Wednesday, August 15, 2007

Illinois Gun Law Primer, Part 2

In Illinois, there are several very unusual problems for the pro-gun activist, and one of the most unusual is this: We have no protection for the right to keep and bear arms in the Illinois state constitution. None.

Most states not only have an item addressing the RKBA in their bills of rights, but actually have much more forceful and direct wording than the federal version. Language like "in defense of themselves and of their community" don't leave any wiggle room at all for the "collective rights" theorists who posit that the 2nd Amendment actually protects a right of states to raise militias. Clearly, if you have the right to keep and bear arms in defense of your self, that can't be anything but an individual right.

In Illinois, we have no such protection. Our constitution was last rewritten in 1970, and the question of the right to keep and bear arms was a thorny issue. Then, as now, the delegates from Chicago and East St. Louis insisted on leaving the field open to gun control, and then as now, the representatives from rural areas knew they'd be sacked and replaced with llamas if they went home having openly sold out to those darn gun banning city folk. I have the transcript of the debate and passage of our current RKBA amendment sitting on my desk right now, and it comes to 30 pages of almost playful sparring back and forth. The anti-gunners were on a roll at the time; remember that this was 1970. The FOID card had been introduced in Illinois only two years earlier, and the deaths of the Kennedy brothers and Martin Luther King were still fresh in the memory. JFK's assassination was about as far in the past for them as the 9-11 attacks are for us today.

What they came up with was a classic gun-control "compromise." A gun-control "compromise" differs somewhat from the standard defnition of the term. Normally, compromise means both sides get part, but not all, of what they want. In a gun-control "compromise," the anti-gun side gets part or all of what they want (although usually only part of what they openly asked to get.) The pro-gun side gets nothing and may lose quite a bit, but there is sometimes an attempt to give the pro-gun leaders an appearance of triumph to save face.

You see, Illinois' constitution states in Article I, Section 22:
Subject only to the police power, the right of the individual citizen to keep and bear arms shall not be infringed.

Is there a problem there? Not after the comma. Before the comma, we find the phrase "Subject only to the police power," so what does that mean? Well, the "police power" was a term of art. It referred to the inherent power of any political unit to create and enforce law within its borders. In other words, you could rephrase this Section as follows without changing the meaning at all:
"Unless the Illinois Legislature passes a law to the contrary, the right of the individual citizen to keep and bear arms shall not be infringed."

In contrast, here's what Indiana has to say on the subject:
The people shall have a right to bear arms, for the defense of themselves and the State.
or Maine:
Every citizen has a right to keep and bear arms and this right shall never be questioned.
or Delaware:
A person has the right to keep and bear arms for the defense of self, family, home and State, and for hunting and recreational use.

Wow, those slippery gun banners really pulled a fast one there, didn't they? How dare they?

Except that they didn't. Some of them actually stood up on the floor and flatly called the whole process stupid--why even bother forcing us to include any mention of firearms at all, they asked the "pro gun" side, when we've completely neutered it with the police power clause anyway? They were right; it was a farce. I can only guess that the reps who insisted then went home and told their constituents that they'd gone to war with the Godless Communist City Folk and preserved their right to hunt possums with shotguns (not kidding at all, that's in the transcript) without explaining the inconvenient fact that the guarantee is absolutely meaningless.

We're coming up on the next chance to hold a Constitutional Convention, what Illinois calls a ConCon, in the coming year. It looks like there may be a real push on to do it this year, because so many people are fed up with the Governor and his games with the budget (we still don't have one, by the way, 46 days after the old budget ran out and 15 days after the emergency short-term budget ran out) if only so that some requirements for the budget process can be added--along with a recall option, perhaps.
I've been hearing that some gun rights activists are worried about this--they think that the RKBA protection could be removed from the constitution. If you read the post above, I think you know why that's not really a concern. There is absolutely nothing that the Illinois state government cannot do to gun owners, up to and including a total ban on all guns, under the constitution as it is written today. We literally have nothing to lose.

5 comments:

BobG said...

Ours is a little better than Illinois, I think.

Utah Constitution Article I, Section 6

The individual right of the people to keep and bear arms for security and defense of self, family, others, property, or the state, as well as for other lawful purposes shall not be infringed; but nothing herein shall prevent the Legislature from defining the lawful use of arms.

GreatBlueWhale said...

Gotta love Kentucky. Here are the applicable clauses in Section One of the Bill of Rights of the Kentucky Constitution:

All men are, by nature, free and equal, and have certain inherent and inalienable rights, among which may be reckoned:

First: The right of enjoying and defending their lives and liberties.

Third: The right of seeking and pursuing their safety and happiness.

Fifth: The right of acquiring and protecting property.

Seventh: The right to bear arms in defense of themselves and of the State, subject to the power of the General Assembly to enact laws to prevent persons from carrying concealed weapons.

Gene said...

I'm doing some research into this very topic and looking for info re: the Constitutional Conventions of 1848 and 1870. Among other things I want to find out who submitted the wording for Article 22.

I have found a long "dissection" of the results of the Convention of 1870, but nothing mentioned about 2nd Aamendment rights. You can sure tell Chicago was at work in the 1970 Convention!

Any helpful info you can pass along would be appreciated. Glad to share as I progress.

Gene

David said...

"ConCon"

How very... apropos.

less said...

I've gotta leave this state...

Sigh.