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Goldwater Lawsuit Leads to Victory Over Illinois’ ‘Permission Society’

October 12, 2022

The Goldwater Institute last week resolved our lawsuit against Illinois—brought on behalf of our friends at the Second Amendment Foundation and the Illinois State Rifle Association—in which we challenged the state’s failure to process applications for gun licenses. Thanks to our case, the state has ramped up its processing system and cleared the backlog that was blocking law-abiding citizens from obtaining firearms to defend themselves—sometimes for years at a time.

The head of the state police’s Firearms Services Bureau detailed the state’s changes to its licensing process in a declaration filed with the court—changes that will help ensure bureaucratic delays will not be able to deprive people of their right to defend themselves. With those improvements in place, the parties agreed to dismiss the lawsuit.

The case is an important reminder that licensing laws—whether they apply to guns or to anything else—too often become tools for depriving people of basic rights. By imposing subjective, meaningless standards such as “good cause,” or by giving bureaucrats power to indefinitely delay any answer when people apply for permits, these laws can effectively eliminate people’s rights entirely. Years ago, the Supreme Court tried to prevent this from happening by declaring that all licensing laws must provide for certain constitutional safeguards, including objective licensing standards and specific deadlines so applicants know when they will get an answer. But state and local governments routinely ignore those rules. As a result, government can transform people’s constitutional rights into permissions that government officials can grant or withhold at will.

The Supreme Court recently remarked on this phenomenon in its decision striking down a New York law that effectively banned firearms by requiring people to prove to government officials that they had a “special need” to possess a gun—whatever that might mean. “We know of no other constitutional right that an individual may exercise only after demonstrating to government officers some special need,” the Court declared. “That is not how the First Amendment works when it comes to unpopular speech or the free exercise of religion. It is not how the Sixth Amendment works when it comes to a defendant’s right to confront the witnesses against him. And it is not how the Second Amendment works when it comes to public carry for self-defense.”

Similarly, endless delays and refusal to process applications can too easily equate to a denial of the underlying right. Worse, courts often prohibit people from suing until the government makes a decision—which gives officials an incentive to endlessly postpone either granting or denying a permit. Such delays work more often than many politicians are willing to admit.

That’s why we’ve proposed legislation that would put in place the constitutional “safeguards” that the Supreme Court required long ago. Our Permit Freedom bill would require the government, whenever it imposes a licensing or permit requirement, to (1) ensure that the criteria for getting the permit are objective, rather than subjective concepts like “good cause” or “special need;” (2) provide a specific deadline within which the applicant will get an answer; and (3) give the applicant the opportunity to appeal to a neutral judge if the application is denied. States should adopt these protections to ensure that licensing laws don’t bury constitutional rights in bureaucratic delays and obfuscations.

In the meantime, we’re pleased that Illinois has done the right thing—and made it easier for state residents to obtain the tools they need to defend their lives and their families.

You can learn more about the case here.

Timothy Sandefur is the Vice President for Legal Affairs at the Goldwater Institute.



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