LACK OF STANDING DOOMS CHALLENGE
TO FIREARMS IDENTIFICATION CARD STATUTE
by
Prof. Anthony Michael Sabino
We recently exposited a federal appellate decision which concluded that a New York City resident lacked legal standing to vindicate his Right to Keep and Bear Arms once authorities granted him a firearms permit. Sabino, “Second Circuit Overrules Srour,” 37 News & Briefs at 7 (March/April 2025), analyzing Srour v. New York City, 117 F.4th 72 (2d Cir. 2024) (“Srour II”). While respectfully acknowledging the technical correctness of that tribunal’s holding, we nevertheless expressed “grave concerns” that other courts might likewise utilize the standing doctrine as a means to confound the Second Amendment’s liberty guarantee.
Regrettably, that concern has now become a reality, at least in Illinois. In a remarkably similar situation, the Prairie State’s highest bench dismissed a constitutional challenge to that jurisdiction’s Firearm Owners Identification (FOID) Card Act for lack of standing. Davis v. Yenchko, 248 N.E.3d 1096 (2024).
Pursuant to Illinois law, Aaron Davis and his son Charles had their FOID cards revoked for approximately a year after they were charged with felony reckless discharge of firearms. But they were never convicted, and their firearm identifications were returned after the pair pled guilty to misdemeanors.
Subsequently, father and son sought to permanently enjoin the authorities from suspending their FOID cards upon the mere charging, but not conviction, of a felony. Agreeing that the challenged proviso was unconstitutional, a lower state court entered the requested injunction, and even awarded attorneys’ fees.
Overturning the trial judge’s edict, the Supreme Court of Illinois dismissed the action for lack of standing, reasoning that since their FOID cards had already been restored, the plaintiffs lacked the required personal stake in any outcome. Justice O’Brien also relied upon the fact that father and son had failed to seek monetary relief, and furthermore rejected as “purely speculative” the claimants’ assertion that they “could again be charged with a felony and again have their FOID cards revoked.”
Davis presents the same conundrum as Srour II. Both are theoretically correct. We cannot dispute that judges must be confined to deciding only “live” controversies. Yet to invoke the standing maxim too easily can foreclose a just adjudication of the Right to Keep and Bear Arms.
To be sure, the controversy might have ended differently if the Davis plaintiffs had been more timely in commencing their constitutional challenge, and had also appended a claim for money damages for the period their FOID cards were suspended. Equally so, we cannot help but think that the Illinois Supreme Court was too facile in discrediting the danger that these citizens might once again have their firearms identifications revoked pursuant to the statute if they were to be merely accused, but not convicted, of wrongdoing.
We foresee any or all of three possible remedies to cases such as Davis: future plaintiffs acting with more alacrity, and requesting monetary relief; courts willing to find that standing does exist where Second Amendment violations might be repeated; and the amendment or passage of legislation which mandates that mere accusations of criminality are insufficient to thwart the Right to Keep and Bear Arms.
FINAL Illinois FOID Act standing v.1
AMS/dal