04 January 2013

What Else Would You Expect from Illinois?

Illinois Senate Democrats advanced legislation late Wednesday to restrict semiautomatic weapons and high-capacity magazines, pressing forward with new gun control measures in the waning days of the session over the objections of firearms groups.
Amid the developments, the Illinois State Rifle Association issued an “urgent alert” to its members warning them that Democratic legislators were trying to push through last-minute anti-gun legislation.
There would be no exemptions and no grandfathering,” the group stated in its alert. “You would have a very short window to turn in your guns to the state police and avoid prosecution.” [Emphasis added.]

I generally view the second amendment to the United States constitution as a limit on federal power, but not a restraint on state power.  (I also use second amendment rights as shorthand for the right of gun ownership that is derived from the fundamental right of self-ownership that all men have by virtue of being made in the image of God, which generally means my appeal to second amendment rights is only literal when the federal government is trying, by force of legislature or executive order, take away one’s right of gun ownership.)  As such, I don’t view the second amendment of the US constitution as binding on states, and therefore conclude that states can regulate gun ownership if they so desire, assuming said gun regulation is permitted by their constitution.  In Illinois, state regulation of gun ownership is most certainly permitted by the Illinois state constitution.

Subject only to the police power, the right of the individual citizen to keep and bear arms shall not be infringed.

The phrase “subject to the police power” implies that the right of individual citizens to keep and bear arms is derived from law enforcement, and, by implication, the legislature.  Basically, the Illinois state constitution is saying that everyone has a right to bear arms as long as the government gives them permission to bear arms.  Clearly, this is an oxymoronic assertion.  However, this principle of law is enshrined in the Illinois state constitution, and therefore any of Illinois’ attempts at gun control would be constitutional, per both the state and federal constitution.

Anyhow, a more interesting consideration is that of states' constitutions themselves.  Given that the federal constitution existed primarily to limit federal power (and has basically failed at this of late), it has generally little to say regarding the states and the power they wield (most of the regulations imposed on the states by constitution are found in Articles III and IV, with a couple minor mentions elsewhere in other articles and a handful of amendments).  Thus, in keeping with the Founders’ experiment, each state was supposed to determine for itself just how much power it would wield over its citizens, and how many rights citizens would yield to the states in which they lived.

Thus, a lot of American culture can be explained by its various constitutions.  Most Americans have a pretty healthy dislike and distrust of the federal government.  Liberals tend to distrust the hawkishness of the federal government, and its tendency to spy on people and be overzealous in its attempt to ban drugs.  Conservatives tend to distrust the government’s attempt at nationalizing health care and federalizing charity.  While neither group completely distrusts the government, by the same token neither group completely trusts the government either.  Of course, libertarians completely hate the federal government, and do not trust it at all.

More intriguingly, though, a lot of the cultural differences between the states are reflected in their respective constitutions.  Illinois has been far more leftist in its approach to guns than Indiana.  For example, open carry is completely legal in Indiana, and purchasing guns is fairly easy.  It’s also fairly easy and inexpensive to acquire a concealed carry permit.  The Indiana constitution (Article I, Section 32) has this to say about arms:

The people shall have a right to bear arms, for the defense of themselves and the State.

The language in the Indiana constitution is even clearer than that of the federal constitution, and is considerably less statist than that of the aforementioned Illinois state constitution.

As another example, the New York constitution is completely silent on guns, and the closest it gets to broaching the subject is Article XII, which states:

The defense and protection of the state and of the United States is an obligation of all persons within the state. The legislature shall provide for the discharge of this obligation and for the maintenance and regulation of an organized militia.

Perhaps it was assumed by the original authors of this constitution that gun rights would go without saying in lieu of the fact that all citizens were responsible for defending the state, but since the framers of the New York constitution did not take pains to ensure gun rights in unambiguous terms, perhaps it would be fair to say that New York has not been a state that was very concerned with gun rights in the first place.  The culture of modern New York would tend to confirm this suspicion.

Texas takes a rather more nuanced view of gun rights (Article I, Section 23):

Every citizen shall have the right to keep and bear arms in the lawful defense of himself or the State; but the Legislature shall have power, by law, to regulate the wearing of arms, with a view to prevent crime.

Practically speaking, this is probably the most effective constitutional view of guns, since most states have laws that basically make this approach to gun ownership the order of the day.  Texas’ approach to guns is basically that all citizens have the right to own guns, but they don’t have the right to infringe upon others rights with their guns, and therefore some regulation of guns may be allowed to prevent people from doing stupid things.  Nonetheless, Texas’ approach to gun rights is likely a reflection of it culture, and generally explains both the relatively high gun ownership rate in the state and the general responsibility that most citizens demonstrate towards gun ownership.

At any rate, it’s pretty interesting to compare state constitutions and see the variance among them.  State constitutions tend to track pretty well with their respective cultures, and it becomes readily clear when reading through various state constitutions—particularly the sections labeled as the bill of rights—that some states have always had a progressive government bent, while were far more liberal (in the traditional sense).  It’s also intriguing to see how the various state constitutions reflect and enshrine their respective state cultures, particularly in regards to gun rights.

1 comment:

  1. " I don’t view the second amendment of the US constitution as binding on states,"

    The incorporation doctrine of the 14th amendment says you're wrong.

    Whether the incorporation doctrine is correct or not is a different argument, but the fact is it exists and has been implemented consistently (principally with regard to anti-discrimination law, but there is nothing preventing its extensibility to other areas).