JERRY W. CORAM, Appellee,
THE STATE OF ILLINOIS (The Illinois Department of State Police, Appellant).
Chief Justice Kilbride and Justice Thomas concurred in the judgment and opinion.
¶ 1 This appeal comes to us pursuant to Illinois Supreme Court Rule 302(a) (Ill. S.Ct. R. 302(a) (eff. Oct. 4, 2011)), the circuit court of Adams County having held section 922(g)(9) of the federal Gun Control Act of 1968, as amended (18 U.S.C. § 922(g)(9) (2006)), unconstitutional as applied to Jerry W. Coram.
¶ 2 Before this court, the Illinois Department of State Police (the Department), appellant herein, contends that the firearm ban of section 922(g)(9) is "constitutional under the Second Amendment, " both facially and as applied to Coram. The United States, as amicus curiae, argues that "the circuit court erred in holding that the denial of petitioner's application for a firearm owner's identification card infringes on any constitutionally protected interests." As we see it, there is no viable argument as to whether the federal firearms ban was properly imposed upon Coram and others like him. At oral argument Coram's attorney more or less conceded as much. Moreover, as will appear hereafter, we see no need to address the contention that section 922(g)(9) is unconstitutional as applied to Coram; nor, we conclude, was there a reason for the circuit court to do so.
¶ 3 We believe the applicable state and federal statutory schemes can be interpreted in a manner consistent with congressional intent and in such a way as to afford Coram his firearm rights under the Illinois Constitution (Ill. Const. 1970, art. I, § 22) and the second amendment to the United States Constitution (U.S. Const., amend. II). We thus conclude the circuit court erred in holding section 922(g)(9) unconstitutional as applied to Coram.
¶ 4 CORAM'S 1992 CONVICTION
¶ 5 On June 26, 1992, Jerry Coram was charged, in the circuit court of Adams County, with the offense of domestic battery, pursuant to section 12-3.2(a)(1) of the Criminal Code of 1961 (Ill. Rev. Stat. 1991, ch. 38, ¶ 12-3.2(a)(1)), the information stating that Coram had "slapped [the victim] in the face with his hand." A police report indicated that Coram was intoxicated during an argument preceding the incident, and the victim, Coram's live-in girlfriend, had advised Coram, just prior to the assault, that she had engaged in sexual intercourse with other men. On July 10, 1992, Coram pled guilty to the offense of domestic battery, as charged. He was sentenced to 12 months' conditional discharge and was ordered to pay a $100 fine, plus costs. No jail time was imposed as part of the sentence. There is no indication that the charge to which Coram pled had been reduced to induce the guilty plea. Nothing in the police report of the incident suggests that a firearm was present when the offense was committed.
¶ 6 At the time of Coram's conviction, the disqualifying provisions of Illinois' Firearm Owners Identification Card Act (FOID Card Act) (Ill. Rev. Stat. 1991, ch. 38, ¶ 83-8(a) through (h)) would not have affected Coram's rights to keep and bear arms under either the Illinois Constitution or the second amendment to the United States Constitution. In 1992, no federal statute disqualified Coram from possessing firearms as a result of his misdemeanor domestic battery conviction.
¶ 7 CORAM'S 2009 FOID CARD APPLICATION
¶ 8 In 2009, Coram applied for a FOID card. In his application, he truthfully answered that he had previously been convicted of domestic battery. He subsequently received a letter from the Illinois State Police denying his application based upon a 1996 amendment to the federal Gun Control Act of 1968,  which imposed a firearm disability upon any person convicted of a "misdemeanor crime of domestic violence." Although not identified as a statutory basis for denial in the letter, the action was obviously premised upon the authority granted the Illinois State Police under section 8(n) of the FOID Card Act to deny the applicant a card, in the first instance, where the person is "prohibited from acquiring or possessing firearms or firearm ammunition by any Illinois State statute or by federal law." 430 ILCS 65/8(n) (West 2010).
¶ 9 Where, as here, "the denial" of a FOID card, and hence the right to legally possess a gun under Illinois law, was "based upon [a prior conviction of] domestic battery"—among other offenses the statute also addresses forcible felonies—section 10(a) of the FOID Card Act states that "the aggrieved party may petition the circuit court in writing in the county of his or her residence for a hearing upon such denial." 430 ILCS 65/10(a) (West 2010). At that hearing, the court is charged with determining whether "substantial justice has not been done, " and if it has not, the court is authorized by statute to direct the Department to issue the FOID card. 430 ILCS 65/10(b) (West 2010). The court's determination with respect to substantial justice is governed by the criteria of subsection (c) of section 10. Pertinent to the case before us, the statute provides that the court may "grant relief" from "such prohibition" "if it is established by the applicant to the court's satisfaction that the circumstances regarding a criminal conviction, where applicable, the applicant's criminal history and his reputation are such that the applicant will not be likely to act in a manner dangerous to public safety; and granting relief would not be contrary to the public interest." 430 ILCS 65/10(c)(2), (c)(3) (West 2010). An applicant must also establish that he or she has not been convicted of a forcible felony within 20 years of the application, "or at least 20 years have passed since the end of any period of imprisonment imposed in relation to that conviction." 430 ILCS 65/10(c)(1) (West 2010). By its plain language, subsection (c) of section 10, at the time of Coram's application and subsequent proceedings in the circuit court, allowed the court, in a proper case, to grant relief from prohibitory factors listed in section 8 and applied by the Department in the denial of a FOID card—including the factor listed in subsection (n).
¶ 10 PROCEEDINGS IN THE CIRCUIT COURT
¶ 11 On January 25, 2010, Coram filed a petition in the circuit court of Adams County seeking judicial review of the denial of his FOID card application. On May 10, 2010, Coram's petition came before Judge Mark Schuering for hearing. Pursuant to statutory requirements (430 ILCS 65/10(b) (West 2010)), the Adams County State's Attorney was given due notice and was afforded the opportunity to present evidence and object to the relief requested in the petition. The State's Attorney did neither.
¶ 12 A psychological report was filed in support of Coram's petition. In the report, the examining psychologist indicated that Coram exhibited no psychological malady and there appeared to be no reason for mental health treatment. The report states: "A careful review of [Coram's] life showed that, with the exception of the events that happened almost 20 years ago, he has lived an exemplary life. He exudes a sense of significant social responsibility, is deeply religious, and has positive relationships with others." The report concludes:
"There is no reason why, from a psychological viewpoint, [Coram] poses a danger to others, or should not be reconsidered for an FOID [card]. He is a pleasant man; shows no aberration in the last 19 years that would be considered to be legally, morally, or ethically significant or problematic. His behavior is positive, pro-social, and his demeanor is pleasant and positive. His life space is solid, he has adequate supports, appears to be a competent worker who has enjoyed a 15 year tenure in the same place, and enjoys being a productive member of society."
The examining psychologist "strongly recommended" that Coram be "reconsidered for an FOID [card], " noting, "[f]rom a mental health standpoint, there is no indication that [Coram] would be dangerous if given an FOID [card], and allowed to access any form of weaponry."
¶ 13 At the conclusion of the hearing, the court entered an order directing the Illinois State Police to issue a FOID card to petitioner. In the body of his order, Judge Schuering acknowledged Coram's 1992 conviction, but concluded that "[s]ubstantial justice has not been done in the denial of Petitioner's application for a FOID Card by the Department." In support of that assessment, the court found that "the circumstances regarding [Coram's] conviction, Petitioner's criminal history and his reputation are such that he will not be likely to act in a manner dangerous to public safety[, ] [t]hat granting the relief requested in the said petition would not be contrary to the public interest."
¶ 14 One month after entry of the order, the Department, through the Illinois Attorney General, filed motions to intervene and vacate the court's order. The motion to intervene was allowed. In support of its motion to vacate, the Department argued that federal law prohibited Coram from possessing a firearm and ammunition because of his 1992 misdemeanor domestic battery conviction, and the Department lacked the authority to issue a FOID card to anyone who was prohibited by federal law from possessing firearms or ammunition.
¶ 15 Coram moved to dismiss the Department's motion to vacate, responding that the statute which served as the basis for prohibition (18 U.S.C. § 922(g)(9) (2006)) was unconstitutional in that it violated his second amendment rights, his right to equal protection, and his substantive due process right to carry a gun.
¶ 16 Coram provided notice to the United States Attorney that he was challenging section 922(g)(9) on constitutional grounds. The United States did not intervene in the case, but did file a statement of interest. The United States argued, inter alia, that section 922(g)(9) satisfies the intermediate scrutiny standard applied to presumptively lawful categorical bans on firearm possession by violent offenders. The United States further contended that section 921(a)(33)(B)(ii) (18 U.S.C. § 921(a)(33)(B)(ii) (2006)) provided Coram a path to restoration of his rights to keep and bear arms. That section states, in pertinent part, that a "person shall not be considered to have been convicted of [a misdemeanor crime of domestic violence] for purposes of this chapter if the conviction has been expunged or set aside, or is an offense for which the person has been pardoned or has had civil rights restored (if the law of the applicable jurisdiction provides for the loss of civil rights under such an offense)." 18 U.S.C. § 921(a)(33)(B)(ii) (2006).
¶ 17 On December 30, 2011, Judge Thomas Ortbal entered judgment in this matter. The circuit court's thoughtful opinion and order identifies two issues presented: "A. Do the provisions of 18 U.S.C. section 922(g)(9) prohibit this court's judicial consideration and granting of relief from the denial of [a] FOID card pursuant to 430 ILCS 65/10? B. If applicable, are the provisions of 18 U.S.C. section 922(g)(9) violative of Coram's rights of equal protection and due process?" In the end, the court answered both those questions in the affirmative. Order at 2.
¶ 18 Relying upon the analysis of United States v. Skoien, 614 F.3d 638 (7th Cir. 2010), the court found that the statute survived a facial challenge; however, the court observed that "Skoien, itself reserved the question of whether 922(g)(9) could survive a Second Amendment challenge by a 'misdemeanant who has been law abiding for an extended period.' " Order at 5-6 (quoting in part Skoien, 614 F.3d at 645). The court ultimately ruled that the statute was unconstitutional as applied to Coram, insofar as the federal statutory scheme provided no avenue for relief from the federal firearm disability imposed by section 922(g)(9). Specifically, the basis for the court's ruling appears to be that section 921(a)(33)(B)(ii) cannot provide Coram relief, which he deserves, and section 10 of the FOID Card Act cannot provide the mechanism for doing so independently insofar as "the appeal and review process of 430 ILCS 65/10 does not provide for the restoration of a 'civil right' within the meaning of section 921(a)(33)(B)(ii)." Order at 9. The court concluded:
"The court finds that to deny an eligible applicant potential relief under the statutorily created scheme of 430 ILCS 65/10, adopted subsequent to the federal ban created by 922(g)(9) would be arbitrary and a denial of substantive due process as applied to the Petitioner Coram." Order at 9.
In reaching that conclusion, the court noted that a person who has had his conviction expunged, or has been pardoned, or has had his civil rights restored after a misdemeanor domestic battery conviction is eligible to possess a firearm by operation of section 921(a)(33)(B)(ii). However, the court observed that the Supreme Court, in Logan v. United States, 552 U.S. 23 (2007), held that the "the 'civil rights restored' language of [section] 921(a)(33)(B)(ii) does not cover a person whose civil rights were never taken away." Order at 5. Thus, Coram—because he was never sentenced to incarceration—could not take advantage of the restoration-of-rights clause insofar as Illinois does not revoke any civil rights by reason of a conviction for which no sentence of imprisonment is imposed. Moreover, even when a person is sentenced to incarceration, Illinois revokes—and then automatically restores upon release—only the right to vote. See Ill. Const. 1970, art. III, § 2; 730 ILCS 5/5-5-5(c) (West 2010). Further, Coram was not eligible for expungement under Illinois law (see 20 ILCS 2630/5.2 (West 2010)), and he did not attempt to seek a pardon. The Department conceded that a defendant convicted in Illinois of misdemeanor domestic battery, who actually served time in jail, would not be subject to the ban in section 922(g)(9), by virtue of the restoration provision in section 921(a)(33)(B)(ii), insofar as his right to vote would have been restored upon release. The circuit court determined, because section 921(a)(33)(B)(ii) could not provide Coram relief or a remedy within the federal statutory scheme, "Coram remains subject to the prohibitions of [section] 922(g)(9)." Order at 4-5.
¶ 19 Continuing with its constitutional inquiry, the circuit court reasoned that an individual who is sentenced to incarceration upon conviction of domestic battery is presumptively more dangerous, inflicted greater harm, and/or has a poorer criminal history or character than an individual who, like Coram, was not incarcerated upon conviction. Order at 7. "Thus, [section] 922(g)(9) permits one who is logically and presumably more of a danger to the victim and the public to automatically regain their right to possess firearms under the [section] 921(a)(33)(B)(ii) [provision for] 'civil rights restored.' " (Emphasis in original.) Order at 7. The court continued:
"To deny (other than through the governor's pardon) the right to a statutorily created judicial review appeal for restoration of such right is arbitrary and not narrowly tailored to its objective, as applied to the Plaintiff, a person who has led a law abiding life for an extended period of time and who based upon a judicial consideration of the offense, criminal history and reputation and character is found to be unlikely to act in a manner dangerous to public safety." Order at 7.
¶ 20 The circuit court rejected the Department's suggestion that Coram's argument invited an unworkable case-by-case standard, noting that section 10 of the FOID Card Act (430 ILCS 65/10 (West 2010)) provides appropriate standards for review of a denial of a FOID card and was enacted by the legislature presumably with full knowledge of the content of 18 U.S.C. § 922(g)(9). Apparently believing that the procedure for relief in section 10(c) of the FOID Card Act was irreconcilable with the federal statutory scheme, the court ruled section 922(g)(9)'s firearm ban unconstitutional as applied to Coram, denied the Department's motion to vacate, and confirmed that Judge Schuering's order, directing the issuance of a FOID card to Coram, "remains in full force and effect." Order at 9.
¶ 21 The Department filed notice of appeal on February 1, 2012. On March 5, 2012, this court entered an order remanding the cause to the circuit court with directions to supplement its opinion and order of December 30, 2011, to specifically address each of the requirements of Illinois Supreme Court Rule 18 (Ill. S.Ct. R. 18 (eff. Sept. 1, 2006)). In response to this court's order, the circuit court entered its Rule 18 findings, which included, inter alia, the following determinations:
"As set forth in the Order of December 30, 2011, the court finds that the provisions of 18 U.S.C., sec. 922(g)(9), which are incorporated by reference in 430 ILCS 65/8(n) as grounds for denial of a FOID card, are unconstitutional [under the second amendment], as applied to the Plaintiff.
(3) The court finds that 18 U.S.C., sec. 922(g)(9) as incorporated in 430 ILCS 65/8(n), cannot reasonably be construed in a manner that would preserve its validity, as applied to Plaintiff;
(4)The court finds that the finding of unconstitutionality, as applied, is necessary to the decision rendered and that such decision cannot rest upon alternative grounds[.]"
¶ 22 With those prerequisite findings, the circuit court's judgment is properly before us.
¶ 23 RELEVANT GUN CONTROL LEGISLATION AND PERTINENT INTERPRETATIVE CASE LAW
¶ 24 We begin with the stated purpose for which the Gun Control Act of 1968 was enacted. As acknowledged in the Historical and Statutory Notes to section 921 of the United States Code Annotated (18 U.S.C.A. § 921, Historical and Statutory Notes (West 2000):
"Section 101 of Pub. L. 90-618 provided that: 'The Congress hereby declares that the purpose of this title [which amended this chapter] is to provide support to Federal, State, and local law enforcement officials in their fight against crime and violence, and it is not the purpose of this title to place any undue or unnecessary Federal restrictions or burdens on law-abiding citizens with respect to the acquisition, possession, or use of firearms appropriate to the purpose of hunting, trapshooting, target shooting, personal protection, or any other lawful activity, and that this title is not intended to discourage or eliminate the private ownership or use of firearms by law-abiding citizens for lawful purposes, or provide for the imposition by Federal regulations of any procedures or requirements other than those reasonably necessary to implement and effectuate the provisions of this title.' "
¶ 25 From the beginning, it was unlawful for any person to take possession of a firearm when that person had been convicted of "a crime punishable by imprisonment for a term exceeding one year, " or "ha[d] been adjudicated as a mental defective" or had "been committed to any mental institution." Gun Control Act of 1968, Pub. L. No. 90-618, 82 Stat. 1213, 1220-21 (1968); 18 U.S.C. § 922(h)(1), (h)(4) (1970). The first disabling provision did not apply to "any State offense (other than one involving a firearm or explosive) classified by the laws of the State as a misdemeanor and punishable by a term of imprisonment of two years or less." 82 Stat. at 1216; 18 U.S.C. § 922(h)(1) (1970). From the outset, Congress recognized the need to provide relief from firearms disabilities in certain circumstances. 82 Stat. at 1225; 18 U.S.C. § 925(c) (1970). Section 925(c) of the Gun Control Act, at that time, allowed a person who had been convicted of "a crime punishable by imprisonment for a term exceeding one year (other than a crime involving the use of a firearm or other weapon)" to apply to the Secretary of the Treasury for relief from the federally imposed firearm disability. 82 Stat. at 1225; 18 U.S.C. § 925(c) (1968). Section 925(c) authorized the Secretary to grant relief if it was established to his satisfaction "that the circumstances regarding the conviction, and the applicant's record and reputation, [were] such that the applicant [was] not likely to act in a manner dangerous to public safety and that the granting of the relief would not be contrary to the public interest." No similar path to "relief"—or restoration—was provided for those who had a history of mental illness or disability.
¶ 26 That omission prompted a 1986 legal challenge. In United States Department of the Treasury, Bureau of Alcohol, Tobacco & Firearms v. Galioto, 477 U.S. 556 (1986), the Supreme Court was presented with an equal protection challenge by a former mental patient (Galioto) under federal firearm disability by reason of section 922(d)(4) of the federal statute (18 U.S.C § 922(d)(4) (1970) (prohibiting persons who have been committed to mental institutions from possessing firearms)). Galioto's claim was based upon the disparity of treatment accorded recovered mental patients under section 925(c) of the statute (18 U.S.C § 925(c) (1970)), who, unlike convicted felons, were excluded by omission from section 925(c)'s remedial provisions and were thus under a perpetual firearms disability. Galioto, 477 U.S. at 558.
¶ 27 The district court held that statutory scheme violated equal protection principles, finding " 'no rational basis for thus singling out mental patients for permanent disabled status, particularly as compared to convicts.' " Galioto, 477 U.S. at 559 (quoting Galioto v. Department of the Treasury, Bureau of Alcohol, Tobacco & Firearms, 602 F.Supp. 682, 689 (D.N.J. 1985)). The district court also concluded that the statutory scheme was unconstitutional because it " 'in effect creates an irrebuttable presumption that one who has been committed, no matter the circumstances, is forever mentally ill and dangerous.' " Galioto, 477 U.S. at 559 (quoting Galioto, 602 F.Supp. at 690).
¶ 28 While the case was pending before the United States Supreme Court, Congress came to the conclusion, "as a matter of legislative policy, " that the firearms statutes should be redrafted. Galioto, 477 U.S. at 559. Before a decision was rendered on the merits, the President signed into law Public Law 99-308 (Firearm Owners' Protection Act, Pub. L. No. 99-308, 100 Stat. 449 (1986)). Section 105 of that statute amended section 925(c) by striking the language limiting utilization of the remedial provision to certain felons, and including any person who is "prohibited from possessing, shipping, transporting, or receiving firearms or ammunition." (Internal quotation marks omitted.) Galioto, 477 U.S. at 559. Congress made the amendments "applicable to any action, petition, or appellate proceeding pending on the date of the enactment of this Act." (Internal quotation marks omitted.) Galioto, 477 U.S. at 559.
¶ 29 In response, the Supreme Court vacated the district court's judgment and remanded for further proceedings, stating:
"This enactment significantly alters the posture of this case. The new statutory scheme permits the Secretary to grant relief in some circumstances to former involuntarily committed mental patients such as appellee. The new approach affords an administrative remedy to former mental patients like that Congress provided for others prima facie ineligible to purchase firearms. Thus, it can no longer be contended that such persons have been 'singled out.' Also, no 'irrebuttable presumption' now exists since a hearing is afforded to anyone subject to firearms disabilities. Accordingly, the equal protection and 'irrebuttable presumption' issues discussed by the District Court are now moot." Galioto, 477 U.S. at 559-60.
With the amendment of section 925(c), Congress clearly intended to afford an avenue to relief, a "safety valve, " for any deserving individual subject to the categorical firearm disabilities imposed by section 922. See Logan v. United States, 552 U.S. 23, 28 n.1 (2007) ("[The Firearms Owners' Protection Act], 100 Stat. 449, included a 'safety valve' provision under which persons subject to federal firearms disabilities, including persons whose civil rights have not been restored, may apply to the Attorney General for relief from the disabilities.").
¶ 30 Implementation of section 925(c) apparently continued for several years, safeguarding the rights of the reformed and recovered. Then, in 1992, the budget axe fell, and Congress barred the Attorney General/Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) from using appropriated funds " 'to investigate or act upon [relief] applications, ' " a bar that was thereafter annually renewed. Logan v. United States, 552 U.S. 23, 28 n.1 (2007) (quoting United States v. Bean, 537 U.S. 71, 74-75 (2002)). Though section 925(c) remained on the books, its significance became, at best, aspirational, its reimplementation prospective.
¶ 31 The focus of Supreme Court litigation with respect to firearms disabilities seemingly shifted to argument over the parameters of relief obtainable through the restoration-of-civil-rights clauses of the federal statute. See 18 U.S.C. § 921(a)(20), (a)(33)(B)(ii) (2006). The former provided:
"What constitutes a conviction of such a crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held. Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms." 18 U.S.C. § 921(a)(20) (2006).
The latter contained similar language:
"A person shall not be considered to have been convicted of [a misdemeanor crime of domestic violence] if the conviction has been expunged or set aside, or is an offense for which the person has been pardoned or has had civil rights restored (if the law of the applicable jurisdiction provides for the loss of civil rights under such an offense) unless the pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms." 18 U.S.C. § 921(a)(33)(b)(ii) (2006).
In 1994, the Supreme Court rendered its opinion in Beecham v. United States, 511 U.S. 368 (1994). The question in Beecham was "which jurisdiction's law is to be considered in determining whether a felon 'has had civil rights restored' for a prior federal conviction." Beecham, 511 U.S. at 369. The Court answered that question in the manner clearly mandated by section 921(a)(20)—a provision modified by Congress in response to the Court's prior opinion in Dickerson v. New Banner Institute, Inc., 460 U.S. 103 (1983) (holding that federal law alone determined whether a state conviction counted, regardless of whether the state had expunged the conviction). The Beecham Court held that the restoration-of-rights exemption "refer[s] only to restorations of civil rights by the convicting jurisdiction." (Emphasis added.) Beecham, 511 U.S. at 372. The Court dismissed the suggestion that, because there is apparently no federal procedure for restoring civil rights to a federal felon, the restoration-of-rights provision must in that case refer to a state procedure. Beecham, 511 U.S. at 372. The Court acknowledged, "[h]owever one reads the statutory scheme people in some jurisdictions would have options open to them that people in other jurisdictions may lack" (Beecham, 511 U.S. at 373); nonetheless, the Court considered that disparate ...