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                               Appellate Court                             Date: 2018.01.03
                                                                           11:34:39 -06'00'




                  People v. Heitmann, 2017 IL App (3d) 160527



Appellate Court   THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption           JOSEPH LANE HEITMANN, Defendant-Appellant (The Department
                  of State Police, Intervenor-Appellee).



District & No.    Third District
                  Docket No. 3-16-0527



Filed             October 2, 2017



Decision Under    Appeal from the Circuit Court of Bureau County, No. 15-MR-47; the
Review            Hon. Cornelius J. Hollerich, Judge, presiding.



Judgment          Affirmed.


Counsel on        James R. Angel, of May, May, Angel & Harris, of Princeton, for
Appeal            appellant.

                  Geno J. Caffarini, State’s Attorney, of Princeton, for the People.

                  Lisa Madigan, Attorney General, of Chicago (David L. Franklin,
                  Solicitor General, and Katelin B. Buell, Assistant Attorney General, of
                  counsel), for intervenor-appellee Illinois Department of State Police.
     Panel                     JUSTICE CARTER delivered the judgment of the court, with opinion.
                               Justices McDade and Wright concurred in the judgment and opinion.


                                                OPINION

¶1         Joseph Lane Heitmann (petitioner) appeals the dismissal of his petition for judicial review
       of the denial of his firearm owner’s identification (FOID) card, arguing the court erred in (1)
       concluding that granting petitioner a FOID card was contrary to federal law and the Firearms
       Owners Identification Card Act (FOID Card Act) (430 ILCS 65/10 (West 2014)) and (2)
       dismissing his as-applied constitutional challenge. We affirm.

¶2                                                  FACTS
¶3         In 1990, petitioner pleaded guilty to battery for grabbing the arm of his then-wife, dumping
       beer on her, and throwing two lit cigarettes at her. He was sentenced to a $150 fine. After the
       conviction, petitioner continued to possess a FOID card. In early 2014, petitioner applied for
       an Illinois concealed carry permit. In April 2014, he received a letter from the Department of
       State Police (ISP) denying his application based on its determination that petitioner was no
       longer eligible to possess a FOID card as his battery conviction was a crime of domestic
       violence. He then received another letter from the ISP revoking his FOID card.
¶4         In June 2015, petitioner filed a petition in the circuit court asking for relief from the
       revocation of his FOID card. The petition alleged that his battery conviction was not a crime of
       domestic violence, he had not been convicted of a forcible felony for 20 years, he was not
       likely to act in a manner dangerous to public safety, and granting relief would not be contrary
       to the public interest or to federal law. A hearing was held on the petition, and the State did not
       object. The record does not contain a transcript of the hearing. After the hearing in August
       2015, the court ordered the ISP to reinstate petitioner’s FOID card, finding that petitioner’s
       battery conviction was not a crime of domestic violence for purposes of federal law, petitioner
       met all the requirements to possess a FOID card, he was not convicted of any other crimes that
       would disqualify him from possessing a FOID card, and he did not pose a danger to himself or
       others.
¶5         In September 2015, the ISP filed a petition to intervene. The court granted the petition. The
       ISP then filed a petition for relief from judgment. The court granted the petition and vacated its
       order reinstating petitioner’s FOID card. The ISP then filed a motion to dismiss petitioner’s
       petition, which is the subject of this appeal. In its motion to dismiss, the ISP alleged that
       petitioner’s battery conviction was a crime of domestic violence under federal law and,
       therefore, granting petitioner’s petition would be contrary to federal law under the FOID Card
       Act. 430 ILCS 65/10(c) (West 2014). Further, the ISP argued that under the 2013 amendments
       to the FOID Card Act, courts may no longer grant such a petition if doing so would be contrary
       to federal law. Petitioner’s response argued that the FOID Card Act was unconstitutional as
       applied, courts have the ability to remove the firearm disability, and that his battery conviction
       should not be considered a crime of domestic violence. After a hearing, the court granted the
       ISP’s motion to dismiss.



                                                    -2-
¶6                                              ANALYSIS
¶7          On appeal, petitioner argues that granting him a FOID card is not contrary to federal law,
       and the FOID Card Act is unconstitutional as applied to him because it amounts to a perpetual
       firearm ban. We find that (1) circuit courts may no longer remove the federal ban on firearm
       ownership by those convicted of domestic battery, (2) gun rights do not fall under the rights
       covered by the civil rights restored language of the federal Gun Control Act of 1968 (Gun
       Control Act) (18 U.S.C. § 921(a)(33)(B)(ii) (2012)), (3) even if gun rights were civil rights,
       Illinois does not provide a mechanism for restoration of such rights, and (4) the “safety valve”
       provision of the Gun Control Act provides no remedy to petitioner. Therefore, we find that
       granting petitioner a FOID card is contrary to federal law. Moreover, we find that petitioner’s
       as-applied challenge is premature as petitioner has not yet availed himself of every remedy
       available to him. Specifically, petitioner may still apply for a pardon.

¶8                                       I. Contrary to Federal Law
¶9                                          A. The FOID Card Act
¶ 10       Under the FOID Card Act, the ISP may deny an application for a FOID card or revoke a
       FOID card if the applicant has been convicted of domestic battery. 430 ILCS 65/8(l) (West
       2014). For the conviction to be considered a domestic battery, it is not necessary for the
       domestic relationship to be an element of the offense charged. Id. Instead, any conviction for
       battery against a spouse or child is considered a domestic battery for purposes of the FOID
       Card Act. Id.; United States v. Castleman, 572 U.S. ___, ___, 134 S. Ct. 1405, 1414-15 (2014);
       United States v. Hayes, 555 U.S. 415, 421 (2009).
¶ 11       Under section 10 of the FOID Card Act, once an applicant’s FOID card application is
       denied or revoked, the applicant may petition the circuit court for a hearing. 430 ILCS 65/10(a)
       (West 2014). In 2012, the FOID Card Act provided that:
               “At least 30 days before any hearing in the circuit court, the petitioner shall serve the
               relevant State’s Attorney with a copy of the petition. The State’s Attorney may object
               to the petition and present evidence. At the hearing the court shall determine whether
               substantial justice has been done. Should the court determine that substantial justice
               has not been done, the court shall issue an order directing the Department of State
               Police to issue a Card.” 430 ILCS 65/10(b) (West 2010).
       The FOID Card Act further provided that the
               “court may grant such relief if it is established by the applicant to the court’s or
               Director’s satisfaction that:
                       (0.05) when in the circuit court, the State’s Attorney has been served with a
                   written copy of the petition at least 30 days before any such hearing in the circuit
                   court and at the hearing the State’s Attorney was afforded an opportunity to present
                   evidence and object to the petition;
                       (1) the applicant has not been convicted of a forcible felony under the laws of
                   this State or any other jurisdiction within 20 years of the applicant’s application for
                   a [FOID] Card, or at least 20 years have passed since the end of any period of
                   imprisonment imposed in relation to that conviction;




                                                    -3-
                       (2) the circumstances regarding a criminal conviction, where applicable, the
                   applicant’s criminal history and his reputation are such that the applicant will not be
                   likely to act in a manner dangerous to public safety; and
                       (3) granting relief would not be contrary to the public interest.” 430 ILCS
                   65/10(c) (West 2010).
       Under the 2012 version of the FOID Card Act, our supreme court in Coram v. State of Illinois,
       2013 IL 113867, ¶¶ 70-74, determined that a circuit court could grant a petitioner relief under
       the FOID Card Act without preemption by federal law.
¶ 12       However, the FOID Card Act was amended in 2013. To the end of section 10(b), the
       amendments added, “However, the court shall not issue the order if the petitioner is otherwise
       prohibited from obtaining, possessing, or using a firearm under federal law.” 430 ILCS
       65/10(b) (West 2014). Further, the amendments added a fourth subsection to section 10(c),
       allowing the court to grant relief if, “granting relief would not be contrary to federal law.” 430
       ILCS 65/10(c)(4) (West 2014).
¶ 13       At the time Coram was decided, the 2013 amendments had just been effectuated. Coram,
       2013 IL 113867, ¶ 75. Though not applicable to the case, the three-justice Coram majority
       stated:
                   “We note, in passing, the recent amendment of section 10 of the FOID Card Act
               ***, providing that a circuit court may not order issuance of a FOID card if the
               petitioner is otherwise prohibited from possessing or using a firearm under federal law,
               and that relief can be granted under subsection (c) only if ‘granting relief would not be
               contrary to federal law.’ [Citation.] Obviously, the current version of the statute was
               not in effect when proceedings under section 10(c) were conducted with respect to
               Coram. However, given our construction of the statute, and our interpretation of its
               effect, it would not matter if the amendments had been in effect. Relief granted
               pursuant to statutory review removes the federal firearm disability.” (Emphasis in
               original.) Id.
¶ 14       However, two justices specially concurred and two justices dissented. Id. ¶¶ 79, 109-10,
       137. The specially concurring and dissenting justices all believed that the 2013 amendments to
       the FOID Card Act would change the outcome and would preclude a circuit court from
       granting relief. See id. ¶ 101 (Burke, J. specially concurring, joined by Freeman, J.) (“The
       amendments make clear that a circuit court no longer has the authority to make findings or
       grant relief under section 10 if the court concludes that the applicant would be in violation of
       federal law if he or she were to possess a firearm.”); see also id. ¶ 124 (Theis, J. dissenting,
       joined by Garman, J.) (“[U]nder the amended statute, the relief procedures under section 10
       cannot remove a federal firearms disability.”). Therefore, a majority of the justices on the
       supreme court found that under the 2013 amendments to the FOID Card Act, a circuit court
       does not have the authority to issue a FOID card if the applicant, under federal law, cannot
       possess a firearm. Stated another way, under the amended FOID Card Act, a circuit court
       cannot use section 10 to remove the federal firearm disability.
¶ 15       Following the specially concurring and dissenting justices, multiple districts in our
       appellate court have found that the circuit court is prohibited from granting relief “ ‘when such
       revocation is based on the petitioner being barred from obtaining, possessing, or using a
       firearm under federal law.’ ” Baumgartner v. Greene County State’s Attorney’s Office, 2016
       IL App (4th) 150035, ¶ 29 (quoting Walton v. Illinois State Police, 2015 IL App (4th) 141055,

                                                    -4-
       ¶ 23); see also Odle v. Department of State Police, 2015 IL App (5th) 140274, ¶ 33; People v.
       Frederick, 2015 IL App (2d) 140540, ¶ 28; O’Neill v. Director of the Illinois Department of
       State Police, 2015 IL App (3d) 140011, ¶ 31.
¶ 16       Petitioner argues that “those courts and justices who believe the 2013 amendments prohibit
       the courts from granting relief too narrowly read the words ‘otherwise prohibited by ***
       federal law’ and ‘contrary to federal law’ to mean only whether one was convicted of a
       disqualifying offense as provided by federal law, and do not read these terms to mean the entire
       reach of federal law under the Gun Control Act to include ‘safety valve’ provisions under
       section 925 of the [Gun Control Act] or the ‘civil rights restored’ under section
       § 921(a)(33(B)(ii) of the [Gun Control Act].” Petitioner argues that “Congress has clearly not
       foreclosed states from granting relief, and as such, a state granting relief under the FOID
       statute is not acting contrary to federal law.” Essentially, petitioner argues that by Congress
       merely providing any potential avenue for relief, the courts in Illinois can grant relief under the
       FOID Card Act without it being contrary to federal law, whether or not such avenue actually
       applies to petitioner. We disagree. In order to remove the federal firearm disability, one of the
       federal avenues of relief would have to actually apply in Illinois, which, as we set out below,
       they do not. Infra ¶¶ 18-34.

¶ 17                                       B. Civil Rights Restored
¶ 18       Under the Gun Control Act, it is unlawful for anyone “who has been convicted in any court
       of a misdemeanor crime of domestic violence” to possess a firearm. 18 U.S.C. § 922(g)(9)
       (2012). Like under the FOID Card Act, the domestic relationship need not be an element of the
       offense the petitioner is convicted of. See Castleman, 572 U.S. at ___, 134 S. Ct. at 1414-15;
       Hayes, 555 U.S. at 421. For example, a conviction of simple battery where the victim is the
       petitioner’s spouse or child is considered a crime of domestic violence. See Castleman, 572
       U.S. at ___, 134 S. Ct. at 1414-15; Hayes, 555 U.S. at 421.
¶ 19       However, the Gun Control Act also states:
               “A person shall not be considered to have been convicted of [a misdemeanor crime of
               domestic violence] for purposes of this chapter if the conviction has been expunged or
               set aside, or is an offense for which the person has been pardoned or has had civil rights
               restored (if the law of the applicable jurisdiction provides for the loss of civil rights
               under such an offense) unless the pardon, expungement, or restoration of civil rights
               expressly provides that the person may not ship, transport, possess, or receive
               firearms.” 18 U.S.C. § 921(a)(33)(B)(ii) (2012).
¶ 20       Petitioner contends that under this provision, granting him relief would not be contrary to
       federal law under the FOID Card Act. Specifically, petitioner argues that the circuit court
       granting him his FOID card amounts to “civil rights restored” as his right to own a gun is a civil
       right. We disagree.
¶ 21       In Logan v. United States, 552 U.S. 23 (2007), the Supreme Court construed “civil rights
       restored” language elsewhere in the Gun Control Act and “noted that although the term ‘civil
       rights’ was not defined in the Gun Control Act, ‘courts have held *** that the civil rights
       relevant under the *** provision are the rights to vote, hold office, and serve on a jury.’ ”
       Baumgartner, 2016 IL App (4th) 150035, ¶ 37 (quoting Logan, 552 U.S. at 28). Based on
       Logan, the Fourth District of our appellate court has determined that “the rights restored under
       section 10 of the FOID [Card] Act are not necessarily the type of ‘civil rights’ referred to in

                                                    -5-
       [the Gun Control Act].” Connour v. Grau, 2015 IL App (4th) 130746, ¶ 24. We agree with
       Logan and Connour that gun rights were not included in the rights contemplated in the Gun
       Control Act.
¶ 22       In coming to this conclusion, we reject petitioner’s reliance on the New Hampshire case of
       DuPont v. Nashua Police Department, 113 A.3d 239 (N.H. 2015), for the proposition that gun
       rights are civil rights. Though the court in DuPont did find that gun rights are civil rights, we
       agree, as stated above (supra ¶ 21), with our Fourth District’s interpretation of Logan that “the
       rights restored under section 10 of the FOID [Card] Act are not necessarily the type of ‘civil
       rights’ referred to in [the Gun Control Act].” Connour, 2015 IL App (4th) 130746, ¶ 24.
¶ 23       Even if we were to agree with petitioner that gun rights should be considered under the
       purview of the Gun Control Act’s civil rights restored, Illinois does not provide a framework
       for the restoration of such a right.
¶ 24       The restoration of rights exemption “refer[s] only to restorations of civil rights by the
       convicting jurisdiction.” Beecham v. United States, 511 U.S. 368, 372 (1994). Therefore, in
       order for petitioner’s civil rights to be restored, Illinois law would have to allow for the
       restoration of such a right. For example, in DuPont, the court, after finding that gun rights were
       civil rights, turned to the question of whether or not the petitioner had had such a right restored.
       See DuPont, 113 A.3d at 249. The court determined that the petitioner had in fact had his gun
       rights restored by a special provision under Massachusetts’s law.1 Id. Petitioner argues that
       section 10 of the FOID Card Act provides such a framework for restoration of gun rights.
¶ 25       As stated above (supra ¶¶ 11-12), in order for the circuit court to reinstate an applicant’s
       FOID card, the court must make a series of findings, including that granting relief would not be
       contrary to federal law. 430 ILCS 65/10(c) (West 2014). Under the Gun Control Act, a person
       who committed a crime of domestic violence may not possess a gun. 18 U.S.C. § 922(g)(9)
       (2012). However, an applicant is not considered convicted of a crime of domestic violence if
       the applicant has had his or her “civil rights restored.” 18 U.S.C. § 921(a)(33)(B)(ii) (2012).
       Therefore, in order for granting relief under the FOID Card Act to not be contrary to federal
       law, the applicant must have already had his or her “civil rights restored.” See 430 ILCS
       65/10(c) (West 2014); 18 U.S.C. §§ 922(g)(9), 921(a)(33)(B)(ii) (2012). Stated another way,
       restoration of the applicant’s civil rights is a condition precedent to the finding that granting
       relief would not be contrary to federal law. Thus, it is not viable to state that section 10 of the
       FOID Card Act restores an applicant’s civil rights when by the very operation of the statute it is
       necessary for an applicant to have previously had his civil rights restored before a court may
       make a finding under section 10.
¶ 26       Illinois law does not provide a way to restore gun rights. As stated above, in order for
       petitioner’s civil rights to be restored, Illinois law would have to allow for the restoration of
       such a right. Supra ¶ 24. The only provision we find in Illinois law that allows for the
       restoration of a civil right is the Illinois Constitution’s restoration of a prisoner’s right to vote
       upon the completion of his sentence. Ill. Const. 1970, art. III, § 2 (“A person convicted of a

           1
             The petitioner had been convicted in Massachusetts of a misdemeanor that made him ineligible to
       possess a firearm under federal law. DuPont, 113 A.3d at 241. The Massachusetts Firearm Licensing
       Review Board restored his ability to possess a firearm. Id. He then applied for an armed security guard
       license in New Hampshire through the New Hampshire Department of Safety, who determined that the
       petitioner was disqualified from possessing a firearm. Id.

                                                      -6-
       felony, or otherwise under sentence in a correctional institution or jail, shall lose the right to
       vote, which right shall be restored not later than upon completion of his sentence.”);
       Baumgartner, 2016 IL App (4th) 150035, ¶ 38. Therefore, even if we were to find that gun
       rights are civil rights, Illinois does not provide a way to restore such a right.
¶ 27        Petitioner takes issue with the result of the exclusion of gun rights from the rights
       considered under the civil rights restored provision. Specifically, defendant notes that under
       Illinois law a person convicted of a crime and sentenced to time in jail loses the right to vote
       until his sentence is completed. Ill. Const. 1970, art. III, § 2. However, if a petitioner is not
       sentenced to imprisonment, he does not fall within the purview of this provision as “the words
       ‘civil rights restored’ do not cover the case of an offender who lost no civil rights.” Logan, 552
       U.S. at 37. Petitioner states that such a construction “leads to absurd results” as “had [he]
       actually committed a more serious battery and had been sentence[d] to one day (or more in
       jail), post-conviction, he would then have had ‘civil rights restored’ and be eligible for FOID
       card relief. *** Thus more severe domestic batterers potentially can receive their firearms
       back, while the most minimal offenders are ineligible.”
¶ 28        Petitioner’s argument overlooks the rest of section 10 of the FOID Card Act. Petitioner is
       correct that a person would not be barred from owning a firearm under federal law if he or she
       committed a more serious battery, spent time in jail, and had his or her civil rights restored
       upon completion of his or her sentence. However, as stated above (supra ¶ 11), petitioner also
       must show that (1) he or she has not had any other felonies within the last 20 years; (2) the
       circumstances regarding any convictions, his or her criminal history, and his or her reputation
       “are such that the applicant will not be likely to act in a manner dangerous to public safety”;
       and (3) it is not contrary to public interest that he or she possess a FOID card. 430 ILCS
       65/10(c)(1)-(3) (West 2014). The “severe domestic batterers” that petitioner speaks of would
       have a harder time passing these hurdles.
¶ 29        Further, petitioner and other “minimal offenders” are not without remedy. The Gun
       Control Act additionally provides that a person will not be considered convicted of a crime of
       domestic violence “if the conviction has been expunged or set aside, or is an offense for which
       the person has been pardoned.” 18 U.S.C. § 921(a)(33)(B)(ii) (2012).

¶ 30                                     C. Other Federal Provisions
¶ 31       In his brief, petitioner mentions in passing the “ ‘safety valve’ provisions” under section
       925 of the Gun Control Act (18 U.S.C. § 925 (2012)). However, this provision does not
       provide any relief to petitioner.
¶ 32       Section 925(c) of the Gun Control Act provided “a ‘safety valve’ provision under which
       persons subject to federal firearms disabilities, including persons whose civil rights have not
       been restored, may apply to the Attorney General for relief from the disabilities.” Logan, 552
       U.S at 28 n.1.
                    “Implementation of section 925(c) apparently continued for several years,
               safeguarding the rights of the reformed and recovered. Then, in 1992, the budget axe
               fell, and Congress barred the Attorney General/Bureau of Alcohol, Tobacco, Firearms
               and Explosives (ATF) from using appropriated funds ‘ “to investigate or act upon
               [relief] applications,” ’ a bar that was thereafter annually renewed. [Citation.] Though
               section 925(c) remained on the books, its significance became, at best, aspirational, its


                                                   -7-
                reimplementation prospective.” Coram, 2013 IL 113867, ¶ 30 (quoting Logan, 552
                U.S. at 28 n.1, quoting United States v. Bean, 537 U.S. 71, 74-75 (2002)).
       “[T]he Supreme Court has held that Congress’s decision to defund the program stripped the
       federal courts of jurisdiction to review claims arising under § 925(c).” Tyler v. Hillsdale
       County Sheriff’s Department, 837 F.3d 678, 682 (6th Cir. 2016).
¶ 33        In 2008, “Congress authorized federal grants to encourage the states to supply accurate and
       up-to-date information to federal firearms databases.” Id. In order to be eligible for the grants,
       states had to create a “relief-from-disabilities program that allows individuals barred under
       § 922(g)(4) to apply to have their rights restored.” Id. However, this only applies to those
       barred due to adjudication as a mental defective or commitment to a mental institution. As
       section 925(c) “is currently a nullity” for those barred from owning a firearm by a conviction
       for a crime of domestic violence, petitioner cannot seek relief under it. Id.
¶ 34        Petitioner argues that “it does not make any sense to say that the circuit court granting relief
       is ‘contrary to federal law,’ where the Illinois Circuit Courts would be applying the exact same
       standards the ATF or U.S. Attorneys would be applying if they were funded to do so.” If
       section 925(c) was funded, petitioner could obtain relief from the federal firearms bar, and then
       granting the FOID card would not be contrary to federal law. However, without that avenue,
       petitioner is still under the federal firearm disability. The General Assembly clearly meant to
       tie the state prohibition of a FOID card with the federal prohibition of gun ownership, allowing
       for the reinstatement of the FOID card only once the federal prohibition had been relieved.

¶ 35                              II. As-Applied Constitutional Challenge
¶ 36       Petitioner next argues that the FOID Card Act and the Gun Control Act are
       unconstitutional as applied to him as they “now impose a blanket ban on persons convicted of
       domestic battery *** from possession [of] firearms.” We find petitioner’s constitutional
       challenge to be premature. See Baumgartner, 2016 IL App (4th) 150035, ¶ 59.
¶ 37       In Coram, the majority determined that it did not need to reach the petitioner’s
       constitutional claim as it found relief another way. Coram, 2013 IL 113867, ¶ 74. However,
       the dissent determined that the petitioner’s constitutional claim was premature. Id. ¶¶ 127,
       134-35 (Theis, J., dissenting, joined by Garman, J.). The dissent noted that the court in United
       States v. Skoien, 614 F.3d 638 (7th Cir. 2010), “rejected the claim that domestic violence
       misdemeanants are subject to a permanent ban where a remedy is potentially available to
       them.” Coram, 2013 IL 113867, ¶ 132 (Theis, J., dissenting, joined by Garman, J.). In Skoien,
       the petitioner raised a similar argument, contending that a domestic battery misdemeanant in
       Wisconsin could not have his or her civil rights restored. Id. The Seventh Circuit determined
       that, because Wisconsin provided an opportunity for domestic violence misdemeanants to seek
       a pardon or expungement, “ ‘§ 922(g)(9) in its normal application does not create a perpetual
       and unjustified disqualification for a person who no longer is apt to attack other members of
       the household.’ ” Id. (quoting Skoien, 614 F.3d at 645).
¶ 38       Based in part on Skoien, the dissent stated:
                   “In Illinois, the constitution gives the Governor the unfettered authority to ‘grant
               *** pardons, after conviction, for all offenses on such terms as he thinks proper.’ Ill.
               Const. 1970, art. V, § 12. The pardon power is extremely broad. [Citations.] Although a
               matter of grace, the statutory procedures provide a petitioner with an avenue in which


                                                     -8-
               the executive can consider a wide range of factors, including Coram’s relevant history
               and specific reasons why a pardon should be granted, in his case to remove a specific
               statutory disability. [Citation.] His petition will be reviewed by the Prisoner Review
               Board, at which he may request a public hearing and be represented by counsel.
               [Citation.] If an individual is granted a pardon, the Governor may authorize
               expungement, allowing the petitioner to seek expungement of his conviction through a
               court order. [Citation.]
                    Where Coram has not availed himself of a potential state remedy available to him
               under the statute, we need not and should not determine whether the statute is an
               unconstitutional perpetual ban which violates his second amendment rights. A remedy
               does not become unavailable merely because it is discretionary or resort to it may fail.
               It is not futile without ever being tried. Thus, where it is yet unknown whether Coram
               can satisfy section 921(a)(33)(B)(ii), the question of ‘[w]hether a misdemeanant who
               has been law abiding for an extended period must be allowed to carry guns again, even
               if he cannot satisfy § 921(a)(33)(B)(ii), is a question not presented today.’ Skoien, 614
               F.3d at 645.” Id. ¶¶ 133-34.
¶ 39       Our Fourth District had a similar case. Baumgartner, 2016 IL App (4th) 150035, ¶ 59.
       Though the court found the petitioner’s as-applied challenge forfeited, it stated that, had it been
       inclined to excuse the forfeiture, the Coram dissent’s “reasoning [was] instructive.” Id. The
       court stated, “Like in Coram, plaintiff in this case has a potential state remedy available to him,
       which could result in the removal of his federal firearm disability. Nothing in the record
       indicates he has attempted to avail himself of that potential remedy. As a result, his
       constitutional claim is premature.” Id. ¶ 61.
¶ 40       We agree with the courts in Skoien and Baumgartner and the dissent in Coram. The record
       does not show that petitioner has ever applied for a pardon. He still has a remedy available to
       obtain relief. Therefore, consideration of the as-applied challenge is premature.

¶ 41                                       CONCLUSION
¶ 42      The judgment of the circuit court of Bureau County is affirmed.

¶ 43      Affirmed.




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