You're In the Militia Now

Gun control arouses passions. But the Evanston City Council made the smart move in voting to modify its handgun ban. The U.S. Supreme Court ruling likely rendered Evanston's ordinance unconstitutional.

Some have argued that, because the Supreme Court case only dealt with Washington, D.C.'s ordinance, and the District of Columbia is not a state, that the reach of the decision is limited, and that the Second Amendment does not apply to the states. That's a risky position to take.

The clear overall trend in constitutional law has been to apply the Bill of Rights to states and local governments as well as to the feds. The Second Amendment doesn't say that only the federal government may not abridge gun rights; it says that the right to keep and bear arms "shall not be abridged." Since the Amendment refers to the matter as one necessary to guarantee the freedom of States, the Court is unlikely to change its mind if the point were specifically argued. Had Evanston chosen to fight the suit, it would likely go all the way to the Supreme Court, costing the City enormous sums, and result in an even more explicit statement of gun rights -- the opposite of what gun control advocates want.

Moreover, for some reason, most folks locally overlook that Illinois's constitution, if anything, is even more explicit than the U.S. Constitution in protecting gun ownership rights.

The first three Illinois constitutions did not have a separate provision for gun rights. That was added in 1970.

Currently, Article I, Section 22 of our state constitution, entitled "RIGHT TO ARMS," underscores what the Supreme Court ruled, namely, that the right to keep and bear arms is the "right of the individual citizen." So the historical argument, that gun ownership was only a collective right that accrues to the state, to organize its militia, doesn't fly in Illinois. This "collective right" argument was specifically relied on by the state court that upheld the landmark Morton Grove handgun ban; for such a ban to be upheld again would require a court again ruling that state and local "police power" permits a complete ban on a class of weapons.

What I find really interesting, though, is that even if gun ownership is seen as militia-based, in Illinois you and I are already in the militia. What, you say? Read Article XII, Section 1: "The State militia consists of all able-bodied persons residing in the State except those exempted by law."

This language represented a change from the Illinois Constitutions of 1818 and 1848, which provided that the militia consisted of "all free male able- bodied persons," leaving out men of color. In 1870 an 18-to-45-year-old clause was added; the 20th century version repealed that, and the Illinois militia is now more diverse and inclusive. Everyone from teens to their grandmothers is a member, so long as they can march.

The militia falls under the command of the Governor. In the Spanish-American War, an enthusiastic Governor Tanner proposed to organize the Illinois militia for use in Cuba. The U.S. Army declined his offer.

The prospect of Governor Blagojevich calling upon all the able-bodied citizens of Illinois to band together for the common defense -- against who? Invading Brewers fans? Speaker Madigan? -- is a fascinating intellectual exercise. So is a debate about what type of arms are protected under a scheme where every able adult is a militia member, but arms for individual recreation and self-defense are also protected. But the cost of such a debate, employing lawyers for years, is without question.

We need to do more to reduce the tragic, senseless violence in our society, by handguns as well as other means. But it looks like that will have to involve changing our culture. Or our constitutions.