Wednesday, August 18, 2010

Illinois's FOID Card Challenged

When one thinks of organizations supporting pro-gun rights litigation, immediately think of either the NRA or the Second Amendment Foundation. In California, this can be expanded to include the CalGuns Foundation and the California Rifle and Pistol Association. This explains, in part, why the case of Mishaga v. Monken which challenges Illinois's Firearm Owner's Identification law flew under the radar. You do not think of the Mountain States Legal Foundation which is providing legal assistance in both this case and the suit against the Nevada State Park system, Baker v. Biaggi et al.

That may well be changing. Jim Manley, the staff attorney for MSLF handling their firearms litigation, shared this in an email to me:
MSLF is committed to protecting individual rights and that commitment extends to protecting the right to keep and bear arms. To that end, MSLF filed amicus briefs in Heller and McDonald. MSLF also represents the students suing the University of Colorado to overturn that school's concealed carry ban.
In this case, Mishaga v. Monken, the Illinois State Police are being sued by Ellen Mishaga for violating her Second and Fourteenth Amendment rights. Mrs. Mishaga is a resident of Ohio who frequently visits friends in Illinois on overnight trips. While staying in her friend's home, she wants to be able to have a loaded firearm for self-protection. However, this would violate the Firearm Owners Identification Card Act, 430 ILCS 65/2 (10), which requires non-residents to keep their firearms unloaded and enclosed in a case. The other exceptions to the requirement to have a FOID card involve law enforcement officials, non-resident hunters, or competitors in shooting competitions - none of which apply to her. The full list can be found here.

As the suit states with regard to her Second Amendment rights:
9. The Second Amendment guarantees, inter alia, the right to possess and use firearms in a home for personal security.

10. An overnight guest has a legitimate expectation of personal security in her host’s home and an overnight guest has the same Second Amendment right to possess and use firearms that the overnight guest has in her own home.
Mrs. Mishaga twice applied for an Illinois FOID card and both times her application was rejected. The rejection was because she did not have an Illinois driver's license or Illinois identification card. As a resident of the state of Ohio she is precluded from having either form of identification. The suit notes that "Illinois law recognizes the right of Illinois residents to keep and bear arms, Ill. Const. Art I, Sec. 22; 430 ICLS 65/1 et seq." Therefore, the suit claims:
The right to travel, guaranteed by the privileges and immunities clauses of Article IV and the Fourteenth Amendment, is violated when a State discriminates against citizens of other States where there is no substantial reason for the discrimination beyond the mere fact that they are citizens of other States.
Specifically, with regard to Illinois:
Illinois law prohibits Ms. Mishaga from possessing a functional firearm for self-defense when she is an overnight guest in her friends’ Illinois home because she is not a resident of Illinois. 430 ILCS 65/2; 65/4; 65/14.

By prohibiting Ms. Mishaga from possessing a functional firearm, Defendant
currently maintains and actively enforces a set of laws, customs, practices, and policies under color of state law that discriminate against citizens of other States, including Ms. Mishaga, and thereby deprives Ms. Mishaga of the right to travel, in violation of the privileges and immunities clauses of Article IV and the Fourteenth Amendment.
The suit is seeking a permanent injunction against the enforcement of the FOID card requirement on out-of-state residents or, as an alternative, to process Mrs. Mishaga's application for a FOID card. The lawsuit is filed in the U.S. District Court for the Central District of Illinois.

The full complaint can be found here.

While I, of course, want all the post-McDonald litigation to succeed, I especially want Mrs. Mishaga to prevail in her case. The Complementary Spouse's mother lives on the Illinois side of the river in Metro St. Louis. Whenever we go out to visit, I must lock up and unload my firearm in Kentucky before we cross the Ohio River even though I have a concealed carry permit. If we go into St. Louis, we must travel through East St. Louis which has one of the highest crime rates in the nation. I drive through there in that gray area between being in Condition Yellow and being in Condition Orange. It is that bad.

I plan on sending a donation to MSLF. You can find out more about them here.


  1. Peterson v. LaCabe is a similar non-resident carry case.

  2. I think the key difference would be that Mishaga is not seeking to carry but just have access to a functional firearm within a house.