Illinois and Louisiana, privacy and guns
VOLOKH at mail.law.ucla.edu
Sat Mar 20 14:06:46 PST 1999
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
> 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
> 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
> 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
> was hopelelessly contradictory. That is, it is what the people want,
> 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
> individual citizen to keep and bear arms shall not be infringed."
> I imagine the first "framers" saying, "Let's pass an amendment to
> gun ownership. 'The right of the individual citizen to keep and bear
> 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
> it being too extreme. Or before they even begin seeking support, one
> the framers points out the political problem. So they add the
> to" clause. Result: Gun owners support it. Those who support gun
> are convinced their concerns are addressed by the "subject to" clause.
> E.g., A person who objects that the provision will prevent regulation
> is told, "That is covered by the subject to clause." So
> 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
> 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
> > of privacy" provision: What does one do about constitutional
> > that quite clearly *was* enacted by an unquestionably authoritative
> > (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?
> > did those who ratified the 1970 Illinois Constitution understand
> > "subject only to the police power" to mean? How can we possibly
> > And even if we abandon original meaning -- and note that, say what
> > will about the federal constitutional traditions, state
> > decisions generally stress original meaning a great deal -- we still
> > have to ask how courts can plausibly fill with meaning these very
> > terms.
> > Sometimes it is pretty clear, though, what a provision
> > mean. The Illinois constitutional provision can't mean that any
> > restriction on guns -- including a total ban -- is constitutional if
> > passes muster under the orthodox rational basis test; this would
> > the provision into a nullity, something that one can't reasonably do
> > 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
> > -- largely based on some in my view highly inconclusive language in
> > 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
> > 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?).
> > 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"?
> > 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
> > > Which can be used for any rational purpose? In effect, "a
> > > basis test is hereby established for gun regulations"? Is anybody
> > > on
> > > Illinois law, or on the specific debate regarding this provision?
> > >
> > > Brooks R. Fudenberg
> > > University of Miami School of Law
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