Turning the U.S. into Illinois

Ever since Solicitor General Paul Clement submitted the government’s amicus brief in the District of Columbia v. Heller case, stating something along the lines of “Sure, the Second Amendment protects an individual right . . . but,” I’ve been kicking an idea around for a blog post, without having gotten around to posting it. A couple days ago, I learned through War on Guns that the GOA’s Larry Pratt had beaten me to the punch.

It’s a point that bears repeating, though (and besides, it’s probably pure conceit on my part to think that I’ve ever come up with anything original . . . well, aside from some of my really weird stuff), so here goes.

But Pratt said it would be analogous to the situation in the state of Illinois, where the state constitution provides a right to keep and bear arms, “subject to the police power,” he said. Not surprisingly, Illinois has one of the most restrictive atmospheres in the nation regarding guns, he told WND.

“Under the administration’s amicus brief, a national ban on all firearms – including hunting rifles – could be ‘constitutional,’ even if the Supreme Court decides – on ample historical evidence – that the Founders intended the Second Amendment as an individual right,” he continued.

Larry Pratt refers to the fact that here in Illinois, the state constitutional equivalent of the Second Amendment (the equivalent is Article I, Section 22) reads:

Illinois Constitution 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.

I refer to the “subject only to the police power” part. Chicago Handgun Rights has the details, but the gist of it is that the offending language was tacked onto Illinois’ equivalent of the Second Amendment in a 1970 state constitutional convention, with plenty of political muscle for doing so coming from Chicago’s original Mayor Richard Daley (the apple, clearly, has not fallen far from the tree).

What “subject only to the police power” does, basically, is to take the teeth out of the right to keep and bear arms. It turns the “shall not be infringed” into “shall not be infringed unless we decide to go ahead and infringe it.” Obviously, there’s no real point in a right that the government can limit at will.

The Department of Justice brief, in arguing that the government must only meet a standard of “reasonable” to justify a gun law’s Constitutionality under the Second Amendment (rather than the strict scrutiny standard of “compelling state interest”), has basically tried, in effect, to copy Illinois’ “subject only to the police power” language into the Second Amendment.

Funny, I don’t know how I missed that alteration to the Constitution (which is generally kind of tough to do on the sly).

To those for whom gun rights are not central, chew on this: if the DoJ’s wishes are upheld by SCOTUS, a right protected by the Bill of Rights can be trampled simply because the government says it’s “reasonable” to do so. If too many criminals are getting off because illegally obtained evidence violates their Fourth Amendment rights, perhaps it’s time to declare that it’s “reasonable” to say the Fourth Amendment doesn’t really mean what it says. “Due process” under the Fifth Amendment making it too hard to prosecute criminals? No problem–just say that it’s “reasonable” to violate it. Don’t complain too loudly about it either, or it might be found “reasonable” to shut you up, First Amendment notwithstanding.

The “Vote Freedom First” President’s Department of Justice is arguing, in effect, that We The People have the rights enshrined in the Bill of Rights only until it’s “reasonable” to strip them from us. Behold the Bill of Privileges, courtesy of “Vot[ing] Freedom First.”

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