SUBJECT TO THE POLICE POWER

A Commentary on the Second Amendment and Illinois Gun Laws

by John Q. Pridger

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. (Second Amendment to the United States Constitution)

Every legislator, judge, and public official in the United States takes a solemn oath to protect and defend the Constitution of the United States. This includes not only federal officials, but state and local government officials, and the men and women of the armed services.

The United State Supreme Court long ago affirmed that the Second Amendment to the United States Constitution guarantees the individual right to keep and bear arms — to the American people — quite aside from the militia clause.
    This individual right has been reaffirmed by the High Court several times. "Shall not be infringed" is a pretty clear statement, and it means the right to keep and bear arms shall not be infringed by Federal, State, or local government — or anybody. Not Illinois, Chicago, or the United Nations — certainly not by the Supreme Court, nor the supreme commander-in-chief of whatever nation, alliance, or potentate. Yet our Second Amendment rights are infringed in the most blatant way, by various levels of government.
    Today, we require large and powerful citizen lobbying organizations, such as the National Rifle Association, to fight for retention of even a modicum of our supposedly Constitutional rights, since so few of our representatives are willing to fight for them. Most of our representatives in the Capital and the various State Houses are more correctly described as mis-representatives. Without the powerful gun lobby threatening their reelection prospects, they'd have totally caved to communist, liberal, and United Nations anti-gun pressures decades ago.
    The original intents of the nation's founders, as well as the importance they placed on the Second Amendment, are clearly stated in many sources. Those intents are so clear that it is amazing that the Supreme Court ever found itself pondering its meanings.
    In spite of original intent and Supreme Court rulings, the right to keep and bear arms have been infringed at the Federal level, and the Second Amendment has been under a concerted attack by "gun control" advocates for many decades — their goal being the de facto repeal of the Second Amendment. But the Amendment still stands nonetheless, with it original wording — in spite of the Gun Control Act of 1968, the Brady Bill, and other laws that abridge Second Amendment rights.
    Ironically, at the federal level, the Second Amendment is doing relatively well when compared with the rest of the Bill of Rights. While it has been under a concerted and unrelenting attack, the Constitution itself, and almost the entire Bill of Rights, have been totally undermined at the federal level, making the battle over the Second Amendment seem somewhat superfluous. The increasing police power of the federal government has trampled individual and collective rights in the name of "public safety" and the "greater public good," and this usurpation of power has, of course, been affirmed by the Supreme Court at almost every step of the way. Only very rarely, does the Court kick a right or protection back into force once it has undermined that right or protection.
    Regardless of this, the federal government has handled Second Amendment issues with utmost care due to the ever present and powerful gun lobby. The gun lobby has made the disarming of the American people a ticklish business, and Second Amendment issues have taken on an importance in the public arena not accorded to other rights, most of which have already crumbled or been grossly infringed with hardly a voice of protest. This, in spite of the fact that the Second Amendment is "our insurance policy" on the entire Constitution and Bill of Rights.
    Then, of course, there is always the fear that going too quickly in infringing gun rights might provoke some sort of rebellion. Gun owns are not only numerous, they tend to be politically active — and, at least where gun rights are concerned, "true believers." More importantly, and they're armed, and could be dangerous. Many pay at least mouth-service to a willingness to fight for their rights! Many have put their guns where their mouth is and organized citizen militia groups.

    New York City and Washington D.C., have the nation's most restrictive gun control laws infringing on the right to keep and bear arms, along with the nation's most impressive crime statistics. This isn't surprising, since both are almost like foreign principalities unto themselves. The same can be said of most major cities and metropolitan areas.
    California, with its huge population centers of increasingly foreign makeup, has taken the lead among the states in passing "progressive" gun control legislation. Illinois, politically dominated by the greater metropolitan area of Chicago, is another state with progressive gun laws.
    Illinois now has a progressive Constitution, that puts the federal Constitution to shame. It's patterned (in many ways), more on the United Nations Declaration of Human Rights than its former state Constitutions or the federal Constitution, with some glaring exceptions. That it retains a Militia provision amended to include "all able bodied persons" (rather than just "men," as a politically correct gesture), is somewhat surprising. That it retains the "right of the individual to keep and bear arms" is also rather surprising. But very telling, and most significant, is the qualifying clause, "Subject to the police power." This is the wake-up call that few have thought to take issue with. It reads:

Subject only to the police power, the right of the individual citizen to keep and bear arms shall not be infringed. (The Illinois Constitution, Article I, Section 22)

All the many human rights enumerated in the various United Nations covenants and declarations contain similar qualifying clauses. These place discretionary governing authority over all individual and collective rights. There are no absolute rights for individuals without such precautionary qualifiers. Of course, you won't find the right to keep and bear arms among any UN guarantees.
    Section 22, above, was undoubtedly written after much agonized debate, and final compromise, between those who believe in individual gun rights and those who favor a police state.
    The Illinois right keep and bear arms is subject to the police power of the state — in direct
contradiction to the letter and intent of the Second Amendment of the federal Constitution. The Illinois Constitution clearly puts the police power above the rights of the people. If this isn't a gross violation of the intents and spirit of the Constitution, the moon is indeed composed of green cheese. Article I, Section 22, of the Illinois Constitution might more appropriately and honestly read:

The right of the individual to keep and bear arms shall be infringed only by the state police power.

A core purpose of Constitutional's Second Amendment guarantee is to make the citizenry the guardian of first and last resort against tyranny — whether federal, state, county, or municipal. Of course, another purpose is to make the people capable of defending the nation against foreign invasion. The entire male population of the nation was to comprise a vast armed "militia" that no foreign power or domestic tyrant could assail. To make the right to keep and bear arms "subject to the police power" is as ludicrous as it is absurd. It is literally an open declaration that the "police state" has arrived, and is alive and well in Illinois.
    Illinois Gun Statutes enumerate just how the right to keep and bear arms has been infringed.
We have three separate sets of Code (representing separate bureaucracies with police powers), that regulate the possession, transfer, and transportation of firearms — (1) the Criminal Code; (2) the Wildlife Code; (3) and the Firearm Owner’s Identification Act. Under the title of "Unlawful Use of Weapons" (UUW), we find that "unlawful use" can mean as little as mere "possession," and that the weapons regulated under the Code run the gauntlet from guns and throwing stars, to slingshots and pieces of broken glass.
    Human behavior — specifically criminal behavior — is hardly mentioned in these particular Codes. (That is a separate matter, and undoubtedly many volumes of intricate Code are devoted to it.) Inanimate "things" are the subjects of these micro-management regulations. Thus it is that possession of common things in the wrong place and time constitutes a violation of law, whether or not any actual criminal "activity" has occurred or was intended.
   Citizens are expected to respect the law, and most law abiding citizens would love to be able to do so. But when the perceptive individual discovers just how extensive and all-encompassing the law is, he quickly realizes that it would be impossible to stretch his respect nearly far enough to cover even a small portion of it. The all-pervasive laws of the land, if they be known, would cover God's green earth it in multiple layers like wet blankets. They are the inevitable result of armies of lawyers working diligently for well over a century to repeal such concepts as limited government and self-government. The best most of us can do, if we don't want to becoming totally paranoid or get a powerful headache, is to ignore the bulk of it and pretend it isn't there — continuing to imagine that we live in a free country.
   When our governor, state legislators, and judges, took their oaths of office, they swore to protect and defend the Constitution of the United States, without any qualifying clauses or mental reservations. They weren't instructed to cross their fingers, but to place their left hand upon a Bible, raise their right hand, and solemnly swear before God and their countrymen.
    So much for honesty and honor in public office. Illinois residents do not have the right to keep or bear arms except by the specific leave of the Illinois State Police charged with a disarming array of restrictive statutes. It costs $5.00 to be a legal gun and ammunition owner in Illinois for a period of five years. Illinois gun owners must have a Firearms Owner Identification card (FOID), in their possession whenever "caught" by the state police or any other authority, to avoid being exposed as a statutory felon. Only when in possession of a FOID does an Illinois resident have the statutory right to purchase, possess, or own, a firearm or ammunition. It matters not how law abiding he many otherwise be, mere possession of a firearm without a FOID also in his possession renders him a state felon if caught. Felons, of course, are automatically deemed deprived of the right to keep and bear arms under state law. Thus such an individual's firearms are automatically subject to confiscation and forfeiture by and to the state
.


THE FOID SYSTEM OF SUBJECTION
The State-granted privilege to "Keep" arms.

    The rationale behind the FOID system is simple enough to explain. First make an otherwise legal activity illegal. Then license the activity as a government granted privilege.
    Nobody wants criminals to be able to purchase or possess firearms or the ammunition for them — so a system was sought to deny them that opportunity. The state needed a means by which to identify criminals and make it impossible for them to purchase weapons in the legal marketplace. Naturally, its impossible to stop them from obtaining weapons through anything that could be construed as an illegal marketplace. The police power has no control over that. To prevent known criminals from purchasing weapons in legal markets, it would only be necessary to issue each of them a felon identification card and require them to show the card whenever making weapons purchases. The "We card hard" gun dealer would then simply send him packing without making a sale.
    Everybody knew that wouldn't work, of course. Laws intended to deprive any citizens of rights can only work by targeting law abiding citizens. By definition, only law abiding citizens are subject to obeying any given law. They have to go along with them, no matter how perverse, in order to remain "law abiding." Criminals, on the other hand, simply ignore laws that tend to inconvenience them, until such time as they chance to get captured. Many "outlaws" (probably most of them), are able to live out their lives without being unduly inconvenienced by laws.
    The solution to the dilemma was simply to issue identification cards to all admitted gun owners and anybody who may desire to purchase a weapon (withholding them, of course, from known criminals). Nobody could legally purchase a weapon without a valid FOID card. Problem solved! FOIDs were issued to all law abiding, admitted, gun owners who applied for one — all the rest, no matter how law abiding, became statutory criminals subject to gun confiscation and prosecution.
    This is the very definitive of "tyranny creep." Through
myriads of statutory law, everybody is made into a petty criminal of some sort. Often they don't even know it until the police power has some pretext to become interested in them. Those who have continued to hold to federal guarantees under the Constitutional (in the correct belief that the Illinois FOID statutes are unconstitutional), are now statutory outlaws. There are many such outlaws — adding to a growing list of other types of statutory outlawry.
    The problem non-FOID carrying Illinois gun owners (and gun owners in general), face is that there are few meaningful guarantees of rights (especially gun rights), which out national judiciary or federal "police powers" are inclined to protect. Had such protections and guarantees been available, the Illinois FOID and most other restrictive gun laws would have been declared unconstitutional long before the first FOID was issued. Even the National Rifle Association apparently failed to garner enough interest to bring the issue before the Supreme Court.
    Even if it had, it is unlikely the court would have favored the Constitution. The Second Amendment has become a national embarrassment before the international community of nations. In fact, short of repealing it, the conscientious progressive intellects behind the national government would undoubtedly like to see the "Subject to the police power" clause inserted into the Second Amendment. They would have done so, or repealed the amendment, long ago had our founders not had sufficient forethought to make such a thing almost impossible. But the founders could not stop our national leaders and federal Justices from misconstruing original intents of the Constitution or blatantly ignoring the letter and intents of the document, as they have become very adept at doing.
    Unfortunately Congress and the Supreme Court, like our state legislators, have succumbed to the proposition that "safety" and "the greater public good" (in all of its many and varied nuances), overrides any notion of individual rights. On the tails of this proposition, the police power has become evermore paramount, at the expense of individual liberties. Add to this international pressure from the various UN agencies, and the American Constitution has become all but a dead document — an anachronism living on borrowed time, and only for the sake of pacifying a public that still imagines itself free.
    Meanwhile, states such as Illinois and California are considered bellwethers of the nation, and are testing grounds to find out just what the public will stand for, and finally accept. National FOIDs are very much in the wind. Further down the road, gun confiscation looms as the dream and final goal of both well intended and perverse forces at home and abroad. It goes without saying that if firearm privileges are even revoked, FOID holders will be the first to have their arms confiscated, and only the outlaws will be armed. Of course there will be a lot of them.



THE RIGHT TO "BEAR" ARMS

The FOID confers official gun ownership privileges on Illinois residents. But this is only half of the "keep and bear arms" franchise. Just as the right to keep arms has been infringed, so has the right to bear arms. Among Second Amendment and Constitutional stalwarts, the right to self-defense has remained one of the major rationales of gun ownership. If one is to be able to defend himself with a gun, he must also have the right to carry, or "bear," it. In Illinois today, that right (provided your are also carrying a FOID), extends no further than your own property line. Beyond that, statutory law has the gun bearer totally disarmed — at least as nearly as is possible without making it patently illegal to move a firearm or ammunition from any point A to point B beyond the confines of one's own property or business site.
    To simply carry a firearm legally, is out of the question in Illinois today. The open-carry right is now ancient history. You can't just carry your rifle or shotgun as you walk through the woods (as I used to do as a teenager), unless on your own land. Unless you are a licensed hunter, hunting legally, you'd be open to serious state or federal charges.
    The only way a firearm may be legally transported in Illinois is to have it unloaded and
inaccessible, properly cased, or inoperable — rendering it useless for self-defense or defending somebody else's life or property in an emergency. Violation, regardless of circumstances or intentions, is treated as a serious crime.
    The supposed right to self-defense with a weapon, even while at home, is wrought with dangers to the defender in our politically correct and
litigious society. One would be well advised stop to ponder all the legal ramifications of defending yourself — whether it would be better to shoot or be shot. Such a pause for quiet reflection, of course, could be suicidal. Yet, being shot or stabbed might be preferable to spending a long period in prison. To shoot and kill, might result in a murder charge if an intruder happens to have been insufficiently armed to justify deadly force. To shoot and maim might be worse in the long run than being shot, for the surviving criminal has recourse to both criminal and civil courts to redress his grievances.
    As one friend once told me, "The only way to deal with an intruder you've shot is; (1) make damned sure he's dead; (2) drag him into the house if he was outside; and (3) have an
untraceable gun to put in his hand if he didn't bring his own; (3) then call the sheriff. Only then, if you haven't made any dumb mistakes, can you be relatively certain that you won't end up a felon or pauper." Of course, if you haven't got your FOID up to date, you'll be a felon anyway.

Ironically, as gun-control laws have generally become tighter nationwide, there has been a counter movement of "concealed carry" laws in many states. These laws seem aimed at facilitating self-protection, as well as acting as a general deterrent to crime. They seem to be effective — certainly much more so than gun bans. Illinois has not yet joined the trend, though attempts at such legislation have been made and narrowly defeated.
    In most cases, where concealed carry laws have passed, however, they do not masquerade as conveying or protecting a right. The "right to carry" a concealed weapon is usually a state licensed privilege, sometimes requiring formal firearms training for an applicant to qualify. While concealed carry laws are perhaps a step in the right direction in the fight against crime, licensing an otherwise illegal activity is not a reaffirmation of the right to keep and bear arms. It's an affirmation of state authority to grant or withhold privilege, just as Illinois' FOID laws are.
    Perhaps that's what the future is all about. Finally realizing that the nation of our founders has passed into history — that government of the people, by the people, and for the people has perished from the earth — that we now live subject to the police power.

March 22, 2002


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