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California 2nd Amend. Political Discussion & Activism Discuss gun rights activism and 2A related political topics here. All advice given is NOT legal counsel.

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  #1  
Old 11-23-2010, 9:16 PM
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Default Judge Denies Motion to Dismiss in Illinois FOID Right to Travel/2A Case

In the case of Mishaga v. Monken, the Illinois right to travel case brought by Ohio resident Ellen Mishaga,

Quote:
Originally Posted by David Hardy
[t]he district court has denied the State's motion to dismiss in Mishaga v. Monken, which challenges Illinois' requirement of an FOID card to possess a firearm, while at the same time making nonresidents ineligible to obtain such a card.
Hat tip to David Hardy at Of Arms & the Law.

Here's the link to the opinion of the court.

One gem from the opinion:

Quote:
The Director moves to dismiss on the grounds that the Act does not
require Mishaga to have a FOID Card to possess a weapon in Illinois. The
Director argues that the Act contains exceptions that allow nonresidents to
possess an weapon in Illinois without a FOID Card. The Director argues
that one or more of those exceptions applies to Mishaga; hence, the Act does
not interfere with Mishaga’s right to possess a weapon in Illinois for
personal defense. The Director identifies six exceptions that he argues apply
to Mishaga. 430 ILCS 65/2(b)(5), (b)(7), (b)(8), (b)(9), (b)(10), (b)(13).

The Court disagrees with the Director’s position. The Second
Amendment guarantees Mishaga the right to possess a weapon at her residence that she may use for personal protection in case of a
confrontation. Heller, 128 S.Ct. at 2797. Five of the six exceptions cited
by the Director do not allow Mishaga to possess a weapon in useable
condition in her friends’ home. These exceptions require nonresidents to
have firearms unloaded and enclosed in a case except when the weapon is
being used for hunting or target shooting, or is on display at a showing
recognized by the ISP. 430 ILCS 65/2(b)(5), (b)(7), (b)(8), (b)(9), (b)(13).
The Heller Court held that a requirement to make a weapon inoperable,
such as the requirement that the weapon be unloaded and enclosed in a
case, violates the homeowner’s constitutional right to bear arms because the
requirement makes the weapon useless for personal defense. Heller, 128
S.Ct. at 2818.3 Even with these exceptions, therefore, the Act still prohibits
Mishaga from possessing a useable weapon for defense in her friends’
residence.
Quote:
THEREFORE, the Motion to Dismiss (d/e 5) of Defendant Jonathon
E. Monken, Director of the Illinois State Police, is DENIED. The
Defendant is directed to file an answer to the Complaint by December 17,
2010.
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  #2  
Old 11-23-2010, 9:20 PM
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Their form is very nice looking

http://www.isp.state.il.us/docs/6-181.pdf
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  #3  
Old 11-23-2010, 9:51 PM
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So a denied motion is good in this case correct?
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  #4  
Old 11-23-2010, 9:56 PM
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Quote:
Originally Posted by wilit View Post
So a denied motion is good in this case correct?
The defendants filed a motion for the court to dismiss the case against them. The court denied it and the case carries on.
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  #5  
Old 11-23-2010, 10:32 PM
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This is an excellent case.
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  #6  
Old 11-23-2010, 11:03 PM
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I am very pleased with this. the court made the correct choice. Looking forward to future developments in the case.
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  #7  
Old 11-24-2010, 3:54 AM
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Nice. Is it possible now that they simply use this to get a summary judgment?
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  #8  
Old 11-24-2010, 5:57 AM
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It's now pretty clear that an individual has a right to carry for personal protection, and that protection is not limited to a single state. At the least, this could result in mandated country wide reciprocity.
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  #9  
Old 11-24-2010, 6:07 AM
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This part is curious to me:
"The final exception cited by the Director allows nonresidents to
possess a firearm in Illinois if the nonresident is currently licensed or
registered to possess a firearm in his or her resident state. 430 ILCS
65/2(b)(10). Ohio issues licenses to individuals to possess and carry
concealed weapons. Ohio Rev. Code §§ 2923.12(c)(2), 2923.125. If
Mishaga has such a license, then perhaps, she may legally possess a weapon
in Illinois without a FOID Card pursuant to this exception."

If that's the case then the Director(IL) is claiming anyone with a resident CCW can possess a gun in IL if it's unloaded and cased. However, it seems he's trying to claim anyone who's a REGISTERED OWNER can possess. It looks like with one or 2 exceptions, no states require owners to be registered as firearm owners. So it's more a weak argument trying to mislead the court into thinking every state has this form of registration.

Last edited by press1280; 11-24-2010 at 6:21 AM..
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  #10  
Old 11-24-2010, 6:20 AM
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Quote:
Originally Posted by press1280 View Post
This part is curious to me:
"The final exception cited by the Director allows nonresidents to
possess a firearm in Illinois if the nonresident is currently licensed or
registered to possess a firearm in his or her resident state. 430 ILCS
65/2(b)(10). Ohio issues licenses to individuals to possess and carry
concealed weapons. Ohio Rev. Code §§ 2923.12(c)(2), 2923.125. If
Mishaga has such a license, then perhaps, she may legally possess a weapon
in Illinois without a FOID Card pursuant to this exception."
All that says is that under Illinois law, there's an exception that a nonresident can possess a firearm in Illinois if that nonresident is licensed/registered to possess a firearm in their home state. In effect, if the nonresident's home state has a FOID card... then Illinois would consider that the same as their own FOID card for purposes of allowing possession of a firearm within Illinois.

The problem is that Ohio's license is a CCW for carrying... not for ownership. We don't have to be licensed to own or possess firearms here either...
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  #11  
Old 11-24-2010, 6:26 AM
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That's what I thought too although I know NJ also has a FOID card, however, its for purchasing and is not a factor for possession. You can move into NJ with legally purchased firearms from other states and an FOID is not required.

I suppose NY and DC may be the exception because permits are needed for possession.
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Old 11-24-2010, 7:16 AM
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Quote:
"The final exception cited by the Director allows nonresidents to
possess a firearm in Illinois if the nonresident is currently licensed or
registered to possess a firearm in his or her resident state."
I suspect that it would be argued that a license to carry is a license to possess - one cannot carry what one cannot possess.

Of course, up to this point, I don't think Illinois has ever made that argument. You are either passing through (via FOPA) or you must have an FOID.
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  #13  
Old 11-24-2010, 7:27 AM
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Quote:
Originally Posted by CSDGuy View Post
All that says is that under Illinois law, there's an exception that a nonresident can possess a firearm in Illinois if that nonresident is licensed/registered to possess a firearm in their home state. In effect, if the nonresident's home state has a FOID card... then Illinois would consider that the same as their own FOID card for purposes of allowing possession of a firearm within Illinois.

The problem is that Ohio's license is a CCW for carrying... not for ownership. We don't have to be licensed to own or possess firearms here either...
So if this case involved an Alaskan or Vermonter, how would Illinois's argument fly?
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  #14  
Old 11-24-2010, 8:18 AM
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Quote:
Originally Posted by Abominog View Post
It's now pretty clear that an individual has a right to carry for personal protection, and that protection is not limited to a single state. At the least, this could result in mandated country wide reciprocity.
I doubt that this case will do anything for CCW reciprocity.

It is about possession, not carry and it's firearms not pistols so I doubt it can be directly applied to situations like NY an NJ where a visitor can not bring a pistol.

It's still a good case, I just think you are too optimistic about what it might change.
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  #15  
Old 11-24-2010, 8:52 AM
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Quote:
Originally Posted by wash View Post
I doubt that this case will do anything for CCW reciprocity.

It is about possession, not carry and it's firearms not pistols so I doubt it can be directly applied to situations like NY an NJ where a visitor can not bring a pistol.

It's still a good case, I just think you are too optimistic about what it might change.
I think it could be applied for NJ and NY, but not for reciprocity. NJ(and I believe NY) have no exceptions for someone keeping a handgun for self defense at a friend's, relative's, or even hotel room(see Revell v. Port Authority, FOPA is now becoming worthless). You must be the business or property owner.
If this case rules that you have the same right to a handgun at a friends, relatives, or hotel room, then NJ and NY are in violation and the carry permit is the only remedy.
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  #16  
Old 11-24-2010, 9:15 AM
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Quote:
Originally Posted by Dark Paladin View Post
So if this case involved an Alaskan or Vermonter, how would Illinois's argument fly?
Actually, Alaska still issues CCW licenses for people that want them for reciprocity reasons. Vermont has no such thing... and Illinois's argument still couldn't fly anyway. We're not required to get a CCW for purchasing or registering (if you move here), a handgun in California. A CA HSC is only for handgun purchase (and there are exceptions to that), not long guns. No license/permit is required to purchase or possess those. The FOID is required for all firearms possession. Their exception would only fly for those states that already license the person for firearms possession. Event then, you have a right to travel and a 2A right to keep and bear arms. Heller and McDonald make it clear that you may do so in the home. Since the FOID also applies in the home, they don't have to attack the FOID past that premise.

Illinois is NOT going to be happy about this. I can see the FOID becoming a carry permit or disappearing, but surviving as it is? I don't think so...
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  #17  
Old 11-24-2010, 11:23 AM
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Quote:
Originally Posted by five.five-six View Post
Their form is very nice looking

http://www.isp.state.il.us/docs/6-181.pdf


I like where you're going with that ...
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  #18  
Old 11-24-2010, 11:33 AM
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Quote:
Originally Posted by Boulderlaw View Post


I like where you're going with that ...
Me too.

Can somebody talented recreate that form in a version suitable for California, ASAP?
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  #19  
Old 11-24-2010, 12:09 PM
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NYC has a FOID, NYS does not. NYS has no non-resident exceptions for pistol possession and as mentioned has no respect for FOPA regarding pistols, and it's hard to get standing for a civil suit to challenge them on this. Most of us expect things to be worse with Schneiderman who is worse than Kamala Harris--probably 30-50% worse anti gun and 200-300% more competent at it.
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Old 11-24-2010, 12:13 PM
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The state's position was that because she qualified for one she was not entirely prohibited - and the court disagreed because the totality of the IL FOID law was to exclude, correct?

One of the concerns I've had is that a state may allow the bare minimum, a single gun for example, as meeting the SCOTUS mandate of not prohibiting and courts will support it. This seems to go against that concern. As applied to the CA roster, my concern has been a court response which states "well, you have access to 1,300 out of 3,300 models - that's good enough" rather the reverse which is we should not be denied access to any models.
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  #21  
Old 11-24-2010, 1:17 PM
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Quote:
Originally Posted by dfletcher View Post
The state's position was that because she qualified for one she was not entirely prohibited - and the court disagreed because the totality of the IL FOID law was to exclude, correct?
They stated that 5 of the 6 things don't allow her to bear a loaded firearm in the guest room where she stays in.

Quote:
One of the concerns I've had is that a state may allow the bare minimum, a single gun for example, as meeting the SCOTUS mandate of not prohibiting and courts will support it. This seems to go against that concern. As applied to the CA roster, my concern has been a court response which states "well, you have access to 1,300 out of 3,300 models - that's good enough" rather the reverse which is we should not be denied access to any models.
Tell me, why would a judge tell someone who wants the exact make/model of gun that the US Supreme Court ordered DC to register to say that 2A doesn't apply to said gun from regulation by California?
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Old 11-24-2010, 2:29 PM
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Do you mean this one?

http://www.isp.state.il.us/docs/Smar...pplication.pdf

or this one?
Attached Files
File Type: pdf CA_FOID_Application.pdf (148.3 KB, 117 views)
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  #23  
Old 11-24-2010, 2:50 PM
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Quote:
Originally Posted by RRangel View Post
The defendants would-be goverment oppressors filed a motion for the court to dismiss the case against them. The court denied it and the case carries on.
Fixed...
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Old 11-24-2010, 3:35 PM
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Quote:
Originally Posted by Gray Peterson View Post

Tell me, why would a judge tell someone who wants the exact make/model of gun that the US Supreme Court ordered DC to register to say that 2A doesn't apply to said gun from regulation by California?
I agree with you. I had an experience with someone who is not anti-gun, in fact their approach is "it's a right" and they want one - here's what happened.

He wants to buy a gun, lives in Moraga and their PD consists (I think) of about 5 cops. So help is more than a few minutes away. I took him to the gun store, he looked around and I mentioned there are guns he can't buy because they're not allowed in CA. My guess was there are about 1,300 various models, barrel lengths, etc that we can buy. He found it hard to believe there are so many models, when I told him there are many more than that the response was "well gee - isn't 1,300 enough to choose from ....?"

My approach is I should be able to buy exactly what others buy, that these creative and transparent roadblocks to exercising my rights should be removed. But the reaction I saw was "with 1,300 guns to choose from how can you say you are being denied the right to self defense?"

Keep in mind, I'm a Red Sox and Raiders fan from the 60s - I'm used to being unexpectedly screwed over.
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Old 11-24-2010, 4:18 PM
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Old 11-24-2010, 5:02 PM
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The footer on the CA one is great!
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Old 01-03-2011, 10:44 AM
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After searching for newer threads on this case, I came across this one (and I should have paid more attention when this one was going). Having said that...

Can we expect any significant movement in Mishaga this year, maybe in the very near future, now that the MTD was denied?

I like this case, and think it has similarities to Peterson, no? Gray, et all?

Erik.
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Old 01-03-2011, 11:18 AM
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The case is moving forward and new filings have occurred. On December 9th Defendants' filed an Answer to Complaint. And as long as the case is not stayed, it should be moving forward all the time unless the attorneys decide to space out the filings to accommodate spring/summer/fall vacations or whatnot.

This case is like Peterson in that the right to travel and the right to keep and bear arms intersect and a controversy has developed because the 2A right is infringed upon.
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Old 01-03-2011, 12:05 PM
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Quote:
Originally Posted by Window_Seat View Post
After searching for newer threads on this case, I came across this one (and I should have paid more attention when this one was going). Having said that...

Can we expect any significant movement in Mishaga this year, maybe in the very near future, now that the MTD was denied?

I like this case, and think it has similarities to Peterson, no? Gray, et all?

Erik.
It has some similarities indeed. Mishiga's attorney and I are in communication.
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Old 01-03-2011, 2:10 PM
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I used to have a Massachusetts FID card (needed to purchase or possess).
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Old 05-22-2011, 8:50 PM
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Back to life here...

16 ANSWER to 13 Amended Complaint and Affirmative Defenses by Michael W Vorreyer. (Gunderson, Joanna) (Entered: 05/20/2011)

17 ANSWER to 13 Amended Complaint and Affirmative Defenses by Jonathon Monken. (Gunderson, Joanna) (Entered: 05/20/2011)

----------------------------------------

It's mostly full of "Defendant admits..." "Defendant denies...", and "Defendant denies that plaintiff has any meritorious claims..." The replies do note that some or all of the complaint is barred by the 11th Amendment and is moot... What moots though?

Whatcha think?

BTW, I picked this up from PACER (used for the very first time).

ETA, someone wasted no time updating the Archive Docket page.

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Old 05-22-2011, 11:01 PM
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Isn't the states answer to the complaint five months past the courts deadline? Impressive foot dragging.
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Old 05-22-2011, 11:03 PM
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will a win in this case help us get rid of the HSC? i know it's small fish, but it's such a blatent violation of our 2A rights it just bothers the hell out of me!!!
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Old 05-23-2011, 3:44 AM
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Quote:
Originally Posted by yellowfin View Post
NYC has a FOID, NYS does not. NYS has no non-resident exceptions for pistol possession and as mentioned has no respect for FOPA regarding pistols, and it's hard to get standing for a civil suit to challenge them on this. Most of us expect things to be worse with Schneiderman who is worse than Kamala Harris--probably 30-50% worse anti gun and 200-300% more competent at it.
I know this post is a few months old, but can you clarify the point about NYS having non respect for FOPA regarding pistols? Thanks.
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Old 05-23-2011, 6:32 AM
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Show up in NYS with a pistol and if you're not a resident, LEO, or SOT then you're committing a crime as far as they see it. They flat out disregard the FOPA here, also in NJ. There is ZERO slack on the whole pistol license requirement, it's like their mission in life.
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In Pennsylvania Your permit to carry concealed is called a License to carry fire arms. Other states call it a CCW. In New Jersey it's called a crime.
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Old 05-23-2011, 7:07 AM
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Meh. Gonazalez did the same thing in Peruta right before she shot us down.
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Old 05-23-2011, 7:30 AM
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Quote:
Originally Posted by yellowfin View Post
Show up in NYS with a pistol and if you're not a resident, LEO, or SOT then you're committing a crime as far as they see it. They flat out disregard the FOPA here, also in NJ. There is ZERO slack on the whole pistol license requirement, it's like their mission in life.
I want to make sure I understand this correctly. IIRC FOPA allows people to transport firearms FROM a state where they are legally allowed to own and/or carry the firearm TO a state where they are legally allowed to own and/or carry the firearm as long as the firearm is unloaded and inaccessible to the firearm owner and you are passing through the state where you are not allowed to own and/or carry the firearm with only stops for gas ie no overnight stay and/or side trips. AFAIK the way NY/NJ get around this is when people are travelling with firearms by air declare them at NY/NJ airports where they are then arrested for illegal possession of a firearm. I guess technically this violates the letter of FOPA, especially if that person has stayed in NY/NJ for more than just passing through. The real problem is for people who live in CT or PA whose closest airport is in NY or NJ. They're basically SOL if they want to fly with their firearm. Have there been cases of people being arrested who really are just passing through by car and are in complete compliance with FOPA? I believe the NJSP has something on their website about FOPA and transitting NJ basically saying it's legal, and if the LEO making the stop determines the firearm is being transported in accordance with FOPA to let the person proceed. Is that not the case in NY?
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Old 05-23-2011, 7:39 AM
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I like where you're going with that ...
Let me know when I should apply. Maybe a **TIME TO APPLY** kind of thing on an Illinois thread.

I never even go there but I'll be happy to get an IL FOID.
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Old 05-23-2011, 8:11 AM
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AFAIK the way NY/NJ get around this is when people are travelling with firearms by air declare them at NY/NJ airports where they are then arrested for illegal possession of a firearm. I guess technically this violates the letter of FOPA, especially if that person has stayed in NY/NJ for more than just passing through.
No, not if you are proceeding directly from and to a location where you may legally possess. If that person has stayed in NY/NJ for more than just passing through, then yes, it is a violation. An airport is not, in and of itself, a destination but is part of the journey (unless you happen to work at the airport, I suppose)
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Old 05-23-2011, 9:05 AM
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No, not if you are proceeding directly from and to a location where you may legally possess. If that person has stayed in NY/NJ for more than just passing through, then yes, it is a violation. An airport is not, in and of itself, a destination but is part of the journey (unless you happen to work at the airport, I suppose)
Problems usually arise when people who intended passing through get delayed and have to stay overnight. They pick up their baggage (as otherwise it gets left in the baggage hall) and try to check in next morning with a firearm. Big drama.

So, seriously, if you are travelling with a firearm, try not to change planes in N.Y. If you do get stranded there, do not pick up your baggage. Make a fuss with the airline/security about how your baggage gets handled and (in case I haven't said so already) do not pick up your baggage yourself.
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