Illinois and Louisiana, privacy and guns

[Volokh, Eugene]

                I guess I am pretty sure that "the Illinois amendment
cannot be a nullity."  It's a pretty basic canon that
substantive-seeming provisions are to be interpreted -- unless the
contrary meaning is quite clear -- as having some meaning.

                I agree that the intentions of the ratifiers as to
particular laws might have been contradictory, and that the police power
is broad enough to justify a good deal of restrictions.  But it seems to
me that few of the ratifiers of the Constitution could have reasonably
believed that a protection of "the right of the individual citizen to
keep and bear arms" (even when qualified by "subject only to the police
power") would allow a *total ban* on private ownership of arms.  One can
argue about how broad the provision's protections are, but I don't think
that there's any solid claim that this breadth is zero.





Brooks Fudenberg writes:

> 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
> >