The Column, No. 78:

Why There Is No 2nd Amendment in Illinois

By Randy Wakeman

There is no Second Amendment in Illinois. Some wonder who that might be possible, given that Constitution of the State of Illinois has the following:

Constitution of the State of Illinois
Subject only to the police power, the right of the individual citizen to keep and bear arms shall not be infringed. (Source: Illinois Constitution.)

Therein lies the problem. The language of Section 22 is fraudulent and self-canceling. It is a meaningless statement. As Richard Pearson, Executive Director of the Illinois State Rifle Association mentioned to me, it wasn't “supposed” to be in there.
Although the title of Section 22 is “Right to Arms,”it isn't about the individual's right at all. What is does, in actuality, is define the path by which the Illinois State Government can strip away what the U.S. Constitution promises “shall not be infringed.” The State of Illinois has been stripping away the fundamental right of arms ever since. The clue to this wretched situation resides in the first few words, “Subject only to the police power . . . “ That's the wretched, unholy rub.

The idea of the “Police Power” flows from the 10th Amendment to the U.S. Constitution. In U.S. constitutional law, police power is the permissible scope of federal or state legislation so far as it may affect the rights of an individual when those rights conflict with the promotion and maintenance of the health, safety, morals, and general welfare of the public. During a visit with my former Senator Ed Petka, now a 12th Circuit Court Judge, the police power itself is not unlimited. Back in 1959, in Bibb v. Navajo Freight Lines Inc. , an Illinois law requiring special mudguards on trucks using its highways was found to be too cumbersome a requirement although it had been enacted in theory for the safety of its citizens, or the police power.

The Police Power, used in conjunction with the “Right to Arms,” is the language of the devil. It does not do what government is charged with doing, defending and protecting the liberty on and freedom of its citizens. Far from affirming the fundamental right that is the 2nd Amendment, it does the opposite. Section 22 grants to the Illinois State government the power to strip away rights as it chooses. Our Illinois government should be ashamed. Really, to call something “Right to Arms” when all it actually is the government giving itself the right to infringe, tax, and remove the individual's right to arms as it sees fit.

The FOID card scheme is of course a tax on a right. We now know that firearms laws don't work, as only the law-abiding citizen is inclined to follow the law in the first place. By the time folks get around to learning of the U.S. Supreme Court decision U.S. v. Haynes (1968), it becomes obvious to the most feeble-minded that gun laws cannot work.

Miles Edward Haynes appealed his conviction for unlawful possession of an unregistered short-barreled shotgun. His argument was ingenious: since he was a convicted felon at the time he was arrested on the shotgun charge, he could not legally possess a firearm. Haynes further argued that for a convicted felon to register a gun, especially a short-barreled shotgun, was effectively an announcement to the government that he was breaking the law. If he did register it, as 26 U.S.C. sec.5841 required, he was incriminating himself; but if he did not register it, the government would punish him for possessing an unregistered firearm -- a violation of 26 U.S.C. sec.5851. Consequently, his Fifth Amendment protection against self- incrimination ("No person... shall be compelled in any criminal case to be a witness against himself") was being violated -- he would be punished if he registered it, and punished if he did not register it. In an 8-1 decision, the United States Supreme Court agreed.

Felons and those that cannot lawfully own firearms cannot be compelled to get FOID cards and cannot register their firearms. If mandatory gun registration can't be used to punish ex-felons in possession of a firearm, what purpose does such a law serve?

Clayton Cramer asks, “If mandatory gun registration can only be used to punish people that can legally possess a gun, why bother? Because of the Haynes decision, if we want to punish ex-felons who are caught in possession of a gun, there are only two choices available: We must either skip registration, so that we can severely punish gun possession by those who aren't allowed to own guns; or use the "sanitized" form of registration law -- where the criminal is guaranteed that gun registration can't hurt him, while the rest of us can be punished for failure to comply.”

Although our government is charged with the responsibility of protecting our fundamental rights, Illinois State Government (yes, the “Land of Lincoln”) is an example of abject failure to do so. Ironically, the “Public Interest” means allowing concealed carry and encouraging gun ownership by law-abiding citizens.

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Copyright 2012 by Randy Wakeman. All rights reserved.