Bethany Krajelis Jun. 17, 2013, 5:50pm

Saying that the scope of the Second Amendment does not extend to protect those under 21, the state has asked a federal judge to dismiss an 18-year-old’s lawsuit over the denial of her Firearm Owners Identification (FOID) card application.

Illinois Attorney General Lisa Madigan’s office late last week filed a motion to dismiss in response to Tempest Horsley’s suit, which was brought in April in the U.S. District Court for the Southern District of Illinois.

Madigan’s office represents the defendant, Jessica Trame in her official capacity as chief of the Illinois State Police’s Firearms Services Bureau. Joshua D. Ratz, an assistant attorney general in Springfield, submitted the motion to dismiss.

Wood River attorney Thomas Maag filed the suit on behalf of Horsley, a Madison County teen.

Her suit seeks a court order directing Trame to accept Horsley’s FOID card application and to enjoin the state official from denying other applications on the basis that they are not signed by a parent or legal guardian, as well as an award of attorney fees and costs.

Horsley, according to the suit, mailed her application for a FOID card on March 14, along with a $10 check, and Trame returned the application as incomplete because it didn’t include a signature from a parent or guardian.

The Illinois FOID Card Act requires card applicants to be 21 or provide written consent of a parent or legal guardian. Horsley was “a few months over 18 years of age” when she submitted her application.

Her parents would not sign the application, the suit states, adding that Horsley “has no legal guardian, as she is in excess of 18 years of age, and thus, is an adult, having reached the age of majority.”

Horsley asserts she wants “a firearm for self-defense inside of her home.”

“[I]n February 2013, Vice President Joe Biden suggested that ‘[i]f you want to protect yourself, get a double-barreled shotgun,’” her suit states. “[P]ursuant to the suggestion of Vice President Joe Biden, Plaintiff Horsley sought to acquire, and became aware of a double barrel shotgun for sale, in a price that she could reasonably afford.”

Horsley claims that Trame’s denial of her FOID card application violates the “constitutional right to possess a firearm for self-defense, pursuant to the Second and Fourteenth Amendments.”

The state, however, contends in its recently-filed motion that Horsley’s complaint should be dismissed because she “alleged no activity protected by the Second Amendment.”

In the alternative, Madigan’s office claims Horsley’s suit should be dismissed “because the FOID Card Act survives intermediate scrutiny under the Second Amendment.”

The office notes that the analysis of Second Amendment claims require a two-step inquiry.

First, Madigan’s office asserts, a court must look to the “textual and history inquiry into the original meaning” of whether the Second Amendment protects the restricted activity.

If the court determines the activity is protected, the office states that the court must then decide and apply the appropriate level of scrutiny under the Second Amendment, also known as a “means-end review.”

“Although the Seventh Circuit has not addressed the application of the Second Amendment to persons under the age of 21,” Madigan’s office claims that “it has held that categorical limits on the right to bear arms are permissible, much in the same way that certain categories of speech fall outside the protection of the First Amendment.”

Given the lack of controlling case law from the Seventh Circuit, the office urges the federal court in its motion to “look to the decisions of other federal courts of appeal for guidance.”

Madigan’s office asserts that “[t]he Fifth Circuit has held that persons under the historical age of majority, that is, under the age of 21, fall outside of the protections of the Second Amendment.

In addition to the Fifth Circuit’s 2012 ruling in National Rifle Association of America, Inc. v. Bureau of Alcohol, Tobacco, Firearms & Explosives, the office notes that the District Court of Massachusetts “reached the same conclusion” this year.

Both of these courts, according to Madigan’s office, applied an “in-depth textual and historical analysis of the scope of the Second Amendment.”

“The courts found that at the Founding and in the mid-Nineteenth Century, legislatures, courts, and commentators recognized the validity of firearms restrictions as to categories of individuals, including persons under the age of 21, noting that such individuals were considered ‘minors’ at the time,” the office states in its motion.

If the court chooses not to follow the Fifth Circuit’s analysis and determines that the Second Amendment’s scope does extend to those under 21, Madigan’s office asserts that “the law at issue passes ‘means-end scrutiny,” a finding that requires dismissal.

The office adds, “The Seventh Circuit has not addressed the level of scrutiny that should apply to a categorical limit based on age, such as the one involved here, but the Court has suggested that intermediate review is appropriate for such categorical restrictions and has directly held that intermediate review applies to categorical bans on the right to bear arms as applied to convicted felons.”

Under intermediate scrutiny, Madigan’s office states that the government has the burden of showing that the age restriction is justified because there is “a reasonable fit between the law and an important government objective.”

The objective of the FOID Card Act’s restrictions, the office asserts, “is substantially related to, and represents a reasonable, proportional means of furthering, the State’s important interest in maintaining public safety.”

In addition to the age restriction, the act prevents felons, drugs addicts, mental patients and certain other people from obtaining a FOID card.

To bolster its argument that the age restriction is linked to the state’s interest in public safety, Madigan’s office points to the 2011 First District Appellate Court ruling in People v. Alvarado.

The Alvarado court, the office notes in its motion to dismiss, determined that the legislature was justified in treating those under 21 differently in the state’s aggravated unlawful use of a weapon statute.

It found that legislative debates showed lawmakers wanted to treat those under 21 differently because they believed this age group was at risk for illegal gang-related activity, the motion states.

The Fifth Circuit also cited legislative findings in its National Rifle Association ruling that showed those between 18 and 20 were more prone to criminal behavior and tend to be more impulsive than those 21 and older.

In regards to Horsley’s suit, Madigan’s office asserts that the challenged provision of the FOID Card Act “is a reasonable, proportional fit to the goal of maintaining public safety and preventing violent crime.”

Pointing to the research cited in Alvarado and National Rifle Association, the office claims that the legislature included an age restriction in the FOID Card Act to address the risks of gun violence.

“This restriction is limited in time, as persons falling under its purview will quickly age out of the restriction,” according to Madigan’s office. “The restriction is also limited in scope, as exceptions are allowed for hunting and target practice, and for situations in which the under-21 individual obtains the consent of her parent or guardian.”

The office stresses that Horsley’s suit admits her parents refused to provide consent for her FOID card application, something that acknowledges her own parents don’t feel she “is, at the age of 18, sufficiently responsible to possess and bear a firearm.”

“No doubt there are individuals aged 18–20 who have reached the level of maturity necessary for responsible possession and use of firearms,” Madigan’s office contends. “Certainly there are many who have not.”

And while certain individuals under age 16 may be capable of operating motor vehicles and some under 21 may be able to handle liquor responsibly, the office asserts “the line must be drawn somewhere.”

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