Bang!
Posted on 11/04/2004 10:08:31 AM PST by TERMINATTOR
A Cook County judge has dismissed Wilmette resident Hale DeMar's court challenge against the village's handgun ordinance, ruling that he had no legal right to own the handgun he used to wound and drive off a burglar in December.
DeMar was cleared of any wrongdoing in the shooting itself, but was cited under Wilmette's 15-year old ordinance banning handgun possession, which can result in a fine and loss of the weapons. Before that case could be heard, DeMar's attorneys filed a counterclaim seeking to have Wilmette's law declared unconstitutional as it was applied to him. They claimed the village's application of the law violated constitutional rights of privacy.
Winnetka has gun ban on its books similar to Wilmette's.
In a 16-page ruling issued Friday, Cook County Circuit Judge Thaddeus Machnik disagreed.
"The issue before this court is whether the right to privacy under the Fourteenth Amendment of the United States Constitution extends to the possession of handguns."
"Based upon the overwhelming weight of authority as to the scope of the right to privacy in general, and its application to the possession of handguns in particular, this court concludes that it does not," Machnik wrote in the ruling.
Though federal courts have recognized a right to privacy, Machnik said that has been limited to personal decisions such as reproductive choices and child rearing.
In addition to DeMar's court challenge of the local law, gun rights groups backed a bill in the Illinois General Assembly which would bar local ordinance prosecutions in self-defense cases. That bill passed both houses but was vetoed by Gov. Rod Blagojevich in August.
In a statement on the group's Web site, Richard Pearson, Illinois State Rifle Association president, said that will be a focus of the association's efforts.
"In penning his decision in the DeMar case, Judge Machnik demonstrated that the courts continue to cling to their cockeyed interpretation of the Second Amendment," 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."
That Judge sucks. I guess the Judge believes everyone else should have Baliffs too, and shouldn't need guns. What an ass.
Further evidence of a sick society.
I hope that he appeals to the state level and, if necessary, to the federal courts. I am sick of governments saying that average people are not "allowed" to own guns. By what right? From where do these morons think that their power is derived?
Ping me if you want to be added to my Bang List.
Let's bring in the NRA, they had a lot of power during the election
Right to privacy, there you go. It makes no sense to claim a SECOND AMENDMENT VIOLATION.
And then Pearson has the cojones to blame it on the judge: "Judge Machnik demonstrated that the courts continue to cling to their cockeyed interpretation of the Second Amendment".
Well, until you start challenging their "cockeyed interpretation" they're going to continue with it.
Why was this brought as a 14th and not a 2nd Amendment claim?
They need to take this to federal court and strike down the ordnance....(IMHO)
Regards
Too bad this guy didn't have a "minimum legal length" sawed-off shotgun instead of a handgun.
That is my first line of home defense, although I own many handguns.
He was challenging a city ordinance, not a federal statute. The second amendment only applies to laws written by the federal government.
The due process clause of the 14th amendment has been used to force the states to protect certain rights, fundamental to the right of liberty guaranteed by the 14th. Sodomy and abortion were decided this way.
The "right to privacy", however, has not been associated with a specific amendment. Rather, it is inferred from various portions of the Bill of Rights and the common law.
"The first Supreme Court decision to fully articulate the right to privacy was Griswold v. Connecticut, which held that the right to privacy included the right for married couples to use contraceptives. In Griswold, Justice Douglas, writing for the Court, famously explained that the guarantees in the Bill of Rights have "penumbras," or somewhat hazy, but obviously present, extensions, which must be read as creating "zones of privacy, such as the First Amendment right of association, the Third Amendment prohibition against quartering soldiers in a home, the Fourth Amendment right to be secure in one's person, house, papers and effects, the Fifth Amendment right to not surrender anything to one's detriment, and the Ninth Amendment right to not deny or disparage any right retained by the people."
-- http://www.fontanalib.org/Constitutional%20Origin%20of%20the%20Right%20to%20Privacy.htm
Oh brother, not that again. Sheesh.
But the U.S. Constitution's right to privacy doesn't cover a handgun at home.
b) Why didn't he just say he startled the guy and he ran off, or that he grabbed a butcher knife and the guy ran off? Was he trying to get arrested for the express purpose of making case law?
what needs to happen is everyone that wants to protect themselv e in this city should hire 6 of the most expensive elite bodyguards in the county and send the bill for thier services to this judge and the city council every month
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.
ARII bump
"Why was this brought as a 14th and not a 2nd Amendment claim?"
Because the traitorous court involved does not recognize our 2nd Amendment as an individual right, just as paulsen erroneously claims, here:
He was challenging a city ordinance, not a federal statute. The second amendment only applies to laws written by the federal government.
Paulsen, our RKBA's is an inalienable personal right. Your effort to class it as infringeable by a city ordinance is sheer anti-constitutional BS.
The due process clause of the 14th amendment has been used to force the states to protect certain rights, fundamental to the right of liberty guaranteed by the 14th.
And its framers thought it would help guarantee our right to bear arms. No such luck, with people like paulsen supporting the gun grabbers.
Sodomy and abortion were decided this way. The "right to privacy", however, has not been associated with a specific amendment. Rather, it is inferred from various portions of the Bill of Rights and the common law.
Our right to privacy is just common sense. It didn't need to be enumerated back in the days when most people had sense.
"The first Supreme Court decision to fully articulate the right to privacy was Griswold v. Connecticut, which held that the right to privacy included the right for married couples to use contraceptives. In Griswold, Justice Douglas, writing for the Court, famously explained that the guarantees in the Bill of Rights have "penumbras," or somewhat hazy, but obviously present, extensions, which must be read as creating "zones of privacy, such as the First Amendment right of association, the Third Amendment prohibition against quartering soldiers in a home, the Fourth Amendment right to be secure in one's person, house, papers and effects, the Fifth Amendment right to not surrender anything to one's detriment, and the Ninth Amendment right to not deny or disparage any right retained by the people." -- http://www.fontanalib.org/Constitutional%20Origin%20of%20the%20Right%20to%20Privacy.htm 13 posted by robertpaulsen
Oh brother, not that again. Sheesh.
14 -Travis Mcgee-
________________________________________________
Yep, its FR's weirdest troll, - paulsen, --- once again doing his best to subvert the clear words of our Constitution.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.