Governor Pritzker's Powers are not Unlimited

The Illinois Legislature has conferred upon the Governor powers to deal with "emergencies and disasters" in the Illinois Emergency Management Act, 20 ILCS 3305. So, are the Governor's pandemic powers unlimited? In a word, "No!"


Whatever "emergency" actions the Illinois Governor takes during the pandemic or during an Antifa riot, his actions must be taken consistently with the the U.S. and Illinois Constitutions, and his oath of office by which he promised to "support the Constitution of the United States, and the Constitution of the State of Illinois, and ... faithfully discharge the duties of [his] office of . . . to the best of [his] ability.” Each Constitution contains its own Bill of Rights.


If you read both Constitutions, you will find no language in either constitution that allows for suspension during an "emergency" of either the U.S. or the Illinois Bill of Rights. Both Constitutions allow suspension of Habeas Corpus "in cases of rebellion or invasion when the public safety may require it. But that is as far as they go.


The Illinois Constitution provides, "The legislative power is vested in a General Assembly consisting of a Senate and a House of Representatives ...." Art. 4, §1. Unlike Congress, which has only the powers explicitly given it by the U.S. Constitution and the additional powers needed to carry out those stated powers, a state legislature has all legislative powers that are not [specifically] denied by the state or federal Constitution.


Since it has plenary legislative power, the normal challenge to Illinois Legislative action is not that the legislature exercised powers not granted to it by the Illinois Constitution. Rather the challenge is normally that the legislature improperly delegated its legislative power. But while the General Assembly may not give away its legislative powers, it may set up a general statutory scheme designed to reach a result and leave details for reaching it to a governmental agency. Such a delegation would be subject to oversight by the General Assembly and review by the courts to determine whether the agency  has overstepped its authority. But an agency may not be left free to carry out the legislative purpose as it sees fit without any standards, or allowed to determine to whom a law will apply.



Under the Illinois Constitution, the legislative and executive branches are separate, and "No branch shall exercise powers properly belonging to another. Art. 2, §1. As such, there are limits to how much power the legislature can give to the Governor. Moreover, the Illinois Legislature cannot make laws or delegate powers where doing so would be prohibited by either Constitution or either Bill of Rights.


The Illinois Constitution provides that "The Governor shall have the supreme executive power, and shall be responsible for the faithful execution of the laws." Art. 5, §8. In that regard, the Legislature has passed the Illinois Emergency Management Act, and the Governor has a duty to "faithfully execute" it. But the question remains: how much power the Legislature can delegate? Clearly, even given a Legislative delegation of power to the Governor, the Governor can not exercise executive power if the Legislative grant thereof, or if his exercise of those delegated powers would contravened either Constitution or Bill of Rights.


So, can a governor, under a legislative grant of "emergency powers" order a shut down of legitimate businesses and permanently put them out of business? Materially damage those businesses?

Art. 1, §1 of the Illinois Constitution borrows from the Declaration of Independence, and states the "Inherent and Inalienable Rights" of the people of Illinois: "All men are by nature free and independent and have certain inherent and inalienable rights among which are life, liberty and the pursuit of happiness. To secure these rights and the protection of property, governments are instituted among men, deriving their just powers from the consent of the governed."

Although that clause has been held to be "hortatory," it makes rather clear that Illinois government exists to protect property; not destroy it.

Art. 1, §2, however, is mandatory. It provides, "No person shall be deprived of life, liberty or property without due process of law nor be denied the equal protection of the laws.


When a Governor decrees that all "non-essential" business shall be shut down, where is the due process hearing? Where is the equal protection when cannabis dispensaries are allowed to remain open when restaurants and barbers shops are destroyed by being forced to stay closed?


And Art. 1, §15 provides, "Private property shall not be taken or damaged for public use without just
compensation as provided by law. Such compensation shall be determined by a jury as provided by law." Where is the compensation?


I will be very surprised if we do not see a plethora of "reverse" eminent domain actions* for Illinois taking or damaging property without payment of compensation. And perhaps some Federal Civil Rights actions.


*In an eminent domain case, the state takes the property and asks that a jury assess the damages. In a reverse eminent domain case, the property owner asks for a jury to assess the damages where the state has taken or damaged the property but not paid the damages.

Originally published in the Moline Dispatch and Rock Island Argus on August 21, 2020.

Copyright 2020, John Donald O'Shea

Americans Don't Get Ruled!

As a former public official, my tendency it to assume that public officials do their best to provide us with accurate information. I've always presumed the president or governor, surrounded by expert fact providers, has better information than I do.

Not any more. Here are two reasons:

                                                                        1. 

Gov. J. B. Pritzker's coronavirus press conferences and orders strongly suggest I would do better to listen to the Three Stooges.

Consider this April 20 press conference:

Reporter: "Earlier this week, the state reported the death of a teenager in Cook County. ... Can you tell us if the teenager in question had underlying conditions?"

(Gov. Pritzker was at the podium and he deferred to Dr. Ngozi Ezike, director of the Illinois Department of Public Health).

Dr. Ezike: "I don't have that information at my disposal at this time. I know that we have had people of all age groups die. I just want to be clear as to the definition of death by COVID. The case definition is very simplistic. It means that at the time of death, it was a COVID positive diagnosis."

Reporter: So if you are killed in an auto accident or by falling off a cliff, if you are positive for COVID, it's counted as a COVID death?

Dr. Ezike: "It means if you were in hospice and had already been given a few weeks to live, and if you were also found to have COVID, that would be counted as a COVID death. ... Even if you died of a clear alternate cause, but you had COVID at the same time, it's still listed as a COVID death. So, everyone who's listed as a COVID death doesn't mean that that was the cause of the death, but they had COVID at the time of the death."

You wonder why the numbers can't be trusted? If a teenager is shot dead while strolling down Michigan Avenue, that's listed as a COVID death?

                                                                        2. 

Then, on April 22, Chief Judge Michael McHaney, sitting in Clay County, Illinois, in his ruling in Mainer v. Pritzker, pointed out the bizarre inconsistency of the governor's rules designating certain businesses as "non-essential" and others as "essential."

The judge accuses the governor of making "arbitray and capricious" judgments:

"I won't get COVID if I get an abortion, but I will get COVID if I get a colonoscopy."

"If I go to Walmart, I won't get COVID but, if I go to church, I will."

"Selling pot is essential, but selling goods and services at a family owned business is not."

The judge points out that cannabis sales, illegal in Illinois until a few months earlier, are "essential," but a "family-owned business in existence for five generations is not."

The judge finds "insanity" in presuming that a family of six "piling in their car" and driving to the lake will not get COVID, but they will if they pile into their boat.

Similarly the judge notes the presumption that "four people [who] drive to the golf course [will] not get COVID, but if they play in a foursome, they will." 

The judge wonders why kids' summer sports programs are cancelled when "we are told that kids rarely contract the virus and sunlight kills it!"

Further, he is unable to understand why "murderers" should be "released from custody" for fear of the virus, while owners of small businesses are threatened with being taken into custody if they open their businesses in an "attempt to feed their families."

Finally the judge criticizes the governor for behaving like a "divine right king" in the making of rules that bind the people of Illinois, while exempting himself and his family from obeying those same rules. 

"The defendant in this case orders you to stay home and pronounces that, if you leave the state, you are putting people in danger. But his family members traveled to Florida and Wisconsin because he deems such travel 'essential.'"

Judge McHaney then sums up his "indictment" of the governor.

"When laws do not apply to those who make them, people are not being governed, they are being ruled.

"Make no mistake, these executive orders are not laws. They are royal decrees. Illinois citizens are not being governed, they are being ruled. The last time I checked, Illinois citizens are also Americans and Americans don't get ruled.

"The last time a monarch tried to rule Americans, a shot was fired that was heard around the world. That day led to the birth of a nation consensually governed based upon a document which ensures that on this day in any American courtroom tyrannical despotism will always lose and liberty, freedom and the Constitution will always win."

But if the case ever reaches the U.S. Supreme Court, will Mr. Chief Justice John Roberts agree? Probably not, given his concurring opinion in South Bay United Pentecostal Church v. (California Gov.) Gavin Newson.

Copyright 2020, John Donald O'Shea

Published in the Moline Dispatch and Rock Island Argus on August 9, 2020

Societies Need the Moral Law

Bill O'Reilly has written of the recent murder of George Floyd and the riots that have followed:


"There is only one real solution to deprivation, crime, and helplessness and that is to teach the children well .... "If a child cannot read, write cursive, do math, speak properly, and does not understand that skills have to be developed so honest money can be earned, that child will likely become an impoverished adult without much hope."


I don't disagree with O'Reilly. But he stops short of pointing out an even more fundamental problem. America was built on two fundamental moral values: "Love God with all your heart, soul, mind and strength, and love your neighbor as yourself."


There was a time when the Jewish people were wandering in the desert. Perhaps they were really marking time, building strength until they were strong enough to emerge from the desert to conquer the "promised land." But Moses realized that a nation had to be more than an assemblage of tribes or a horde. If the Jewish people were to be a nation, they had to have a national identity and unity. They had to have laws. If the new nation was to be peaceful and secure it could not countenance people murdering each other, stealing their neighbor's belongings, or men seducing other men's wives. Therefore, he gave his people the Ten Commandments — which have been condensed into loving God and neighbor.


To bind the people of the twelve Jewish tribes into a one nation, and avoid religious controversies, the First Commandment specified that one God would be worshiped. To provide order within families, another required children to honor and obey their parents. To eliminate inter-family feuds and revenge killings, the commandments made murder, theft and adultery crimes against the people of the nation rather than merely against individuals.


Once criminalized, the whole people punished offenders, eliminating the need for revenge and private feuds. But as important as the commandments were as "laws," they were even more important because they were "God-given" moral rules. They drew a bright line between right and wrong. As such, they established a national morality. In short, the commandments created both God-given legal and moral codes.


But even more importantly, for over 2,000 years ordinary Western men (not all of them) have lived with a belief that if the law did not punish the wrongdoer, God would.


Whether you believe that God gave Moses the Ten Commandments or not, no society can have peace and security unless its people believe divine justice will prevail when human justice fails.


You can't "love your neighbor as you love yourself," or "do unto him as you would have him do unto you," if you kill him, steal from him or burn down his house.


If you justify doing harm to a person who has never harmed you, you accept the proposition that the end you choose justifies the means you employ. But what happens when your neighbor chooses to destroy you to achieve his ends?


The purpose of the criminal law is to outlaw revenge. Or do two wrongs make a right? If A murders B, and B's brother C murders A, why can't A's sister D, murder C? Do we need generational feuds?


The point I am trying to make, and the point O'Reilly didn't make, is that to have peace and security, the young and old of society must believe in a God-given moral law. We must live by a consensus that certain acts are good and other acts are God-proscribed, and God-punished.


There was a time when schools (other than parochial schools) taught this morality. But once you bar God from the schools, the morality taught there loses its God-given underpinning. That then can come only from churches or parents.


But what if children don't go to church? What if their mothers are little more than children themselves, and their fathers are nowhere to be found? Who then teaches traditional moral values? Certainly not the street gangs, where the rules are "survival of the fittest" and "might makes right."


So who's left? Hollywood? The tabloids? Rioters?


Nobody who loves his neighbor as he loves himself or practices the "Golden Rule," does violence to or steals from his neighbor, or destroys his neighbor's property. The criminal laws are only needed to deal with people who chose not to love neighbor as self.


If you believe that God punishes wrongdoers even if the law fails to do so, you won't accept as your morality, "the ends justify the means," "might makes right," or "good is whatever I decide is good." You won't risk violating the law, calculating that you will not be dragged into court.


When a critical mass of citizens comes to scorn the belief that God punishes evildoers, we will only have enough police officers when we have a police state.

This piece was published originally in the Moline Dispatch, Rock Island Argus and QC Times on July 24, 2020

Copyright 2020, John Donald O'Shea

In Support of "Counterspeech"

Hitler, Stalin, Mussolini, Mao, Castro, Maduro and their ilk are all predictable: They suppress free speech and freedom of the press. In Nazi Germany, if you denounced Hitler's regime, you ended up in a concentration camp or exterminated.

In Stalin's U.S.S.R., you ended up in a gulag, or liquidated. In present-day China you end up in a "re-education camp" or dead. And what has become of freedom of speech and the press in Cuba and Venezuela?

Over our history in America numerous efforts have been made to squelch speech critical of the government and unpopular causes, beginning with the Sedition Act (1798). But since the passage of the 14th Amendment, the Supreme Court, time and again, has acted to keep the government and many other well-meaning Americans from "re-writing" our First Amendment — which still reads, "Congress shall make no law ... abridging the freedom of speech, or of the press" — to instead read, "Congress (or the States) may make some laws ...."

The court, instead of agreeing that unpopular political speech and offensive speech should be prohibited, suppressed or silenced, has suggested the constitutional remedy to be "counterspeech."

In 1927, in Whitney v. California (concurring opinion), Justice Louis Brandeis explained what "counterspeech" entails:

"If there be time to expose through discussion, the falsehoods and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence."

More recently, Justice Anthony Kennedy wrote in U.S. v. Alvarez, (2012), "The remedy for speech that is false is speech that is true. This is the ordinary course in a free society. The response to the unreasoned is the rational; to the uninformed, the enlightened; to the straight-out lie, the simple truth."

Then in Citizens United, Kennedy wrote: "It is our law and our tradition that more speech, not less, is the governing rule."

You can pore through our high court's decisions forever, and you will find no case holding that burning someone else's building, looting a neighbor's business, or destroying a publicly erected historic statue or a church is a constitutionally protected form of speech.

The First Amendment protects your right to peacefully protest by wearing a shirt that says "Defund the Police" or by destroying a statue that you own and have erected in your own front yard. But it gives you no right to "protest" by burning your neighbor's flag, throwing rocks at police officers, or burning books you've dragged from the university library that you deem offensive, hate-filled, racist, bigoted, etc.

Once you start burning, destroying and looting public property or the property of others, you cease being a constitutionally protected "protester" engaging in First Amendment protected speech and become a criminal, a fascist, a thug, etc.

The fact that you believe that your motive for acting like one of Röhm's Brownshirts is pure, does not make your actions any better than those of the Brownshirts.

It has been argued that "very few right-wing personalities have been blocked from speaking on campuses."

That isn't a defense. It's a pathetic admission — an admission that leftist mobs are blocking at least some conservative speakers.

Do you recall the CNN story about how protests against Breitbart editor Milo Yiannopoulos at the University of California-Berkeley turned into riots? Did the university not cancel the event owing to the mob action? Was Yiannopoulos one of the "very few right-wing personalities that have been blocked?"

Why were there many empty seats at President Trump's recent rally in Tulsa?

Was that because TikTok users proposed that Trump opponents could reserve tickets they had no intention of using to block Trump supporters from getting tickets? Were not two of the entrances to the rally blocked for a time? Were the president and his supporters among the "very few right-wing personalities that have been blocked (at least partially)?"

How about Ben Shapiro at UCLA? Professor Mike Adams at the University of Montana? George Will at Scripps College? Ayaan Hirsi Ali at Brandeis University? Michelle Malkin at American University? Jason Riley at Virginia Tech?

So where do we go from here?

Does "no law" still mean "no law?" Or does it mean the government can make some laws abridging freedom of speech? And if the government can't shut down speech, why is it acceptable for an un-elected violent mob to do so?

What lies and distortions were Yiannopoulos, Trump, Shapiro and the others planning to spew that could not have been adequately dealt with by rational "counterspeech"?

If today's left can employ intimidation and violence to shut down speech it deems "offensive," what happens when the "Thermidor" follows the "Reign of Terror."

This piece was published originally in the Moline Dispatch, Rock Island Argus and QC Times on July 18, 2020

Copyright 2020, John Donald O'Shea

Citizens United may soon be embraced by the Left

A corporation is a "legal person" under the law. But do Corporation have Constitutional rights?


Clearly all corporations do have at least some Constitutional Rights. Clearly the government cannot, consistently with the Fifth Amendment to the U.S. Constitution, seize Deere's headquarters to use it as the new the new Federal Building without affording Deere due process, and without paying fair compensation for the taking.


And yet a great many Americans question whether corporations have First Amendment rights, such as the right to engage in "political speech".


So, does a business corporation have a Constitutional Right to engage in "political speech?"
Or should the right of corporate "political speech" be limited to media companies such as the NY Times, NBC, Fox News, CNN and the AP?


That is what the Citizens United Case was about. There the court held that business and not-for-profit corporations had a First Amendment right to spend their general funds to engage in "political speech" without the necessity of setting up PACs to handle "special funds" for that purpose.


But why? Imagine Congresswoman Cortez is running for re-election promising to end commercial airline service. Image that all the great media corporations, including ABC, NBC, CBS, CNN, MSNBC, Fox News, The NY Times, the Washington Post, etc. all endorse her re-election. Does Boeing have to sit silent? Or should Boeing be able to spend corporate funds to tell the public that Cortez "is an idiot whose policies would do irreparable harm to the American people, and destroy Boeing?" Can Boeing run ads endorsing her opponent, who believes commercial air travel is essential to the welfare of the American people?


Citizens United held that counter-speech is the remedy provided by the First Amendment. If media corporations can support Cortez and her agenda, Boeing, a business corporation, must have the same right to engage in "political speech" to defeat Cortez and her agenda. While the First Amendment guarantees that a free press has a right to engage in "political speech," it no where limits free speech to giant media corporations.


Now a major new First Amendment battle is looming. Conservatives believe they are being silenced by Google, Facebook, Twitter, etc. These giants are also business corporations. So what are their First Amendment rights? Citizens United strongly presages that they will be found to possess the same
Free Speech rights as any other media or business corporation.


Since the earliest days of our Republic, certain newspapers have been overtly partisan. The Federalists has their partisan newspaper, the Gazette of the United States. To counter that, the National Gazette was founded with the support of Madison and Jefferson, at a time when Jefferson was Washington's Secretary of State. Jefferson hired Philip Freneau to serve as editor and put him on the State department payroll. The paper inveighed against Alexander Hamilton's financial policies as "numerous evils ... pregnant with every mischief." It accused Washington of harboring "monarchial" tendencies.


Our First Amendment states that "Congress shall make no law ... abridging the freedom of speech, or of the press." Nobody ever better explained "Why" than Justice Hugo Black in NY Time Co. v. U.S. (The Pentagon Papers case), wrote


"Madison and the other Framers of the First Amendment, able men that they were, wrote in language they earnestly believed could never be misunderstood: 'Congress shall make no law... abridging the freedom... of the press....'  Both the history and language of the First Amendment support the view that the press must be left free to publish news, whatever the source, without censorship, injunctions, or prior restraints.


"In the First Amendment, the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors."


If that is so, and Citizen United recently said that it is, Congress can make no law requiring Google, Facebook or Twitter to be "fair and balanced." The remedy left to Conservatives is "counterspeech." They are entirely free tocreate a search engine and social media platforms with a "conservative bias." In this light, I would not be surprised if my liberal friends who have inveighed against Citizens United suddenly do not embrace it.


But up until now, Google, et al, have portrayed themselves as "common carriers" - rather like the "soap box" of yore in Chicago's Bughouse Square. As "common carriers," they could not be held responsible for what their 'users" were saying. They merely provided the neutral "soap box" or "megaphone." For that they were granted immunity from suit for things their "users" said.


But if they are now engaging in advancing liberal idea, and blocking conservative ideas, they are no longer mere "common carriers." They have become partisans, rather like the National Gazette. As such, they should enjoy all the same First Amendment rights and immunities as the Washington Post and Breitbart.

No more; no less.

This piece was published originally in the Moline Dispatch, Rock Island Argus and QC Times on July 5, 2020

Copyright 2020, John Donald O'Shea

Why are the Democrats silent?

On April 8, 1933, the Main Office for Press and Propaganda of the German Student Union ("GSU") proclaimed a nationwide "Action against the Un-German Spirit." It climaxed in a "cleansing" by fire — a book burning.

Included were books by Jewish, pacifist, religious, liberal, anarchist, socialist, and communist authors — books deemed "subversive, or that "represented ideologies opposed to Nazism.""


William L. Shirer in "The Rise and Fall of the Third Reich" describes what followed:

"On the evening of May 10, 1933, some four and a half months after Hitler became Chancellor, there occurred in Berlin a scene which had not been witnessed in the Western world since the late Middle Ages."

"At about midnight, a torchlight parade of thousands of students ended at a square ... opposite the University of Berlin. Torches were put to a huge pile of books that had been gathered there, and as the flames enveloped them, more books were thrown on the fire until some 25,000 had been consumed. Similar scenes took place in several other cities. The book burnings had begun.

"Many of the books tossed into the flames in Berlin that night by the joyous students under the approving eye of Dr. Goebbels had been written by authors of world reputation, They included Erich Maria Remarque, Albert Einstein, Jack London, Upton Sinclair, Helen Keller, H.G. Wells, Emile Zola and Freud. In the words of the student proclamation, any book was consumed to the flames 'which acts subversively on our nature or strikes at the root of German thought ...'"


By September 22, 1933, the Reich Chamber of Culture was established under Joseph Goebbels, the minister of propaganda, with sub-chambers to "guide and control" the fine arts, music, the theater, literature, the press, radio and films.

Paintings and sculptures fared no better than books. In "Mein Kampf", Hitler vowed that on coming to power he would "cleanse" Germany of "decadent" art and replace it with a new "Germanic " art. Shortly thereafter, 6,500 "modern" paintings, including works of Cézanne, Van Gogh, Gauguin, Matisse and Picasso, were removed from German museums.

As he opened his new "House for Germanic Art" in Munich, on July 18, 1937, Hitler, as Shirer noted, condemned "modern" art:

"Works of art that cannot be understood but need a swollen set of instructions to prove their right to exist and find their way to neurotics who are receptive to such stupid or insolent nonsense will no longer openly reach the German Nation. Let no one have illusions! National Socialism has set out to purge the German Reich and our people of all those influences threatening its existence and character .... With the opening of this exhibition has come the end of artistic lunacy and with it the artistic pollution of our people."


Hitler established the Commission for the Exploitation of Degenerate Art headed by Hildebrand Gurlitt. Hitler's instructions were to sell for foreign currency 16,000 pieces of "degenerate" "modern" artwork that had been removed from museums or confiscated.

To that end, Gurlitt and his fellow commissioners set up a display near Berlin. The sale of art labeled by Hitler as "rubbish" and Goebbels as "garbage," was a failure. To spur sales, Gurlitt and his cronies publicly burned 1,004 paintings and sculptures and 3,825 watercolors, drawings and prints in front of the Berlin Fire Department. This "auto de fe" had its effect. The Basel Museum and modern art enthusiasts scurried with cash in hand to the rescue.


All totalitarian governments and dictatorships operate on the premise that "error has no rights."


Today, conservatives are blocked from teaching and speaking at some colleges. Murals of Columbus are threatened at Notre Dame. George Washington's statue is destroyed. The Lincoln Monument is defaced. "The Adventures of Tom Sawyer", "The Adventures of Huckleberry Finn", "Gone with The Wind" and "To Kill a Mocking Bird" may not be seen or read in some places. Doors at President Trump's rallies are blocked.

Conservative "speech" is to be silenced, shut down. A New York Times editor loses his job for publishing Sen. Tom Cotton's op-ed.

Where is the condemnation of all this by Democrats holding high office?


When I was of college age, American liberals denounced campus censorship. They denounced the film censorship of the Catholic Legion of Decency. They approved Supreme Court rulings that protected unpopular forms of speech, including the provocative Nazi demonstration in the Chicago suburb of Skokie, the wearing of a shirt that said "F ... the Draft," the right of a jerk to call police officers "f...ing pigs," and a person's right to burn his own American flag.

There once was the Democratic Party of Harry Truman, JFK, Adlai Stevenson, and Paul Simon, of which I was a proud member. Would they have remained silent?

Mayor Richard J. Daley certainly would not have. Or should he have allowed Chicago to be looted and burned?

This piece was published originally in the Moline Dispatch, Rock Island Argus and QC Times on June 26, 2020

Copyright 2020, John Donald O'Shea

The Bill of Rights is Experience - Not Mere Words

In 2008, The U.S. Supreme Court decided District of Columbia vs. Heller, construing the meaning of the words found in the Second Amendment.

                  "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."


The District of Columbia insisted that the American people have a right that "shall not be infringed" to "keep and bear arms,"but only in connection with "militia" service. The court rejected the District's contention, holding that the right to keep and bear arms is personal to the individual.


A well-respected local columnist has now disagreed with Heller's holding.

                   "The ludicrous position we are in would not be possible without ignoring
                    the first thirteen words of the Constitution’s Second Amendment: "A well
                    regulated Militia, being necessary to the security of a free State ..."

                    "Anyone conversant with the English language would recognize this as the
                    rationale for not infringing the right of the people to keep and bear arms.
                    With the rationale gone — States now maintain a National Guard for which
                    weapons are supplied — it would seem the ground on which the amendment
                    stands has caved. I’m surprised the Supreme Court’s "originalists" haven’t
                    noticed this. They might also examine the argument for the amendment in the
                    first place."


His disagreement is premised on (1) "thirteen words," and (2) the existence of the National Guard.


Our Constitutional Rights, however, have never been understood solely by looking at words on paper. They have always been understood by looking to the historical experiences of the English and American peoples. Most are responses to abuses of royal power. These rights, including the right to keep and bear arms, pre-existed our Constitution. The Constitution does not grant these rights; it recognizes as the inalienable rights of free men.


The most basic right of any man, is the right to act in self-defense. This includes the right to defend family. It is not dependent on the existence of militia, National Guard or police.


Early Americans, who lived in the newly formed towns, and in or on the edge of the wilderness, kept guns for defense of themselves and their families. The kept them for use during militia service, but also when at home to protect themselves and their families from robbers and hostile Indians. It is that pre-existing right that is guaranteed by the Second Amendment.


The Court considered our columnist's "13 words." His argument was forcefuly advanced by Mr.
Justice Breyer and rejected.

The Court construed the words of the Amendment consistently with the history and usages of firearms by the American people. In the process, it reviewed English history, our colonial history, the Federalist/Anti- Federalist debates, drafts of the 2nd Amendment, similar State Constitutional provisions, legal writers, Constitutional scholars, and the Court's own precedents.


It then wrote,

                "We reach the question, then: Does the preface (the "13 words") fit with
                 an operative clause that creates an individual right to keep and bear
                 arms? It fits perfectly, once one knows the history that the founding
                 generation knew and that we have described above. That history showed
                 that the way tyrants had eliminated a militia consisting of all the able-
                 bodied men was not by banning the militia but simply by taking away the
                 people’s arms, enabling a select militia ... to suppress political opponents.
                 This is what had occurred in England that prompted codification of the
                 right to have arms in the English Bill of Rights.


                "We hold that the District’s ban on handgun possession in the home violates the

                Second Amendment... Assuming that Heller is not disqualified from the exercise 

                of Second Amendment rights, the District ... must issue him a license to carry it 

                in the home.


               "We are aware of the problem of handgun violence in this country, and we
               take seriously the concerns raised ... The Constitution leaves the District
               ... a variety of tools for combating that problem ... But the
               enshrinement of constitutional rights necessarily takes certain policy
               choices off the table. These include the absolute prohibition of handguns
               held and used for self-defense in the home. Undoubtedly some think that
               the Second Amendment is outmoded in a society where our standing
               army is the pride of our Nation, where well-trained police forces provide 

               personal security, and where gun violence is a serious problem. That is
               perhaps debatable, but what is not debatable is that it is not the role of
               this Court to pronounce the Second Amendment extinct."


Without the right to possess and use a gun in your own defense when home is invaded by an armed intruder, all your other Constitutional rights, can in an instant, be irretrievably taken from you. Murderers aren't concerned about affording their victims fair trials, due process, freedom of speech or the free exercise of religion.

This piece was published originally in the Moline Dispatch, Rock Island Argus and QC Times on June 19, 2020

Copyright 2020, John Donald O'Shea