Mishaga v. Monken – Illinois Responds in FOID Challenge Case

The State of Illinois has responded to the challenge to the FOID Card – Firearms Owner Identification Card – requirements brought by the Mountain States Legal Foundation with a Motion to Dismiss. They base their motion on a Federal Rules of Civil Procedure Section 12 (b)(6) failure to state a claim on which relief can be granted.

Illinois contends that Ms. Mishaga, if a lawful gun owner in the State of Ohio, does not need an Illinois FOID card as she meets the exceptions to the requirement to possess a FOID card. As such, they argue that they have not interfered with her right to bear arms or her right to travel.

Tellingly, sections (2)(b)(9) and (2)(b)(10) allow Plaintiff to possess her firearms so long as she is lawfully able to do so in her resident State. See 430 ILCS 65/2(b). Assuming, as Plaintiff asserts, that she is lawfully able to carry guns in Ohio, Plaintiff qualifies under the exemptions and is not required to have an Illinois FOID Card to possess firearms in the State of Illinois. As such, the Defendant’s refusal to issue Plaintiff an Illinois FOID Card has no impact on her ability to possess firearms in the State of Illinois. Therefore, Plaintiff’s constitutional rights have not been harmed by Defendant’s actions and Plaintiff’s complaint should be dismissed.

Here is how the sections referred to, 430 ILCS 65/2 (b)(9) and (b)(10), read (with emphasis added):

(9) Nonresidents whose firearms are unloaded and
enclosed in a case;

(10) Nonresidents who are currently licensed or
registered to possess a firearm in their resident state;

As Jim Manley, the attorney bringing this case on behalf of Ms. Mishaga, pointed out in an email to me regarding this case:

the Illinois law plainly states that nonresidents can possess functional firearms for self-defense only if they are “licensed or registered to possess a firearm in their resident state.” Since Ohio does not require a license, or offer one, Illinois law denies Mishaga her 2nd Amendment rights.

He is absolutely correct. If one examines the Ohio Revised Code on firearms, there is no mention of any license or registration requirement for firearms possession in the State of Ohio.

The State of Illinois is bordered by five states: Indiana, Iowa, Kentucky, Missouri, and Wisconsin. The states of Indiana, Kentucky, and Missouri require no license or registration to either possess or purchase firearms. Iowa requires no license or registration to possess a firearm but does require a permit to purchase a handgun. While Wisconsin requires no license or registration to possess or purchase any firearm, they do impose a 2-day waiting period on the purchase of handguns. By my reading of 430 ILCS 65/2 (b)(10), none of the residents of those states, with some exceptions, would be permitted to possess a functioning firearm in Illinois either.

Most states do not require a license or registration of the owner in order to possess a firearm. There are exceptions like the states of New York and Massachusetts which either require a permit to possess a pistol in New York’s case or a Firearms ID card in the case of Massachusetts.

When you read the response from the State of Illinois to Ms. Mishaga’s complaint, you are left wondering whether the Assistant Attorney General who drafted their response, Joanna Belle Gunderson, is even aware that many other states including Ohio don’t require a license nor require registration of gun owners. If she isn’t, then she has unwittingly pointed out a fatal flaw in her own argument.