New Judge For Challenge To Illinois FOID Card

Mishaga v. Monken, the challenge to Illinois’s FOID Card regulation brought by the Mountain States Legal Foundation, has been reassigned from Chief District Court Judge Michael McCuskey to newly confirmed District Court Judge Sue E. Myersclough. It is a common occurance for new judges to have cases reassigned to them.

I am not sure how this will impact the case. If you will remember, back in November Judge McCuskey denied the state’s motion to dismiss the case. His decison seemed to portend good things for this case as it went to trial.

Judge Myersclough served from 1998 until her confirmation as a judge on the Illinois Appellate Court, Fourth District. From 1990 to 1998, Myersclough was a Circuit Judge for the Circuit Court of Illinois, Seventh Judicial Circuit. Both of these courts meet in Springfield. She was nominated by President Obama in July 2010 and confirmed by the Senate in February 2011. Myersclough was nominated back in 1995 by President Bill Clinton for a District Court Judgeship but was not confirmed.

Myersclough is a graduate of Southern Illinois University taking her B.A. from there in 1973 and her J.D. from its law school in 1980. According to the public questionnaire submitted to the Senate Judiciary Committee, she also did graduate study at both Southern Illinois and the University of Chicago before attending law school.

As to her political leanings, she is a Democrat as would be expected. She had won a few awards from state and local Democratic committees for service over the years. She did run – but lost – for the Illinois Supreme Court back in 2002.

The important thing for us is how she would deal with Second Amendment rights. She did get a couple of questions for the record on Second Amendment issues from Senator Jeff Sessions (R-AL) and Senator Tom Coburn (R-OK).

From Sessions with her response:

Do you believe that the Second Amendment is an individual right or a collective right? Please explain your answer.
Response: The Supreme Court decisions in District of Columbia v. Heller, 128 S. Ct. 2783 (2008) and McDonald v. City of Chicago, 130 S. Ct. 3020 (2010) hold that the Second Amendment confers an individual right.

a. What standard of scrutiny do you believe is appropriate in a Second Amendment challenge against a Federal or State gun law?
Response: In Heller and McDonald, the Supreme Court found a right under the
Second Amendment must be treated in the same manner as any fundamental right identified in the Bill of Rights. The Second Amendment right to bear arms should therefore not be treated as a “watered down right” subject to “judicial interest balancing.” See Heller, 128 S. C. at 2821; McDonald, 130 S. Ct. at 3047.

From Coburn with her response:

What limitations remain on the individual Second Amendment right now that it has been incorporated against the States?
Response: What limits remain on the Second Amendment remain open but for those limits expressly set forth by the Supreme Court as presumptively lawful regulations in District of Columbia v. Heller, 128 S. Ct. 2783 (2008). “[N]othing in our opinion should be taken to cast doubt on the 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, 128 S. Ct. at 2816-17.

a. Is it limited only to possession of a handgun for self-defense in the home, since both Heller and McDonald involved cases of handgun possession for self-defense in the home?
Response: Both Heller and McDonald specifically found city ordinances unconstitutional that prohibited handgun possession in the home. The Supreme Court has left open for future evaluations examples of other limits on the Second Amendment. But the Supreme Court made clear that core protections are conferred by the Second Amendment. “In Heller, however, we expressly rejected the argument that the scope of the Second Amendment right should be determined by judicial interest balancing, [citation] and this Court decades ago abandoned ‘the notion that the Fourteenth Amendment applies to the States only a watereddown, subjective version of the individual guarantees of the Bill of Rights.’[Citation.]” McDonald, 130 S. Ct. at 3047.

I guess that is the best one could hope to hear from any nominee for a District Court judgeship. She does note that it is a “fundamental right”.

Now that she has taken over Mishaga, Myersclough has set the Final Pretrial Conference for December 19, 2011 and the Bench Trial is set to start January 3, 2012. I’m sure both of these dates could change over the coming months. In any event, it will be almost a year before any decision is rendered on whether the denial of Ellen Mishaga’s application for a FOID Card is unconstitutional or not.


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