Illinois and Louisiana, privacy and guns

[Brooks R. Fudenberg]

I thank Eugene for the case information and clear analysis.  My first
thought on reading the language was either somebody goofed or my
understanding of Illinois law is lacking:  for read literally, the
provision would likely be a nullity, as Eugene suggests, and the
tone certainly suggests it is not intended as a nullity.

(I say "likely" be null if read literally for technical reasons.  One
possible meaning, contradicted by the tone, would not be null.  If,
previously, Illinois judges had used a strict scrutiny or even
intermediate scrutiny test for gun regulations, the term "Subject to the
police power" could mean just that:  It is "subject to," and not to be
"balanced against," the police power.  I would guess that a historical
survey of Illinois gun regulation cases would not support that meaning).

Eugene's suggestion, distinguishing "police" from judicial
powers, is a creative way out of the box.  But strikes me also as
technical, and not as the actual intent behind the language.  If historical
evidence points that way, it would be fascinating to see.

But on reflection, I am not sure I entirely agree that the Illinois
amendment cannot be a nullity. I imagine the "intent" behind the amendment
was hopelelessly contradictory.  That is, it is what the people want, and
the people want contradictory things.

The provision reads (taken from Eugene's post)

"1970 Illinois (NEW):  Subject only to the police power, the right of the
individual citizen to keep and bear arms shall not be infringed."

I imagine the first "framers" saying, "Let's pass an amendment to protect
gun ownership.  'The right of the individual citizen to keep and bear arms
shall not be infringed.'"  But they cannot get enough support to get it to
a vote, or to get it passed, because people keep raising objections about
it being too extreme. Or before they even begin seeking support, one of
the framers points out the political problem.  So they add the "subject
to" clause. Result: Gun owners support it.  Those who support gun control
are convinced their concerns are addressed by the "subject to" clause.
E.g., A person who objects that the provision will prevent regulation X,
is told, "That is covered by the subject to clause."  So pro-regulation
folk are pleased, and so are anti-regulation folk.

It seems as if it may be akin to a constitutional provision declaring,
"The United States shall maintain a strong Army and Navy, to the extent it
may do so without great expenses or a military draft," or "Every child in
this state is entitled to a first-rate education, subject only to
budgetary constraints."


Brooks R. Fudenberg
University of Miami School of Law


On Thu, 18 Mar 1999, Volokh, Eugene wrote:

>         Brooks' excellent questions ties nicely to the Louisiana "right
> of privacy" provision:  What does one do about constitutional language
> that quite clearly *was* enacted by an unquestionably authoritative body
> (i.e., can't just be condemned as the judges making it up), but that
> lacks a very clear meaning.  What did those who ratified the 1974
> Louisiana Constitution understand "the right of privacy" to mean?  What
> did those who ratified the 1970 Illinois Constitution understand
> "subject only to the police power" to mean?  How can we possibly tell?
> And even if we abandon original meaning -- and note that, say what one
> will about the federal constitutional traditions, state constitutional
> decisions generally stress original meaning a great deal -- we still
> have to ask how courts can plausibly fill with meaning these very vague
> terms.
>
>         Sometimes it is pretty clear, though, what a provision *can't*
> mean.  The Illinois constitutional provision can't mean that any
> restriction on guns -- including a total ban -- is constitutional if it
> passes muster under the orthodox rational basis test; this would turn
> the provision into a nullity, something that one can't reasonably do a
> constitutional provision.  So at least this means that average
> Illinoisans may possess at least some guns; in fact, the Illinois
> Supreme Court has interpreted this provision as tolerating a handgun ban
> -- largely based on some in my view highly inconclusive language in the
> Convention debates -- but as preventing "confiscation of all
> [fire]arms," and protecting the "right [of individual citizens] to
> possess some form of weapon suitable for self-defense or recreation."
> Kalodimos v. Village of Morton Grove, 103 Ill. 2d 483 (1984).
>
>         A related question:  The police power has traditionally been
> seen as a purely *legislative* power (or am I mistaken in that?).  Does
> it follow that Illinois courts are constitutionally barred from in
> effect regulating the purchase of guns using the tort law, on the
> grounds that the right is "subject *only* to the police power"?  Could
> be quite relevant to the City of Chicago lawsuit.
>
>
>
> > -----Original Message-----
> > From: Brooks R. Fudenberg [SMTP:bfudenbe at LAW.MIAMI.EDU]
> > Sent: Thursday, March 18, 1999 3:45 PM
> > To:   CONLAWPROF at listserv.ucla.edu
> > Subject:      Re: Rights to keep and bear arms, and amendments
> >
> > Volokh, Eugene wrote:
> >
> >  Since 1970, sixteen states significantly changed
> > > their Bills of Rights with regard to keeping and bear arms.
> >
> >  . . .
> >
> >
> > > 1970 Illinois (NEW):  Subject only to the police power, the right of
> > the
> > > individual citizen to keep and bear arms shall not be infringed.
> > >
> >
> > This intrigued and baffled me.  "Subject only to the police power"?
> > Which can be used for any rational purpose?  In effect, "a rational
> > basis test is hereby established for gun regulations"?  Is anybody up
> > on
> > Illinois law, or on the specific debate regarding this provision?
> >
> > Brooks R. Fudenberg
> > University of Miami School of Law
>