Re: Denied Illinois FOID card

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I completely agree concerning laws against any confirmed mental health patient, that
maybe a threat to society concerning possession of any firearms. What I dis-agree with
is the idiots who interpret the laws, such as judges, lawyers, state police; they must
understand that to imply or make the statement that someone is a mental defect they
must have the authority to do so, and written documentation of proof from a certified
doctor, not just based on some judge, or police officers personal opinion. Just
because someone got a prescription for say Prozac for depression doesn’t constute them
as a mental defect. Lets keep in tune with the laws that are written and also keep law
enforcment and judges on the right track of the law.

On 7/12/08, nope wrote:
> In order to promote and protect the health, safety and welfare of the public, it is
> necessary and in the public interest to provide a system of identifying persons who
> are not qualified to acquire or possess firearms, firearm ammunition, stun guns, and
> tasers within the State of Illinois by the establishment of a system of Firearm
> Owner's Identification Cards, thereby establishing a practical and workable system
by
> which law enforcement authorities will be afforded an opportunity to identify those
> persons who are prohibited by Section 24‑3.1 of the "Criminal Code of 1961", as
> amended, from acquiring or possessing firearms and firearm ammunition and who are
> prohibited by this Act from acquiring stun guns and tasers.
>
> Being adjudicated as a mental defective" means the person is the subject of a
> determination by a court, board, commission or other lawful authority that a person,
> as a result of marked subnormal intelligence, or mental illness, mental impairment,
> incompetency, condition, or disease:
> (1) is a danger to himself, herself, or to others;
> (2) lacks the mental capacity to manage his or her
> own affairs;
>
> (3) is not guilty in a criminal case by reason of
> insanity, mental disease or defect;
>
> (4) is incompetent to stand trial in a criminal case;
> (5) is not guilty by reason of lack of mental
> responsibility pursuant to Articles 50a and 72b of the Uniform Code of Military
> Justice, 10 U.S.C. 850a, 876b.
>
> "Counterfeit" means to copy or imitate, without legal authority, with intent to
> deceive.
>
>
>
> On 7/11/08, by paul a. to steven pitts wrote:
>> It can hardly be any surprise that anti-gun House members worked to sneak this bill
>> through before anyone was aware that it was going to be considered. The
>> negotiations have left legislation which is WORSE THAN THE ORGINAL McCARTHY BILL.
>>
>> The worst aspect is, in section 3(2), that it STATUTORILY FREEZES IN regulations at
>> 27 CFR 478.11 which would make you a "prohibited person" if:
>>
>> * You were found by any "lawful authority" (including a IDEA school therapist, a
>> Medicare psychologist, or a VA doctor to:
>> 1. Represent even a minimal suicide risk;
>> 2. Represent even a minimal playground risk to other students; or
>> 3. Be incapable of managing your own affairs; or
>> * Were referred by such "lawful authority" to a psychiatrist or psychologist to be
>> evaluated in connection with child custody proceedings or other contexts in which
>> professional assessment is ordered.
>> This means that a future hypothetical pro-gun administration would be powerless to
>> change the regulations so that they did not apply to:
>>
>> -- Veterans with post-traumatic stress disorder;
>> -- Kids put on Ritalin in connection with the IDEA program;
>> -- Seniors diagnosed with Alzheimer's in connection with Medicare's home health
>> care assistance; or
>> -- Seniors (perhaps with a gun collection accumulated over a lifetime) who continue
>> to live in their homes, but are put under guardianship by their adult children.
>> In the pretense of doing gun owners some huge favor, the bill explicitly
>> recognizes, in section 101(c)(1)(C), that a psychiatrist's finding is sufficient to
>> make you a prohibited person, so long as that finding is based on one of the three
>> criteria listed above. And, incidentally, when a kid is put on Ritalin, mom is
>> diagnosed with Alzheimer's, a vet is found to have post-traumatic stress disorder,
>> or gramps is put under a guardianship, it is ALMOST ALWAYS based, in whole or in
>> part, on one of those three factors.
>>
>> The bill, in section 101(c)(2)(A) and section 105, also requires federal agencies
>> like the Department of Veterans Affairs and states to set up procedures for
>> prohibited persons with "mental disabilities" to "clear their names." There are at
>> least four problems with this:
>>
>> 1. First, prior to this bill, vets suffering from post-traumatic stress disorder
>> were arguably not required to "clear their names." Ditto, seniors with Alzheimer's
>> kids on Ritalin, etc. By statutorily codifying 27 CFR 478.11, this bill, for the
>> first time, makes it statutorily mandated that these persons ARE and SHOULD BE
>> prohibited persons under 18 USC 922 (d) & (g). So the bill makes it absolutely
>> clear that vets, seniors, and adults who were problem kids are statutorily
>> prohibited from owning guns (for life), and then graciously opens the possibility
>> that they may apply for relief, in accordance with unspecified standards based
>> wholly on the discretion of the government.
>>
>> 2. Second, there already is a procedure for persons to "clear their names." It was
>> created by McClure-Volkmer and is contained at 18 USC 925(c). The problem is that,
>> for many years, Congress, on appropriations bills, has barred anyone from using
>> this procedure. So, having blocked procedures allowing people to "clear their
>> names," the House is now creating redundant procedures to do the same thing. And
>> they expect us to trust them?
>>
>> 3. Third, the bill states that "[r]elief and judicial review shall be available
>> according to the standards prescribed in section 925(c) of title 18, United States
>> Code." But, since Congress has blocked the implementation of section 925(c), there
>> is at least a question of whether this new, redundant procedure would not be
>> similarly automatically blocked, at least at the federal level.
>>
>> 4. Fourth, there is also a procedure for "clearing one's name" in subsection (g) of
>> the Statues-at-Large portion of the Brady Law, when the name is erroneously
>> submitted to NICS. The problem is that persons seeking to invoke this procedure to
>> establish that they were incorrectly classified are routinely sent a form letter
>> denying relief.
>>
>> Ironically, a particularly dangerous person who is actually held in a mental
>> institution may be able to obtain relief after he is "released or discharged,"
>> pursuant to section 101(c)(1)(A). But a person who is found to be suffered from
>> post-traumatic stress disorder, childhood behavioral problems, or Alzheimer's --
>> and who is not held anywhere (or subjected to anything) from which they can
>> be "released or discharged" -- could never take advantage of a provision which is
>> available to the criminally insane. And even this limited provision applies only to
>> federal agencies, and not states.
>>
>> Incidentally, if Congress appropriates NOTHING to implement this bill, the states
>> will still be required to comply with the unfunded mandates or risk loss of DOJ
>> funds under section 104.
>>
>> All of this is on top of the usual concerns that the McCarthy bill would still
>> require the states to turn over 90&37; of all information which was "relevant" to
>> whether an individual was a prohibited person by reason of being "an unlawful user
>> of or addicted to" any controlled substance or a mental defective (as that term
>> will now be defined.).
>>
>> Ironically, given the "tough enforcement" language being used to try to dislodge
>> the "amnesty" bill, the new draft excludes crackdowns on illegal aliens -- a
>> category which, more than any other, includes terrorists who have snuck into our
>> country. But the Attorney General, without a court order, can, at his or her
>> unilateral discretion, demand any information held by any state (or its agent)
>> which would be "relevant" in determining who fell into other categories, including
>> Medicare medical records, IDEA medical records, National guard medical records,
>> drug diversion records, records of drug charges not prosecuted, etc. And, unlike
>> the convicted serial killer, the unprosecuted marijuana smoker, veteran, or senior
>> would not be protected merely because his records were not available
>> electronically.
>>
>> And, finally, having compiled, potentially, the biggest list of dangerous persons
>> in existence, the records could not be used to go after terrorists or other
>> criminals.
>>
>> SUMMARY: It was not the intention of 18 USC 922 (d) & (g) to make veterans,
>> seniors, and misbehaved kids "prohibited persons" with an FBI dossier. Any
>> provision in 27 CFR 478.11 to the contrary is just plain wrong, and should be
>> changed. To freeze these regulations into statutory law is simply evil.
>>
>>
>>
>> --------------------------------------------------------------------------------
>>
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>>
>> On 7/11/08, Steven Pitts wrote:
>>>
>>> However, you all seem to be overlooking the law signed by the President HR 2640.
>>> the NICS Improvement Amendments Act. This ties hand in had with the possession of
>>> a gun, rifle, etc. of persons that have had a "Mental Illness" stigma attached to
>>> their name. According to the law, Federal Agencies must provide "relief from
>>> disabilities", removal of erroneous records, prevents the use of "Adjudications"
>>> when only medical diagnoses without findings that the people involved are
>>> dangerous or mentally incompetent." This means that the use of only purely
>>> medical records or even the report of suspected medical treatments cannot be used
>>> by NICS to deny the use or purchase of firearms. There are many more items of
>>> interest such as the purging of outdated records, allows the awarding of attorneys
>>> fees to applicants who successfully challenge a Federal Agency's denial for relief
>>> in Court.
>>>
>>> Ok, so it seems this is all directed at the Federal level. However wait. In
>>> order for a State to have their own programs and run them at a State level, i.e.
>>> Safety, Environmental, Gun Control, the State is mandated to follow the minimum of
>>> the Federal law requiements. They can be stricter, such as making you have a
>>> locking gun case for transportation, however they must follow the Federal Laws
>>> first.
>>>
>>> So I am anxious for some of the Lawyerly types to take a review of this law and
>>> take it into the Illinois State Courts in a lawsuit. With the NRA going after
>>> Chicago, now would be a good time to bring this out.
>>>
>>> Regards,,
>>>
>>> On 7/07/08, friend of NRA wrote:
>>>> On 7/07/08, Greg Holz wrote:
>>>>> You may want to retract this statement after the Supreme Court's recent 2nd
>>>>> Amendment ruling! The Second Amendment not only applies to states but more
>>>>> importantly to an individuals right to keep and bear arms. It is very much
>>>>> about state gun control.
>>>>
>>>> No need for a retraction. What I wrote was the law at the time I wrote it. In
>>>> DC v. Heller the Supreme Court for the first time ever ruled that the 2nd
>>>> Amendment is an individual right. So that is now the law.
>>>>
>>>> However, DC v. Heller does not say that everyone can now own a gun or that
>>>> states may not reasonably place restrictions on gun ownership. FOID cards seem
>>>> to be well within the limits of the DC v. Heller decision. Don't expect for
>>>> FOID regulations to fall in a court challenge. Maybe the Chicago gun ban but
>>>> not FOID. We'll just have to wait and see how far DC v. Heller goes in
>>>> bringing down gun control laws.
>>>>
>>>> In any event, if you have a psyc or criminal history, the Supreme Court made it
>>>> clear in their opinion that you will not own a gun.
>>>>
>>>>
>>>>
>>>>> On 9/28/07, friend of NRA wrote:
>>>>>>> On 9/28/07, DILLER wrote in part:
>>>>>>
>>>>>>> Foid cards in my opinion violate the United States Constitution. You
>>>>>>> have a right to bare arms and shall not be infringed; it says nothing
>>>>>>> about firearm identification cards, or any other requirement. Stop them
>>>>>>> from dismantling the Constitution.
>>>>>>
>>>>>> The applicability of the Second Amendment is often misunderstood. Its
>>>>>> guarantee applies only to the federal government not to state government.
>>>>>> Over the years, much of the US Constitution has been made applicable to
>>>>>> the states by the terms of the 14th Amendment, but still, only certain
>>>>>> parts of it apply to states and the 2nd Amendment is one part that does
>>>>>> not apply to states. For example, the 5th Amendment is now applicable to
>>>>>> the states except for the part where it says "No person shall be held to
>>>>>> answer for a capital, or otherwise infamous crime, unless on a presentment
>>>>>> or indictment of a Grand Jury[.]" That part does not apply to the
>>>>>> states. The 5th Amendment has been applied to states piece by piece over
>>>>>> the last 150 years. Believe it or not, it was not until 1969 that the
>>>>>> double jeopardy clause of the 5th Amendment was applied to state trials by
>>>>>> the decision in Benton v. Maryland, 395 U.S. 784, and the self-
>>>>>> incrimination clause did not apply to state trials until the early
>>>>>> twentieth century. Likewise, the first sentence of the 7th Amendment
>>>>>> says "In Suits at common law, where the value in controversy shall exceed
>>>>>> twenty dollars, the right of trial by jury shall be preserved[.]" That
>>>>>> does not apply to states. As I said above; none of the 2nd Amendment
>>>>>> applies to states. Don't confuse your federal US constitutional rights
>>>>>> with your rights under state law regarding firearms.
>>>>>>
>>>>>> I make no judgment about your opinion on gun control but want to point out
>>>>>> that the US Constitution does not forbid any type of gun control by the
>>>>>> states, thus, the Illinois FOID card can not be a violation of the 2nd
>>>>>> Amendment. The framers of the Constitution were concerned that the
>>>>>> federal government not take away the right to bear arms from the citizen
>>>>>> militias created by the states. They were not at all concerned at the
>>>>>> time the 2nd Amendment was written about state gun control. It is
>>>>>> unlikely that the Supreme Court will ever hold that the 2nd Amendment
>>>>>> applies to states.