“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” — United States Constitution, second amendment of the Bill of Rights

Subject only to the police power, the right of the individual citizen to keep and bear arms shall not be infringed.— Constitution of the State of Illinois, Article 1, Section 22

Illinois’ 1970 Constitution provides gun grabbing counties and city councils with an invaluable mechanism so as to create two strata of gun rights in Illinois. One strata that would pass muster south of I. 80 in the more crimson part of Illinois, and another that would enable the northern regions of Illinois to infringe upon the second amendment rights of the law-abiding citizenry in cities like Evanston, Wilmette, and Chicago. The clause that enables such constitutional mischief is that pesky “subject only to the police power” in the Illinois Constitution’s Article 1, Section 22 of the Bill of Rights.

The legal term police power is an ancient concept passed on to us from the English common law, 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.

..(to) .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, which are widely held to be to an ordinary class of militia fire arm. For further clarification of this, read Justice Scalia’s syllabus in the US Supreme Court decision D.C. vs. Heller, page 2, section (f).

Shortly after the District of Columbia vs. Heller decision Mayor Daley held an entertaining press conference which revealed him at his illogical, incoherent, and rambling best. Amongst the other inanities, non sequiturs, and irrelevancies he spluttered, one phrase stood out. “But we have home rule.” And therein lies the tale. All of these jurisdictions have hung their hats upon the primacy of “police power” to undermine and infringe upon the second amendment rights of their citizens by banning operable handguns in their homes, as though the inalienable Right to Keep and Bear Arms was no different than prostitution, dog leash laws, anti-noise ordinances or stop sign placement. The Heller decision has provided the necessary corrective to end this injustice as the inevitable torrent of local lawsuits are filed. Here’s the money quote from the Illinois State Rifle Associations’ complaint: “By banning handguns, Defendants currently maintain and actively enforce a set of laws, customs, practices, and policies under color of state law which deprive individuals, including the Plaintiffs, of their right to keep and bear arms, in violation of the Second and Fourteenth Amendments to the United States Constitution.”

Daley wasn’t too keen on the home rule concept for Bensenville and Elk Grove Village when he took acres of land away for the expansion of O’Hare airport. Home rule for them was unimportant and didn’t matter when greater governmental interests were weighed.

Daley said: “Does this lead to everyone having a gun in our society?” He left out the fact that the decision specifically states felons and the mentally ill can still be prohibited from owning firearms. The Supreme Court decision did allow for registration and licensing schemes. Daley did not mention the fact that ever since the 1968 Supreme Court decision (Haynes vs. United States) felons are specifically not required to register any firearm in their possession since that would amount to self-incrimination. Therefore registration laws can only be aimed at the law-abiding.

Daley said “The Supreme Court and Congress have no obligation to keep our country safe. It falls on the backs of mayors and local officials.”

As a retired police officer, I am well aware that police officers often fulfill the role of armed historians. This means that they often arrive at the scene of a serious crime well after the offense has occurred and prepare a report. This is not because they are not brave and dedicated to protecting the populace that they are sworn to protect, it is simply a reflection of the fact that there are too many criminals and too many opportunities for them to commit crimes against persons and property for police to be positioned to prevent crime. Most mature adults understand this, and do not reasonably expect the police to be everywhere to protect all people at all times. But it is particularly egregious when the various entities of government prohibit to the law-abiding in their very own homes the most effective means of self defense against a deadly attack in progress. To further compound the insults to our reason and intelligence Mayor Daley did not mention that ever since the 1981 Supreme Court decision of Warren vs. DC Metropolitan Police Department the courts have concluded without exception that when a municipality or other government entity undertakes to provide police services, it assumes a duty only to the public at large and NOT to individual members of the community. Illinois statute law specifically indemnifies local entities of government against lawsuits for the failure to prevent crime and apprehend criminals. Were the State of Illinois to repeal this statute and allow such lawsuits, I would be far more sanguine about the prospects of law enforcement’s ability to protect the individual members of the public.

Mayor Daley’s new police Supt. Jody Weis offered tepid support for Mayor Daley’s raging incoherence. He solemnly intoned that “the Supreme Court decision will make police officers jobs more difficult.” Supt. Weis had a distinguished career as an FBI agent. I have no doubt that in that career he looked through the FBI’s collection of crime statistics known has the annual Uniform Crime Reports hundreds of times. One often unreported and salient fact revealed by those documents is that the overwhelming majority of homicide offenders AND their victims (who are often in possession of firearms themselves when they are killed by the offenders, often in mutual combat) are convicted felons who are presently prohibited by any number of federal, state, and local laws from even possessing, much less employing, in crime any firearm at any time.

Weis said in a Sun-Times article that 75 percent of Chicago’s murders involve firearms. So far this year, Chicago Police have responded to 15,000 “man with a gun” calls and 27,000 calls of “shots fired.” Does he really believe that allowing law abiding citizens handguns in their homes would create a significant increase of these statistics?

Finally, I have always been mystified by police officials who fear arms in the hands of the law abiding, despite the voluminous amount of data that reveals that such an armed citizenry is a net positive. But since their political masters in big cities think otherwise I guess that it is not really surprising.

Now you just knew that King Richie would have to make this reference, “Then, why don’t we do away with the court system and go back to the Old West? You have a gun and I have a gun and we’ll settle in the streets,”

The gun fight lawlessness of the West is wildly over stated. Let us briefly examine one of the most famous Old West shootouts, the Gunfight at the OK Corral, which was, when all is said, and done, a “turf war” between two rival gangs of less-than-honest cops

The Clintons and their friends refused to disarm in the town as the Ears’ policy required them to, and the Ears and Doc Holliday were apparently waiting for an excuse to provoke a fight with the Clanton-McCauley gang of ruffians and cattle rustlers.

Furthermore, despite the “myth” surrounding the OK Corral which persists to this day, none of the participants, on either side, were actually private citizens, as all of them were, in effect, law enforcement officers of one sort or another (yes, the Clanton-Mc Laury faction were “duly deputized” Tombstone deputies at the time and Virgil Earp Brothers was a Deputy US Marshal who deputized Wyatt and the others for the gunfight).

That potentially explosive confrontation between two well armed cliques who hated each other was almost sure to end in a gunfight. But the fact that the OK Corral fight made headlines in eastern cities 2000 miles away is a good indication of how seldom such a relatively large scale gunfight actually occurred in the towns of the old west.

While it’s true that old west tent city boom towns in places where gold or silver was found experienced considerable crime and violence, the vast majority of western towns and villages of that era were virtually crime free for one or more significant reasons. Either the people were peaceful, law abiding citizens, and/or the fact that most of them were armed and able to defend themselves and their property kept violence and lawlessness to a level that any town or city in the US today would be overjoyed to achieve.

Mayor Daley probably knows nothing of this actual history nor does he care. It is merely a convenient brand upon which to inflame public sentiment against the overturning of his handgun ban.

After hearing Daley and others in our ruling classes bemoaning the Heller decision with inane and absurd arguments I wondered where Illinois democratic politicians go to get their IQ’s lowered. I want to buy stock in the process since it seems to be very effective.

I conclude my article with two contrasting quotes from two very different public officials. Daley said this in regard to the Heller decision “This is a very frightening decision for America.”

Now consider this quote from one of the foremost founders in reply to Hizzoner:

“When the government fears the people, there is liberty. When the people fear the government, there is tyranny.” –Thomas Jefferson

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Frank Penn, a former police officer and decorated veteran of Vietnam, has written extensively on the 2nd amendment for The Chicago Daily Observer.