Posted on 11/01/2004 5:23:42 AM PST by Michael Goldsberry
(CNSNews.com) - A Cook County Judge on Friday ruled against a Wilmette man who was arrested after shooting and wounding a home invader in late 2003.
The homeowner, Hale DeMar, was arrested on charges of violating Wilmette's ban on handgun ownership, prompting a backlash against local ordinances that prevent individuals from possessing guns to defend their own homes. DeMar was fined $750 for possessing two handguns.
DeMar went to court, arguing that the charges against him should be dismissed because they violated his 14th Amendment (equal protection) rights.
But on Friday, Judge Thaddeus Machnik rejected DeMar's effort to have the Wilmette ordinance declared unconstitutional.
"In penning his decision in the DeMar case, Judge Machnik demonstrated that the courts continue to cling to their cockeyed interpretation of the 2nd Amendment," said ISRA Richard Pearson, executive director of the Illinois State Rifle Association. "This is pretty much what we expected out of Judge Machnik."
Pearson said the ISRA will now redouble its efforts to pass firearm preemption legislation -- "so that municipalities are no longer free to bully citizens who wish only to protect their homes and families from predatory criminals."
Following DeMar's arrest last year, the Illinois General Assembly passed a homeowner protection bill, which Illinois Gov. Rod Blagojevich, a staunch supporter of gun control, later vetoed.
The bill is now awaiting an override vote, which will happen when the General Assembly convenes its veto session this November.
The man who broke into DeMar's home -- twice -- pleaded guilty to burglary and is now serving a seven-year prison term, press reports said.
Is this judge appointed or elected?
Unfortunately, Illinois gun owners will never have any gun rights until we change our state Constitution. Even if gun owner friendly SB2165 and HB4075 were to pass , they would be quickly ruled by a court to be in violation of the state Constitution as interrupted by the 7th circuit court of appeals in Quilici vs. Village of Morton Grove.
Since 1982, Quilici vs. Village of Morton Grove has been the controlling legal authority in Illinois. Since the Supreme Court has refused to review the case, it will continue to be the law in Illinois until the state Constitution is amended. The power of the legislative branch has already been usurped by the courts concerning home rule gun bans.
For those who may not be aware of what the court has ruled, the following are the pertinent parts of the ruling that every Illinois gun owner should know:
1. The Illinois Constitution provides: Subject only to the police power, the right of the individual citizen to keep and bear arms shall not be infringed.
2. The right to keep and bear arms in Illinois is so limited by the police power that a ban on handguns does not violate that right.
3. Section 22's (the state Constitutions) plain language grants only the right to keep and bear arms, not handguns.
4. The Illinois Constitution authorizes local governments to function as home rule units to exercise any power and perform any function pertaining to its government and affairs.
5. Illinois home rule units have expansive powers to govern as they deem proper, including the authority to impose greater restrictions on particular rights than those imposed by the state.
6. There is no right under the Illinois Constitution to possess a handgun, nor does the state have an overriding state interest in gun control that requires it to retain exclusive control in order to prevent home rule units from adopting conflicting enactments.
7. Morton Grove may exercise its police power to prohibit handguns even though this prohibition interferes with an individual's liberty or property.
Neither the ISRA, the NRA, nor the defenders of freedom in the General Assembly seem to want to do what's necessary to restore the God-given rights that gun owners lost when the 1972 state Constitution was ratified.
Until they decide that it is no longer acceptable for the peoples' "liberty teeth" to be "subject only to the police power" and "home rule" and are ready to amend the state Constitution, Illinois citizens have no RKBA that cannot be infringed by any unit of local govenment.
The Illinois courts will adopt the most expansive interpetation of Art I, Sec 22 of the Illinois constitution and allow any gun ban that some home rule body will adopt. The Quilici vs Morton Grove decision even said that the right to possess a handgun was not protected by the Miller decision of 1939!!! As though the US military never adopted the 1851 Navy Colt, the Colt single action ARMY revolver, the 45 cal. M1911A1 auto pistol, the Beretta M9 9MM pistol, the S&W Model 10 MILITARY & POLICE .38 cal revolver along with many other handguns. Even though the enactment of this provision of the Illinois constitution is in effect unconstitutional and amounts to an unconstitutional infringment of the RKBA under the federal constitution, the Supreme Court will never deem it so and refuses to accept cert on hearing any local handgun ban. The only options for us are to either elect politicians who will repeal these idiotic and anti-freedom laws, or get the Illinois constitution amended. Note that there appears to be no right in Illinois to own a handgun if some home rule provision prevents it. In Cook County Chicago bans handguns and Cook has an assault weapons ban. As long as we understand that our rights are subject to the whims of politicians at all levels of government than we should be able to see what must be done. I think that we can all agree that this situation is being primarily fueled by the tyrant in Chicago's City Hall.
Unfortunately, Illinois gun owners will never have any gun rights until we change our state Constitution. Even if gun owner friendly SB2165 and HB4075 were to pass , they would be quickly ruled by a court to be in violation of the state Constitution as interpeted by the 7th circuit court of appeals in Quilici vs. Village of Morton Grove.
You may be correct as to "an argument" for claiming 14th amendment rights violation..
Facts are facts.. The chances of getting a 2nd amendment rights case before the courts is practically zero, so other legal arguments must be made..
So, I guess the 14th amendment is as good as any...
We have discussed the 2nd amendment issue before.
Just to re-iterate my "opinion", ( I am not a laywer, and frankly don't give a tinker's damn about all the legalese and tricks.. The constitution was written for the layman, not the lawyer.. )
I will simply say that it prohibits infringement on a recognized individual right, and since it is not a specific prohibition, it is a ( general ? ) prohibition, which prohibits not only the Federal government, but the States and even "the people"..( local government, home rule, etc.)
The individual states accepted that prohibition by ratifying the Constitution, and later, the Bill of Rights.
As the recognized Supreme Law of the Land, the States are obligated to model their constitutions and statutes in comformance with the constitution, just as much as congress is obligated to do so.. ( I realize I'm speaking of the "ideal" here, not reality.. )
It's lawyers and the courts that have muddied up the constitution and it's meaning..
The meaning of the 2nd is quite clear.. and IMHO, should have been the only argument necessary to defend the subject's rights..
Wow! That's some U.S. Constitution you got there -- even restricts "the people". So if Border's Books refuses to carry Farenheit 911, that's censorship, huh?
Look, back in 1789, the states were fiercely independent. They needed, however, a federal government to do certain things for them; things that they, individually, couldn't do -- thus the U.S. Constitution was born which itemized thosed functions.
There was simply no way they were interested in writing a document which applied to all of them. At one point, James Madison submitted an amendment which would have made parts of the Bill of Rights applicable to the states also -- it was rejected.
The U.S. Constitution as written, along with the Bill of Rights, was a restriction on the federal government only. Period. End of story.
Later, of course, some of the rights protected in the BOR were made applicable to the states. But the second amendment, whatever it protects (individual ownership, militia only, concealed carry, machine guns, whatever), still only protects us from federal statutes, not state laws.
It was never meant to do more than that as designed by our Founding Fathers.
Now, you say that "It's lawyers and the courts that have muddied up the constitution ". No. It's people like you who are doing that. Making the U.S. Constitution apply to the states? Even to the people?? C'mon.
Maybe you don't like the concept of federalism. Maybre you want a one-size-fits-all constitution. Fine. There's others on this board who feel the same.
But, fair warning. The USSC is the final arbitor on the interpretation of the U.S. Constitution. If, in the future, some liberal Supreme Court decides that "keep and bear arms" does not apply to handguns, or does not include concealed carry, or that the weapons must be kept in a state armory, you'll be wishing that their interpretation didn't apply to all the states.
The USSC screwed up the interpretation of the 1st amendment and the 4th amendment -- they're certainly capable of screwing up the second. Why you're so sure they won't is beyond me.
Finally, you've distorted the meaning of the Supremacy Clause. The Supremacy Clause establishes the authority of federal law, that's all. I read an article by Robert Greenslade who rephrased the clause to where it becomes a little more understandable. To wit:
"The Constitution is a compact or contract between the several States. If this clause is read in that context, it reads as follows: The contract between the several States, the Constitution, and all laws and treaties passed pursuant to the contract between the States shall be the supreme law of the land. It is the contract between the several States that is supreme, not the federal government. That government is simply the entity designated by the States to execute the limited functions entrusted to it by the terms of the contract."
Enemies Within BTTT
Perhaps this guy should have used Carl Rowan's case as a precedent.
Paulsen claims:
"The Supremacy Clause establishes the authority of federal law, that's all.
I read an article by Robert Greenslade who rephrased the clause to where it becomes a little more
understandable."
______________________________________
Gotta link?
-- Greenslade seems rational in his view of our RKBA's, here:
Robert Greenslade: The Flawed Second Amendment Debate
Address:http://sierratimes.com/04/10/08/ar_greeslade.htm Changed:7:11 AM on Tuesday, November 2, 2004
Then you obviously didn't read the article, (with which I happen to agree completely). I can't believe you agree with:
"Contrary to the assertions of various anti-firearms organizations, the Bill of Rights did not create or establish any rights. The sole purpose of the Amendments, as stated in the preamble to the Bill of Rights, was to prevent the federal government from "misconstruing or abusing its powers." To accomplish this, "further declaratory and restrictive clauses" were being proposed. The Amendments, when adopted, simply placed additional restraints on the powers of the federal government."
Welcome to our side of the debate.
(Oh, the link to my quote is here.)
Excellent summary.
Wow! That's some U.S. Constitution you got there -- even restricts "the people". So if Border's Books refuses to carry Farenheit 911, that's censorship, huh?
No, but if Border's Books restricts your right to bear [concealed] arms in their store, a good case can be made that they are infringing upon that right. How can a store know, -- or care, -- if their customers are carrying concealed weapons?
Look, back in 1789, the states were fiercely independent. They needed, however, a federal government to do certain things for them; things that they, individually, couldn't do -- thus the U.S. Constitution was born which itemized thosed functions. There was simply no way they were interested in writing a document which applied to all of them.
Simply not true. 'We the people' delegated the writing of, -- and approved the ratification of, -- the US Constitution.
At one point, James Madison submitted an amendment which would have made parts of the Bill of Rights applicable to the states also -- it was rejected.
-- It was redundant, which the supremacy clause in Article VI makes clear.
The U.S. Constitution as written, along with the Bill of Rights, was a restriction on the federal government only. Period. End of story.
Delusional 'story', considering all the restrictions placed within the Constitution that apply specifically to the States.
Later, of course, some of the rights protected in the BOR were made applicable to the states. But the second amendment, whatever it protects (individual ownership, militia only, concealed carry, machine guns, whatever), still only protects us from federal statutes, not state laws. It was never meant to do more than that as designed by our Founding Fathers.
So says Mrs Brady.
Now, you say that "It's lawyers and the courts that have muddied up the constitution ". No. It's people like you who are doing that. Making the U.S. Constitution apply to the states? Even to the people?? C'mon.
Paulsen, its people like you that have led us to the place we are now. Millions of you believe that guns are evil.
Maybe you don't like the concept of federalism. Maybre you want a one-size-fits-all constitution. Fine. There's others on this board who feel the same.
This board is dedicated by its owner to Constitutional restoration. You work against that principle with your Statist agenda.
But, fair warning. The USSC is the final arbitor on the interpretation of the U.S. Constitution.
Not true. 'We the people' are the final arbiter.
If, in the future, some liberal Supreme Court decides that "keep and bear arms" does not apply to handguns, or does not include concealed carry, or that the weapons must be kept in a state armory, you'll be wishing that their interpretation didn't apply to all the states.
Not me paulsen. I'll be fighting against that tyranny.
Of course, you're free to "wish" otherwise, but imho, you should be in an institution.
The USSC screwed up the interpretation of the 1st amendment and the 4th amendment -- they're certainly capable of screwing up the second. Why you're so sure they won't is beyond me.
You are beyond reasoning paulsen. -- No one here is claiming courts can't screw up.
Finally, you've distorted the meaning of the Supremacy Clause. The Supremacy Clause establishes the authority of federal law, that's all. I read an article by Robert Greenslade who rephrased the clause to where it becomes a little more understandable. To wit:
"The Constitution is a compact or contract between the several States. If this clause is read in that context, it reads as follows:
The contract between the several States, the Constitution, and all laws and treaties passed pursuant to the contract between the States shall be the supreme law of the land.
This supposed 'contract' theory is raving lunacy.. A claim unsupported by anything in the Constitution itself. What "context"?
It is the contract between the several States that is supreme, not the federal government. That government is simply the entity designated by the States to execute the limited functions entrusted to it by the terms of the contract."
The preamble to our US Constitution belies Greenslades loony theory. Get yourself a new 'authority' paulsen.
Then you obviously didn't read the article,
Mea culpa. I was searching for 'supremacy clause'.
(with which I happen to agree completely).
Sorry kid, but I just can't believe you truly support our RKBA's, while allowing States to infringe upon it.
I can't believe you agree with:
"Contrary to the assertions of various anti-firearms organizations, the Bill of Rights did not create or establish any rights. The sole purpose of the Amendments, as stated in the preamble to the Bill of Rights, was to prevent the federal government from "misconstruing or abusing its powers." To accomplish this, "further declaratory and restrictive clauses" were being proposed. The Amendments, when adopted, simply placed additional restraints on the powers of the federal government."
Welcome to our side of the debate.
I don't believe it. No one rational can do so. -- And 'your side' is not debating, you are engaged in an agitprop campaign to subvert our RKBA's.
(Oh, the link to my quote is here.)
I'll address that later.
But Greenslade's interpretation of the preamble to the BOR shows that he is rational, according to you.
And every time, from now on, when you attempt your nonsense of "the BOR applies to the states" I will be sure to copy your "rational" statement.
Finally, you've distorted the meaning of the Supremacy Clause. The Supremacy Clause establishes the authority of federal law, that's all. I read an article by Robert Greenslade who rephrased the clause to where it becomes a little more understandable. To wit:
"The Constitution is a compact or contract between the several States. If this clause is read in that context, it reads as follows:
The contract between the several States, the Constitution, and all laws and treaties passed pursuant to the contract between the States shall be the supreme law of the land.
This supposed 'contract' theory is raving lunacy.. A claim unsupported by anything in the Constitution itself. What "context" is Greenslade citing?
It is the contract between the several States that is supreme, not the federal government. That government is simply the entity designated by the States to execute the limited functions entrusted to it by the terms of the contract."
The preamble to our US Constitution belies Greenslades loony theory. Get yourself a new 'authority' paulsen.
But Greenslade's interpretation of the preamble to the BOR shows that he is rational, according to you.
Bull. You're imagining something I've never written. Typical of you paulsen.
And every time, from now on, when you attempt your nonsense of "the BOR applies to the states" I will be sure to copy your "rational" statement.
Feel free to prove yourself foolish. Our entire Constitution and ALL its Amendments apply to ALL levels of government in the USA.
To claim otherwise is to deny the plain words in Article VI of the Constitution itself.
Here's my rebuttal to your 'link'.
Is the Federal Government Supreme and Above the States?
Address:http://www.freerepublic.com/focus/news/1266734/posts?page=1
Yes, and it's "our" constitution..
Try committing a violent crime that violates someone's "Civil Rights" and see if you don't go to jail... That's a restriction of "the people"... ain't it ?
Be that as it may, you specifically omitted "local and home rule", which I specifically noted in my comments..
Further, I was talking about the 2nd amendment, not freedom of the press or expression, which belongs in the 1st amendment, and does not have a "shall not be infringed" clause..
"Shall not be infringed" is quite clear. It means that this right, the RKBA, shall not be interfered with.. by anyone, anytime, anywhere...
Look, back in 1789, the states were fiercely independent. They needed, however, a federal government to do certain things for them; things that they, individually, couldn't do -- thus the U.S. Constitution was born which itemized thosed functions.
Nonsense.. The Articles of Confederation already did that.. and gave the States so much "fierce individualism" that the Federal government was powerless..
By 1789, the states and federal government realized that and thus convened the 2nd constitutional convention...
There was simply no way they were interested in writing a document which applied to all of them.
Again, nonsense... Of course it applied to all of them..
Do you seriously think they would have written a document that applied to everyone except New York or Virginia?
It was a contract betweeen the representatives of the people of the 13 states and a central, federal government..
And while the states were obviously concerned about protection of state's rights, they were even more concerned about protecting Individual Rights..
Thus it was, that upon adaption of the Bill of Rights, that several representatives, among them New York and Virginia, were still unsatisfied with the "implied" individual protection of the RKBA, and upon returning to their home states, introduced new legislation amending their state constitutions to include the specifically stated Individual Right to Keep and Bear Arms.
Note, they were not concerned with the issue of infringement, but how the RKBA was defined and recognized...
They understood the constitution much better than you, they wrote it.. and they understood that it applied to the states as well as the federal government..
The U.S. Constitution as written, along with the Bill of Rights, was a restriction on the federal government only. Period. End of story.
That is the most patently ridiculous statement ever made on Free Republic.. Ever..
And having read it, I will simply stop even bothering to argue with you over any more points..
You have shown a total inability to grasp even the simplest concepts of the constitution...
Period.. End of story..
Educate yourself, you look foolish. You can start here. An excerpt:
Bar to Federal Action
"The Bill of Rights was understood, at its ratification, to be a bar on the actions of the federal government. Many people today find this to be an incredible fact. The fact is, prior to incorporation, discussed below, the Bill of Rights did not apply to the states. This is, however, quite in line with what the Constitution was originally designed to be: a framework for the federal government. In other words, though the federal government was banned from violating the freedom of the press, states were free to regulate the press. For the most part, this was not an issue, because the state constitutions all had bills of rights, and many of the rights protected by the states mirrored those in the federal Bill, and many went further than the federal Bill."
Steve Mount is a very shrewd constitutional revisionist. I challeged him recently to defend his view that States can 'regulate' guns by prohibitions on them.
He refused.
His site is loaded with subtle lies about our Constitution.
I urge everyone on FR to read it, and Email Mount to that effect:
Constitutional Topic: The Bill of Rights - The U.S. Constitution Online - USConstitution.net
Address:http://www.usconstitution.net/consttop_bor.html Changed:9:05 PM on Tuesday, November 2, 2004
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