Also see relevant photos from “Making a Modern Constitution: The Illinois Experience”
SIXTH ILLINOIS CONSTITUTIONAL CONVENTION (1970)
Analysis of the Article, “Right to Arms” with annotations.
Right to Arms
The Committee voted 12 to 3 to add to the Bill of Rights the following new provision concerning the right to arms. “Subject only to the police powers of the State, the right of the individual citizen to keep and bear arms shall not be infringed.” This provision affirms the right of the individual citizen to possess and use arms, including firearms. It also makes explicit the principle that this right is not absolute, but is subject to regulations required by the safety and good order of society. Since the right to arms provision is new, it will be helpful to put it in perspective by reviewing comparable provisions in the United States Constitution and in the constitutions of the several states.
The Second Amendment to the United States Constitution provides: “A well regulated militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed.” The United States Supreme Court has referred to this guarantee as being limited to arms that have “some reasonable relationship to the preservation or efficiency of a well regulated militia . . . .” United States v. Miller, 307 U.S. 174, 178 (1939) subject to regulations required by the safety and good order of society. Since the right to arms provision is new, it will be helpful to put it in perspective by reviewing comparable provisions in the United States Constitution and in the constitutions of the several states.
The Second Amendment to the United States Constitution provides: “A well regulated militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed.” The United States Supreme Court has referred to this guarantee as being limited to arms that have “some reasonable relationship to the preservation or efficiency of a well regulated militia. . . .” United States v. Miller, 307 U.S. 174, 178 (1939). The Illinois Supreme Court has recently declared that “regulation which does not impair the maintenance of the State’s active, organized militia is not in violation of either the terms or the purposes of the Second Amendment.” Brown v. City of Chicago, 42 Ill. 2d 501, 504, 250 N.E. 2d 129, 131 (1969).
It appears from these interpretations that the Second Amendment language only refers to a collective right, which must be reasonably connected to the maintenance of a militia or other form of common defense. Thirty-five state constitutions have provisions concerning the right to keep or bear arms. Seven of these are cast in the language of the Second Amendment, although two omit the introductory reference to the militia. Four other states (Arkansas, Maine, Massachusetts, Tennessee) use phraseology that is different, but which seems clearly limited to a collective right. The Massachusetts provision reads: “The people have a right to keep and to bear arms for the common defense.” Six state constitutions clearly declare an individual right to arms in language similar to the following provision from the Connecticut constitution: “Every citizen has a right to bear arms in defense of himself and the state.” Columbia University Legislative Drafting Research Fund, CONSTITUTIONS OF THE UNITED STATES, Vols. 1 & 2 (1962); McKenna, The Right to Keep and Bear Arms, 12 MARQ. L. REV. 138 (1928). Alaska, Georgia, Hawaii, Louisiana, North Carolina, Rhode Island, South Carolina. 1970 — COMMITTEE PROPOSALS 85 Alabama, Arizona, and Washington use practically identical language. Texas is similar except that it refers also to the right to “keep” arms. Michigan is like Texas except that it refers to “every person.” Five other state constitutions have a lengthier provision that also expresses an individual right. Colorado, Missouri, Montana and Oklahoma all have provisions similar to the following section from the Mississippi Constitution: “The right of every citizen to keep and bear arms in defense of his home, person, or property, or in aid of the civil power when thereto legally summoned, shall not be called in question, but the legislature may regulate or forbid carrying concealed weapons.” The provisions of thirteen states are unclear on whether the right to arms is only a collective right, for the common defense, or whether it also guarantees a right to the individual. Eight of these seem to imply an individual right. These declare that “the people” or “the citizens” or “all men” have “a right to bear arms, for the defense of themselves and the state.” But see Pierce v. State 42 Okla. Cr. 272, 275 P. 393 (1929), holding that the protection given the individual by the Oklahoma provision only extends to arms in common use by a militia. Florida, Indiana, Kentucky, Oregon, Pennsylvania, South Dakota, Vermont and Wyoming. But see Carlton v. State, 63 Fla. 1, 58 So 486 (1912), limiting the Florida provision to a collective right. Five others seem to imply a collective right. These declare that “the people have the right to bear arms for their defense and security ….” By referring to “the individual citizen” and to the right to “keep” as well as to “bear” arms, the proposed new provision guarantees an individual right rather than a collective right and seeks to assure that the “arms” involved are not limited by the armaments or needs of the state militia or other military body.
The substance of the right is that a citizen has the right to possess and make reasonable use of arms that law-abiding persons commonly employ for purposes of recreation or the protection of person and property. Laws that attempted to ban all possession or use of such arms, or laws that subjected possession or use of such arms to regulations or taxes so onerous that all possession or use was effectively banned, would be invalid. Idaho, Kansas, New Mexico, Ohio and Utah. Compare City of Salina v. Blaksley, 72 Kan. 230, 83 Pac. 619 (1905), and similar holdings under constitutional provisions concerning only a collective right. People v. Brown, 253 Mich. 537, 541-42, 235 N.W. 245, 246-47 (1931); State v. Duke, 42 Tex. 455, 458 (1875). In re Brickley, 8 Idaho 597, 70 Pac. 609 (1902); People v. Zerillo, 219 Mich. 635, 189 N.W. 927 (1922); State v. Kerner, 181 N.C. 574, 107 S.E. 222 (1921). The introductory phrase makes explicit the well settled principle that the right to keep and bear arms is subject to the police power. Thus, in the earliest Illinois decision on the permissible regulatory power concerning firearms, the Illinois Supreme Court upheld the validity of a Chicago ordinance that required that all sellers and buyers of pistols obtain a license. The Court’s reasoning contained this far-reaching dictum: “It is clear, under the authorities, that the sale of deadly weapons may be absolutely prohibited under the police power of the State, and to do this in no way conflicts with the provision of the constitution of the United States and of various state constitutions that ‘the people have a right to bear arms for their defense and security.’ [cites] If the State has the right to prohibit, such right necessarily includes the power of regulating, and the power to regulate includes the power of licensing.” Biffer v. City of Chicago, 278 Ill. 562, 570, 116 N.E. 182, 185 (1917). The Supreme Court cited this case with approval in its recent opinion upholding the validity of the Chicago gun registration ordinance. Brown v. City of Chicago, 42 Ill. 2d 501, 504, 250 N.E. 2d 129, 131 (1969).
Because arms pose an extraordinary threat to the safety and good order of society, the possession and use of arms is subject to an extraordinary degree of control under the police power. The five succeeding paragraphs describe regulatory State v. Dawson, 272 N.C. 535, 548, 159 S.E. 2d 1, 11 (1968); Hill v. Georgia, 53 Ga. 472, 477 (1874); People v. Brown, 253 Mich. 537, 235 N.W. 245 (1931); FREUND, POLICE POWER,§90 (1904). 88 SIXTH ILLINOIS CONSTITUTIONAL CONVENTION measures, including some outright prohibitions, that have been approved as not constituting an unconstitutional infringement of even an individual as well as a collective right to arms. The state may altogether prohibit the possession of certain deadly weapons not commonly and peacefully used by individuals, such as machine guns, firearms equipped with silencing devices, gas-ejecting devices, blackjacks, artillery weapons, bombs, etc. The State may forbid or regulate the possession or use of firearms by minors or by persons whose physical or mental disabilities or violent propensities shown by prior criminal conduct present unacceptable risks of danger to themselves or others. To implement this power, “to provide a system of identifying persons who are not qualified to acquire or possess firearms” (Ill. Rev. Stats., 1969, ch. 38, §83-1), the state may adopt a reasonable licensing law pertaining to those who possess or use firearms. Many states have done so.12/ Illinois adopted such legislation in 1969 (Ibid.) 10/ People v. Brown, 253 Mich. 537, 235 N.W. 245 (1931) (blackjack); Morrison v. State, 170 Tex. Crim. 218, 339 S.W. 2d 529 (1960) (machinegun). 11/ See Ill. Stats., 1969, ch. 38, §24-3.1. Decisions include: Glenn v. State, 10 Ga. App. 128, 72 S.E. 927 (1911) (possession of pistol by minors); Mason v. State, 39 Ala. App. 1, 103 So. 2d 337 (1956), aff’d. 267 Ala. 507, 103 So. 2d 341 (1958) (possession of pistol by persons convicted of crime of violence); State v. Robinson, 217 Ore. 612, 343 P. 2d 886 (1959) (possession of concealable weapons by convicted felon); Webb v. State, 439 S.W. 2d 342 (Tex. Crim. App. 1969) (same); City of Akron v. Williams , 113 Ohio App. 293, 177 N.E. 2d 802 (1960), rev’d. on other g’nds., 175 Ohio St. 186, 192 N.E. 2d 63 (1963) (possession of any firearms by convicted felon). 12/ Matthews v. State, 237 Ind. 677, 148 N.E. 2d 334 (1958); Note, 98 U. Pa. L. Rev. 905 (1950). 1970 — COMMITTEE PROPOSALS 89 The State may prohibit or regulate the carrying of concealed weapons, and may implement this power by licensing laws. Numerous court decisions sustain this power and many states have exercised it.
The State may also regulate or prohibit the carrying of weapons openly when there is no good reason for such action and the regulation bears a fair relation to the preservation of public peace and safety. The State may regulate the purchase and sale of weapons, even to the extent of totally prohibiting the sale of some weapons in some circumstances. McKenna, The Right to Keep and Bear Arms, 12 MARQ. L. REV. 138, 143-44 (1928); Note, 3 L.R.A. (N.S.) 168, 169 (1906); Note, 98 U. PA. L. REV. 905, 908-9 (1950). State v. Dawson, 272 N.C. 535, 159 S.E. 2d 1 (1968) (sustains constitutionality of common-law offense of going armed with dangerous weapons to the terror of the people); Haile v. State, 38 Ark. 564 (1882); Hill v. Georgia, 53 Ga. 472 (1874); 564 (1882); Commonwealth v. Murphy, 166 Mass. 171, 44 N.E. 138 (1896); Presser v. Illinois, 116 U.S. 252 (1885); State v. Duke, 42 Tex. 455 (1875). 15/ Biffer v. City of Chicago, 278 Ill. 562, 116 N.E. 182 (1917), quoted above; State v. Burgoyne, 75 Tenn. 173 (1881); Caswell & Smith v. State, Tex., 148 S.W. 1159 (1912) (confiscatory tax); Strickland v. State, 137 Ga. 1, 72 S.E. 260 (1911). An exercise of the police power that results in inconvenience or loss to individuals must of course find basis in the doctrine of overruling necessity or bear some substantial relation to the public good, and it must also be consistent with other Bill of Rights guarantees such as Due Process and Equal Protection of the laws.
In upholding some of the licensing measures or other regulations described above, some state courts have relied on specific provisions in their Bill of Rights providing that the right to bear arms was subject to regulation by the legislature. The conferring of specific regulatory authority is unnecessary, since the state enjoys such authority in any case. Nevertheless, as a matter of “super-abundant caution,” the proposed new provision makes the declared right subject “to the police powers of the State.” This reference to the police power “of the State” of course also includes an exercise of police power by cities and villages or other instrumentalities of government to whom state power has been validly delegated. As the Illinois Supreme Court stated in City of Chicago v. O’Connell, 278 Ill. 591, 603, 606, 116 N.E. 210, 214, 215 (1917): 16/ Chicago Park Dist. v. Canfield, 370 Ill. 447, 451-52, 19 N.E. 2d 376, 378 (1939); State v. Dawson, 272 N.C. 535, 547, 159 S.E. 2d 1, 10 (1968). Haile v. State, 38 Ark. 564, 567 (1882), quoted with approval in State v. Dawson, 272 N.C. 535, 548, 159 S.E. 2d 1, 11 (1968). “The police power may be exercised by the legislature directly, or it may be exercised indirectly by conferring the power upon agencies created by the legislature. . . . ‘The City, as the representative of the State, is invested with power to enact and enforce all ordinances necessary to prescribe regulations and restrictions needful for the preservation of the health, safety and comfort of the people.'” The Illinois Supreme Court has recently upheld the validity of the Chicago gun registration ordinance. The Court held that the state legislation that required the registration of gun owners did not preempt the field of gun control and deprive the city of power to deal with the subject by an ordinance that was not inconsistent with the state legislation. Brown v. City of Chicago, 42 Ill. 2d 501, 504, 250 N.E. 2d 129, 131 (1969). The new provision is similar to Proposal 105, which provides that the right of the individual citizen to keep and bear arms should not be infringed except for the mentally ill or convicted felons. Proposals 13 and 502 would have prohibited laws requiring the registration of gun owners or guns. Proposal 80 would have forbidden laws requiring registration or imposing special taxes on firearms. Proposal 470 would have invalidated laws infringing the right to possess and use firearms to safeguard one’s life, but would have authorized the Legislature to regulate weapons used for hunting and other sports. Proposal 526 sought to employ the Second Amendment language that “The right of the people to keep and bear arms shall not be infringed.” A minority of the Committee supported Proposal 220, to the effect that the Bill of Rights should contain no provision -10- §27 concerning the right to keep or bear arms. They were fearful that any mention of this subject in the Bill of Rights might cast doubt upon the validity of existing provisions for licensing gun owners or registering firearms, or might discourage or cast doubt upon the validity of future measures to control guns.
Citing evidence of the increased possession of firearms, especially handguns, and of the high rate of involvement of firearms in home accidents and in crimes of violence, the minority urged the inappropriateness of any constitutional provision that could possibly interfere with efforts to impose reasonable controls on the possession and use of firearms, especially handguns. SCHEDULE A Proposals Considered By Committee The following proposals were examined and considered by the Bill of Rights Committee during its deliberations: NUMBER CHIEF SPONSOR SUBJECT MATTER Dwight P. Friedrich Right to Bear Arms Matthew Hutmacher Preamble Ted A. Borek Preamble Ralph Dunn Preamble John D. Wenum Equal Opportunity Richard K. Cooper Fair Employment Richard K. Cooper Open Housing Clifford L. Downen Right to Bear Arms Joseph A. Tecson Right to Privacy Wendell Durr Right to Bear Arms Francis X. Lawlor Right to Bear Arms Betty Howard Protection from financial slander Henry C. Hendren Right to Bear Arms Henry C. Hendren Abortion Robert Butler Bill of Rights Ronald C. Smith Preamble Mary Lee Leahy Right to Public Information James Gierach Eminent Domain SCHEDULE B Witnesses Heard By Committee The witnesses who appeared before the Bill of Rights Committee are listed in this section according to subject matter.
Where applicable, the witness is identified according to group affiliation. In the case of witnesses heard in Chicago or Waukegan by the committee, no group affiliation is made. The notation Chicago or Waukegan after a witness identifies where testimony was given to the committee. If no notation of location is made, testimony was given in Springfield. In some instances, witnesses were heard on items which the committee took no action. These witnesses are also listed by subject. Because of the large number of witnesses, it is probable that several have been omitted by inadvertence; for which our apologies. All members of the committee were invited to produce witnesses, but in some instances arrangements could not be completed. In some instances, communications were received from persons unable to appear. RIGHT TO BEAR ARMS Wendell Durr, Delegate Clifford L. Downen, Delegate Henry C. Hendren, Delegate Dwight Friedrich, Delegate Franklin Zimring, Professor of law, University of Chicago Marvin Aspen, assistant corporation counsel, Chicago Chief Michael Spiotto, Chicago Police Department David Goldberger, American Civil Liberties Union Robert Kukla, Illinois Rifle Association Jeff Fitzwillia, Chicago SCHEDULE C MATERIALS UTILIZED BY THE COMMITTEE LEGAL AND RESEARCH ADVISOR’S MEMORANDA (“L.A.R.A.M.”) A major source material studied by the Bill of Rights Committee were the Legal and Research Advisor’s Memoranda (“L.A.R.A.M.”) specially prepared by the Committee’s Counsel, Professor Dallin H. Oaks, and University of Chicago Law School students working under his direction. The students were: James Franczek (J.F.), Joseph H. Grobert (J.H.G.), Randolph N. Jonakait (R.N.J.), David Krott (D.K.), Peter C. Partnow (P.C.P.), and Katherine B. Soffer (K.B.S.). Following is a list of the 50 L.A.R.A.M.’s considered by the Committee, which comprised a total of 660 pages. Following this list there is a summary of the contents of the memoranda, arranged according to the various sections of the existing Bill of Rights and proposed additions. L.A.R.A.M. Title or Subject # 1 Suggested Organization for Consideration of Bill of Rights Topics # 2 Aid to Nonpublic Schools # 3 The Grand Jury Indictment # 4 Stop and Frisk # 5 Religion # 6 Capital Punishment # 7 Provision on Group (Ethnic) Libel # 8 Official to Receive Citizen Complaints # 9 Regulation of Arms #10 Bail and Preventive Detention #11 Jury Trial in Civil Cases #12 Truth as a Defense to Libel #13 Limitation of Criminal Penalties #14 Reduction of Poverty #15 The Privilege Against Self-incrimination #16 Investigative Interrogation #17 Imprisonment for Debt #18 Sex Discrimination #19 The Right to Be Represented by Counsel and the Right to Be Provided with Counsel in Noncriminal Proceedings #20 Railroad Easement #21 Right to Privacy #22 Right to Speedy Trial #23 Chicago Hearings #24 Equal Protection Clause #25 Alternatives on Right to Bear Arms #26 Topics for Decision Day February 25th: I. Inherent and Inalienable Rights, II. Fundamental Principles, III. Preamble, IV. Relations with the Military, V. Provision on Free Elections, VI. Free Speech Provision, VII. The Right to Bear Arms, VIII. Habeas Corpus – 2 – L.A.R.A.M. Title or Subject #27 State Constitutional Provisions on Press, Speech, and Assembly #28 Rights of Public and Private Employees #29 Proposal on Eminent Domain #30 Proposals on Discrimination #31 Proposal on Hortatory Statement Concerning Remedy #32 Opinion on Provision Concerning Right to Bear Arms Section of 1870 Bill of Rights Related L.A.R.A.M.’s and Summary of Contents (L.A.R.A.M. included partial or complete text of all sources cited here) Preamble #35 (p. 24) Includes state constitutional provisions and Illinois case law which indicate that the preamble is to be used as substantive law for the protection of individuals, and comments on a related proposal. #26 (III) Compares language of present and proposed preambles. §1 Inherent and Inalienable Rights NEW PROVISIONS OR PROPOSED NEW PROVISIONS: Arms #9, Regulation of Arms D. Newton and F. Zimring, Firearms and Violence in American Life: A Staff Report to the National Commission on the Causes and Prevention of Violence, 253-62 (1969). #25, Alternative on Right to Bear Arms #26 (VII) Includes an analysis of the right to bear arms #32, Opinion on Provision Concerning Right to Bear Arms Additional material consulted by the Bill of Rights Committee (A partial list.) A Proposed Draft of the Constitution of Illinois prepared by certain students of Elk Grove High School, Township High School District 214. Abortion and the Law. Newsweek, April 13,1970. Facts and Figures About Non-public Schools in Illinois (Revised–January, 1970) Illinois Catholic Conference. A Study of Nonpublic Schools. Prepared for the General Advisory Committee, Office of the Superintendent of Public Instruction. The Case for State Aid for Non-Public Schools. By Monsignor Laurence J. O’Connell, Secretary of Education, Diocese of Belleville. Constitution of the State of Illinois. Proposed by Illinois Jaycee Model Constitutional Convention, November 21-23, 1969. Springfield. Fact Pack on Firearms Ownership. The National Shooting Sports Foundation, Inc. Does Firearms Registration Work? A Statistical Analysis of New York State and New York City. By Alan S. Krug, National Shooting Sports Foundation, Inc. Memorandum of Richard Wexler with respect to Eminent Domain.
Current Constitutional and Statutory Aspects of the Right to Keep and Bear Arms, by Alan S. Krug. “The Lost Amendment,” by Robert A. Sprecher. American Bar Association Journal, June, 1965. MINORITY PROPOSAL 1H BE IT PROPOSED: That Section 27, entitled “Right to Arms”, in the majority proposal of the Bill of Rights Committee be deleted. MINORITY REPORT IH The minority of the Committee submit that it would be unwise and dangerous to add a new provision to the Illinois Constitution creating an individual right to keep and bear arms. The Committee proposal is so ambiguous and self-contradictory that lawyers cannot reasonably determine its meaning and effect. The Committee proposal would create uncertainty about the power of the legislature to enact gun control laws which may be needed in the interest of public safety. The Committee proposal would invite serious public misunderstanding and litigation challenging existing and future gun control legislation. The Committee proposal could even have the self-defeating effect of subjecting Illinois to a federal system of handgun licensing more stringent than would have been necessary otherwise. In view of the extraordinary threat to public safety posed by firearms, the Convention has every responsibility not to recommend constitutional restrictions which might handicap the legislature in protecting the public. This is especially important in view of the huge supply of firearms in private hands in the United States and the alarming increases in recent years in homicides, attacks on police and other crimes usually committed with guns. No need has been shown for constitutional change on this subject. In our climate of concern about violence, a new constitutional right to bear arms is not the ethical message needed by the people of our state and our nation.
The Committee Proposal is Ambiguous and Self- Contradictory. It is difficult to determine the meaning and effect of the Committee proposal. The proposal declares an undefined individual right to keep and bear arms. The right is, however, completely subject to the vague concept of the “police powers” of the State. What kinds of laws would be prohibited by the Committee proposal? The majority report states that the proposed constitutional provision would not prohibit certain types of firearms laws which have been upheld by the courts, such as laws prohibiting the carrying of concealed weapons, gun registration laws and gun owner licensing laws. The majority is silent, however, as to what new limits, if any, the Committee proposal would place on the power of the legislature to enact other types of gun control laws, laws which are not now on the books and have not been passed on by the courts, but which may be needed in the years to come to deal with the “extraordinary threat to the safety and good order of society” posed by arms. The only answer to this question offered in the majority report is the suggestion on page 4 that a law would be invalid if it “attempted to ban all possession or use” of “arms that law-abiding persons commonly employ for purposes of recreation or the protection of person or property.” However, it is difficult to reconcile this statement with the principle that the “right to keep and bear arms” is completely subject to “the police powers of the State” or with the statement on page 7 of the majority report that the State, acting under the police power, can totally prohibit the sale of “some weapons in some circumstances.” Indeed the majority report cites Biffer v. City of Chicago, 278 Ill. 562, 570 (1917) which said that “the sale of deadly weapons may be absolutely prohibited under the police power of the State. . .” The majority report thus mirrors the inconsistency and ambiguity which are central to the Committee proposal. On balance, however, the majority report appears to reflect the view expressed by most of the Committee members that the Committee proposal is not intended to prevent the legislature from passing such reasonable gun control legislation as Majority report, p. 5. -3- may be needed in the interest of public safety. Thus, the Committee proposal would add nothing to the existing requirement that any gun control legislation must meet constitutional standards of reasonableness. Because this interpretation would make the proposed constitutional change a meaningless act, and because of the ambiguity of the proposal, confusion and uncertainty would inevitably be created about the power of the legislature to pass certain types of gun control legislation which may be deemed necessary in the coming decades.
One type of legislation which may be challenged under the Committee proposal might be enacted under a recommendation of the National Commission on the Causes and Prevention of Violence. The Commission proposed federal legislation under which a federal system of handgun licensing would become applicable only to those states which, within a four-year period, failed to enact a state law restricting the possession of handguns to individuals showing a need to own handguns. If such a federal law were enacted, the constitutional provision proposed See Majority report, pp. 1 (second paragraph), 5 to 7. As noted above, the majority report cites Biffer v. City of Chicago with apparent approval. Biffer was cited with approval in Brown v. City of Chicago, 42 Ill. 2d 501 (1969) upholding the validity of the Chicago gun registration ordinance. “To Establish Justice, To Insure Domestic Tranquility,” Final Report of the National Commission on the Causes and Prevention of Violence, December 1969, Chapter 7, pp. 180- 182. -4- by the Committee could be self-defeating since the legislature or the courts might be persuaded that a state law of the type required would ban “all possession or use. . .of arms that law abiding persons commonly employ for purposes of recreation or the protection of the person or property.” The result would be to subject Illinois to a more stringent federal system of handgun licensing than would have been the case otherwise. It is not our purpose here to advocate the legislation recommended by the Violence Commission or any other particular gun control laws. We do submit, however, that the Convention should not approve a constitutional provision which is so ambiguous that lawyers cannot determine its meaning or effect.
Whatever interpretation would ultimately be given to the Committee proposal, its ambiguity and inconsistency seem certain to invite public misunderstanding and litigation challenging existing and future gun control laws. The general public cannot be expected to understand that since the proposed individual constitutional right is completely subordinate to the “police power” of the state, the “right” may turn our to be without content. This type of constitutional change is not likely to build public confidence in the work of the Convention. See 80 Harvard Law Review 1328, 1344 (1967). -5- 2. The Legislature Must Be Left With Broad Power To Enact Whatever Weapons Control Laws Are Needed In The Interest Of Public Safety. It is not the responsibility of the Constitutional Convention to decide what, if any, gun control laws should be adopted in Illinois. Nor is the Constitutional Convention equipped, as is the legislature, to gather the facts in order to decide from time to time what changes in our gun control laws are necessary. However, in view of the extraordinary threat to public safety posed by firearms, the Convention has every responsibility not to recommend constitutional restrictions which might handicap the legislature in protecting the public. For many years, public officials concerned with law enforcement, including J. Edgar Hoover, the International Association of Chiefs of Police and the National Conference of Mayors, have joined responsible leaders of both political parties in urging the need for more effective gun control laws to deal with the problem of violent crime in the United States.
Public opinion polls have shown repeatedly that See The Challenge of Crime in a Free Society, a Report by the President’s Commission on Law Enforcement and Administration of Justice, Chapter 10 (1967). -6- the general public, including gun owners, favors stricter gun control legislation. Just last year the National Commission on the Causes and Prevention of Violence documented the problems arising from the huge supply of firearms in civilian hands in the United States. The Violence Commission estimated there are now 90,000,000 firearms in the United States. In recent years sales of firearms, particularly handguns, have risen sharply. The Commission concluded that “the urban arms build-up threatens not only to escalate future civil disorders, but also to bring with it greater misuse of firearms in crimes and accidents.” Among other key findings of the Violence Commission are the following: “Firearms are a primary instrument of injury and death in American crime. Two out of every three homicides are committed with guns. Since 1963 the number of homicides involving firearms has increased 48 percent in the United States while the number of homicides committed with other weapons has risen only 10 percent. A 1967 Gallup Poll showed the public favoring gun registration laws by 73% in the case of long guns and 85% in the case of handguns. During the past 10 years a series of Gallup Polls has found a strong majority of the public favoring a law under which it would be necessary to obtain a police permit before purchasing handguns. Majorities favoring such a law have ranged as high as 78% (73% in the most recent 1967 Poll). Such laws have also been favored by a majority of gun owners (60% in 1965). 7/ “To Establish Justice, To Insure Domestic Tranquility,” Final Report of the National Commission on the Causes and Prevention of Violence, December 1969, Chapter 7. See also the Commission’s Task Force Report “Firearms and Violence in American Life” by George D. Newton and Franklin E. Zimring. -7- “The deadliness of firearms is perhaps best illustrated by the fact that they are virtually the only weapons used in killing police officers. Policemen are armed. They are trained in the skills of self-defense. They expect trouble and are prepared for it. Yet, from 1960 through 1967, 411 police officers were killed in the course of their official duties — 76 of them in 1967 alone. Guns were used in 96 percent of these fatal attacks on police. “In assassinations, guns play a crucial role because they extend the deadliness and the effectiveness of the assassin. Of the nine assassination attempts on American presidents or presidential candidates, all involved firearms. All, except the assassination of President Kennedy, involved handguns. “Guns also play an increasingly deadly role in aggravated assault and robbery. In 1968, 23 percent of all aggravated assaults were committed with guns, as opposed to only 13 percent in 1963. One out of every three robberies (two out of every three armed robberies) is committed with a gun, and the fatality rate for victims of firearms robberies is almost four times as great as for victims of other armed robberies. “In all these violent crimes, handguns are the weapon predominantly used. Although only slightly more than one-fourth (or 24 million) of the firearms in the nation are handguns, they account for about half of all homicides and three-fourths of all firearms homicides. When firearms are involved in aggravated assaults and robberies in large cities, the handgun is almost invariably the weapon used.” During 1968, 68 police officers were killed in the line of duty. Guns were used in 96% of the fatal attacks on officers between 1960 and 1968. In the City of Chicago in 1968, 5 policemen were killed and 39 shot with firearms. In 1969, 9 were killed and 64 shot (information supplied by chief of Chicago Detectives Michael Spiotto) -8- In recent years the rhetoric of extremist groups urging their followers to arm themselves, together with fear of civil disorders, has contributed to a climate in which discussion of firearms legislation frequently becomes highly charged emotional debate. The Convention must seek to avoid such debate and focus instead on its responsibility to generations to come, whose problems in this field may be even more serious than ours. The proposed right to bear arms is without precedent in the Illinois Constitution. The report of the Committee mentions no reason whatever for adding a provision of this kind at this time. No need has been shown for constitutional change on this subject. In our climate of concern about violence, a new constitutional right to bear arms is not the ethical message needed by the people of our State and our nation. -9- 174
1) Since this provision is new, it is not to mean that the right never existed. The only thing this article does do is specify a specific right and not define an unalienable right. The Constitution cannot give people any rights. It may identify certain rights and specify certain conditions under which the government may infringe upon or limit those rights, but such intrusive powers only arise when the exercise of that right by individual People results in a conflict with, or infringement upon, other’s like-rights. Under those circumstances the constitution provides for a limited power to address a specific and limited issue arising from conflicts of the exercise of that right. This Article states that subject “only to the police power…”, which does not say, “Subject to the will of the Legislature….”. The police power has a limited and specific application and cannot infringe upon an already existing natural right. This article is thus misleading and contradictory and should be read in the context of having applications pertaining to commercial or regulatory actions; and not applicable to the private actions of private people who provide for their own safety and security, as well as that of their fellow Citizens.
2) Notice how this Supreme Court ruling applies to actions in “interstate commerce” of which authority is delegated under Article I, Section 8, Clause 3 of the Constitution of the United States.