencies of Arms, Ammunition and Accoutrements

required by Law.” 1799 Conn. Acts 511 (Reg. Sess.).

¶ 187 These examples illustrate clearly why historical militia-training laws are not

suitable analogues for the FOID Act, as it was one’s membership in the militia that subjected them

to the training requirements imposed by early militia-training laws, not their ownership of firearms.

The obligation to muster applied whether they owned a weapon or not. In fact, many of these laws

required militia members to acquire their own arms, ammunition, and equipment, whereas the

- 87 - FOID Act broadly restricts a person’s ability to do so. Further, a militia member could not avoid

a training obligation by getting rid of his weapon, and he would be punished if he did. See 1738

Va. Acts 21 (fining militia members “five shillings, or fifty pounds of tobacco, *** for not

appearing at muster, compleatly armed and accoutered”). Also, mere gun ownership did not

obligate someone to train with the militia. Women and elderly persons who owned firearms did

not need to appear for training. Historical militia-training laws did nothing to regulate the keeping

or bearing of arms. As a result, they cannot buttress the constitutionality of Illinois’s FOID card

requirement, which, unlike these laws, regulates second amendment freedoms. See Bruen, 597

U.S. at 28-29 (“[D]etermining whether a historical regulation is a proper analogue for a distinctly

modern firearm regulation requires a determination of whether the two regulations are relevantly

similar.” (Internal quotation marks omitted.)).

¶ 188 c. Nineteenth-Century Laws

¶ 189 Finally, the State contends the principles underlying the FOID Act are relevantly

similar to several nineteenth-century laws that applied to firearm owners, such as registration and

taxation requirements. The State attempts to piece together a patchwork of unrelated regulations

designed for different reasons in an effort to create the appearance of a historical “tradition” similar

to the FOID Act. Specifically, in 1821, Maine passed a law requiring that all firearms be marked

and numbered, with a certificate to issue to the individual for each firearm. See 1821 Me. Laws

685. In the 1850s, North Carolina enacted a law requiring “every pistol, except such as are used

exclusively for mustering,” that was “used, worn or carried” to be taxed. 1856-1857 N.C. Sess.

Laws 34. And in 1893, Florida passed a law prohibiting the possession of a repeating rifle without

a license. See 1893 Fla. Laws 71-72. According to the State, these mid-to-late nineteenth-century

laws serve as relevantly similar analogues to the FOID Act because they, like the FOID Act,

- 88 - similarly burden the second amendment right to keep and bear arms by requiring individuals to

obtain proper authorization before possessing firearms and pay taxes on the firearms that they

possess. The State also argues these laws share a similar justification with the FOID Act because

they all seek to advance public safety.

¶ 190 “[D]etermining whether a historical regulation is a proper analogue for a distinctly

modern firearm regulation requires a determination of whether the two regulations are ‘relevantly

similar.’ ” Bruen, 597 U.S. at 28-29 (quoting Cass R. Sunstein, On Analogical Reasoning, 106

Harv. L. Rev. 741, 773 (1993)). “And because ‘[e]verything is similar in infinite ways to

everything else,’ [citation], one needs ‘some metric enabling the analogizer to assess which

similarities are important and which are not.’ ” Bruen, 597 U.S. at 29 (quoting Frederick Schauer

& Barbara A. Spellman, Analogy, Expertise, and Experience, 84 U. Chi. L. Rev. 249, 254 (2017)).

¶ 191 While all firearm restrictions may seek to advance the public safety, the relevant

question is whether there is a historical tradition for their existence and scope. The “why” may be

acceptable; the “how” is what must be viewed from the lens of the founders’ intentions for the

second amendment. When discussing the recognizably more regulated right of public carry, Bruen

warned, “whether modern and historical regulations impose a comparable burden on the right of

armed self-defense and whether that burden is comparably justified are central considerations

when engaging in an analogical inquiry.” (Emphasis and internal quotation marks omitted.) Bruen,

597 U.S. at 29.

¶ 192 A total ban of all firearms may “seek to advance public safety,” but there is no

historical analogue to which the State may point to justify a claimed tradition. The State is

effectively “gaming away an individual right the people expressly preserved for themselves in the

Constitution’s text” (Rahimi, 602 U.S. at 711 (Gorsuch, J., concurring)) by couching their

- 89 - justification for the FOID Act in the broad language of advancing public safety. But the FOID

Act’s purpose is found in its text: “[T]o provide a system of identifying persons who are not

qualified to acquire or possess firearms, firearm ammunition ***.” 430 ILCS 65/1 (West 2022).

That is the “why.” To implement this “why,” the State has placed a barrier between law-abiding

citizens and their second amendment rights, requiring them to prove they are not otherwise

prohibited from acquiring or possessing a firearm. That is the “how,” and it is not “consistent with

the principles that underpin our regulatory tradition.” Rahimi, 602 U.S. at 692. From Heller to

Rahimi, the Supreme Court has repeatedly emphasized “the right to keep and bear arms is among

the ‘fundamental rights necessary to our system of ordered liberty.’ ” Rahimi, 602 U.S. at 690

(quoting McDonald, 561 U.S. at 778). Nothing about the process of obtaining a FOID card

resembles the claimed nineteenth-century historical analogues or the “central component” of the

second amendment, namely the right to own firearms. “[C]ourts should not uphold every modern

law that remotely resembles a historical analogue, because doing so risk[s] endorsing outliers that

our ancestors would never have accepted.” (Internal quotation marks omitted.) Bruen, 597 U.S. at

30. The FOID Act is such an outlier.

¶ 193 “[L]icensing regimes and registration requirements are not the same thing, as each

serves a different purpose.” Herrera v. Raoul, 670 F. Supp. 3d 665, 679 (N.D. Ill. 2023). By

monitoring the sale and transfer of guns, registration requirements make it more difficult for illegal

trafficking to occur. See Robert J. Spitzer, Gun Law History in the United States and Second

Amendment Rights, 80 L. & Contemp. Probs. 55, 76 (2017) (“Arms and ammunition trafficking

was *** a concern as early as the seventeenth century ***.”). Additionally, “the founding

generation endured mandatory gun registration as a basis for ensuring a functional militia” and

“appreciated that weapons were to be regulated, often registered.” Meg Penrose, A Return to the

- 90 - States’ Rights Model: Amending the Constitution’s Most Controversial and Misunderstood

Provision, 46 Conn. L. Rev. 1463, 1483, 1485 (2014). More practically, if a registered gun is

stolen, the registration helps in its return to the rightful owner once recovered.

¶ 194 The nineteenth-century registration laws identified by the State only burdened the

transfer of firearms or required the registration of certain types of firearms. However, a licensing

regime like the FOID Act burdens an individual’s right to keep arms much differently by broadly

restricting everyone from acquiring any firearms without first showing they are suitable to possess

them and being issued a FOID card. See 430 ILCS 65/2(a)(1) (West 2022). The burdens imposed

by these nineteenth-century laws are in no way “relevantly similar” to those imposed by the FOID

Act. See Bruen, 597 U.S. at 29. Accordingly, because the nineteenth-century laws put forth by the

State do not share “a comparable burden on the right of armed self-defense” with the FOID Act,

they cannot serve as representative historical analogues to justify the FOID Act’s broad restrictions

on a person’s right to keep and bear arms. Bruen, 597 U.S. at 29.

¶ 195 D. Conclusion

¶ 196 GSL challenged the FOID Act as unconstitutional on its face—a high hurdle, to be

sure. Burns, 2015 IL 117387, ¶ 27. GSL cleared it. Meeting Bruen’s standard, GSL showed that

acquiring and/or possessing firearms is conduct covered by the second amendment’s plain text and

our nation does not have a history or tradition of such broad, sweeping restrictions on that conduct.

Because the State failed to establish that the FOID Act falls in line with our history and tradition

of firearm regulation, it has not shown a set of circumstances in which the FOID Act is valid. If a

firearm restriction has no analogue in our history, meaning a relevantly similar law has never been

constitutionally imposed, then there is no set of circumstances where that law can be

constitutionally applied now. Recall Bruen’s observation that, “when a challenged regulation

- 91 - addresses a general societal problem that has persisted since the 18th century, the lack of a

distinctly similar historical regulation addressing that problem is relevant evidence that the

challenged regulation is inconsistent with the Second Amendment.” Bruen, 597 U.S. at 26. The

State argued the FOID Act addresses society’s need to keep firearms out of dangerous hands—a

societal problem dating back to this nation’s founding and before. Yet, the State has not provided

a similar historical analogue addressing that problem by broadly prohibiting firearm acquisition

and possession by anyone in the State of Illinois. Accordingly, the State failed to refute GSL’s

facial challenge.

¶ 197 In sum, as stated in McDonald, “the Second Amendment protects a personal right

to keep and bear arms for lawful purposes, most notably for self-defense within the home. [The

State], in effect, ask[s] us to treat the right recognized in Heller as a second-class right, subject to

an entirely different body of rules than the other Bill of Rights guarantees.” McDonald, 561 U.S.

at 780. The State points to no relevantly similar historical analogue showing the preemptive

restriction imposed by the FOID Act “is consistent with the Nation’s historical tradition of firearm

regulation.” (Internal quotation marks omitted.) Rahimi, 602 U.S. 689. Neither the majority nor

the special concurrence does any better. Further, the FOID Act effectively stands the second

amendment on its head, reversing the exercise of the right as it has been known historically.

Although the acquisition and possession of firearms, as regulated by the FOID Act, are clearly

contained within the constitution’s text and consistent with our history of firearm ownership, and

are therefore presumptively protected, Illinois requires the holder of the constitutional right to

prove they are not a person otherwise subject to a restriction or prohibition before they may

exercise that right. All the historical analogues argued by the State or examined by the United

States Supreme Court in this context recognized the preexisting right, which either through status,

- 92 - conduct, or circumstances, the government could demonstrate was subject to restriction. The

founders understood almost everyone had the right to keep and bear arms, unless and until there

was some basis for removal. The FOID Act presumes no one has the right to keep and bear arms,

unless and until the right holder proves otherwise. This is the definition of unconstitutional.

¶ 198 For the reasons stated, I would find the FOID Act facially unconstitutional and, as

a result, see no need to address the fees issue.

- 93 - Guns Save Life, Inc. v. Kelly, 2025 IL App (4th) 230662

Decision Under Review: Appeal from the Circuit Court of Sangamon County, No. 19- CH-180; the Hon. Jennifer M. Ascher, Judge, presiding.

Attorneys Andrew A. Lothson and Benjamin D. Lothson, of Swanson, for Martin & Bell, LLP, of Chicago, for appellant. Appellant:

Attorneys Kwame Raoul, Attorney General, of Chicago (Jane Elinor Notz, for Solicitor General, and Kaitlyn N. Chenevert, Assistant Attorney Appellee: General, of counsel), for appellee.

- 94 -