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Prohibited Possession in Illinois: The Aurora Shooter

Strict firearm laws in Illinois reveal a stunning failure in enforcement.

Last week Friday, a man was at his future former place of employment when he opened fire upon those who fired him along with others working in the warehouse.

As America routinely deals with violence, various news outlets reported that Illinois’ firearm regulatory regime should have been sufficient to prevent this shooting.

CNN says “The work day began as usual at 7 a.m. CT. That afternoon [the shooter] was called to an office at Henry Pratt Co., a manufacturing business in Aurora, Illinois, a large suburb 40 miles west of Chicago. While it is unknown whether [the shooter] knew he was about to be fired, a company official said he had been going though a discipline procedure and he had been written up before. After the termination meeting, [the shooter] took out his pistol and began killing people, witnesses told police. He left the meeting room and kept firing as he went into the warehouse, where there were only a handful of employees.”

WGN reported that the shooter had a prior felony conviction, was previously subject to an order of protection, and had his FOID card revoked and Concealed Carry application denied.

There is no doubt that the shooter was a prohibited possessor. He was a prohibited possessor several times over on both the federal and state level. How then did this man possess a firearm?

That is the quandary, which incidentally, the gun control movement cannot answer.  Let us establish a baseline regarding federal regulations.

According to the ATF, a prohibited possessor is anyone who meets the following criteria:

  • convicted in any court of a crime punishable by imprisonment for a term exceeding one year;
  • who is a fugitive from justice;
  • who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act, codified at 21 U.S.C. § 802);
  • who has been adjudicated as a mental defective or has been committed to any mental institution;
  • who is an illegal alien;
  • who has been discharged from the Armed Forces under dishonorable conditions;
  • who has renounced his or her United States citizenship;
  • who is subject to a court order restraining the person from harassing, stalking, or threatening an intimate partner or child of the intimate partner; or
  • who has been convicted of a misdemeanor crime of domestic violence.

At the federal level, the shooter was or had been a prohibited possessor for two reasons. He had a felony conviction and he had been subject to a restraining order.  The State of Illinois goes beyond the federal prohibitions and adds the following relevant provision: “A person who intentionally made a false statement on the FOID card application.”

For those unfamiliar with firearm laws in Illinois, before one may purchase or own a firearm, one must first apply for a Firearm Owner’s Identification card or FOID card. 

In any other state, purchasing a firearm from an FFL requires a criminal background check, as relevant convictions are reported to the National Instant Criminal Background Check System.  But Illinois has an additional step, obtaining a FOID card.  When a person applies for a FOID card, they are asked whether they have been convicted of a felony and whether they have any pending restraining orders against them.  The application says “Entering false information on an application for a FOID Card is punishable as a Class 2 felony in accordance with Section 14(d-5) of the FOID Card act.” It also says “My signature authorizes the Illinois State Police to verify all answers given with any government of private entity authorized to hold records relevant to my criminal history…Under penalties of perjury, I certify that I have examined all the information provided for my application.”

When the shooter applied for a concealed carry license in Illinois, his fingerprinting brought up his felony conviction from another state.  We have to ask why the background check from the FOID application and from his gun purchase did not result in this information reaching the authorities.  That’s a failure of the NICS which could happen in any state, yet the Giffords Law Center to Prevent Gun Violence gives Illinois a B+ for their stringent laws.  It’s Illinois’ additional safeguards that failed this time. 

The Washington Post confirms that the federal government rarely prosecutes individuals who lie on ATF Form 4473.  These forms are filled out with every gun purchase across the US.  And this is a phenomenon that is noted by John Lott Jr.  The federal government is made aware of thousands of denials through the NICS, yet the federal government prosecutes only 0.0006% of cases.  While the Post does not account for the possibility of erroneous denials as Lott does, there is no question that the federal government is not interested in prosecuting, and neither are states.

Illinois should have prevented this.  Assuming the NICS failure was to be anticipated, the State of Illinois still found out that the shooter lied to obtain a FOID Card and lied to purchase a weapon.  They confirmed this because they deemed him a prohibited possessor and revoked his FOID Card.  But the revocation shouldn’t have been the end of it.

While the Giffords Center wants stronger relinquishment laws, Illinois only had to follow up on the charges that are clearly laid out on their own forms i.e. perjury charges and a Class 2 felony.  That’s all Illinois had to do.  We can discuss relinquishment laws after the state has followed all of its own steps.  I saw first-hand how the State of Illinois is not interested in prosecuting firearm violations.  It’s not because the prosecutors are bad, it’s because those crafting the charges and the judges who preside over these cases have no clue. 

The true irony here is that gun control advocates think a government failure necessitates a government solution.  We don’t know how or why the NICS failed.  We don’t know why the state chose not to take its duty seriously.  But we do know that more government intervention likely complicates matters and jeopardizes the safety of the citizenry.

I will start by discussing the utility and futility of relinquishment laws.  I am in favor of states mandating the removal of firearms from convicted felons.  This means no honor system.  If we are going to do this right, every felon must be subject to a search warrant upon his release.  This cannot apply under a standard of constructive possession because then we begin violating the rights of the innocent.  States will have to figure this out.  Right now, defendants out on bond are told they cannot possess firearms during the pendency of their trial.  Courts do nothing to check this and really have no means of doing so.  I do not anticipate this working out well,  but the alternative, broad relinquishment laws, begins to infringe upon the rights of citizens. 

According to court records, the shooter was at one point subject to a restraining order and we know in many cases that individuals in domestic situations end up with dueling restraining orders.  A strong relinquishment law would seize legally purchased firearms over a temporary or frivolous restraining order.  Who is to say that those firearms would be restored to their rightful owner? Who is to say that the wrong person will not be disarmed by a vindictive restraining order?

The left will likely call for expanded or universal background checks, which are only as good as the information that is put into the system.  This scenario has happened repeatedly.  Supposed prohibited possessors remain capable of purchasing a firearm because the NICS failed to catch something or because states or governments failed to share information.

Every government solution that has not already been tried or implemented is likely to double down on ineffectiveness while placing a burden on those who wish to exercise a constitutional right.

The only effective option is to assume that law will fail.  The only safe option is to assume that evil humans will not be stopped by papers, signs, forms, and good intentions from the Giffords or Brady Center.  The only option is to embrace an armed society. And to permit an armed society that is not shackled by restrictions and inane regulations.

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