Second Amendment Challenge to Illinois Ban on Non-Residents’ Possession of Guns May Proceed

From Mishaga v. Monken (C.D. Ill., decided Monday), which rejected the government’s motion to dismiss the claim:

According to the Complaint, Plaintiff Ellen Mishaga is a resident of Ohio who frequently travels to Illinois. Mishaga stays in the home of friends while in Illinois. She wishes to possess a functional firearm for her personal protection while residing in her friends’ home in Illinois. Possession of firearms in Illinois is governed by the Illinois Firearm Owners Identification Card Act (Act). 430 ILCS 65/0.01 et seq. The Act generally requires individuals to have an Illinois Firearm Owner’s Identification Card (FOID Card) to possess a weapon in Illinois. 430 ILCS 65/2. The Illinois State Police (ISP) issues FOID Cards. 430 ILCS 65/5. Mishaga has applied for a FOID Card twice, but the ISP denied her application both times because she does not have an Illinois driver’s license….

The Second Amendment generally guarantees an individual the right to possess a weapon for protection in case of a confrontation. The right includes a right to possess a weapon within one’s own home that may be used for personal protection.2 The Act generally prohibits a person from possessing a weapon in Illinois unless the person has a FOID Card. Mishaga alleges that the ISP has refused to issue her a FOID Card because she does not have an Illinois driver’s license. The Act requires an applicant for a FOID Card to provide the ISP with the applicant’s driver’s license number or Illinois identification card number. The Act only requires a driver’s license number, not an Illinois driver’s license number. Thus, it is unclear whether an Ohio driver’s license number would suffice. Mishaga, however, alleges that the ISP has twice denied her application for a FOID Card because she does not have an Illinois driver’s license.

For purposes of the Motion, the Court must assume that the Director and the ISP interpret the Act to require an applicant to provide an Illinois driver’s license number or an Illinois identification card number. The Act, therefore, interferes with Mishaga’s right to have a weapon at her temporary residence in Illinois that she may use for personal protection…. The Complaint … alleges that the Act prohibits Mishaga from possessing a weapon at her temporary residence in Illinois that she may use for personal protection in violation of her constitutional right to bear arms. Mishaga states a claim.

THEREFORE, the Motion to Dismiss … is DENIED.

[Footnote 2:] The parties have not addressed the issue of the scope of the right of a guest in a home to possess a weapon. The Court assumes for purposes of this Motion only that Mishaga has the same right as the owner of the home to possess a weapon that she may use for protection even though she is only a guest in the home. The Heller decision addresses the right to possess a useable weapon in one’s own home to protect oneself, one’s home, and one’s family. The Heller Court agreed that the state may limit the right to bear arms outside of one’s own home, at least in some contexts. Heller, at 2817 (noting, for example, that the state may prohibit the possession of weapons in schools and other public facilities). In this case, Mishaga is a guest in someone else’s home. The parties do not address whether Mishaga’s right to possess a weapon as a guest may be more limited than the homeowner in Heller because she is not protecting her own home and because her loaded weapon may present dangers to the permanent residents of the home or to other Illinois citizens. At some point in this proceeding, the parties may need to address the exact scope of the constitutional right of a guest to possess a weapon in the home of another person.

Presumably the court will in the coming months deal with the Second Amendment issue in more detail, but so far this is an encouraging sign for the plaintiff.