Self-Defense vs. Municipal Gun Bans

Hawaii Reporter ^ | June 29, 2005 | Robert VerBruggen

[TChris]

Interesting, isn't it, that the emanations and penumbras which allow the so-called "separation of church and State" to reach down to the municipality level somehow didn't attach to the 2nd amendment so that the explicit right to keep and bear arms is lost by the time the city is through with it.

[El Gato]

. He had also put six hollow-point rounds into his Smith & Wesson .38 Special and placed it under his bed. It was one of two handguns he’d owned for more than 20 years without loading them

Amazing he could hit anything.

If you own a gun for self protection, practice is a Good Idea!.

[El Gato]

If you don’t enforce it in that case, it makes it impossible to enforce it for anybody else.

Considering that all federal, state and local officials are required to swear to support and defend the Constitution, non-enforcement is the right thing to do.

[DMZFrank]

Cities like Wilmette, Oal Lawn and Chicago are employing the rubric of the rule of the Illinois Constitution, home rule, and substituting commonly understood principles of rule of law and and police power as caprice power. The legal term police power is an ancient concept, one that under girds the primary and most important reason for government, that of the responsibility to promulgate law necessary for the health, morals, safety, and welfare of the populace. Black's Law dictionary, 6th edition, p.1156 of defines police power as follows:
Police Power.
...adopt such laws and regulations as tend to prevent the commission of fraud and crime, and secure generally the comfort, safety, morals, health, and prosperity of the citizens by preserving the public order, preventing a conflict of rights in the common intercourse of the citizens, and insuring to each an uninterrupted enjoyment of all the privileges conferred upon him or her by the general laws.
The power of the State to place restraints on the personal freedom and property rights of persons for the protection of the public safety, health, and morals or the promotion of the public convenience and general prosperity. The police power is subject to limitations of the federal and State constitutions, and especially to the requirement of due process. Police power is the exercise of the sovereign right of a government to promote order, safety, security, health, morals and general welfare within constitutional limits and is an essential attribute of government. Marshall v. Kansas City, Mo., 355 S.W.2d 877, 883.
Note how this definition of police power is circumscribed by the requirement to be exercised within “constitutional limits.” The supreme law of the land is the United States Constitution, not the common law provision of police power. The exercise of police power must be subordinate to the supreme dictates of the Constitution. In the Quilici vs. Morton Grove decision, the Seventh Circuit Court of Appeals took the most expansive interpretation possible of the phrase "police power" in Article I, Section 22 of the Illinois Constitution and said that the right to keep and bear arms is what any particular unit of government says it is under the home rule provisions of the Illinois Constitution. The court held that Morton Grove may exercise its police power to prohibit handguns even though this prohibition interferes with an individual's liberty or property. In effect, the power of the state legislature has already been usurped by the courts concerning home rule gun bans, and this effectively preempts the right of the state legislature to carve out legislative exceptions to the unconstitutional gun bans enacted under home rule provisions. Just wait until one of these communities decides to appeal Illinois’s recent Self Defense Act passed over Gov. Blagojevich’s veto. They will cite the 7th Circuit Court Morton Grove decision as the basis to overturn the Act.

I consulted with a good friend of mine, who is a constitutional scholar. He gave me black letter law on the constitution. “A Constitution, whether federal or state is not a grant of authority, but a limit. That means that the Second Amendment has such is a limit on legislative authority, i.e. the police power.”


A climate has been created in Illinois wherein local communities such as Morton Grove, Oak lawn, Chicago, Wilmette, and many others have seized upon "police power" has the pretextual cart of gun prohibition to drive the constitutional "horse" of the right to keep and bear arms. The founding fathers were probably the most astute observers of governmental theories that have ever been gathered at one time in one place in all of history. They were quite aware of the police power provision of English common law, but they did not intend that the police power would modify the Second Amendment’s general protection of the right to keep and bear arms into a general prohibition on a whole class of firearm that are suitable for militia use. This use is for the “people” mentioned in the second clause of the 2nd amendment and is in accord with the provisions of the last Supreme Court decision that directly bore on the Second Amendment, the Miller decision of 1939.

None of this means that the right to keep and bear arms may not be infringed under any circumstances. The police power can be properly invoked to do so should one employ a firearm under circumstances that can reasonably be construed to cause alarm or harm to another, or in the commission of a crime. It is an entirely appropriate exercise of the police power to seize weapons so used and prosecute any such offenders. But that is hardly the case insofar as Wilmette, Chicago, Morton Grove, and the other units of government that invoke blanket prohibitions of handguns to ALL their residents, who are law abiding and peaceable.

I note that these communities are generally pretty affluent. I think it is safe to say that a large percentage of the residents are mature adults in professions that license them to fly airplanes, practice medicine and surgery, use explosives such as dynamite in construction, design buildings and bridges, and employed in many other occupations that involve a considerable degree of expertise and skill. It should be highly insulting to them to think that NONE of these residents are capable of using an instrument that an 18-year-old private in the military can be taught to use effectively in three days.

It is my earnest hope that discussions of the Right to Keep and Bear Arms can be reclaimed from the province of emotionalism, junk science, unconstitutional judicial decisions, constitutionally illiterate politicians, anti-gun news editorials, and replaced with logic, the original intent of the framers of the Constitution, and a respect for the citizens to whom the inalienable right to keep and bear arms is granted by natural law and protected by the 2nd Amendment.